Declaration — Application for outline planning permission in 1946 — Approval recommended by relevant committees — Council approved — Whether decision notice issued — Plans and written decision now lost — Application of maxim omnia praesumuntur rite et solemniter esse acta
In 1946 the
predecessor in title to the plaintiff company submitted planning application no
339 to the Kirkburton Urban District Council for consent to develop 60 acres of
land at Far Bank, Shelley, Yorkshire. By virtue of the Town and Country
Planning (General Interim Development) Order 1946 (SR&O 1946, no 1621) the
grant of permission to develop land had to be in writing. The plaintiffs are
now the owners of part of this land and sought a declaration that a consent was
issued to the 1946 application and that they have the benefit of an outline
planning permission for the undeveloped part of the land. The evidence showed
that all the relevant committees of the urban district council recommended the
approval of the application and on June 6 1946 the full council approved it.
However, there was no evidence of the issue of consent.
1. Although
all parties had proceeded since 1946 on the assumption that there was a written
grant of planning consent, it could not be inferred that there was a written
consent: see p 36C and pp 39C-40H.
2. The full
procedure for the consideration and approval of the district council appeared
to have been followed. There was support for the conclusion that the consent
must have been issued if the history of other applications in 1946 are
considered. There was also the more recent history of development being
permitted in the area that was consistent with the grant of an outline consent
in 1946. In 1946 the district council had a statutory duty under the Town and
Country Planning Acts 1932-44 to convey the decision of the council to an
applicant for planning permission. The maxim omnia praesumuntur rite et
solemniter esse acta (a presumption of regularity) applied; a grant of
planning permission must be presumed. Although the annexed plan to the original
application was now lost, the declaration would be that the permission was to
develop in accordance with a layout plan which was approved in 1946: see p 41 et
seq.
to in the judgment
Lever
Finance Ltd v Westminster (City) London Borough
Council [1971] 1 QB 222; [1970] 3 WLR 732; [1970] 3 All ER 496; (1970) 68
LRG 757; 21 P&CR 778, CA
Slough
Estates Ltd v Slough Borough Council (No
2) [1969] 2 Ch 305; [1969] 2 WLR 1157; [1969] 2 All ER 988; (1969) 20
P&CR 363, CA; [1971] AC 958; [1970] 2 WLR 1187; [1970] 2 All ER 216; (1970)
21 P&CR 573, HL
Thames
Water Authority v Turnbull unreported,
October 28 1986
Wells v Minister of Housing and Local Government [1967] 1 WLR
1000; [1967] 2 All ER 1041; (1967) 65 LGR 408; 18 P&CR 401, CA
Western
Fish Products Ltd v Penwith District Council
[1981] 2 All ER 204; (1978) 77 LGR 185; 38 P&CR 7; [1978] JPL 623, CA
Application by
originating summons
This was an
application by way of an originating summons for a declaration that planning
permission had been granted in 1946 for the subject land by the Kirkburton
Urban District Council in accordance with the Town and Country Planning
(General Interim Development) Order 1946.
Harrison QC and Craig Howell Williams (instructed by Hammond Suddards, of
Leeds) appeared for the plaintiff, Calder Gravel Ltd.
Farrow (instructed by the solicitor to Kirklees Metropolitan Borough Council)
appeared for the defendants.
following judgment was delivered.
SIR NICOLAS
BROWNE-WILKINSON V-C: In this case Calder Gravel
Ltd (‘the plaintiff company’) claims against the Kirklees Metropolitan Borough
Council (‘the defendant council’) a declaration that in 1946 the local planning
authority, which was then the Kirkburton Urban District Council (‘the district
council’), granted a general or outline planning permission for development of
some 60 acres of land at Far Bank, Shelley, Yorkshire. They also claim a
declaration that such permission is still valid and subsisting. The case is, in
some respects, an unusual one. There is no doubt that an application for
permission was made in 1946. There is equally no doubt that a resolution was
passed by the district council, as the appropriate planning authority, approving
the application. Again, there is no doubt that for nearly 40 years thereafter
everybody concerned — landowners, developers and planning authorities —
proceeded on the basis that there was outline planning permission relating to
the land. However, in 1984 the defendant council, having become the planning
authority, for the first time took the point that there was no trace of any
document actually granting planning permission to the plaintiff’s predecessors
in title. In this case the defendant council contend that, in the absence of
such a document, no valid planning permission can have been granted.
The questions
which arise in the case, therefore, are whether, in the absence of any document
granting planning permission, it has been proved that there was such a
document, since lost, and, if not, whether the defendant council are estopped
by their conduct and representations from denying the existence of such a
planning permission. There is now no dispute between the parties that if there
was a valid planning permission granted in 1946 it is now still valid and
effective.
In order to
understand the evidence, it is necessary, first, to understand the statutory
framework regulating planning permission prior to the coming into force of our
modern planning law introduced under the Town and Country Planning Act 1947 as
from the appointed day, July 1 1948. Under the Town and Country Planning Act
1932, section 1, local authorities could make a planning scheme affecting a
defined area. Two or more authorities could join together to form a joint
committee to prepare and put into effect schemes affecting areas of land falling
within the area of more than one authority. The system raised a problem as to
what should happen about proposed developments within the area for which a
planning scheme had been proposed, such development being proposed to take
place during the interim period before the scheme was adopted. This interim
period was dealt with by interim development orders which were provided for by
section 10 of the 1932 Act. Under section 10(1), the Minister of Health could
make a general order (called an interim development order) regulating the
development of land within the area for which a resolution was in force for a
general scheme. The minister could then, by order, empower a local authority to
permit the development of land within the area. Section 10(3) of the 1932 Act
provided:
Where an
application for permission to develop land is made to the specified authority
in manner provided by the order, the authority may, subject to the terms of the
order, grant the application unconditionally or subject to such conditions as
they think proper to impose, or may refuse the application, and they shall be
deemed to have granted the application unconditionally unless
applicant may agree in writing to allow, they give notice to him that they have
decided to the contrary, stating their reasons for so doing . . .
Section 10(3)
was amended by section 2(3) of the Town and Country Planning (Interim
Development) Act 1943. So far as is relevant, section 2(3) provided:
So much of
subsection (3) of section ten of the principal Act as provides that any
application for permission to develop land made under an interim development
order shall be deemed to be granted unless it is refused within the period
specified in that subsection shall cease to have effect, and any such
application shall be deemed to be refused at the expiration of two months from
the date of the receipt thereof unless within that period —
(a) notice has been given to the applicant that
the application has been determined by that authority or has been referred to
the Minister for decision in accordance with the subsequent provisions of this
Act; or
(b) the consideration of the application has been
postponed by a notice of postponement under the last foregoing subsection.
The result,
therefore, of those two provisions read together was that unless there had been
notice given to the applicant within two months that the application had been
determined, there was a deemed refusal of the permission.
The limited
degree of planning control introduced by the 1932 Act was extended by the 1943
Act. As I understand it, the position was that a very limited number of schemes
had been proposed under the 1932 Act, and it was desired to introduce some form
of general planning control. Section 1 of the 1943 Act provided that all land
which was not already the subject of a scheme in force under the 1932 Act
should become subject to a resolution to prepare a scheme under that Act. The
result was that all land in England and Wales became subject to the planning
controls introduced by the 1932 Act. It accordingly became necessary for
anybody proposing to develop land to obtain interim development permission in
relation to that land.
The 1943 Act
also contained a provision which is of great importance in this case. Section
2(5) provided as follows:
Nothing in
this section shall be construed as affecting the duty of an interim development
authority —
(a) to take into consideration with reasonable
dispatch all interim development applications made to them, other than
applications the consideration of which is postponed under the provisions of
this section or which are referred to the Minister for decision in accordance
with the subsequent provisions of this Act; and
(b) to give notice to the applicant of their
decision upon the consideration of any such application including, where the
application is refused or granted subject to conditions, a statement of the
reasons for their decision.
Accordingly,
though development permission was required under the framework laid down by the
1943 Act, the authority had to deal with the matter expeditiously and give
notice to the applicant of any decision reached by the planning authority. In
default of the giving of such notice of the decision within two months there
was a deemed refusal of the permission.
The minister,
acting under powers in the Acts, made a General Interim Development Order in
1945. Nothing directly turns on the 1945 order and I need not read it. He made
a further order under section 10, which came into force on February 1 1946: the
provisional Town and Country Planning (General Interim Development) Order 1946.
The order provided, in article 1, that it applied to all land in England and
Wales in respect of which a resolution
land in England and Wales. By article 3 of the General Interim Development
Order permission for the development of land to which the order applied could
be granted by, inter alia, the council of the county borough or county
district in which the land is situate. The district council was the planning
authority under that provision. Article 10 of the order provides:
Subject to
the provisions of this Article and to the subsequent provisions of this Order
any person who desires to apply for permission under this Order shall apply in
writing to the Interim Development Authority and shall furnish the Authority,
together with his application, a plan in triplicate sufficient to identify the
land to which the application relates (hereinafter called the ‘site plan’) and
particulars illustrated by plans and drawings in triplicate sufficient to show
the proposed development, provided that it shall not be necessary to furnish
plans and drawings other than the site plan . . . where the application is
expressed to be an application for general permission conditional on the
subsequent approval by the Authority, or by the Minister on appeal, of
particulars of the proposed development.
It is important
to note that the General Interim Development Order therefore envisaged a form
of application which was an application for general permission conditional on
subsequent approval of the particulars of the development; something close to
our modern concept of outline planning permission requiring later detailed
planning permission.
Article 12 of
the General Interim Development Order provides:
The grant or
refusal by an interim development authority of permission to develop land shall
be in writing, and where the authority decides to grant permission subject to
conditions or to refuse permission, the reasons for their decision shall be
stated in writing.
It is that
article which is the crux of this case. If there was, in this case, no written
grant of planning permission in 1946, there was no permission granted in
accordance with the statutory provisions.
Article 13 of
the General Interim Development Order provided that the interim development
authority were bound to consult any joint committee, if one had been
established, and the highway authority, in certain cases, which would in fact
include the present case.
That is the
statutory background against which the application was made in 1946.
At that time
the land belonged to a company, Elliotts Bricks Ltd. The land was in the area
of Kirkburton Urban District Council. The district council had been party to
the establishment of a joint committee with other local authorities, the Upper
Agbrigg Joint Committee. The development proposed was bounded by a major road
and required approval from the highway authority under the Restriction of
Ribbon Development Act 1935. The highway authority was the West Riding.
Accordingly,
in order to obtain a valid interim development permission, the company had to
apply to the district council, who, in turn, had to consult the joint committee
and the highway authority. The district council had to resolve to grant the
permission, which could be either specific or a general permission requiring
further detailed permission. Critically, the permission had to be granted in
writing.
The evidence
before me shows that there had been discussions as to the procedure to be
adopted on planning applications between the district council and the joint
committee. It appears that, so far as the joint committee was concerned, it
largely acted through the county planning officer, under powers delegated to
him by the joint committee.
There was a
note on procedure for dealing with applications under the Interim Development
Order prepared by the county planning officer in 1945. That, of course, related
to the 1945 order, but the same procedure appears to have applied, mutatis
mutandis, to the 1946 order. I read part of that document:
In view of
the constitution of Group Planning Committees covering the greater part of the
County, it would appear to be now appropriate to introduce a uniform procedure
for dealing with interim development applications and applications made under
the Restriction of Ribbon Development Act 1935 in order that the interests of the
County Council’s Highway Authority, the Group Committee’s Planning Authority
and the Local Authority’s Interim Development Authority may be properly
co-ordinated, and the following method is suggested . . .
It deals first
with interim development applications not affected by the Restriction of Ribbon
Development Act 1935 and provides:
(1) The requisite application forms and
accompanying plans will be submitted in triplicate to the Interim Development
Authority who will forward immediately one copy of the application and plans to
the Group Planning Committee with their observations on the proposal.
(2) Where the proposal affects a county road or
trunk road, or proposed county or trunk road, the Interim Development Authority
at the same time will also forward one copy of the application and plans to the
County Council.
(3) The Group Planning Officer will advise the
County Council of all proposals for new development in urban and non-county
borough districts in order that the co-ordination in road proposals may be
achieved.
(4) On receipt of the application the County
Surveyor, after consulting with the Group Planning Officer where necessary,
will forward his observations and proposals to the Group Planning Officer and
will send a copy to the Interim Development Authority.
(5) The Group Planning Officer will consider the
proposal with reference to planning requirements and in the light of
observations received from the Interim Development Authority and the County
Surveyor where affected. He will then prepare a report on the proposal,
incorporating the County Surveyor’s observations, if any, and the
recommendations will be so phrased so as to be suitable for copying by the
Interim Development Authority onto the appropriate form conveying the decision
of that Authority.
There are then
other proposals dealing with the case where the interim development is affected
by the Restriction of Ribbon Development Act, which largely incorporate the
procedure I have just read, and again involves the group planning officer
sending a report and recommendations on the applications made under the Interim
Development Order to the interim development authority. Then para 13 provides:
Decisions of
the Interim Development Authority are prepared on appropriate forms in
triplicate where the proposal does not affect the County Council, one copy
being sent to the applicant, one to the Group Planning Committee and one
retained by the Interim Development Authority. Where the County Council is
affected an additional copy is completed and forwarded to the County Council.
It appears that
that procedure was adopted. Certainly there are indications that it was the
procedure being used at the time.
It is
therefore clear that in the present case there should have been four copies of
any permission in fact granted. First, there should be a copy which the
applicant company should have; second, there should be a copy in the files of
the district council as the interim planning authority; third, there should be
a copy in the control of the joint committee; and, fourth, a copy sent to the
county council as highway authority. It also appears from contemporaneous
documents that standard forms of application for interim permission, and forms
on which permission could be granted or refused, were agreed. Further, although
there was at that stage no statutory obligation to keep a register, in fact
there were two registers: one was kept by the surveyor to the district council
in conjunction with his register of approvals given under building byelaws; the
other was kept by the county planning officer on behalf of the joint committee.
Turning now to
the history of the matter, it is clear that in 1945 there was a planning
permission under the 1945 order to build 24 houses on part of the land, and
seven houses were, pursuant to that permission, built by Elliotts. Nothing much
turns on that development. The documents show that early in 1946 there was a
meeting between Elliotts Bricks and the county planning officer to discuss an
overall scheme for the whole of the site. The site is a very substantial one
extending to some 60 acres. It is bounded on the south by a main road, I think
it is still numbered A629, called Pennistone Road. It runs from Pennistone Road
on the south northwards for a substantial distance. There is a tongue coming
out to the east of that, also a substantial piece of land, spreading almost
into the village, as I think it then was, of Shelley. As I say, the total site
was some 60 acres. On the north-west corner, at some stage, there was a green
belt provision adopted, which cut off a small slice of the top corner of the
plaintiff company’s land.
On March 8
1946 the county planning officer wrote to the surveyor to the district council
as follows:
As promised
at our recent interview with representatives of Messrs Elliott I have pleasure
in sending herewith the suggested layout plan and should be glad if you will
submit this to the developers with a view to it receiving their consideration
in forming the basis of the plan which it will be necessary for them to deposit
for your Council’s approval. Provision has been made in the layout for 658
houses on a total area of approximately 64.5 acres. But after making deductions
from this latter figure in respect of the cinema site, the village hall and the
frontage which the school site would require onto the estate road, the area
would be nearer 60 acres, thus making a net density substantially higher than
10 houses per acre.
The plan sent
with that letter and containing the layout plan suggested by the county
planning officer shows an intensive development of the whole site, as he said,
making provision for some 658 houses. In addition there was provision for shops
and a village hall and for a cinema and car park. The plan showed the road
layout as having an entry from Pennistone Road on the south-west corner of the
site, that entry continuing with the road going straight north almost the whole
way up to the northern boundary of the site and then curving round to the east.
Up the eastern boundary of the site, on the south side, there was another road
running northwards, off which there was entry into various cul-de-sacs
surrounded by houses, and roads going off to the east, towards the village of
Shelley in various positions shown. There was a road curving from the village
of Shelley, running westerly, which subsequently features as Westerly Lane.
It is quite
clear that whatever else happened in this case the genesis of the plan
originally put forward was a plan proposed by the county planning officer in
that letter. On April 8 1946, that is a month later, the application was made
for planning permission by Elliotts Bricks Ltd. We have a copy of the
application. By modern standards it is a very ingenue document indeed. It does
not look as though the gentleman who signed it, Mr Stanley Elliott, was a
particularly educated man, or indeed conversant with what must, at that stage,
have been the primitive law of planning. Opposite the space left for the
insertion of ‘Nature of interest in the property’ he has inserted the words:
‘General layout of estate at Shelley’. Name and address of owner of property:
‘Elliotts Bricks Limited’. Description of proposed development: ‘Construction
of streets’. It is important to note that the plan accompanying that
application is not as such in evidence and has not been traced.
On the same
day, April 8 1946, that application was, in accordance with the agreed
procedure, sent by the district council to the West Riding County Surveyor,
that is the highway authority, and to the county planning officer. The letter
to the county planning officer refers to recent receipt of the application no
339, which is the application in question. It deals with various matters of
procedure. It says:
The proposal
will be recommended by me, that is to say the District Council surveyor, for
approval in accordance with the provisions of the by-laws and public health.
He then makes
the following observations:
A. By-laws
and Public Health Acts. The roads and sewers to be constructed to the
satisfaction of the Council.
B. Town
Planning. This layout has been prepared in collaboration with the County
Planning Officer.
C.
Restrictions of Ribbon Development. I understand that your department has been
consulted regarding the accesses when the layout was in its draft stages.
That is all I
need quote.
The county
planning officer, on behalf of the joint committee, submitted his report on
application 339 on April 10 to the surveyor to the district council. In the
passage headed ‘Observations’, he says:
The proposals
now submitted appear to follow the last layout forwarded to you with my letter
of the 8th of March
— that is the
letter I have just read —
and it is
noted that the site of the village hall has been amended to clear the existing
cricket field. You will remember that in my letter I referred to the
development of the frontage onto A629 and suggested this might not be possible
having regard to the County Council’s requirements under the Restriction of
Ribbon Development Act 1935, and I have ascertained that this point is at
present receiving the County Surveyor’s consideration. If it should be that
access to A629 is too restricted, it occurs to me that it may be possible by
re-positioning the estate road, as I have indicated in pencil, to obtain a few
additional houses in lieu of those shown on the frontage. But it will be better
to await the County Surveyor’s observations before pursuing the point.
Then I can
omit a short paragraph. It goes on:
This is an
application for a general permission to develop and I see no reason why it
should not be granted as soon as the question of the houses fronting onto the
classified road has been cleared. Recommendation: That the permission be
granted, subject to compliance with the following conditions:
A. That the
applicant submit and obtain the Council’s approval to detail particulars of the
proposed development in accordance with article 10 of the Interim Development
Order, 1945.
B. That the
proposed streets are laid out and constructed to the requirements of the
Council before the houses having access thereto are completed.
The reasons
for these conditions are as follows: to provide the Council with an opportunity
for considering the siting, design and other features of the proposed buildings
which cannot be done on the particulars now submitted.
The matter
came before the highways subcommittee of the district council on April 17,
which deferred further consideration of the matter. It is, I think, to be
inferred that they deferred the consideration because of the questions relating
to the highway and access to the highway.
On April 13
the county surveyor considered the position under the Ribbon Development Act,
and it is clear from his comments that it was probable the county council would
permit the construction of the estate road entrance indicated on the plan,
subject to visibility being preserved over the areas affected by the sight
lines.
On May 16 the
matter came before the highways subcommittee of the district council to which,
in part at least, the functions of the district council had been delegated, and
we have the copy of the minutes which record that the proposed general layout
of housing at Shelley for Elliotts Bricks Ltd be approved.
The matter
then went before the full council of the district council, on June 6 1946, when
again the application was approved in these terms: ‘Resolved that the Minutes
of the Highway Committee meeting be confirmed and signed’ — those minutes being
the ones to which I have just referred.
It follows
that we have there a full procedure leading to the due approval of application
339 by the bodies who were required to approve it or to be consulted on it.
What we do not have is any document conveying that decision to anybody outside.
I have
mentioned the registers which were kept by the district council and the joint
planning committee. The district council register records the number of the
applications, the description, the architect, the owner, the builder. Then it
has certain columns dealing with the surveyor’s register of plans — I think
that is probably relating to building byelaws — and then columns relating to
conditions imposed by the council and conditions imposed by the planning
authority other than the council.
As to no 339,
it records that the plans were passed on June 6 1946. That accords with the
whole basis on which the register is kept, namely that the column referring to
passing refers to the date of the resolution of the council, or the appropriate
committee which passes the plans. The district council’s register does not
refer to the date on which a formal planning consent was sent.
Going back to
the entry 339 on the district council register, under a column headed
‘Conditions imposed by the Council’, appear the words: ‘Roads and sewers to be
to the satisfaction of the surveyor’. Under the column ‘Conditions imposed by
planning authority other than Council’ appears the condition: ‘Detailed plans
to be submitted’.
The register
kept by the county planning officer on behalf of the joint committee is rather
different. It, too, identifies the applications by reference to their number,
in this case 339. It gives the date on which the joint committee received the
application from the constituent authority. It gives the name and address of
the person submitting the plan and the applicant. It gives a short description
of the proposed development and a description of the lands involved. It then
has a column saying: ‘Date recommendation sent to constituent authority’. And then
a column: ‘Particulars of decision’. In relation to 339 it records that the
application was received on April 9 1946, that is to say, it was received by
the joint committee; that the recommendation was sent on April 10 1946, and
that accords with what I have read. It describes the proposed development as
being ‘construction of streets, general layout of
blank. That is to say, there is no record of any decision being made. The joint
committee register, in contradistinction to that kept by the district council,
records not the resolution of the district council but the date of the document
sent giving permission. It is therefore significant that in relation to
application 339 there is no entry of any particulars of decision.
Immediately
following on the council’s resolution, Elliotts Bricks made a number of
applications for detailed permission. The first, no 359, was apparently made on
June 15 1946, and it was apparently an application for detailed permission in
relation to part of the site. In the recommendation sent on the same date, June
15, by the district council surveyor to the engineering department the council
surveyor makes these points:
Town
Planning. This site has been approved by your Department and the enclosed plan
is an amendment to the house plan.
So it is
plainly being treated as a detailed permission pursuant to what would now be
called an outline permission already in existence. The matter is treated in the
same way by the county planning officer, whose observations, sent on June 20
1946, say:
This proposal
forms part of a layout which has been approved in principle. There is no
objection to the houses from a planning point of view.
And pursuant to
that there is a document dated July 9 1946 in which the district council grant
permission for the erection of seven semi-detached houses. Those houses were,
as I say, on the northern part of the site.
The next
application was in August 1946. The district council surveyor comments on it:
These houses
are part of the general layout previously approved; the house plans being
amended.
When the
matter was considered by the county planning officer, the proposal being for
two pairs of semi-detached houses, he said:
It would be
better if these two pairs of houses were placed diagonally across the corners
of the street junction as shown on the general layout plan previously approved.
But he
recommended that permission be granted. The point at issue there was that the
network of roads running through the development will of course have houses on
either side of the entrance to each of those roads. On the county planning
officer’s scheme, those houses are put at the slant, on the corners. Proposal
379 did not have them on a slant but had them parallel with the roads off which
the turning came. We therefore have the county planning officer, though not
suggesting that permission be refused, recommending that the application should
be brought into line with the overall plan agreed. I am not sure whether his
recommendation was accepted or not, but in fact planning permission was granted
on September 6 1946.
Then there was
a further application for four pairs of semi-detached houses on the land in
question, in August 1946, no 378. On this the county planning officer comments:
This proposal
to erect eight houses in the position indicated on the submitted plan is not in
accordance with the general layout plan previously approved.
He recommends
that permission be refused on the grounds that the plan is not in accordance
with the general development plan which formed the subject of application 339.
We therefore have a case in which the county planning officer was recommending
rejection because of failure to comply with the general
with the layout and permission was eventually granted.
By way of
comment, I say that those three applications, 359, 379 and 378, are all wholly
consistent with the approach that immediately after June 6 1946 the planning
authorities were treating as being in existence a general approval of a
specific layout plan, and considering subsequent detailed applications as being
applications to give effect to that general permission and requiring conformity
to the layout plan already approved.
Elliotts
Bricks submitted an amended layout plan for part of the site. The submission
was approved by the council on November 11 1946.
It is not, I
think, necessary for me to trace the later history of this development in great
detail. Its planning history is extremely complex and there are numerous
applications for planning permission, some of which are made as though they
were applications for detail approval consequent upon the earlier outline
permission in 1946; some of which are not so framed but appear to be, on their
face, applications for planning permission starting from scratch. In fact,
apart from the scattered houses built towards the northern end of the site
along the line of the road shown on the county planning officer’s development
and subsequently known as Westerly Lane, no substantial development took place
for some years.
Elliotts
Bricks, the owners of the land, were part of a family group of companies, run
by Elliott Sand & Gravel Ltd. In 1962 there was an agreement between two of
the brothers interested in that family company to divide certain companies,
giving each brother responsibility for certain assets.
On December 18
1962, there was a deed of exchange executed under which the land that I am
concerned with was taken by the plaintiff company in exchange for certain other
land. The brother who was going to take over the responsibility for the
plaintiff company, Mr John Elliott, has sworn evidence saying that he would not
have gone into this deed of exchange if there had been in his mind any doubt
that there was planning permission attached to the land. It is self evident
that if you are exchanging property the value of that property is materially
affected by the existence or non-existence of planning permission.
Immediately
prior to the deed of exchange, on November 23 1962 there is a certified copy
produced by the district council, certifying the council resolution of June 6
1946 approving plan 339. There is no evidence that that certified copy of the
resolution was shown to the Elliott family or to the plaintiff company or their
predecessors. However, it is a fairly obvious inference that it was. It is
certain that the plaintiff company and the developers who were introduced to
the scheme knew of the certified minutes at a later date. It is impossible to
say that they were aware of those certified minutes before the deed of exchange
was executed.
In 1964 part
of the southern part of the site was conveyed by Calder Gravel Ltd to Calder
Developments (Yorkshire) Ltd, the purpose being for the latter company to
develop the southern part of the site in conjunction with other developers,
principally and eventually Bovis.
In 1964 an
application was made for planning permission for the most southerly part of the
site adjoining Pennistone Road. Planning permission was granted. The form of
layout was substantially amended from that shown in the 1946 layout, and in
particular the entrance was shown as falling not in the south-west corner but
more centrally in the southern boundary of the site. However, the two roads
running up the edge of the site in a northerly direction persisted. In
particular the permission showed them as not ending but being left open ended,
plainly indicating an anticipated future development.
In 1969 there
was a further application and grant of planning permission, KI 3101, for the
site immediately to the north of that at the southern end. Again, the layout
differed in detail from that approved in 1946, but the two roads along the edge
remained a feature. They joined up with the roads approved on plan KI 1991, and
again remained open ended at the northern end, showing an intention to continue
the development in a northerly direction on to the land then still undeveloped.
Further
applications were made from time to time in relation to the land to the north
of the two pieces that I specifically mentioned. But in fact the land to the
north remained largely undeveloped and indeed I think it is right to say that
no development of any importance occurred on the northern part of the site
after the immediate small flurry of activity in 1946 and 1947.
In general,
the documents show that right down to 1984 the planning authorities, although
sometimes baffled at the confusion in the documents, uniformly accepted that
planning permission had been granted in 1946 and had at all times thereafter
been subsisting. On a number of occasions the plaintiff or its predecessors in
title or the developers associated with them asked for confirmation that there
was outline planning permission on the whole of the site and were told that
there was. But at no stage until 1984 did anyone apparently address the
question whether, in the absence of the document granting planning permission,
there was a valid planning permission. The references were not to the existence
of a document (being the planning permission) but to the resolution of the
council and to the existence, in the abstract, of planning permission. It is
noteworthy that at no stage has there been any reference in any of the papers
to a document granting planning permission. Therefore the later history of the
matter down to 1984 is entirely consistent with there having been a grant of general
planning permission in 1946 and everyone acted on that basis, but it does not
provide, as such, any direct evidence of the existence of a document granting
planning permission.
I must refer
in rather more detail to certain matters which not only illustrate the general
position but also are relied upon by the plaintiff company as founding an
estoppel against the defendant authority.
On April 12
1963 Elliott Sand & Gravel wrote to the district council as follows:
We shall be
pleased if you will confirm that planning permission approved on June 6 1946
for the development of the land that is marked blue on the enclosed plan is
still valid. This was in respect of residential buildings and was a proposed
general layout of housing at Shelley. We are requiring this information as
prospective buyers desiring to develop this area are requesting a copy of the
planning permission in respect of this site.
We shall be
pleased, therefore, if you will issue us with a certificate or letter
confirming the planning permission as referred to above.
The response
was a letter signed by the clerk to the district council, saying:
We have
substituted for the plan enclosed with your letter the attached plan based on
the Ordnance Survey sheets. We beg to confirm that the area coloured pink on
the attached plan has been allocated for housing purposes in outline. This was
confirmed by the Council’s Minutes on the 6th June 1946, which was prior to the
appointed day of the Town and Country Planning Act 1947. The plan actually
submitted on the 6th June 1946 showed a layout but the planning permission was
not for the actual layout as shown on that plan, and it would be necessary to
submit a fresh layout of the site for planning permission before any work could
start on developing the site in question. The green line on the plan shows the
boundaries of the green belt, and you will note that it cuts across field 7861.
The plan
(which is no 145 in the bundle before me) shows the whole site. It does not
show any layout, and it does show the top left-hand corner hatched because it
fell within the green belt. However, the whole of the land — that is to say,
the whole of OS 7861 — is coloured pink. One has, therefore, a clear
confirmation that the whole of the land shown on that plan 145 does have the
benefit of an outline planning permission granted in 1946.
Next I should
mention an agreement entered into in 1976. That was an agreement made under
section 52 of the Town and Country Planning Act 1971. The parties were the
plaintiff company, Calder Developments (Yorkshire) Ltd, Bovis and the district
council. It recites that the council were the district planning authority. It
recites that the plaintiff company was the owner of land edged blue on the plan
attached. It recites that Calder Developments (Yorkshire) Ltd was the owner of
certain other land. It recites an agreement between the owner of the land and
Bovis as developers; that the developers would undertake residential
development on that land, and it then goes on:
And whereas
outline planning permission was granted on or about the 6th June 1946 for
residential development in respect of the whole of the land shown edged red on
the attached plan (hereinafter called ‘the site’)
— and I
interpose to say that the land edged red is all the plaintiff company’s land,
right down to Pennistone Road on the south —
and whereas
detailed planning permission has subsequently been given in respect of certain
parts of the site, and residential development has been and is being undertaken
thereon . . .
Then it goes
on to be an agreement restricting the rate of development on the whole of the
site in question to 40 houses per year for a period. So we have there an
agreement, to which the council are a party, reciting the existence of the
planning permission, and, on the basis of the existence of that permission, the
plaintiff company and others accepting liabilities restricting their rights of
development not only on those parts of the land which did not have detailed
planning permission but also on the parts of the land that did have detailed
planning permission. In my judgment, it is the clearest possible
acknowledgement by the planning authority of the existence of the 1946 planning
permission.
In 1949 agents
for the plaintiff company wrote to the district council saying that they
enclosed plans showing the boundaries of land, some of which had been
developed, and asking if the council would confirm that they accepted the
principle that that land had outline planning permission. The reply of October
31 1979 from the defendant council was that:
Part of the
land on the plan enclosed was not covered by the outline planning permission,
and that was the part shown hatched green on your plan, which I return. With
the exception of these areas I accept that valid outline planning permission
for residential development exists on the land.
The
accompanying plan (which is 247) rules off certain bits of land which are not
directly relevant to anything I have to deal with, apart from that sector of OS
7861 which falls within the green belt, which is hatched green. Again, apart
from matters of detail, there is the clearest possible confirmation, this time
by the defendant council themselves, that there was a subsisting outline
permission.
Finally, we
have the rather unusual saga of the town map. This was a map prepared pursuant
to the statutory provisions then in force by the county council as the
strategic planning authority. It was prepared in 1961. Such was
the minister 12 years later in 1973 when, certainly inferentially, the picture
seems to have changed quite dramatically in between. Nobody has been able to
tell me whether the facts stated in the town map refer to the state of affairs
in 1961 or in 1973. It certainly is a remarkable lapse of time in dealing with
a planning matter that one would have thought was as important as that.
Be that as it
may, either in 1961 or in 1973, or both, the county were putting forward the
position illustrated by this section from their proposal:
In 1947 an
application to develop a 60-acre site was granted planning permission, but
since that time little progress has been made towards its development. Because
of the lack of demand for housing development on this scale it is probable that
the whole area will not be fully developed during the planning period. However,
this site must be taken into consideration, since it has been approved for
development and, therefore, the over-allocation of land for residential use is
greatly increased.
Although the
date ‘1947’ is wrong, it was plainly a further admission, this time by the
county as planning authority, that there was a subsisting planning permission
relating to this site at the time that document was made (whenever that may
be). So much for the history of the matter.
In August 1980
the West Yorkshire Structure Plan was adopted. I have not seen it, but I
understand that under that plan the development of the land with which I am
concerned in accordance with the outline planning permission would be
unacceptable.
On April 18
1984 the defendant council, for the first time, said that there was no planning
permission on this land, since there was no document granting planning
permission. They invited the plaintiff company to apply for permission. In
October 1984 the plaintiff company duly applied for permission, which was
refused on the grounds that it was inconsistent with the West Yorkshire Structure
Plan. So we have a position in which for nearly 40 years the planning authority
had accepted the existence of the planning permission but have changed their
stance dramatically on the basis of what some might think to be a technicality,
namely the lack of a planning permission granted in writing. It is that fact
which has led to these proceedings.
I can now turn
to the issues raised. First, I must deal with a preliminary matter which, I am
afraid, I raised but am now satisfied is a bad point. It seemed to me that the
1932 Act was drafted on the basis that planning permission would be granted by
a decision of the relevant authority, of which decision notice then had to be
given to the applicant. It was not a case of the decision of the grant of planning
permission being in writing. The application was considered and approved by the
council, and then notice of their decision given. If that were a correct view,
then it might have been possibly arguable that the resolution of the council on
June 6 1946, as to which there is no doubt, constituted a planning permission
whether or not the council thereafter performed their statutory duty by giving
notice of it. It might have been arguable that article 12 of the 1946 General
Interim Development Order, which required the grant to be in writing, was ultra
vires the minister, since it purported to change the form of granting
permission from approval by the council to the execution of a document.
However, I am satisfied that the point is not open to me. In fact it is part of
the ratio decidendi of both the Court of Appeal and the House of Lords
in Slough Estates Ltd v Slough Borough Council [1969] 2 Ch 305
and [1971] AC 958 that planning permission consists only of the document
granting the planning permission. The resolution of the council is not even
admissible to construe that document.
It is
therefore necessary, if the plaintiff is to succeed in the obtaining of a
declaration as to the subsisting planning permission which it claims, that the
plaintiff company must establish, either by way of positive factual proof or by
raising some form of estoppel against the defendant council, that there was a
document prepared and sent to the applicants within two months of the
application pursuant to the council resolution of June 6 1946 granting
permission. If no document was in fact sent granting the planning permission,
then, under the provisions that I have read, there would have been a deemed
refusal of the application. The issues, therefore, are:
(1) Has the plaintiff on the evidence proved the
existence of such a document?
(2) If not, is the defendant council estopped
from denying its existence?
(3) In any event, has the plaintiff established
with sufficient certainty the terms of the planning permission granted, since,
unless the terms of such permission are clear, it would plainly be improper to
grant any declaration?
On issue one,
I will first consider the matter apart from any presumptions of law that may
apply. To my mind, the background to this case is very important and must be
kept in mind. In 1946 we were dealing with the very earliest days of the system
of planning. It is necessary to look at the events of that period through 1946
eyes, not 1989 eyes. Thus it may have been in those days that the value of a planning
permission to a landowner or developer may not have been appreciated. Certainly
I find it very striking how amateurish is the application for planning
permission in this case. So far as one can see, Mr Elliott, who put it in, was
not a highly educated man. He had simply taken a tracing from the county
planning officer’s plan and filled in the form rather inappropriately. It is
extraordinary to think that a planning permission for over 600 houses, the
current market value of which must now be enormous, had such an origin. I
think, in considering the actions of the plaintiff company and its record
keeping, that needs to be borne in mind.
Again, I think
that in 1946 the general concept of a general permission with a condition
attached requiring detailed approval may not have been an entirely
well-appreciated object. It is important not to assume that in 1946 everybody
had the firm grasp on the system of outline planning permission followed by
detailed approval with which we are now, and have for many years been, well
acquainted. Again, in 1946 the system had only recently been set up as between
the district council and the joint committee.
Finally, I
think, as a matter of background, one should bear in mind very much the fact
that we are dealing with something which occurred over 40 years ago. It is not
in the least bit surprising if documents are missing. Moreover, Mr Bailey, who,
on behalf of the plaintiff company, has conducted the most detailed
investigation into the documents through archives and libraries, told me that
in the course of his investigation he had formed the view that even initially
the documents in question were not always kept in ‘apple pie order’. And indeed
in some cases were likely to be in some state of confusion: not kept chronologically
and in a jumbled state.
The position
is exacerbated by the constant change in the relevant authority. If I
understand the position correctly, the district council, having been the
relevant planning authority in 1946, on the appointed day in 1948 had their
functions, as such, transferred to the county council. In 1974 on the general
reorganisation of local authorities, the planning authority ceased to be the
county council and became a new body, the defendant council, Kirklees
Metropolitan Borough Council. Certain of the functions were transferred to the
council. In 1984 the county council was finally abolished and the remaining
power was transferred to the defendant council.
On each of
those occasions documents had to shift from place to place, and it is quite
clear that documents have gone astray. It is not in any way surprising if not
all the documents are available, as indeed they are not.
Apart from any
presumption of law, on the facts as they have been proved before me, I am quite
unable to hold that the plaintiff, on the normal test of balance of
probabilities, has proved that there was a written grant of planning permission
in 1946. In essence, the plaintiff’s case is that because in 1946 and for
nearly 40 years thereafter everyone proceeded, as they undoubtedly did, on the
basis that there was a planning permission, the necessary inference is that
there was a written grant. I cannot accept that. No one at any time until 1985
is shown as having addressed the question whether there was a written grant.
All that has happened throughout is that everybody has proceeded on the basis
that because of the council resolution there was planning permission. The
reference is invariably to the council resolution and to nothing else. It does
not seem to me a necessary inference that there was the written document.
Moreover, if
there was a written grant, there should have been four copies of it, for the
reasons I have already illustrated. So far as the plaintiff is concerned, there
is no trace of such a document. It is perfectly true that there are not many
traces of many documents in the plaintiff company’s file from around this date.
But this was an important document and it is strange that it is missing if it
ever existed.
So far as the
papers of the district council are concerned, there is no copy of application
339 or planning consent, yet there are copies of the planning consents 359, 378
and 379 granted shortly thereafter. So far as the joint committee is concerned,
there are no copies. The register kept by the county planning officer, as I
say, contained no entry relating to the date upon which planning permission was
sent. It is perfectly true to say that that is not a unique occurrence in
relation to planning application 379. There is no entry of the date upon which
planning permission was granted, though in that case there is an entry saying
that it was granted. So far as the highway authority are concerned, I think the
state of the evidence is that they have no records.
It must be a
very significant fact that there is no document here and no trace of a document
ever having existed which could be the written planning permission.
The evidence
that I have is quite consistent with the view that there was no written grant.
It may well have been in the early days that it was thought that this was an
outline layout approval by the local authority (as it is sometimes referred
to), rather than a grant of planning permission. It is very far from being the
position where, as a necessary inference, I must draw the conclusion that there
must have been a document.
Contrariwise,
I am equally unable to hold that there certainly was not a document, even on
balance of probabilities. The absence of copies is explicable possibly on the
basis of Elliotts Bricks not being a very sophisticated operator. It is clear
that they have not kept their documents. So far as the local authority are
concerned, there has been confusion in their record keeping and their registers
are not always shown to be entirely reliable.
The truth of
the matter is, perhaps not surprisingly, that with the passage of time and
given the confusion which must exist, given reorganisation as frequently as
this, the necessary evidence for me to make a proper affirmative finding either
one way or another that there was or was not a written document is simply not
available. People have died; documents have been lost. It seems to me
impossible on an ordinary judicial basis to make a firm finding in the absence
of clearer evidence.
Therefore, in
my judgment, the outcome of this case does turn on the
planning permission. Since it is coming to the court for relief, the burden of
proof is obviously basically upon it. But in certain cases the law raises a
presumption. The presumption is normally referred to by its Latin tag omnia
praesumuntur rite esse acta. Since few people now study Latin, it seems to
me desirable that we should call it by English words, and I propose to call it
‘the presumption of regularity’. The presumption is that when there has been a
long-term enjoyment of a right which can only have come into existence by
virtue of a grant or some other legal act, then the law presumes, in the
absence of proof to the contrary, that there was a lawful origin. This is the
historical basis from which the doctrine of lost modern grant was developed in
relation to easements. Given the long enjoyment of a right-of-way, then the
court presumed the existence of a grant of the right to use that right-of-way.
I am not for a moment suggesting that the technicalities and indeed the legal
consequences applicable to lost modern grant in the law of easements are
applicable to the present case; they are not. The legal basis, though, is the
same, namely a presumption from long use and long enjoyment.
The same
presumption of regularity can arise where the validity of an act done by a
public authority depends on the existence of a state of facts which cannot,
with the passage of time, be proved. The presumption is that the statutory
authority have acted lawfully and in accordance with their duty. That was, as I
read it, the burden of the decision of Knox J in Thames Water Authority
v Turnbull (October 28 1986 — unreported). In my judgment, the
presumption applies in this case.
Having
resolved to grant the application for planning approval 339, the council were
under an immediate statutory duty to notify their decision to the applicants:
section 2(5) of the 1943 Act. If they did not so do, they were in breach of
their statutory duty. I do not think that the law should start from the
position that the local authority failed to perform their statutory duty. On
the contrary, one must start from the position that one assumes that they did
perform their statutory duty unless and until shown to the contrary.
Moreover, for
nearly 40 years, all parties have proceeded on the basis that there was a valid
permission granted in 1946. Further planning permissions have been granted and
dealt with on that footing. Frequent assurances have been given to that effect.
Everybody has regulated their affairs on the basis that there was a planning
permission. In the absence of a written document granting planning permission,
that common assumption must be wrong. In my judgment, for the same reasons
there is a presumption of regularity arising from the long treatment of the
case as being one in which there was a permission. The necessary prerequisite
for there being a valid permission is the written grant of the permission and,
in my judgment, there is a presumption to that effect.
But it is only
a presumption. It is not a firm conclusion of law; it is dealing with the
burden of proof. If it can be shown by the local authority that, contrary to
what one assumes, they did not perform their duty, or there is some other
explanation as to what has happened, then the presumption would yield.
Mr Farrow, for
the defendant council, submitted to me that even if the presumption was raised,
that did not mean that the defendant council had, on a balance of probabilities,
to show that there was no written permission. As I understood his submission,
he said that even if there is a presumption, it is enough for the defendant
council to say: ‘Well, there is such a state of confusion here that you cannot
say whether it was or was not’. I do not think that is the law, and nor was any
authority cited for it. I think that if there is a presumption of regularity,
then it is on the persons against whom the
is incorrect.
For the
reasons I have given, I do not think that that has been done by the council in
the present case. I therefore hold that there was a written grant of general
planning permission in 1946, subject to the points which Mr Farrow made and
which I will deal with hereafter as to the nature of and the scope of that
planning permission.
In the
circumstances, it is unnecessary for me to deal with the alternative basis of
claim, namely that the defendant council is estopped from denying the existence
of planning permission. It is not necessary to decide it and I prefer to say
little about it. It is enough to say that if this were a case between two
private individuals, I would have no hesitation in holding, for the reasons
which I think are apparent, that the defendant council could not, 40 years
later, be allowed to go back on what they had said all this time.
However, there
is a difficulty where the estoppel is raised against a body which has a
statutory duty to perform, such as a planning authority, and the effect of the
estoppel would be to prevent them carrying out their statutory duty. The
difficulties lie in reconciling the decisions of the Court of Appeal in Wells
v Minister of Housing and Local Government [1967] 1 WLR 1000 and Lever
Finance Ltd v Westminster (City) London Borough Council [1971] 1 QB
222 with the decision of the Court of Appeal in Western Fish Products Ltd
v Penwith District Council [1981] 2 All ER 204. The exact application of
the law to this case seems to me a matter of considerable difficulty.
Since it is
not necessary for my decision and since, if I am wrong on the first point,
there are no disputed facts on which an estoppel case can be built, any Court
of Appeal dealing with this matter will be in just as good a position to deal
with it as I am. I prefer to say nothing more on the subject.
That leads me
to the question of certainty. What was the permission for? Mr Farrow says, rightly, that unless it can
be shown what the permission was, obviously there cannot be a valid permission.
One of the difficulties is that the plan annexed to the planning application
cannot be traced. Doubts therefore are raised in relation to a number of
different matters. First of all, the extent of the land comprised in the
planning permission. It is said that it is a matter of doubt as to whether that
part of OS 7861 on the north-western corner of the site which falls within the
green belt is or is not included in the land to which the permission relates.
Therefore, it is said that there is uncertainty and the permission, if any, is
void.
I do not think
there is any real doubt about this at all. There is a plan, no 145 in my
bundle, which was referred to in the letter of May 27 1963, which I have
already read. That shows the piece of land at the north-west corner coloured
pink, notwithstanding that it is also hatched. It seems to me clear from that
that the plan, which is derived by the local authority from their records at
that time, indicates that the land within the green belt is part of the land to
which the planning permission relates even though no development is permitted,
nor has ever been shown to be permitted, within that part of the pink land
which falls within the green belt. I therefore do not think there is any
substance in that.
Next there are
questions on the layout plan of the siting of the village hall. On a plan,
which the plaintiff company originally submitted was the plan accompanying the
application, the village hall is shown in the wrong position. In fact it is
quite clear in a letter from the planning officer that the position of the
boundary of the village hall was corrected before any approval by the council,
and there are many later maps showing the correct position. So I think that
causes no problem.
Next there is
a point as to an area in which the original proposal made by the county
planning officer excluded houses on the basis that the area abutted on to the
site of a school, and there were therefore no houses along that sector of the
development. That proposal was in the original planning officer’s suggestion,
and there were no houses shown on his original layout plan. But thereafter
there was no trace of that objection being persisted in. All other plans that
have been produced at all times have shown houses along that area. There is
nothing, in my judgment, to show that the planning officer persisted in his
refusal on that point.
Next the
planning officer suggested, prior to the planning approval, that there might be
difficulties about houses abutting on Pennistone Road, whereas the plans that I
have all show houses along Pennistone Road, though not gaining access from it
directly. The matter is of course now ‘water under the bridge’ because that
whole area has been developed. But in terms of the certainty of what was
granted, it is a matter that has to be dealt with. Again, all plans subsequent
to the planning officer’s first proposal do show houses abutting on Pennistone
Road though not gaining access directly to it. When I say ‘all plans’, that is
all plans down to the approval of planning permission KI 1991B where the layout
was altered and a different layout was adopted.
I therefore
reach the view that the layout as approved was the layout as shown on plan 132,
being a plan annexed to an application made in 1950 which describes the
application as being:
An outline
application to erect a bungalow in Westerly Lane. The site is adjacent to the
site of the proposed cinema incorporating the layout of Messrs Elliotts Bricks
approved by your Council before the appointed day. A plan is enclosed showing
the site of the proposed bungalow in red upon the layout of Messrs Elliotts
Bricks Ltd.
That is a plan
which is constantly repeated and, to my mind, shows without any doubt what was
the layout approved in 1946, subject to the amendment as to the layout on the
north-western corner, which was approved in November 1946.
I propose to
declare that the land to which the planning permission relates is the land
shown on plan 145, and the layout approved was the layout as shown on plan 132.
Finally, Mr
Farrow complains that there is uncertainty as to the nature of the planning
permission. Was it a general outline planning permission without being tied in
any way to a particular layout or was it a general approval of a layout? That is to say, the outline planning
permission was for development but only in accordance with the layout on the
plan? I have no doubt that the planning
permission granted was a planning permission to develop only in accordance with
the layout on the plan. It is the plan showing that layout which is approved.
Any departure from that plan, save as to resiting of houses within areas
allocated, was immediately objected to in 1946 when the application was made in
no 379.
It seems to me
that, whatever the modern practice is, at that stage what was being approved
was a development of an estate in accordance with the layout, and that was the
planning permission granted.
I therefore
propose to make the declaration asked for declaring the existence of the
planning permission. It may be that that declaration will require modification,
but I will hear counsel on that.
Declaration
to be drawn up in terms agreed between counsel or, failing such agreement, by
his lordship. Costs in the cause.
