Application for planning permission — Whether permission should be refused on ground that desirable condition appears to have no reasonable prospect of being fulfilled
British
Railways Board (‘the board’) applied for planning permission to develop land at
Feltham for housing. Alternative accesses were proposed, one over land owned by
the local planning authority, Hounslow London Borough Council (‘the council’).
The submitted plan included this access land as part of the application site.
On appeal by the board against deemed refusal by the council, the inspector
recommended that the application providing for access over the council’s land
be approved and planning permission granted, subject to the completion of a
section 52 agreement between the board and the council. The Secretary of State
substantially agreed with the inspector and invited the parties to conclude a
section 52 agreement. The council declined to enter into any agreement which
involved providing land for the access and, consequently, the Secretary of
State refused permission and dismissed the appeal. He took the view that
planning permission subject to a condition as to access would not be valid
unless there was a reasonable prospect of its being fulfilled. An application
by the board to quash his decision was dismissed by Mr Gerald Moriarty QC,
sitting as a deputy judge of the Queen’s Bench Division. The board appealed to
the Court of Appeal, contending that conditional planning 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: see [1993] 1 PLR 48.
The Court of Appeal dismissed the appeal, holding that it made no difference
that the proposed access land was part of the application site and that 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 planning permission. The board appealed.
to the Secretary of State.
A planning
application may be made by an applicant in respect of land which he does not
own. If the owner of that land objects to the grant of planning permission for
unsound reasons, the mere fact that the owner objects and is unwilling that the
development should go ahead cannot of itself necessarily lead to a refusal. The
function of the planning authority is to decide whether the proposed
development is desirable in
consideration that the owner of the land is determined not to allow the
development to proceed so that permission for it, if granted, would not have
reasonable prospects of being implemented: see pp 132G-133E.
That does not
mean that the planning authority, if they decide that the proposed development
is in the public interest, are absolutely disentitled from taking into account
the improbability of permission for it, if granted, being implemented. There is
no absolute rule that the existence of difficulties, even if apparently
insuperable, must necessarily lead to refusal of a planning permission for a
desirable development. A would-be developer may be faced with difficulties of
many different kinds, in the way of site assembly or securing the discharge of
restrictive covenants. If he considers that it is in his interest to secure
planning permission notwithstanding the existence of such difficulties, it is
not for the planning authority to refuse it simply on their view of how serious
the difficulties are: see p 133E-H.
In the present
case the proposed condition relating to the provision of access over land owned
by the council, if imposed, would not derogate from the planning permission if
granted. If the condition is of a negative character and appropriate in the
light of sound planning principles, the fact that it appears to have no
reasonable prospects of being implemented does not mean that the grant of
planning permission subject to it would be irrational in the Wednesbury
sense so that it would be unlawful to grant it. The mere fact that a desirable
condition appears to have no reasonable prospects of fulfilment does not mean
that planning permission must necessarily be refused: see p 133H-134D.
to in the opinions
Associated
Provincial Picture Houses Ltd v Wednesbury
Corporation [1948] 1 KB 223; [1947] 2 All ER 680; (1947) 45 LGR 635, CA
Bradford
City Metropolitan Council v Secretary of State
for the Environment (1986) 53 P&CR 55; [1986] 1 EGLR 199; 278 EG 1473;
[1986] JPL 598, CA
Grampian
Regional Council v Aberdeen City 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
Newbury
District Council v Secretary of State for the
Environment [1981] AC 578; [1980] 2 WLR 379; [1980] 1 All ER 731; (1980) 78
LGR 306; 40 P&CR 148; [1980] JPL 325, HL
Appeal against
decision of the Court of Appeal
This was an
appeal by British Railways Board against the decision of the Court of Appeal
[1993] 1 PLR 48 on October 6 1992 dismissing the board’s appeal against the decision
of Mr Gerald Moriarty QC (sitting as 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 the solicitor to British
Railways Board) appeared for the appellant.
QC and Nathalie Lieven (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 opinions were delivered.
LORD KEITH
OF KINKEL: My lords, in May 1988 the appellants,
British Railways Board (‘British Rail’) applied to Hounslow London Borough
Council (‘Hounslow’) for outline planning permission to develop for housing and
ancillary purposes part of the former Feltham Marshalling Yard. The site shown
on the plan annexed to the application covered land belonging to British Rail,
but also an area of land owned by Hounslow, lying between British Rail’s
property and the A314 road. It was proposed that a vehicular access to the
housing development should be formed over the land so owned by Hounslow.
Hounslow failed to determine the application within the statutory period and so
British Rail appealed to the Secretary of State for the Environment (‘the
Secretary of State’) against the deemed refusal of it.
The Secretary
of State appointed an inspector, Mr David Fenton, to hold a public local
inquiry into the appeal and to report to him. Mr Fenton duly held the inquiry
in July 1989 and reported on September 13 1989. He recommended that the
application providing for access from the A314 be granted, subject to the
completion of an agreement with Hounslow under section 52 of the Town and
Country Planning Act 1971 [now section 106 of the Town and Country Planning Act
1990] and to certain conditions set out in the report. These conditions
included:
10. The
residential development hereby approved shall not exceed 440 dwelling units.
. . .
13. The works
to provide the main access road shall be completed to base course level prior
to the commencement of the construction of the residential development hereby
approved, and shall be fully completed prior to the occupation of buildings.
The Department
of the Environment on November 7 1989 sent copies of Mr Fenton’s report to
British Rail and to Hounslow with a letter stating that the Secretary of State
agreed generally with the inspector’s view but that before making a decision he
desired confirmation of the completion of a legal agreement under section 52
within 28 days. Thereafter, British Rail made strenuous efforts to persuade
Hounslow to enter into such an agreement, but without success. Hounslow’s
objection was based on environmental grounds. The former marshalling yards,
disused for 30 years, had become the habitat for various interesting species
and the land belonging to Hounslow over which the proposed access road was to
pass, consisted in the Pevensey Road Open Space and former sewage pits, which
the inspector found to be areas with their own nature conservation interest and
public amenity value.
British Rail a letter stating, inter alia:
2. There are,
of course, similar difficulties about your alternative suggestion of imposing a
Grampian condition or conditions. A House of Lords decision in 1984 was
to the effect that a condition prohibiting the carrying out of development or
the occupation of buildings until such time as works (or other action) have
been carried out by a third party is a valid condition provided its imposition
is reasonable in the circumstances of the case. The ‘reasonableness’ of the
condition is to be judged on the basis of whether there is at least a
reasonable prospect of the works in question (or other action to be taken)
being carried out within a reasonable time. The relevant timescale to be
considered is that within which the permission must be implemented.
3. Given the
present circumstances there appears to be no reason to believe that the council
would be willing to co-operate. That being so, it is felt that there is no
reasonable prospect of the works in question being carried out within a
reasonable time. A Grampian condition or conditions would therefore not
seem appropriate.
A Grampian
type condition, which takes the name from the decision of this House in Grampian
Regional Council v Aberdeen City District Council (1984) 47 P&CR
633, is one which provides that approved development shall not be commenced
until some event, in that case the closure of a section of public road, has
taken place. The proposed condition 13 in the inspector’s report was a Grampian
type condition. It will be seen that the Secretary of State took the view that
the adjection to the planning permission of this condition would not be valid
unless there was a reasonable prospect of its being fulfilled. Hounslow on
March 28 1990 wrote to the Secretary of State stating that the council at a
meeting on March 27 had decided not to enter into a section 52 agreement with
British Rail. By decision letter dated June 5 1990 the Secretary of State refused
planning permission. He did so on the basis that he was precluded in law from
granting the permission subject to conditions which appeared to have no
reasonable prospect of fulfilment within the five-year life of the permission.
The question in the case is whether he was correct in that view of the law.
British Rail
applied to the High Court, under section 288 of the Town and Country Planning
Act 1990, to quash the Secretary of State’s decision. The application was heard
by Mr Gerald Moriarty QC, sitting as a deputy judge of the Queen’s Bench
Division, who on December 20 1991 dismissed it and his decision was affirmed by
the Court of Appeal (Dillon, Kennedy and Hirst LJJ) on October 6 1992. British
Rail now appeals to your lordships’ house.
The power to
adject conditions to the grant of planning permission is contained in section
29(1) of the Act of 1971, which provides in its latter part that a local
planning authority:
(a) subject to sections 41 [and] 42 . . . of this
Act, may grant planning permission, either unconditionally or subject to such
conditions as they think fit; or
(b) may refuse planning permission.
The power,
though widely expressed, is not unrestricted. In Newbury District Council
v Secretary of State for the Environment [1981] AC 578, Lord Lane said,
at p627:
Despite the
breadth of the words ‘subject to such conditions as they think fit’, subsequent
decisions have shown that to come within the ambit of the Act and therefore to
be intra vires and valid a condition must fulfil the following three
conditions: (1) it must be imposed for a planning purpose; (2) it must fairly
and reasonably relate to the development for which permission is being given;
(3) it must be reasonable; that is to say, it must be a condition which a
reasonable local authority properly advised might impose . . . The third test
is probably derived from Associated Provincial Picture Houses Ltd v Wednesbury
Corporation [1948] 1 KB 223, and ensures that the Minister, if he is asked
to review the actions of a local authority, may, even if tests (1) and (2) are
quite satisfied, nevertheless allow an appeal on much broader grounds, if the
effect of the condition would be to impose an obviously unreasonable burden
upon the appellant. Decisions of the local planning authority should not,
however, lightly be set aside on this ground.
It is clear
from the latter part of this passage that Lord Lane had in mind that where a
local planning authority adjected to a planning consent a condition which was
unreasonable in the Wednesbury sense an appeal by the would-be developer
would be allowed to the effect of rendering the consent free of the condition,
as happened in Bradford City Metropolitan Council v Secretary of
State for the Environment (1986) 53 P&CR 55. However, it appears to
have come about that the law is viewed, particularly in the Court of Appeal, as
being to the effect that if a condition which on its merits is reasonable and
necessary on planning grounds has no reasonable prospects of fulfilment then
that condition cannot validly be imposed and planning permission must be
refused. That view is apparently thought to be supported by a passage in the
speech which I delivered, with the concurrence of my colleagues, in Grampian
Regional Council v Aberdeen City District Council (1984) 47 P&CR
633. That was a case where the regional council had applied to the district
council and another local planning authority for planning consent to industrial
development on a site which spanned the boundary between the authorities. The
reporter to whom the Secretary of State for Scotland had delegated the decision
on the application considered that the development, while desirable on planning
grounds, would generate a volume of traffic likely to cause a road safety
hazard. This hazard could, however, be eliminated if a section of public road
leading to a certain junction were to be closed. The reporter took the view
that it would not be competent to grant permission for the development subject
to the condition that the road in question should be closed, since it was not
in the power of the applicants to close the road at their own hand. An appeal
by the applicants to the Court of Session was allowed, and the decision was
affirmed by this House, the permission being granted subject to the condition
that the development should not commence until the relevant section of road had
been closed. It was argued for the district council before this House that
there was no practical distinction
applicant to bring about and one providing that no development should begin
until that result had been achieved. In either case the practical effect was to
require the applicant to bring about something which was not within his power.
In rejecting this argument I said, at pp636-637:
My Lords, in
my opinion there is no substance in the appellants’ contentions. In the first
place, 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. In any event, it is impossible to view a condition of
that nature as unreasonable and not within the scope of section 26(1) of the
Act if regard is had to the provisions of section 198. Subsection (1) provides:
‘The Secretary of State may by order authorise the stopping up or diversion of
any highway if he is satisfied that it is necessary to do so in order to enable
development to be carried out in accordance with planning permission granted
under Part III of this Act, or to be carried out by a government department.’
A situation
where planning permission has been granted subject to a condition that the
development is not to proceed until a particular highway has been closed is
plainly one situation within the contemplation of this enactment, though no
doubt there are others. The stopping up of the highway would very obviously be
necessary in order to enable the development to be carried out. So it is
reasonable to infer that precisely the type of condition which is in issue in
this appeal was envisaged by the legislature when enacting section 26(1). As it
happens, the first respondents have themselves power, under section 12 of the
Roads (Scotland) Act 1970, to promote an order for the closure of Wellington
Road. But that is an accident, though it may perhaps make the case an a
fortiori one. Section 198 is entirely general and is apt to favour strongly
the reasonableness of negative conditions relating to the closure of highways
in all appropriate cases.
In Jones
v Secretary of State for Wales (1990) 61 P&CR 238, a decision of the
Court of Appeal which that court followed in the present case, Purchas LJ
regarded this passage in my speech as laying down that a negative condition was
necessarily unreasonable in the Wednesbury sense unless there was a
reasonable prospect of it being fulfilled. The case was similar to the present
in respect that the applicant for planning permission to build a house required
vehicular access to it over land which formed part of a common. The owners of
the common refused to consent to this so long as the association of commoners
and the board
permission on the ground that a condition regarding the vehicular access could
not be imposed unless there was a reasonable prospect of the condition being
satisfied. His decision was quashed by Judge Marder QC, but restored by the Court
of Appeal. Purchas LJ said, at p241, after quoting from the Grampian
case:
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 circumstance 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.
and later, at
p245:
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.
Nourse LJ did
not base his judgment so directly on the Grampian case. He said, at pp246-247:
If planning
permission had been granted subject to a condition that the development should
not commence until such a right had been obtained, it would 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 Secretary
of State for the Environment. It must be unreasonable to impose a condition
which at once shuts out any reasonable prospect of the permission’s being
implemented.
In order to
arrive at this conclusion it is not really necessary to rely or the later
decision of the House of Lords in Grampian Regional Council v City of
Aberdeen District Council, where the precise question with which we are
confronted was not in point. But there is certainly nothing in the speech of
Lord Keith of Kinkel which is inconsistent with the conclusion and, on a
reading of what he said, I think it highly likely that he and the others of
their Lordships would have agreed with it.
The third
member of the court, Glidewell LJ said, at p248:
For the
reasons which have already been explained in my Lords’ judgments, the
condition, if it is to be imposed, has itself to be a reasonable one and it
cannot be reasonable to impose a condition where there is no reasonable
prospect of the problem being overcome since this would inevitably stultify the
permission.
In the present
case (1992) 65 P&CR 401 Dillon LJ, who delivered the leading judgment in
the Court of Appeal said, at p408, in dealing with
site covered by the application:
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 the
Hounslow Council in the correspondence that followed the inspector’s report.
Kennedy LJ
said, at p408:
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.
Hirst LJ
agreed with both judgments.
As I observed
in the Grampian case, the question whether or not a certain condition is
unreasonable depends on the circumstances of the case. The circumstances of the
Grampian case itself were such that the proposed condition was not only
reasonable but highly appropriate. One of these circumstances was that the
closure of the southern part of Wellington Road had reasonable prospects of
being brought about. It is a mistake, however, to turn the decision on its head
to the effect of treating it as carrying the necessary implication that a
condition is unreasonable and invalid if it does not have such reasonable
prospects. The Act of 1971 contemplates that an application for planning
permission may be made by a person who does not own the land to which it
relates. This is made plain by section 27(1)(b) [now section 66 of the
Town and Country Planning Act 1990], which provides that an application for
planning permission is not to be entertained unless, in the appropriate case,
the applicant accompanies it with:
a certificate
stating that the applicant has given the requisite notice of the application to
all the persons (other than the applicant) who, at the beginning of the period
of twenty-one days ending with the date of the
and setting out the names of those persons, the addresses at which notice of
the application was given to them respectively, and the date of service of each
such notice.
Section 29(3)
provides that where the application is accompanied by such a certificate the
local planning authority:
(a) in determining the application, shall take
into account any representation relating thereto which are made to them, before
the end of the period mentioned in subsection (4) of that section, by any
person who satisfies them that he is an owner of any land to which the application
relates or that he is the tenant of an agricultural holding any part of which
is comprised in that land; and
(b) shall give notice of their decision to
every person who has made representations which they were required to take into
account in accordance with the preceding paragraph.
The owner of
the land to which the application relates may object to the grant of planning
permission for reasons which may or may not be sound on planning grounds. If
his reasons are sound on planning grounds no doubt the application will be
refused. But if they are unsound, the mere fact that the owner objects and is
unwilling that the development should go ahead cannot in itself necessarily
lead to a refusal. The function of the planning authority is to decide whether the
proposed development is desirable in the public interest. The answer to that
question is not to be affected by the consideration that the owner of the land
is determined not to allow the development so that permission for it, if
granted, would not have reasonable prospects of being implemented. That does
not mean that the planning authority, if they decide that the proposed
development is in the public interest, is absolutely disentitled from taking
into account the improbability of permission for it, if granted, being
implemented. For example, if there were a competition between two alternative
sites for a desirable development, difficulties of bringing about
implementation on one site which were not present in relation to the other
might very properly lead to the refusal of planning permission for the site
affected by the difficulties and the grant of it for the other. But there is no
absolute rule that the existence of difficulties, even if apparently
insuperable, must necessarily lead to refusal of planning permission for a
desirable development. A would-be developer may be faced with difficulties of
many different kinds, in the way of site assembly or securing the discharge of
restrictive covenants. If he considers that it is in his interests to secure
planning permission notwithstanding the existence of such difficulties, it is
not for the planning authority to refuse it simply on their view of how serious
the difficulties are.
In the present
case British Rail have applied for a planning permission which would cover
their own land and also land belonging to Hounslow. Hounslow’s land is to be
the site of the access road which they seek. The proposed condition relates
simply to the stage which construction of the access road must have reached
before the construction of the houses
derogate from the planning permission if granted. So the position is
essentially that British Rail have applied for planning permission affecting
land not in their ownership, a common state of affairs specifically
contemplated by the Act. The proposed condition does not relate to land outside
the ambit of the permission applied for. Even if it did, the relevant
considerations would be the same as those to be applied where an application
for planning permission relates to land not in the ownership of the applicant.
If the condition is of a negative character and appropriate in the light of
sound planning principles the fact that it appears to have no reasonable
prospects of being implemented does not mean that the grant of planning
permission subject to it would be irrational in the Wednesbury sense so
that it would be unlawful to grant it. If it is irrational to grant planning
permission subject to a condition which has no reasonable prospects of being
implemented then it must be no less irrational to refuse planning permission on
the ground that a desirable condition has no reasonable prospects of
implementation and therefore cannot be imposed. In truth, neither course is
irrational. What is appropriate depends on the circumstances and is to be
determined in the exercise of the discretion of the planning authority. But the
mere fact that a desirable condition appears to have no reasonable prospects of
fulfilment does not mean that planning permission must necessarily be refused.
Something more is required before that can be the correct result.
My lords, for
these reasons I am of opinion that the Secretary of State misdirected himself
in law in considering that imposition of the proposed condition regarding the
access road to the development would be invalid. I would therefore allow the
appeal and remit the matter to the Secretary of State for reconsideration in
the light of your lordships’ judgment. Jones v Secretary of State for
Wales (1990) 61 P&CR 238 was wrongly decided and must be overruled.
LORD
TEMPLEMAN: My lords, I have had the advantage of
reading in draft the speech prepared by my noble and learned friend Lord Keith
of Kinkel, and for the reasons he gives I, too, would allow the appeal.
LORD
JAUNCEY OF TULLICHETTLE: My lords, for the reasons
given by my noble and learned friend Lord Keith of Kinkel I, too, would allow
the appeal and remit the matter to the Secretary of State.
LORD
BROWNE-WILKINSON: My lords, for the reasons given
by my noble and learned friend Lord Keith of Kinkel I, too, would allow the
appeal and remit the matter to the Secretary of State.
LORD
MUSTILL: My lords, I have had the advantage of
reading in draft the speech prepared by my noble and learned friend Lord Keith
of Kinkel, and for the reasons he gives I, too, would allow the appeal.
The appeal
was allowed.
