Conditions — Planning application for housing development — Proposed access over land owned by local planning authority — Inspector recommending grant of permission subject to section 52 agreement — Council refusing to enter into agreement to provide land for access — Secretary of State dismissing appeal — Whether permission should have been granted subject to Grampian condition — No reasonable prospect of applicants obtaining control of access land during life of permission — Whether position different where access land included as part of application site
British
Railways Board (‘BRB’) sought planning permission to develop part of the former
Feltham marshalling yard for housing, while preserving part of the land as an
ecological site. Two alternative accesses were proposed, one from the A312
Uxbridge Road and the other from the A314 Hanworth Road. The access from the
A314 would be over land owned by the local planning authority, Hounslow London
Borough Council. The submitted plan included this access land as part of the
application site. On appeal by BRB against a deemed refusal by the council, the
inspector recommended that the application providing for access from the A312
be refused but that the application providing for access from the A314 be
approved and planning permission granted, subject to the completion of a
section 52 agreement between BRB and the council. The Secretary of State
substantially agreed with the inspector and invited the parties to conclude
their section 52 agreement. The council decided that they would not enter into
any agreement which involved providing land for the access and, consequently,
the Secretary of State refused permission and dismissed the appeal. An
application to quash his decision was dismissed by the deputy judge, Mr Gerald
Moriarty QC. BRB appealed, contending that conditional permission ought to have
been granted and that the reasoning in the cases on when a Grampian
condition could be imposed only applied where the required works were to be
done on land which was not part of the application site.
It made no
difference that the access land was part of the application site. However the
application was drawn, it would be nonsense to grant planning permission
subject to a condition which the applicants had no reasonable prospect of being
able to satisfy during the life of the permission. The council’s attitude was
clear, and it was accepted that neither BRB nor the Secretary of State,
exercising his planning functions, had power to compel the council to make the
necessary land
Decision of Mr
Gerald Moriarty QC affirmed.
to in the judgements
Grampian
Regional Council v City of Aberdeen District
Council (1983) 47 P&CR 633; 1984 SLT 197; [1984] JPL 590, HL
Jones v Secretary of State for Wales (1990) 61 P&CR 238;
[1990] 3 PLR 102, CA
Proberun
Ltd v Secretary of State for the Environment
[1990] 3 PLR 79; [1990] JPL 585; sub nom Medina Borough Council v Proberun
Ltd (1990) 61 P&CR 77, CA
Appeal against
decision of Mr Gerald Moriarty QC
This was an
appeal by British Railways Board against the decision of Mr Gerald Moriarty QC
(sitting as a deputy judge of the Queen’s Bench Division) on December 20 1991
whereby he dismissed the Board’s application under section 288 of the Town and
Country Planning Act 1990 to quash a decision by the first respondent, the
Secretary of State for the Environment, given by letter dated June 5 1990,
which dismissed the Board’s appeal against the deemed refusal by the second
respondents, Hounslow London Borough Council, of planning permission for
residential development of part of the former Feltham marshalling yard.
Sullivan QC and Nicholas Huskinson (instructed by Simon Osborne, solicitor to
British Railways Board) appeared for the appellants.
(instructed by the Treasury Solicitor) appeared for the first respondent, the
Secretary of State for the Environment.
respondents, Hounslow London Borough Council, did not appear and were not
represented.
following judgments were delivered.
DILLON LJ: This is an appeal by British Railways Board against a decision of Mr
Gerald Moriarty QC, sitting as a deputy judge of the Queen’s Bench Division,
given on December 20 1991. By his decision the deputy judge dismissed with
costs an application by British Railways Board, under section 288 of the Town
and Country Planning Act 1990, to quash the decision of the Secretary of State
for the Environment, who is respondent to the appeal, given by a decision
letter of June 5 1990, which dismissed an appeal by British Railways Board
under section 37 of the Town and Country Planning Act 1971 against a deemed
refusal by Hounslow London Borough Council of planning permission to develop
part of the former Feltham marshalling yard for residential purposes. Hounslow
London Borough Council were the local planning authority. The application for
planning permission was made on May 19 1988. There was a deemed refusal because
the matter was not dealt with by Hounslow Council within the due time-limits.
Feltham
marshalling yard ceased to be used as a marshalling yard some 30 years ago and
since then nature has to some extent taken over and there are aspects of the
site regarded as of ecological value. The basis of the application for planning
permission was to obtain permission to erect houses, but to preserve part of
the land as an ecological site.
The planning
application set out the proposal as being ‘Residential Development, associated
open space and other facilities, and road, cycle and pedestrians access’. It is
the access which creates the difficulty. British Railways Board put forward two
alternative options in respect of access. One would give access from the A312,
Uxbridge Road, and the other would give access from the A314, Hanworth Road. Of
the two the inspector preferred the access from the A314 and refused the
application for permission for development with access from the A312. This is
not challenged and so it is possible to ignore the A312 application.
So far as the
A314 access is concerned however, it is necessary for that to be over land
which is owned by Hounslow London Borough Council. British Railways Board has
not itself the necessary land to gain access to the A314. The implications of
this seem to have been the subject of discussion at the public inquiry which
was held in relation to the appeal by British Railways Board to the Secretary
of State against the deemed refusal, and the recommendation of the inspector at
the end of his report, which is dated September 13 1989, was:
(i) That the application providing for access
from the A312 be refused.
(ii) That the application providing for access
from the A314 be approved and planning permission be granted, both [subject] to
the completion of a s52 agreement . . .
between British
Railways Board and Hounslow London Borough Council and to certain other
conditions which are mentioned in a paragraph which I need not go into any
further.
The inspector
expressed the view that British Railways Board’s proposal was ‘an appropriate
compromise between the need for further housing and the interests of nature
conservation, and would enable a large area to be permanently retained for
nature conservation purposes’. He stated that there was no agreement between
the parties on a section 52 agreement, though he hoped that that could be
achieved. There were heads of terms of agreement which were being considered,
and the course taken by the Secretary of State on receiving the inspector’s
report was to state that he was in substantial agreement with it and to invite
British Railways Board and Hounslow Council to get on with concluding their
section 52 agreement.
What happened
in fact was that there was considerable further negotiation. British Railways
Board accepted in principle various points which were put forward by Hounslow
Council in relation to various aspects of the proposed section 52 agreement,
and intimated their readiness to execute the agreement in the final form that
the draft had reached. But Hounslow Council decided that they would not enter
into any section 52 agreement which would involve their providing land for the
access to this development. The particularly crucial provisions in the final
form of agreement were para 1 of Schedule 3 which provides that:
The Council
shall make available on terms to be agreed as to finance and routing the land
required to construct the roadway linking the Development with the A314
together with the associated footpaths and cycle-ways as aforementioned and all
associate landscaping areas.
The agreement provided
by clause 4 that ‘The Council . . . [covenanted] with the Developer as provided
in the Third Schedule’. There is also in Schedule 2 in para 4 an obligation
that:
The Council
shall grant to the Developer on terms to be agreed as to finance and routing
such easements rights and privileges over any of its adjoining land or premises
shown verged brown on the Plan as shall be reasonably required in connection
with the provision of services for the Development or the subsequent
maintenance repair alteration replacement or removal thereof.
Since the
council refused to agree the section 52 agreement, the Secretary of State
refused the planning permission that was sought and dismissed the appeal.
British Railways Board consequently made their application under section 288,
from which the present appeal is brought. It is the submission of British
Railways Board, in effect, that the Secretary of State had no power to refuse
the planning permission sought and was acting unreasonably in doing so
notwithstanding that, by the end of the correspondence which had taken place
after the inspector had made his report, it was plain that there was no
prospect at all of the council agreeing to enter into the section 52 agreement.
That strikes
me as a surprising proposition because there are a number of authorities in
which the courts have stressed that it is unreasonable to impose a condition
which cannot be satisfied, and it is relevant to consider whether any
conditions sought to be imposed are reasonably likely to be satisfied. The
principal authority is the decision of the House of Lords in Grampian
Regional Council v City of Aberdeen District Council (1983) 47
P&CR 633. That was concerned with access to a particular site and with the
view of the reporter that traffic to and from the site would constitute such a
hazard as to justify the refusal of planning permission unless an existing road
could be closed.
In the House
of Lords the leading speech, with which the rest of their lordships agreed, was
given by Lord Keith. He refers to the relevant sections in the then Act and he
says at the foot of p 636, in rejecting the appellants’ contentions, that:
. . . there
is a crucial difference between the positive and the negative type of condition
in this context, namely that the latter is enforceable while the former is not.
In the second place, the reasonableness of any condition has to be considered
in the light of the circumstances of the case. In this case the proposals for
development put forward by the first respondents were found by the reporter to
be generally desirable in the public interest. The only aspect of them which he
regarded as disadvantageous was the traffic problem they would be likely to
cause at the Findon House junction. That problem was capable of being solved by
the closing of the southern part of Wellington Road, something which had at
least reasonable prospects of being achieved under statutory powers to that
effect. In the circumstances, it would have been not only not unreasonable but
highly appropriate to grant planning permission subject to the condition that
the development was not to proceed unless and until the closure had been
brought about.
His reference
to the solution being something which had at least
authorities. In particular it is referred to in the judgment of Glidewell LJ in
this court in Medina Borough Council v Proberun Ltd (1990) 61
P&CR 771, which was again concerned with a condition imposed,
requiring local authority approval to means of access, though the question was
one of construction of the condition — whether it meant approval of access over
land in the applicants’ control or whether it purported to extend wider than
that.
1Also reported, sub nom Proberun Ltd v Secretary of State
for the Environment [1990] 3 PLR 79.
In the final
paragraph of his judgment, Glidewell LJ says, after dealing with certain other
points on which he founded his decision2:
But even if I
were wrong about that, there is no evidence in this case that there is any
prospect that the developers could, or might, acquire the necessary rights over
adjoining land to create a different form of junction or a junction of Medham
Lane with Newport Road at a different place. In the absence of such evidence,
there was missing the factual ingredient which rendered the Grampian
condition reasonable in that case. I refer back to the passage I read from the
speech of Lord Keith. Even, therefore, if the condition, contrary to my view,
could be construed as being a negative Grampian type condition, it would
still in my view not be valid because on its face it was not reasonable.
2[1990] 3 PLR 79 at p 87D.
It was not
reasonable because it would have required the applicant, as a condition for
carrying out the permission he was being granted, to do something which he
could not do, namely acquire a different access.
That was
further discussed in the case on which the argument in the present case has
largely turned, Jones v Secretary of State for Wales (1990) 61
P&CR 2383, also a decision of this court. This was concerned
with a situation in which the applicant wished to build a house on land which
he owned in mid Glamorgan. His application for planning permission included
construction of a driveway providing for vehicular access over land owned by a
certain estate. The vehicular access would pass over a common and the estate
would not grant consent while the commoners and the conservators of the common
were opposing the grant of access. It was held, and I take this from the
headnote, allowing an appeal by the Secretary of State against a decision of
Judge Marder QC who had quashed the Secretary of State’s decision, that:
. . . a
condition could only be imposed upon the grant of planning permission if it was
one that a reasonable planning authority would impose. A condition would not be
reasonable unless there was a good prospect that the condition could be
fulfilled. The inspector had not therefore erred in law as there was evidence
that there was no reasonable prospect that a condition, that no development
should take place until the consent of the
land had been obtained, would be satisfied.
3Also reported at [1990] 3 PLR 102.
The Grampian
case is considered in the leading judgment of Purchas LJ. He says at p 2411:
The issue
with which we are concerned is whether that part of the speech in particular
and the authority in general is to be read as putting a restriction upon the
use of Grampian conditions to those circumstances in which there is some
evidence that there was at least a reasonable prospect of the circumstances or
the removal of the obstacle to which the condition is applied coming to pass
within a reasonable time, which it seems to be common ground would be the time
envisaged in the planning statutes as the life of a planning consent.
1[1990] 3 PLR 102 at p 105C.
He then
referred to the provisions in a circular, which is Circular 1/85, to which we
also have been referred, and he mentions, without reading, para 24 of that
circular, which is to the following effect under the heading, ‘Ability to
Enforce’:
24. Other
conditions may raise the question whether they can be reasonably enforced. One
type of case where this might happen is where a condition is imposed requiring
the carrying out of works (eg construction of a means of access) on land within
the application site but not, at the time of the grant of planning permission,
under the control of the applicant. If the applicant failed to acquire an interest
in that land, and carried out the development without complying with the
conditions, the local planning authority could enforce the condition only by
taking action against the third party who owned the land to which the condition
applied, and who had gained no benefit from the development. Such difficulties
can usually be avoided by framing the condition so as to require that the
development authorised by the permission should not commence until the access
has been constructed.
There was in
the section 52 agreement, in the present case, a condition to that effect.
That para 24
was concerned with reasonableness in the context of ability to enforce, but
reasonableness has a wider context also. That is picked up in para 29 of the
circular:
29. A
condition can be ultra vires on the grounds of unreasonableness, even
though it may be precisely worded and apparently within the powers available.
There is then
in para 30 a reference to a condition being unreasonable because it is unduly
restrictive. Paras 33 and 34 are concerned with conditions depending on others’
actions:
33. It is
unreasonable to impose a condition which the developer would be unable to
comply with himself, or which he could comply with only
which requires an aerodrome owner to impose a particular pattern of aircraft
flight routeings, when that is a matter for the air traffic control
authorities).
34. Although
it would be ultra vires, however, to require works which the developer
has no power to carry out, or which would need the consent or authorisation of
a third party, it may be possible to achieve a similar result by a condition
worded in a negative form, prohibiting development until a specified action has
been taken. The test of whether such a condition is reasonable is strict; it
amounts to whether there are at least reasonable prospects of the action in
question being performed.
Then certain
particular instances are indicated, one of which is:
In an
appropriate case, too, it might be reasonable to use a condition requiring that
the development should not commence until a particular highway had been stopped
up or diverted, if there were reason to suppose that the highway authority
would be able and willing to take the necessary action. The reasonableness of
such a requirement will in all cases depend on the likelihood of the
precondition being fulfilled within such time as to enable the development to
be commenced within the time-limit imposed by the permission.
I return to
the Jones case. At p 245 Purchas LJ is dealing with Lord Keith’s speech
in the Grampian case in the passage which I have already read. He says1:
Mr Masterman
. . . tried to construe the speech of Lord Keith in a way that would justify
his contention that the reasonable prospects of the obstacle being removed
really were not anything more than a subordinate part of the sentence involved.
I find I am unable to follow that submission. In my reading of the speech of
Lord Keith, he clearly had in mind that a condition of this kind would be
reasonable and, in certain circumstances, more than reasonable, but only if and
in so far as it was established that there was a reasonable prospect of the
removal of the obstacle being achieved.
1[1990] 3 PLR 102 at p 108G.
Nourse LJ
dealt with the matter fairly shortly in his judgment in the Jones case2.
He sets out the finding of the inspector in his report:
‘. . . on the evidence before me I am
not satisfied at this stage that there are reasonable prospects that consent
for vehicular access would be granted from persons or bodies alleged to control
the grant of the vehicular right of way which is required to serve the proposed
development.’
That is an
unimpeachable finding that the applicant had no reasonable prospect of
obtaining the vehicular right to access to the appeal site, which, in the
inspector’s opinion, was a fundamental part of the application.
2[1990] 3 PLR 102 at p 109G.
If planning
permission had been granted subject to a condition that the
necessarily have followed that the condition, being one with no reasonable prospect
of fulfilment, could not reasonably be imposed. The condition would thus have
failed to meet the third of the requirements for a valid condition which were
authoritatively stated by the House of Lords in Newbury District Council
v The Secretary of State for the Environment [[1981] AC 578]. It must be
unreasonable to impose a condition which at once shuts out any reasonable
prospect of the permission’s being implemented.
I respectfully
agree with that view, which I find very helpful. Glidewell LJ delivered a
judgment substantially to the same effect, concurring in the reasons given by
Purchas LJ and Nourse LJ.
Mr Sullivan
submits that all that reasoning about whether there is any reasonable prospect
of the permission being implemented only applies if the land on which the
condition would fall to be performed is not part of the appeal site designated
in the planning application. He refers to sections 70 and 72 of the Town and
Country Planning Act 1990. Section 70 provides in subsection (1):
70.— (1) Where an application is
made to a local planning authority for planning permission-
(a) subject to sections 91 and 92, they may
grant planning permission, either unconditionally or subject to such conditions
as they think fit; or
(b) they may refuse planning permission.
Section 72
provides in subsection (1):
72.— (1) Without prejudice to
the generality of section 70(1), conditions may be imposed on the grant of
planning permission under that section-
(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.
(b) [I need not read].
Mr Sullivan
says that that draws a distinction between land under the control of the
applicant, whether or not it is land in respect of which the application was
made, and the land in respect of which the application is made and that that
distinction between the land in respect of which the application is made and
land which is not included in what I have called ‘the appeal site’, is
fundamental to the whole concept of planning law and the imposition of
conditions. It points to a distinction between section 72 and section 70, and
the reasoning in Grampian and the cases which have sought to apply Grampian
is only, so he submits, applicable to the case where the works are to be done
on something which is not part of the appeal site. In the present case the
designation on the plan submitted with the planning application includes in the
land, in respect of which planning permission is sought, not merely the Feltham
marshalling yard which British Railways Board own, but also the access which
British Railways Board would need to acquire if they are to make an access road
to the A314.
But to my mind
there is no logic in that position at all. The fundamental flaw in the Grampian
case is imposing a condition in granting a planning permission which, on the
information available, the applicant has no prospect of satisfying within the
life of the permission. That is so however the plan on the planning application
happens to have been drawn, and I cannot see that there is any justifiable
logical distinction between the one case and the other. It is on either view a
nonsense to grant a planning permission subject to a condition which the planning
authority, or the Secretary of State on an appeal, knows perfectly well there
is no reasonable prospect of the applicant being able to satisfy.
It was
submitted to us by Mr Sullivan that the decision in Jones, in so far as
the approach road in question was part of the appeal site in that case, must be
treated as having been given per incuriam. But I do not take that view.
It is a considered decision of this court with which I respectfully agree. It
would be a nonsense to grant planning permission, subject to the suggested
condition in the present case, in view of the attitude firmly adopted by
Hounslow Council in the correspondence that followed the inspector’s report. It
is accepted that British Railways Board have no power to compel Hounslow
Council to make the necessary land available for an access way from the A314 to
the proposed development in the site of the Feltham marshalling yard.
It is equally
accepted that the Secretary of State has no power in exercising his planning
functions to compel the council to make that land available to British Railways
Board. Whether the Secretary of State would have other powers under other
statutes is not relevant because there would be formidable difficulties and
they have not been explored at any state in these proceedings. Therefore, I
agree with the conclusion of the deputy judge that the Secretary of State was
entitled to dismiss this appeal. He was not bound to grant it subject to a
condition which would have made a nonsense of it.
I would,
therefore, for my part, dismiss the appeal to this court.
KENNEDY LJ: I agree. It is clear from the speech of Lord Keith in Grampian,
and from the other authorities to which my lord has referred, that a negative
condition can be imposed on land which an applicant seeks to develop, which
condition can only be satisfied by, for example, getting control of adjacent
land required for access; and Grampian is also authority for the
proposition that planning permission may be refused if there are no reasonable
prospects of the applicant being able to fulfil the condition because, for
example, the owner of the adjacent land simply will not sell.
Mr Sullivan
contends that the position is quite different if the applicant includes in his
application the land required for access. Certainly, planning permission can be
sought for land which an applicant does not own or over which he has no
control, and conditions can be imposed in respect of any land in respect of
which planning permission
application to include land required for access, the applicant could deprive
the Secretary of State of the right to refuse the application on the ground
that there are no reasonable prospects of the applicant obtaining control of
the land which, on any view, is in fact required for access.
I, too, would
dismiss this appeal.
HIRST LJ: I also would dismiss the appeal and I agree with the two judgments
which have already been delivered by my lords.
Appeal
dismissed with costs; application for leave to appeal to the House of Lords
refused.
