Town and Country Planning Act 1971 — Application to quash order of Secretary of State for the Environment dismissing appeal against refusal by local planning authority of permission for development — Original application for permission related to 35 acres and 420 dwelling units — On the refusal of permission for this development the applicants appealed to the Secretary of State and at the public inquiry put forward an alternative proposal for development of 25 acres with 250 dwelling units — The Secretary of State dismissed the appeal and expressed the view that he had no power to grant permission for development on a smaller site and at a lower density than those indicated on the application — Secretary of State misdirected himself by acting on the principle that conditions could only be used to reduce development below that proposed in the application where the application was severable — The correct test was whether the development permitted was in substance different from that for which application was made — As the Secretary of State fell into error in this respect his decision had to be quashed
This was an
application by Bernard Wheatcroft Ltd to quash an order by the Secretary of
State for the Environment dismissing an appeal by the applicants against
refusal of planning permission by Harborough District Council. The site
concerned in the proceedings was a 35-acre portion of agricultural land forming
part of a larger area owned by the applicants at Bitterswell Road, Lutterworth,
in the District of Harborough. The first respondent, the Secretary of State,
was not represented, as he had formed the opinion that his decision could not
be defended. The district council, however, decided to contest the application.
J C Harper
(instructed by R G Frisby & Small, of Leicester) appeared on behalf of the
applicants; J Sullivan (instructed by the solicitor to Harborough District
Council) represented the second respondents, the district council; the first
respondent, the Secretary of State, was not represented and took no part in the
proceedings.
Giving
judgment, FORBES J said: In this case Mr Harper moves to quash an order of the
Secretary of State for the Environment whereby he dismissed an appeal against
refusal of planning permission by the second respondent, the Harborough
District Council.
Secretary of State is not represented.
The facts may
be set out briefly as follows. The applicants own a large area of agricultural land
at Bitterswell Road, Lutterworth, in the District of Harborough. The site with
which we are concerned was a 35-acre portion of that land lying to the north of
Lutterworth and immediately adjacent to a developed area of that town, a large
portion of which in fact was a previously developed estate of the applicants.
The applicants also own a still further area of 7 acres of land which was not
included in the application. In 1972, despite objection by the local planning
authority, the Secretary of State decided that 25 acres of the 35 now applied
for were suitable for development if two problems could be overcome. The first
was surface water disposal and the second was access to Bitterswell Road. He
said, as I understand it, that the access problem alone would not have been
sufficient to prevent planning permission being granted. After that appeal, and
encouraged by the Secretary of State’s decision, the applicants purchased some
further land, which enabled, in their view, the access problem to be overcome,
and that land was included in the current application. But the 35 acres
included further land, beyond the original 25 and not included in the access
land, which extended into open meadow with no particular natural boundaries.
The application was made on the appropriate form on April 3 1978. After giving
the address of the site and identifying the 35 acres on a plan the applicants
went on to answer an invitation on the form to state the number of dwelling
units proposed by filling in ‘approximately 420 dwellings’. It is pointed out
that this is the mathematical result of taking a density of 12 houses to the
acre over the whole of the 35-acre site. That application was refused by the
second respondents, the local planning authority, on July 12 for a variety of
reasons including amenity, population, access, traffic and surface water
disposal. The applicants appealed to the Secretary of State on December 22
1978, and a public inquiry was held on January 22 to 24 1980. On January 4,
that is less than three weeks before the inquiry was due to be held, the
applicants wrote to the local planning authority indicating that they were
proposing to put forward another proposal and submitted what they described as
a schematic layout showing about 250 dwellings on a reduced area of 25 acres.
The letter emphasised that the applicants ‘would wish the schematic layout to
be considered as a viable alternative proposal to the application as originally
submitted only if the issue of scale of development is deemed to be critical to
the determination of the appeal and without prejudice to the proposals
contained in the original application’.
On January 11
the planning authority wrote back: ‘My council is of the opinion that this is a
new application and should be considered in the normal way, that is determined
by the council after consultation with interested parties’, etc. At the inquiry
the applicants called a planning consultant who said that he could not support
the development of 420 units on the 35-acre site, and he produced three
alternative plans. Two of them provided for 250 dwellings on 25 acres and
differed only in their proposals for access and internal roads. The third
included another 6 acres, making 31 in all, and provided for 330 to 350
dwellings. The planning authority’s case was almost wholly concerned to argue
that any development on this site would have undesirable consequences, although
it is clear that the impact of the development reduced to 250 houses had been
examined by the traffic experts of the county council who appear to have given
evidence that even this reduced number was unacceptable on traffic grounds. The
planning authority maintained at the inquiry that the Secretary of State could
not legally reduce the area of the appeal site by 10 acres, and that he only
had power to deal with the application as submitted.
It was
accepted that the surface water objection could be adequately resolved by using
a balancing reservoir scheme, and this reason for refusal was abandoned.
Various other
parties appeared at the inquiry. A fair reading of their evidence and arguments
recorded in the inspector’s report is that they objected to any development on
the site. One of them clearly stated that even 250 houses would be
objectionable. The inspector reported on March 6 1980. It is unnecessary to
refer to his report other than to summarise his conclusions and
recommendations. His conclusions were, first, that it was a legal matter for
the Secretary of State to determine whether it was possible to restrict any
planning permission granted on that appeal to an area smaller than 35 acres and
to fewer than 420 dwellings. Secondly, if the appeal was restricted to
consideration of 420 dwellings on 35 acres, he felt that it should be
dismissed. And thirdly, if it was permissible to restrict the area to 25 acres
and for the number of dwellings to be reduced, then such development would not
be objectionable. He recommended that, on the assumption that there was no
legal bar to such action, permission should be granted for the erection of
dwellings on 25 acres at a density of 10 to the acre.
The Secretary
of State gave his decision by a letter dated April 24 1980. After setting out
the inspector’s conclusions and recommendations he went on in paragraphs 4 and
5:
4. Having
regard to the inspector’s conclusions concerning a smaller site than that
proposed in the application under appeal, while it is accepted that there are
circumstances where a split decision would be appropriate, the opinion is held
that where an appeal results from an application for permission to erect a
specified number of dwellings without any indication at all of their sizes or
of the individual plots, the proposed development is not severable and it would
be improper to purport to grant permission in respect of part of the site or
for a lesser number of houses. In this particular case it must be noted that
although plans D, E and F illustrate a possible layout and a reduced
approximately 25-acre area of the appeal site for about 250 dwellings which
your clients agree would be an acceptable alternative development, it was
clearly indicated at the inquiry that these plans, which were submitted after
the appeal had been made, were not provided as replacements for the original
appeal proposals. Consequently the view is held that it would not be
appropriate for the appeal proposal to be severed or reduced, and the Secretary
of State has therefore considered the appeal on the basis of the original
application before him.
5. The
Secretary of State agrees with the inspector’s conclusions regarding the
proposal on this appeal and concurs with his opinion that the appeal should be
dismissed. Any proposal for a smaller development would have to be the subject
of a further application which would lead to consideration by the local planning
authority in the first instance. In the circumstances the Secretary of State
does not propose to comment on any of the inspector’s conclusions regarding a
reduced development. For the reasons given he does not accept the inspector’s
recommendations and thereby dismisses the appeal.
The real
question in this case is whether the Secretary of State was right in
considering that he had no power to grant planning permission for development
on a smaller site and with houses at a lower density than were indicated on the
application form originally submitted to the local planning authority.
Mr Sullivan,
however, had an argument that on a true reading of the decision the Secretary
of State was in fact exercising his planning discretion. It will be convenient
to deal with this argument first. The inspector in his conclusions and
recommendations clearly poses a legal question. I have no doubt that in
paragraph 4 the Secretary of State was attempting to answer it. When he uses
the term ‘improper’ in the first sentence of this paragraph, he refers, it
seems to me, to an improper, that is an illegal, use of powers. This first
sentence sets out in general terms the legal proposition to which the Secretary
of State commits himself. One can expand it in the context of the appeal in
this way. If the application indicates a number of sites for development, each
with a single house, then it can be severed by as it were lopping off
individual sites. In such a way permission can be granted for a reduced area or
for a lesser number of houses. But if all you have is an area covered by the
application and a number of houses proposed to be built on it, such severance
is impossible and therefore reduction in the area or the number of houses is
improper, because no power is given to achieve a reduction by this means. Put
simply, the Secretary of State is saying, ‘The only way in which I can properly
exercise my powers and achieve a reduction in the area or the number of houses
is if the application can be regarded as severable. If it cannot be so regarded
I have no power to achieve this end.’
The second sentence in paragraph 4 does no more than set out those
circumstances in the current appeal which led the Secretary of State to say
that despite the other proposals put forward what he is dealing with is a
non-severable application. The last sentence is the conclusion to the other
two. The three sentences of this paragraph, properly read,
applications can result in planning permission for a reduced area: this is not
a severable application: therefore it cannot result in planning permission for
a reduced area. Like all syllogisms the conclusion is valid only if the
premises are sound. It remains to be seen whether the major premise here is a
valid statement of the law.
The powers of
the Secretary of State are derived from section 36(3) of the Town and Country
Planning Act 1971. They are well known but I should refer to them.
Where an
appeal is brought under this section from a decision of a local planning
authority, the Secretary of State, subject to the following provisions of this
section, may allow or dismiss the appeal, or may reverse or vary any part of
the decision of the local planning authority, whether the appeal relates to
that part thereof or not, and may deal with the application as if it had been
made to him in the first instance.
What can be
done when the application is made in the first instance is to be found in
section 29(1):
Subject to
the provisions of sections 26 to 28 of this Act, and to the following
provisions of this Act, where an application is made to a local planning
authority for planning permission, that authority, in dealing with the
application, shall have regard to the provisions of the development plan, so
far as material to the application, and to any other material considerations,
and
subject to
certain sections of this Act
may grant
planning permission, either unconditionally or subject to such conditions as they
think fit.
At this point
I can I think go straight to the judgment of Lord Widgery CJ in Kingston-Upon-Thames
Royal London Borough Council v Secretary of State for the Environment
[1973] 1 WLR 1549, the passage I wish to refer to being at p 1552:
. . . one has
got to look at the learning on the question of what conditions can properly be
attached to planning permissions. The attachment of conditions to planning
permissions is as old as the planning legislation itself, and is now to be
found in section 30(1) of the Town and Country Planning Act 1971: ‘Without
prejudice to the generality of section 29(1) of this Act, conditions may be
imposed on the grant of planning permission thereunder — (a) for regulating the
development or use of any land under the control of the applicant (whether or
not it is land in respect of which the application was made) or requiring the
carrying out of works on any such land, so far as appears to the local planning
authority to be expedient for the purposes of or in connection with the
development authorised by the permission. . . .’ Those are wide words; they clearly on their
face entitle the local planning authority to impose conditions which affect
land not the subject of the application itself, and which go to the restriction
of the past user or the removal of existing works. Although they are wide it
has been recognised for a very long time that they are subject to certain
restrictions. The two principal restrictions which the courts have placed on
those words are first that a condition is invalid as being contrary to law
unless it is reasonably related to the development in the planning permission
which has been granted. It must not be used for an ulterior purpose, and must,
in the well-known words of Lord Denning MR in Pyx Granite Co Ltd v Minister
of Housing and Local Government [1958] 1 QB 554, 572, ‘fairly and
reasonably relate to the permitted development’. The second restriction on
those words which the courts have adopted in recent years is that a condition
which is so clearly unreasonable that no reasonable planning authority could
have imposed it may be regarded as ultra vires and contrary to law and
treated as such in proceedings in this court. But as far as I know those are
the only two general limitations on the wide powers in section 30 of the Town
and Country Planning Act 1971.
Mr Sullivan
initially argued that the Secretary of State was right and that severability
was the only test. In his subsequent submissions, however, he seemed to have
abandoned that stance, because they proceed on the basis that the proper test
is whether the development permitted is in substance different from that
applied for. The extent to which this latter formulation is incompatible with
the former I shall deal with in a moment. Although therefore Mr Harper and Mr
Sullivan put forward a number of propositions, in the end I do not think they
differ markedly from each other on the essential principles governing the
question of when conditions can be regarded as intra vires. Both I think
accept as a starting point the passage in Lord Widgery’s judgment which I have
just quoted. In the context of that passage the question here is whether it is
permissible to grant a planning permission subject to a condition that only
what I might call a ‘reduced development’ is carried out. Both counsel, I
think, accept that it is permissible to grant planning permission subject to
such a condition, and both I think would seek to limit such conditions to those
which do not alter the substance of the application: and both agree that in
considering whether it is right to grant planning permission subject to such a
condition the planning authority should, among other things, have regard to one
of the underlying purposes of Part III of the Act of 1971, which is to ensure
that before planning permission is granted there should be adequate
consultation with the appropriate authorities and a proper opportunity for
public comment and participation. The broad proposition therefore, as I see it,
to which both counsel would give assent is that a condition, the effect of
which is to allow the development but which amounts to a reduction on that
proposed in the application, can legitimately be imposed so long as it does not
alter the substance of the development for which permission was applied. If it
does alter the substance, so the argument goes on, it cannot legitimately be
imposed, because there has been no opportunity for consultation and so on about
what would be a substantially different proposal. Parliament cannot have
intended conditional planning permission to be used to circumvent the
provisions for consultation and public participation contained in this part of
the Act.
Now the test
of substantial difference is not at all the same thing as the test of
severability. It is possible to imagine an application for two related
developments on the same piece of land, say a major and a minor development,
which is clearly severable into these two portions. To give planning permission
subject to a condition that the minor development were not carried out might
well not alter the substance of the application. On the other hand, if the
condition prevented the major development being carried out, that might well
amount to a permission substantially different from the application. Thus the
application of the severability test alone could result in planning permission
being given for development which is substantially different from that applied
for. The proposition that conditions can only be used to reduce the development
below that proposed in the application where the application is severable is
derived from a decision of Sir Douglas Frank QC, sitting as a deputy High Court
judge in a case called Kent County Council v Secretary of State for
the Environment (1976) 33 P & CR 70. That decision itself clearly arose
from the argument put forward by counsel for the Secretary of State, which was
in these terms and recorded in the judgment at p 75:
1. Where an
application contained a number of separate and divisible elements it was lawful
for them to be separately dealt with. 2. Alternatively, if the elements were
not divisible there was power to modify the application providing that (a) the
scope of the development was not enlarged; (b) the essential nature of the
development was not altered; and (c) any persons affected were given a chance
to make representations.
It can be seen
that the second alternative formulation looks remarkably like the proposition
to which I have just referred and to which both counsel would assent. In giving
judgment, Sir Douglas Frank acceded to the first part of this argument and
presumably thought it in consequence unnecessary to deal with the second. The
Secretary of State in the case I am dealing with has clearly directed himself
that it is only if the application is severable that he can by condition reduce
the ambit of the planning permission granted. He has had no regard to the
question whether the planning permission if granted subject to a condition
would be substantially different from that applied for.
For my part I
cannot accept that the proper test is whether the development proposed in the
application was severable or not. Unless coupled with a requirement that the
result must not be substantially different from the development applied for, it
would be possible, as I have just indicated, for local planning authorities to
grant planning permission for developments which were in fact substantially
different and thus defeat the consultative objects of Part III of the 1971 Act.
The severability test, therefore, could only be a proper one if combined with a
test of substantial difference. But I can see no justification for the
severability test at all. It should be remembered that we are dealing here with
applications for outline planning permission. Many of these applications are no
doubt for multiple purposes, some of them severable, some of them perhaps not.
But many applications, as here, are for single purposes, for instance
residential development. Why should it be impossible for the local planning
authority to say on an application for outline planning permission: we think 35
acres is too much but 25 will be all right; and similarly with a reduction in
density? As long as the reduction passes
the test of not altering the substance of the application what vice is there in
that? It is clearly a condition fairly
and reasonably related to the permitted development (see Pyx Granite, supra)
and it is not unreasonable under the Wednesbury doctrine. To give
permission for a substantially different development would, on the other hand,
be unreasonable as that word is understood in these cases (see, for instance, a
passage from the judgment of Diplock LJ, as he then was, in Mixnam’s
Properties v Chertsey Urban District Council [1964] 1 QB 214 at p
237) because it would not be what Parliament intended for a consultation
process to comprehend. The test of substantial difference is thus firmly based
on the broad principles of Wednesbury. The severability test, on the
other hand, seems to me to have no particular validity. To grant a planning
permission for part only of an application which was not severable does not
appear, merely on that fact, to run counter to either of the two general
limitations referred to by Lord Widgery in the Kingston case. Perhaps
the argument on severability put forward by the Secretary of State in the Kent
County Council case and accepted by Sir Douglas Frank had its origin in the
fact that the application in that case clearly was severable. But that does not
seem to me to justify its elevation into a matter of general principle.
I conclude for
my part that there is no principle of law which prevents the Secretary of State
from imposing conditions which have the effect of reducing the permitted
development below the development applied for except where the application is
severable. The Secretary of State clearly directed himself that there was such
a principle and thus fell into error, and his decision must be quashed.
I should add a
rider. The true test is, I feel sure, that accepted by both counsel: is the
effect of the conditional planning permission to allow development which is in
substance not that which was applied for?
Of course in deciding whether or not there is a substantial difference
the local planning authority or the Secretary of State will be exercising a
judgment and a judgment with which the courts will not ordinarily interfere
unless it is manifestly unreasonably exercised. The main, but not the only,
criterion upon which that judgment should be exercised is whether the development
is so changed that to grant it would be to deprive those who should have been
consulted on the changed development of the opportunity of such consultation.
And I use these words to cover all the matters of this kind with which Part III
of the Act deals.
There may of
course be in addition purely planning reasons for concluding that a change
makes a substantial difference; but I find it difficult to believe that where a
proposed development has been the subject of such consultation and has produced
a root and branch opposition to any development at all, whether larger or
smaller, it should be necessary in all cases to go again through the process of
consultation about the smaller development. It is clear that in this case the
processes of consultation had resulted in such root and branch opposition and
further consultation could not result in more opposition but only, if there was
any change in public attitudes, in less. In those circumstances Mr Harper
invites me to say that only an unreasonable Secretary of State could conclude
that the course recommended by the inspector would result in a development
substantially different from the application. In consequence, he says I should
make an order, the effect of which would be to substitute for the dismissal of
his client’s appeal planning permission as recommended by the inspector. But as
I understand it all I have power to do under section 245 of the 1971 Act is to
quash the order, and that is all in fact that Mr Harper’s notice of motion asks
me to do. The court cannot grant planning permission. I must decline his
invitation and merely order that the Secretary of State’s decision should be
quashed.
I might add
that I have come to my general conclusion with a certain feeling of
satisfaction, as it seems to me to permit a welcome degree of flexibility in
the conduct of planning applications and appeals while at the same time
maintaining adequate safeguards for the interests of those in whose favour the
provisions for consultation were enacted.
The Secretary
of State’s order was quashed, the Secretary of State to pay such costs as would
ordinarily have been incurred by the applicants if the Secretary of State had
submitted to judgment, the balance of costs to be borne by the district
council.