Development of former site of St Paul’s School–Greater London Council held to have had power to resolve to carry out the development, with the result that planning permission was deemed to have been granted by the Minister–No force in submissions attacking procedure followed on ground (for example) of uncertainty–Local objectors’ case dismissed
In these
proceedings the Attorney-General, at the relation of Margaret Turley, Gillian
Islip and Sarah Louisa Copplestone, sought against the Greater London Council
(1)
of land at St Paul’s School in the London Borough of Hammersmith by the
erection of buildings and the execution of related works for housing and/or
educational purposes; (b) that advertisement procedures purportedly carried out
in August 1970 by the defendants under the Town and Country Planning Act 1962
and orders and directions made thereunder were defective; and (c) that planning
permission purported to be granted to the defendants for the development of
land at St Paul’s School in the London Borough of Hammersmith was invalid; and
(2) an injunction restraining the defendants, whether by themselves, their
servants or agents, from taking any steps associated in any way with the
carrying out of any development of land at St Paul’s School in the London
Borough of Hammersmith.
Mr G Dobry QC
and Mr C Lockhart-Mummery (instructed by Norton, Rose, Botterell & Roche)
appeared for the plaintiffs, and Mr K Goodfellow QC and Mr B Knight (instructed
by the solicitor to the council) represented the defendants.
Giving
judgment, GOFF J said that the case was concerned with the development of the
site at Hammersmith which had for many years been occupied by St Paul’s School.
It was about 14 3/4 acres in extent, and after the removal of the school to the
south of the river in 1969 consideration had been given by the responsible
local authorities to the possible future use of the site. The first plan
appeared to have been that the site should be developed for residential and
open space purposes. The Greater London Council acquired title to the site by
conveyances dated 1965, 1968 and 1969. During the first half of 1965 numerous
alternative plans for the site were considered by the Greater London Council
and the Hammersmith Borough Council. On June 11 1969 it was agreed at a meeting
between representatives of the two authorities (1) that there should be a
complex of colleges of further education on the site, which would require six
acres; (2) that the Hammersmith Borough Council would like some public open
space, but was prevented by financial difficulties from purchasing four acres
for such use; and (3) that in view of (2), the Greater London Council’s
officers proposed for the remainder of the site a municipal housing scheme
incorporating an open space which could be enjoyed by the general public. It
was further agreed that a feasibility study of those proposals should be
carried out under the chairmanship of a member of the architect’s department of
the Greater London Council. A feasibility study report was duly completed by
January 1970. In that report it was proposed that of the total site of 14 3/4
acres, six acres should be devoted to educational development and 7 1/2 acres to
housing, the balance being devoted to road improvements. An amenity open space
of approximately two acres, to which the public would have some access, would
be included in the educational and housing sectors. In the course of 1970 the
outline scheme in the feasibility study report was approved by the relevant
committee of the Greater London Council, and the council then proceeded to take
what it understood to be the necessary steps to obtain planning permission for
the proposed development. In doing so, the council purported to act under the
Town and Country Planning General Regulations 1969 (SI 1969 no 286) and the
Town and Country Planning (Development Plans) (Greater London) Direction 1966.
At all material times it was the council’s understanding that outline planning
permission had been obtained by November 16 1971 by virtue of deemed planning
permission under regulation 11(1) of the general regulations of 1969, the final
step in the obtaining of which was the resolution of the council as passed by
certain committees of the council.
In support of
the plaintiffs’ claim, Mr Dobry had submitted (1) that no valid planning
permission had been obtained for the development of the site, because the
Greater London Council was not in law the local planning authority; (2) that
the purported planning permission was in any event void for uncertainty; (3)
that certain procedural requirements, in particular the requirements relating
to the advertisement of the proposed development, had not been sufficiently
complied with, and that that vitiated the purported planning permission; and
(4) that a condition as to time contained in the purported outline permission
had not been complied with and that the planning permission had accordingly
lapsed. The first submission formed the main plank of the plaintiffs’ case.
Section 13(1) of the Town and Country Planning Act 1962 imposed a general
requirement of planning permission for carrying out development of land.
Section 42(1) of the Act made, with certain immaterial exceptions, the
provisions of Part III of the Act, which was concerned with planning control,
applicable in relation to land of local planning authorities. Section 24(2) of
the London Government Act 1963 provided that the Greater London Council was to
be the local planning authority for Greater London as a whole, but section
24(3) of the Act provided that for all purposes of the Town and Country
Planning Acts of 1962 and 1968 the local planning authority for any London
borough should be the council of the borough, and that any application under
Part III of the 1962 Act should be made and determined by such council.
It was common
ground that the development proposed did not accord with the provisions of the
development plan, because in the development plan the site was designated for
educational purposes, whereas the proposed development included some housing.
In other words, the proposed development was a nonconforming development. So
far as planning permission for nonconforming development was concerned, there
were two partly linked chains of statutory authority. The first was derived
from the Town and Country Planning General Development Order 1963 (SI 1963 no
709). Article 10 of that order provided that a local planning authority might
in such cases, and subject to such conditions as might be prescribed by
directions given by the minister, grant permission for development which did
not accord with provisions of the development plan. Further, in exercise of the
powers conferred on him by article 5(11) and article 10 of the general
development order, the minister had made the Town and Country Planning
(Development Plans) (Greater London) Direction 1966, which laid down the
procedures to be followed for granting permission for nonconforming
development. The Town and Country Planning General Regulations 1964 (SI 1964 no
1382), which made provision in Part V for development permission in respect of
development by local planning authorities, had been replaced by the general
regulations of 1969. It was not in dispute that the proposed development of the
St Paul’s site was one of the classes of development to which Part III of the
1969 general regulations applied. It was under the authority of those
regulations that the Greater London Council purported to obtain deemed planning
permission.
It was clear
that the proposed development fell within regulation 10(c) of the 1969 general
regulations, and that the provisions of Part III of the 1962 Act should
accordingly have effect subject to the exceptions and modifications prescribed
in regulations 11 to 15 of the general regulations. Regulation 11 was therefore
applicable, and it was regulation 11(2) which prima facie applied. In
that event the application of the authority seeking permission was to be deemed
to have been referred to the minister under section 22 of the 1962 Act.
However, by regulation 11(4), for the purposes of regulation 11, the
development would not be treated as a nonconforming development, and so would
fall within regulation 11(2), if the local planning authority might grant
permission for such development by virtue of a development order or a direction
given by the minister. If such permission was granted for the proposed
development, regulation 11(2)
upon a resolution being passed under regulation 11(1)(b), planning permission
would be deemed to have been granted by the minister unless the minister
required the authority to make an application to him for permission.
The 1963
general development order was ‘a development order,’ and the 1966 direction was
‘a direction given by the minister thereunder,’ within regulation 11(4).
Paragraph 10 of the 1966 direction made provision, in relation to development
to which regulation 10(c) of the 1969 regulations (formerly regulation 23(c) of
the 1964 regulations) applied, for the procedure in paragraphs 2 to 7 of the
direction to be carried out in relation to a resolution by the relevant
authority to seek authority for the development under the direction as if it
were an application for permission. Accordingly the GLC, as the relevant
authority, had proceeded to invoke that procedure with a view to the case being
taken out of regulation 11(2) of the 1969 regulations and to obtaining the
deemed planning permission under regulation 11(1). On July 20 1970 the scheme
outlined in the feasibility report was approved by the general purposes
committee of the council, subject to the views of the environmental planning
committee. Next day the scheme was approved by the central area board of the
environmental planning committee, and on August 4 the scheme was approved in
principle by the chairman of the housing committee. His approval was confirmed
by the committee on October 1 1970. The decisions together constituted a
resolution by the Greater London Council, as the relevant authority, to seek
authorisation for the development under the 1966 direction. The proposed
development was also advertised in the West London Observer. In response
to that, the council received 51 written objections. Subsequently the
objections were considered, and the council referred the matter to the minister
as required by paragraph 3(1) of the direction. By a letter of January 22 1971
the minister informed the council that he did not require an application to be
made to him under regulation 11(2) of the 1969 general regulations. It
therefore followed that regulation 11(4) applied to take the case out of
regulation 11(2); the case then fell within regulation 11(1), and the council
subsequently resolved, pursuant to regulation 11(1)(b), to carry out the
development, with the effect that planning permission was deemed to have been
granted by the minister.
The
plaintiffs’ first submission was that no valid planning permission had been
given because in law the local planning authority was the Hammersmith Borough
Council and not the GLC. It followed, so the argument ran, that where in the
1966 direction (which was made by the minister in the exercise of powers
conferred upon him under articles 5(11) and 10 of the general development
order), and in the 1969 general regulations, provision was made for the grant
of planning permission by a local planning authority for non-conforming
development, or indeed any steps taken towards granting such permission, the
local planning authority so referred to could only be the council of the
borough — in the present case, Hammersmith. Mr Dobry, for the plaintiffs,
contended that that was the proper construction to place on the words ‘local
planning authority’ in, for example, regulation 11(4) of the 1969 regulations
and in paragraphs 2, 3, 4, 5, 6, 7 and 10 of the 1966 direction. That
submission failed. No doubt in an ordinary case, where for example a private
citizen applied for planning permission in respect of a nonconforming
development in a London borough, the local authority which had power to deal
with the matter was the council of the borough. The matter would be dealt with
by such council under the 1966 direction, the line of authority being from Part
III of the 1962 Act through article 10 of the 1963 general development order.
But the present case was not such a case.
The present
case had been dealt with under the 1969 general regulations, which expressly
provided that in relation to the proposed development Part III of the 1962 Act
would have effect subject to the exceptions and modifications prescribed in
regulations 11 to 15. Furthermore, having regard to the broad definition of
‘local planning authority’ in article 2 of the general regulations, and to the
fact that Part III related (as the heading of Part III and the contents of
regulation 10 demonstrated) to development by local planning authorities, he
(his Lordship) had no doubt that the expression ‘local planning authority’ in
regulation 11(4) meant the relevant local planning authority seeking permission
to develop land referred to in regulation 10, which in the present case meant
the Greater London Council. Regulation 11 of the 1969 regulations provided a
simple and intelligible procedure for a local authority, such as the GLC in the
present case, to obtain planning permission for any of the developments
specified in regulation 10. In his (Goff J’s) judgment, under that procedure
the local planning authority which in each case granted such planning permission,
whether the development was a conforming or nonconforming development, was the
local planning authority which sought planning permission unless the matter was
decided by the minister under either regulation 11(1) or 11(2).
The plaintiffs
next contended that the planning permission was void for uncertainty because
the approvals of the three committees which were intended to constitute the
necessary resolution by virtue of regulation 11(1)(b) of the 1969 regulations
were too vague; because they referred to no drawings; because there was
development of two authorities, the GLC and ILEA; because there was no
appropriation of land to each development; and because the approval of the
subcommittee of ILEA did not identify the development by reference to the feasibility
study report. All those points failed. The necessary approval was given, and
the resolution of the council passed, when the chairmen of the three
committees, in exercise of their powers under standing orders, signified their
approval of the report of the joint director of planning and transportation by
signing the report. That signed document constituted the resolution. There were
not two separate developers, for the ILEA was a statutory committee of the GLC.
Mr Dobry had
gone on to contend that the planning permission was vitiated because of alleged
defects in the newspaper advertisement inviting objections to the scheme. The
advertisement could have been better drafted; he (his Lordship) had however
come to the conclusion that such ambiguity as there was in the advertisement
was not sufficient to prevent its complying with the requirements of paragraph
2, which could require no more than that the advertisement contained a very
general description of the proposed development. Mr Goodfellow, on behalf of
the council, had submitted that even if the advertisement did not comply with
paragraph 2, that would not of itself vitiate the planning permission. When,
said Mr Goodfellow, the minister made a decision whether or not to exercise his
powers under the direction he was making a purely administrative decision.
Accordingly, it was said, the highest the point could be put against the
defendants was that the advertisement must be capable of satisfying the
requirements of paragraph 2, and the minister was the sole judge of whether it
was sufficient. There was considerable force in that submission, although it
was not necessary for the court to reach a decision on it.
Mr Dobry’s
fourth contention was that a condition as to time imposed in the outline
planning permission had not been complied with, with the consequence that the
planning permission had lapsed. The condition as to time was contained in the
recommendation approved by the chairman of the central area board of the
environmental planning committee on September 24 1971, forming part of the
resolution which resulted in the grant of the deemed outline planning
permission. The relevant conditions were:
(1) Detailed
drawings of the proposed development shall be submitted to and approved by the
committee before any work is commenced on the site and the development shall
not be carried out otherwise than in accordance with the drawings so approved,
such drawings to show (a) the layout of the site, the siting of the
building(s), the means of access and adequate parking and turning spaces, and
(b) the design and external appearance of the building(s).
(2)
Application for the approval of the matters reserved by the aforementioned
condition no (1) must be made to the committees not later than the expiration
of three years from the date of the deemed planning permission . . . the
development to which this permission relates must be begun not later than
whichever is the later of the following dates: (i) the expiration of five years
from the date of the deemed planning permission; or (ii) the expiration of two
years from the final approval of the matters reserved by the aforementioned
condition no (1), or, as in the case of approval on different dates, the final
approval of the last such matter to be approved.
On behalf of
the plaintiffs it was contended that the detailed drawings relating to the
proposed educational development did not contain anything relating to
landscaping or car-parking or facing materials. In relation to the proposed
housing development, it was contended that the detailed drawings submitted to
the committee contained nothing relating to landscaping or facing materials. No
plans containing such details had been submitted within three years from the
date of the deemed planning permission, and accordingly the condition had not
been complied with and the outline planning permission had lapsed. That point
failed. The conditions did not expressly require landscaping as such to be
shown in the detailed drawings; all that was required was that the drawings should
show the layout of the site and the siting of the buildings, and that
requirement had been satisfied. Nor did the conditions expressly require facing
materials as such to be shown. Even if the point had succeeded, the defect
could have been cured immediately by a simple resolution of the council,
because the alleged defect did not in any way affect the validity of outline
planning permission. Since all the submissions advanced on behalf of the
plaintiffs failed, the action should be dismissed.
The
defendants were awarded costs.