Planning application — Access land outside applicant’s control — Inspector finding for applicant subject to agreement over access land — Refusal of landowner to make land available — Planning permission refused on that ground — Whether planning permission to be granted subject to condition — Whether fact that land within or outwith applicant’s control material factor — First instance decision upholding refusal of grant of planning permission — Appeal dismissed
The appeal site concerned part of the former Feltham Marshalling Yards and adjacent land. The yards had been disused since 1969 and comprised an area of open land with areas of natural plant succession. In May 1988 the British Railways Board applied to Hounslow London Borough Council for outline planning permission for residential development, associated open space and road, cycle and pedestrian access, via either the A312 or the A314. Permission was refused by the council on the ground, inter alia, that the proposed development would involve the destruction of areas of significant nature conservation interest. On the deemed refusal of the planning authority to consider appeals within the prescribed time, a public inquiry was held and the inspector concluded that the application be approved which provided for access from the A314. As land for this access was in the hands of the council and not in the hands of the British Railways Board, the inspector proceeded upon that assumption that a section 52 agreement under the 1971 Act would be concluded between the board and council.
That agreement was not forthcoming despite negotiations between the parties and the expressed readiness of the board to reach such an agreement. The Secretary of State refused an appeal by the board in June 1990 on the grounds that the council had indicated that “they are not minded to enter into … an agreement. As the Secretary of State agrees with the inspector that the proposed section 52 agreement is necessary … it follows that in [its] absence … he is not prepared to allow this appeal and grant planning permission”. The board’s application to the High Court to quash the decision was refused. The board appealed.
Counsel for the board submitted, inter alia, that although the land necessary for the road access was not owned by the board, it was nevertheless within the application site rather than outside it.
Held The appeal was dismissed.
1. In Grampian Regional Council v City of Aberdeen District Council (1983) 47 P&CR 633, the House of Lords held that where a proposal for development had been found to be generally desirable in the public interest, it would have been not only reasonable but highly appropriate to grant planning permission subject to the condition in question.
2. However, the reasonableness of a condition fell to be considered in all the circumstances of the case. Where a condition had no reasonable prospects of the action in question being performed, it would be unreasonable to impose it: see Jones v Secretary of State for Wales (1990) 61 P&CR 238.
3. Further, no distinction was to be drawn, as the board had sought to do, regarding any reasonable prospect of a condition being implemented where the land on which the condition was to be applied was within the control of the person applying for planning permission or was not part of his appeal site.
4. Designation of plans submitted could include land for which planning permission was sought irrespective of under whose ownership or control the land was at the time application for planning permission was made. None the less, there was no point in imposing Grampian-type conditions where the applicant had no prospects of fulfilment of those conditions — no matter how the plans had been drawn. On either view, a planning permission should not be granted where it had to be subject to a condition which could not be satisfied.
5. In the present case, in view of the planning authority’s attitude, the condition of access could not be fulfilled. The board had no power to compel the council to make the land available for access and the Secretary of State had no power to compel the council in exercise of his planning powers to make that land available — irrespective of whatever other powers he might have as those were not germane to the present appeal.
6. In the event, the judge had reached the right decision and he was not bound to allow an appeal subject to a condition which could not have been satisfied.
Jeremy Sullivan QC and Nicholas Huskinson (instructed by the solicitor to British Railways Board) appeared for the appellant; John Howell (instructed by the Treasury Solicitor) appeared for the respondent, the Secretary of State for the Environment.
