Planning application — Woodland development — Claimant submitting incomplete plans with explanatory letter — Second defendant council accepting plans without comment — Council failing to inform claimants that application not complying with Article 8 of Town and Country Planning General Development Order 1988 — Whether council estopped from refusing certificate of lawful development — Claim dismissed
In 1990, the second defendant council granted outline planning permission to the claimant company for a leisure development that included 250 log cabins. The claimant subsequently applied for approval of reserved matters. Plans submitted by the claimant identified the location of some of the cabins, and an accompanying letter explained that the location of the remaining cabins would be determined during construction. In 1994, the council approved the reserved matters without comment.
Work on the site commenced, and, in 1997, the claimant duly applied for certificates of lawful development. These were refused on the ground that the outline planning permission had lapsed. The claimant appealed. An inspector dismissed the appeal on the grounds that: (i) permission had lapsed, since plans showing the precise location of the cabins had not been submitted within the requisite time-frame; and (ii) in any case, the council had no authority to vary or waive a condition of the planning process.
The claimant brought proceedings under section 288 of the Town and Country Planning Act 1990 to challenge that decision. It contended that: (i) the approval of reserved matters had been properly given in 1994, and, since the outline planning permission was capable of implementation for a further two years from that date, it was validly implemented; alternatively (ii) the actions of the council, including their failure to inform the claimant that the application failed to comply with the provisions of Article 8 of the Town and Country Planning General Development Order 1988, amounted to an agreement between the parties that the application had been made “in the only way possible” for the purposes of Article 8, and the council were therefore estopped from pleading otherwise.
Held: The claim was dismissed.
1. The plans and accompanying letter were ambiguous. They did not sufficiently identify the intended siting of 250 cabins, and could, therefore, only be construed as encompassing the 18 cabins originally described. Even if the location of each cabin were to be determined with specific reference to the site, such details still needed to be submitted within the requisite three-year period. In such circumstances, the claimant should have applied, under section 73 of the Town and Country Planning Act 1990, for permission to develop the land without complying with conditions previously attached to the planning permission: see R v Leicester City Council, ex parte Powergen UK Ltd [1999] 4 PLR 91. Applications for approval of reserved matters could have been made in stages, but all applications had to be made within the specified period. The inspector’s reasoning was correct. There had been no approval of reserved matters within the requisite time period, and the outline planning permission had therefore expired.
2. The council were duty-bound by Article 10 to notify an applicant if they considered that the application failed to comply with Article 8 and was therefore invalid. Since, however, the submitted plans could be considered to have dealt only with the application for the first 18 cabins, and there was still time for a further application within the requisite three-year period, there was nothing to make it necessary for the council to give such notification to the claimant. The absence of such notification could not be relied upon as establishing the existence of a valid application for the approval of reserved matters. The facts of the case did not support an argument of legitimate expectation, and there was no issue of estoppel. The decision in Downderry Construction Ltd v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 2 (Admin) concerning estoppel, made prior to the decision in R v East Sussex County Council, ex parte Reprotech (Pebsham) Ltd [2002] UKHL 8; [2002] JPL 821 and without considering Powergen, was therefore disapproved.
Gregory Jones (instructed by Coole & Haddock, of Worthing) appeared for the claimant; Paul Brown (instructed by the Treasury Solicitor) appeared for the first defendant Secretary of State; the second defendants, Rother District Council, did not appear and were not represented.
Vivienne Lane, barrister
