Planning permission — Specified operations — Time-limits — Town and Country Planning (Scotland) Act 1972 section 40 — Whether test of genuine intention to complete development applies
In 1961 and 1967 the appellant local planning
authority granted planning permissions for the residential development of a
44-acre site of land. The setting out and excavation of the access road, which
the second respondent developer relied on as a ‘specified operation’ under
section 40 of the Town and Country Planning (Scotland) Act 1972, were carried
out prior to the expiration of the five-year time-limit beginning on 8 December
1969. In November 1995 the developers applied for a certificate of lawful use
under sections 90 and 90A of the 1972 Act in respect of the site. This was
refused by the local planning authority. The developer appealed to the
Secretary of State for Scotland. Following a public inquiry, the reporter
allowed the appeal and granted the certificate of lawful use. The local
planning authority appealed against that decision contending that, an operation
was not specified unless it was carried out with the intention of carrying out
or completing the development. Further, it was said that the works relied on as
‘specified operations’ were unlawful because necessary site lines could not be
achieved without consent of a further owner.
(1) It was no doubt natural to feel that it would
be unsatisfactory if the person entitled to the benefit of a planning
permission could keep it in being by carrying out some work that could be
regarded as a mere token or pretence. The solution to that problem, if it was a
problem, was more likely to be found by applying an objective approach and
considering, first, whether what had been done had been done in accordance with
the relevant planning permission, and, second, whether it was material, in the
sense of not being de minimis. There was no justification in the terms
or in the structure of the legislation for the imposition of an ill-defined
requirement that the specified operations should be carried out with some
particular intention. The proper test was an objective one, and it cannot be
said that the reporter misdirected himself: see p64F. (2) The specified
operation was not unlawful. ‘Lawful’ looks primarily to the position under the
planning legislation. It may well be that unless the developer could achieve
the consent of the owner of part of the ground affected by the planning
permission, he could not proceed with it in fact, but that does not affect the
question of lawfulness for the purposes of section 90: see p65B.
Agecrest Ltd v Gwynedd
County Council [1998] JPL 325, QB
Campbell v Argyle
&Bute District Council 1997 SCLR197
Etheridge v Secretary
of State for the Environment (1983) 48 P&CR 35; [1984] JPL 340, QB
High Peak Borough Council v Secretary of State for the Environment [1981] JPL 366, DC
Malvern Hills District Council v Secretary of State for the Environment (1982) 46 P&CR
58; 81 LGR 13; [1982] 1 EGLR 175; [1982] EGD 1217; 263 EG 1190; [1982] JPL 439,
CA
Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132;
[1984] 3 WLR 32; [1984] 2 All ER 358; (1984) 82 LGR 488; 48 P&CR 95; [1984]
2 EGLR 183; [1984] EGD 1094; 272 EG 425; [1984] JPL 651, HL
R v Arfon
Borough Council, ex parte Walton Commercial Group Ltd [1997] JPL 237, QB
R v Secretary
of State for the Environment, ex parte Percy Bilton Industrial Properties Ltd
(1975) 74 LGR 144; 31 P&CR 154
Spackman v Secretary
of State for the Environment [1977] 1 All ER 257; [1977] JPL 174; sub
nom Spackman v Wiltshire County Council (1976) 33 P&CR 430
Appeal under sections
237 and 285 of the Town and Country Planning (Scotland) Act 1997
This was an appeal by East Dunbartonshire Council,
under sections 237 and 285 of the Town and Country Planning (Scotland) Act 1997
against the decision of the first respondent, the Secretary of State for
Scotland, who, by his reporter, allowed the appeal of the second respondent,
MacTaggart & Mickel Ltd, against the refusal to grant them a certificate of
lawful use under sections 90 and 90A of the Town and Country Planning
(Scotland) Act 1972.
&Wedderburn, of Edinburgh) appeared for the appellant council.
Edinburgh) appeared for the second respondent, MacTaggart &Michel.
for Scotland, did not appear and was not represented.
LORD COULSFIELD: On
25 November 1995 the second respondent applied for a certificate of lawful use
or development under sections 90 and 90A of the Town and Country Planning
(Scotland) Act 1972. On 9 July 1996 the appellants refused to grant the
certificate applied for. The second respondent appealed to the Secretary of
State, who appointed a reporter to determine the appeal. A public inquiry was
held on 2 and 3 April 1997, and on 29 May 1997 the reporter allowed the appeal
and granted a certificate of lawful use. The appellants have appealed to this
court. The first respondent, the Secretary of State, did not contest the
appeal, but the second respondent has appeared and does contest it. The appeal
is now being conducted under the provisions of the Town and Country Planning
(Scotland) Act 1997, but the relevant provisions, at the material time, were
those contained in the 1972 Act.
It is convenient to begin by setting out the
relevant statutory provisions. Until 1969 there was no time-limit on the
validity of planning permissions in Scotland. In 1969 provisions were made in
regard to the time-limits, and these are now found in sections 38 to 40 of, and
Schedule 22 to, the 1972 Act. Section 38 provides that, subject to various
matters, every planning permission granted or deemed to be granted is deemed to
be subject to a condition that the development must be begun not later than five
years from the date of the grant. Section 39 makes further provision in regard
to outline planning permission, the effect of which is that application for
approval must be made in regard to any reserved matters within three years from
the date of the grant of outline planning permission and the development must
be begun not later than the later of the expiration of five years from the date
of the grant of outline planning permission or of two years from the final
approval of reserved matters. What is meant by the beginning of a development
is defined by section 40, the provisions of which are of importance for this
appeal. Section 40 provides:
(1) For the purposes of section 38 and 39 of this
Act, development shall be taken to be begun on the earliest date on which any
specified operation comprised in the development begins to be carried out.
(2) In subsection (1) of this section ‘specified
operation’ means any of the following, that is to say —
(a) any
work of construction in the course of the erection of a building;
(b) the
digging of a trench which is to contain the foundations, or part of the
foundations, of a building;
(c) the
laying of any underground main or pipe to the foundations, or part of the
foundations, of a building or to any such trench as is mentioned in the last
preceding paragraph;
(d) any
operation in the course of laying out or constructing a road or part of a road;
(e)
any change in the use of any land, where that change constitutes material
development.
The following subsections deal with the meaning of
material development and with certain other matters in relation to the approval
of reserved matters and appeals.
Certain transitional provisions which were
contained in the Town and Country Planning (Scotland) Act 1969 are now found in
para 14 et seq of Schedule 22 to the 1972 Act. Para 14 provides that
sections 38 and 39 of the 1972 Act do not apply to planning permissions granted
or deemed to have been granted before 8 December 1969. Para 15(1) provides, inter
alia:
every planning permission granted or deemed to
have been granted before 8th December 1969 shall, if the development to which
it relates had not been begun before the beginning of 1969, be deemed to have
been granted subject to a condition that the development must be begun not later
than the expiration of five years beginning with 8th December 1969.
The following provisions of the Schedule deal with
various matters such as planning permissions that had been granted subject to
an express time-limit, and to the application of time-limits in relation to
outline planning permissions, but these are not relevant for the present
purpose.
Section 90A of the 1972 Act provides that if any
person wishes to ascertain whether any proposed use of buildings or other land,
or any operations to be carried out in, on, over or under land, would be
lawful, he may make application to the planning authority specifying the land
and the use or operations in question. Subpara (2) provides:
If, on an application under this section, the
planning authority are provided with information satisfying them that the use
or operations described in the application would be lawful if instituted or
begun at the time of the application they shall issue a certificate to that
effect; and in any other case they shall refuse the application.
The issue in this case is whether a development
for which planning permission was granted prior to 8 December 1969 had been
started before the period expired. The principal contention on behalf of the
appellants is that, in order to satisfy section 40, it is not sufficient that
operations have been carried out, within the terms of the planning permission,
before the material date: they contend that the operations must have been
carried out with the intention of carrying out or completing the development,
even if that completion may have been prevented by other factors. That
contention was not accepted by the reporter and it was submitted that, in that
respect, he had misdirected himself. The point is essentially one of
construction of the provisions of section 40, and therefore applies generally
in the case of all planning permissions, not merely old planning permissions
dated before 1969. The appellants also made a second submission in regard to
the construction of section 90A(2), but we shall deal with that submission
later.
Because the point is a general one of
construction, the precise circumstances of the planning permissions which have
given rise to the present application are not very material. It is sufficient
to say that in October 1961 Stirling County Council, the then planning
authority, granted outline planning permission for a residential development on
44 acres of land at Hole Farm, Lennoxtown. On 26 January 1967 planning consent
was granted for a housing development on a portion of the site including a
frontage to the A89 road. At the inquiry before the reporter there was very
considerable difficulty in determining what the precise terms of these planning
permissions were, because appropriate plans were not available. There was also
some question as to whether the 1967 permission fell to be regarded as a full
planning permission, standing on its own, or as an approval of reserved matters
in relation to part of the 1961 permission: for the purposes of the present
appeal, however, that point is not of any significance. Having considered the
evidence that was available to him, the reporter drew attention to the planning
permission of 1967 and to a provision in regard to access, which read:
visibility splays shall be provided as indicated
in blue on the submitted plan and no obstruction at a greater height than three
foot six inches above ground level shall be permitted within these splays.
He said, however, that in the absence of the
approved plan there was no certain evidence of the exact location of the access
road and the required visibility splays. He continued:
Your client’s (the second respondent’s) site
engineers supervised the setting out and excavation of the access road just
before 6 April 1967, a date which was of significance for the incidence of
betterment levy under the Land Commission Act. Work continued into the site
until a considerable depth of peat was discovered, initially by the excavator
getting into difficulty. A letter dated 4 April 1967 was sent by recorded delivery
to Stirling County Council giving notice that development had been commenced.
The discovery of extensive peat deposits caused a substantial alteration to the
layout. A revised application for a 42 house development was approved by
Stirling County Council on 12 February 1968. The plan produced is a poor
photocopy but the access road appears to meet Glen Road at the same point as
shown on the other plans. Lines drawn close to the mouth of the access road
appear to indicate visibility splays of 9 metres by 80 metres. This extends
across Dr Dunn’s garden at No 38 which has a high beech hedge along the west
boundary and specimen trees on its road frontage which restrict visibility. In
a letter tabled at the inquiry, Dr Dunn confirmed that he has lived there since
1952 and has never received any approach from your clients with a view to
securing sight lines over his property. He would oppose any such arrangement
while he remains owner of the property. Without the agreement of the owner of
No 38, it would not be possible to maintain a clear visibility splay of the
required length.
When he came to set out his conclusions, the
reporter referred to the statutory basis of the appeal, distinguishing it from
a planning appeal against a refusal of planning permission, and pointed out
that the determining issue in the appeal was confined to whether the site works
carried out in April 1967 were lawful. He continued:
26. It is claimed that these works represent a
specified operation in the construction of the access road approved under the
January 1967 planning permission. That permission is for ‘housing development
at Lennoxtown’ but the approved plan could not be produced. On the balance of
probabilities, I am persuaded by the consistency evident in the working drawing,
discussion plan and the stamped building warrant plan of February 1967 that the
approved access road lay the width of one house block to the west of No 38 Glen
Road. I find that the site works are located within a metre or so of the
approved line and that formal notification of a start to development was given
to Stirling County Council by the letter of 4 April 1967. Although the site
works are now overgrown with grass, I am bound to accept that the works
described did represent an operation in the course of laying out the road
approved in the 1967 consent. Legal authority is quite clear that a specified
operation under section 40(1)(d) of the Act need not involve substantial
works provided that they include, inter alia, ‘any operation in the
course of laying out a road or part of a road’.
27. Two further submissions were made against
such a finding. The first concerns abandonment of the permitted housing use and
the second submission is that these works were not lawful because they do not
comply with the visibility splay requirement in condition 1 of the consent. On
the latter issue, I find as a fact that the access begun in 1967 could not
comply with the probable visibility splay requirement. The available sight line
of 9 metres by 30.4 metres is grossly inadequate for the 96 house development
then approved. The standard then current would have been 30 feet by 300 feet.
However, the condition does not require the visibility splay to be available at
commencement of the development. I believe the condition would be satisfied as
long as the visibility splays were available before the first house was
occupied. It is not unusual in such circumstances for the developer to engage
in persuasive negotiations with the owner of the adjacent property to make him
an offer that he cannot refuse.
28. The question of true intention to develop was
also raised as a test but I find no encouragement in section 40 requiring
extraneous evidence of intent. The carrying out of the specified operation
itself provides evidence of an intention to proceed.
The reporter then proceeded to deal with other
matters with which this appeal is not concerned.
Counsel for the appellants submitted that the
reporter had misdirected himself in failing to apply his mind to the question
of the true intention to develop and in holding that the carrying out of the
specified operation itself provided evidence of an intention to proceed. She
submitted that the proper test was whether the operation was carried out with
the genuine intention to proceed with the development: this was a question to
be determined on the balance of probabilities, taking account of the whole
evidence of the circumstances and of the developer’s motive at the time. She
accepted that there had been evidence before the reporter that might have
entitled him to draw the conclusion that there was a genuine intention to
develop, but submitted that since he had not considered the question, the
appropriate course was to allow the appeal and remit the question so that the
issue could be properly considered. She accepted that the test of a genuine
intention was not set out in the statute, but submitted that it had been
developed in a series of recent cases arising from instances of very old
planning permissions. The fact that a very long period had elapsed without a
development being completed was itself a pointer to the absence of genuine
intention. So far as the statute was concerned, the relevant operation was the
making of a road, which fell within section 40(2)(b) of the 1972 Act.
The first time, it appeared, that reference had been made to genuine intention
was in Spackman v Secretary of State for the Environment [1977] 1
All ER 257, a decision of Willis J. A similar reference was made by Collins J
in Agecrest v Gwynedd County Council [1998] JPL 325, and the same
principle had been referred to, with a slightly different approach to the
question of intention, by Buxton J in R v Arfon Borough Council, ex
parte Walton Commercial Group Ltd [1997] JPL 237. There was no Scottish
authority that was relevant. The submission was consistent with the statutory
framework in sections 38 and 39 of the 1972 Act. There was provision in section
38 for making the period of validity of a planning
period was specified. That was consistent with the approach of planning by
reference to a development plan, in order that individual applications could be
determined in accordance with broader strategic objectives, with which old
planning permissions might be inconsistent. Reference was also made to Malvern
Hills District Council v Secretary of State for the Environment
(1982) 46 P&CR 58. It was accepted that if the submission was correct, the
approach would apply in all cases of specified operations under section 40 of
the 1972 Act, and all types of planning permissions, not merely such as might
have survived from 1969.
For the second respondent it was submitted that
the reporter’s approach had been correct. The statutory provisions made no reference
to any question of genuine intention. The references to beginning specified
operations applied to all operations that might fall within section 40(2) of
the Act. There was authority to the effect that, in order to satisfy that
provision, the operation must be one within the development envisaged by the
planning permission, not merely a similar operation, but provided the operation
that was carried out did, objectively considered, meet the planning permission,
that was sufficient. Section 40 applied equally to modern planning permissions
recently granted and to old planning permissions that were outstanding, and
therefore arguments based on the undesirability of allowing very old planning
permissions that had not been implemented to survive was beside the point. If
there had been any requirement of a genuine intention of any kind, that might
have been expected to surface in some of the earlier authorities. Reference was
made in particular to Campbell v Argyle & Bute District Council 1997
SCLR 197 and Pioneer Aggregates (UK) Ltd v Secretary of State for the
Environment [1985] AC 132. It was not clear where the intention requirement
was derived from and it was one that was extremely difficult to define. All
that the statute required was that the specified operation should be begun.
There was nothing in the authorities referred to for the appellants to
establish the requirement for which they contended. Reference was also made to High
Peak Borough Council v Secretary of State for the Environment [1981]
JPL 366.
There are, in our view, formidable objections to
the proposition advanced by the appellants. There is authority that the work
that is alleged to constitute specified operations must be work done pursuant
to the planning permission in question: see eg R v Secretary of State
for the Environment, ex parte Percy Bilton Industrial Properties Ltd (1975)
31 P&CR 154 per Lord Widgery CJ at pp158–159; Etheridge v Secretary
of State for the Environment (1983) 48 P&CR 35 per Woolf J at
pp40–41. The work done must not merely be some development but must be
part of the development covered by the planning permission in question:
Campbell v Secretary of State 1997 SCLR 197. However, as counsel for
the appellants accepted nothing in the wording of section 40(2) of the 1972 Act
supports the argument that there is some requirement that the specified
operations there defined must be undertaken with some particular intention. In Pioneer
Aggregates (supra) Lord Scarman emphasised that it is not desirable
to try to elaborate or introduce additional requirements into what is already
an elaborate statutory code. Although that case was concerned with a different
question from the one that arises in the present case, namely whether a
planning permission could be held to have been abandoned, the approach is, in
our view, relevant. It would be particularly undesirable, in our opinion, to
attempt to introduce into the statutory code requirements which were not
capable of reasonably precise definition. As was submitted on behalf of the
second respondent, a requirement that the specified operation should be
undertaken with some sort of intention in regard to the carrying out of the
development would be one extremely difficult to define and apply. A developer
faced with the likely expiry of a planning permission may undertake a specified
operation in the clear expectation that he will proceed to complete the whole
development: on the other hand, he may undertake the specified operation with a
more or less well justified expectation of being able to raise finance that he
does not currently have or to sell the site to a customer whom he expects or
hopes to be interested. Again, a developer may have mixed motives for
undertaking an operation. In the present case, the developer may have had in mind
that it was necessary to begin operations before 6 April 1967 in order to avoid
the impact of betterment levy under the Land Commission Act. Apart from that
special circumstance, there may be other taxation implications in any given
case. Where the developer has or may have mixed motives and purposes, the
application of any test of genuine intention becomes even more complicated. If
there were any such test, it might have been expected that it would, by this
time, have been clearly defined by authority. Indeed, the argument that some
particular intention is necessary is not easy to reconcile with High Peak
Borough Council v Secretary of State for the Environment [1981] JPL
366.
In the argument before us, it was submitted that
the requirement that there should be a genuine intention to develop could be
derived from the policy of the statute, and that by placing time-limits on
planning permission, parliament had indicated that a person entitled to the
benefit of a permission should not be entitled to keep it in force where there
was no genuine intention to develop, and it was stressed that the existence of
old planning permissions could be an obstacle to proper contemporary planning.
That argument is not without force, but the short answer to it, in our view, is
that the statute prescribes time-limits and the circumstances in which planning
permissions are to continue in force beyond those time-limits, and does so
without any requirement as to intention. It seems to us therefore that to add a
requirement as to intention would clearly go beyond what the statute
prescribes. Accordingly, we do not think that there is anything in the
structure of the Act to support the appellant’s argument that it is necessary
to apply any test of genuine intention. We turn, therefore, to consider the
cases on which the appellants relied.
In Spackman v Secretary of State for the
Environment (supra), planning permission for the erection of a
dwellinghouse had been granted to the plaintiff and her husband in 1948. Later,
the plaintiff, after her husband’s death, applied for consent for a modified
development, which was
to try to keep the original planning permission alive. With that in mind, she
undertook some operations in connection with the construction of a soakaway and
trenches, and the partial construction of a driveway. The operations conformed
in part to the original planning permission of 1948, but in other parts did
not. Having considered the whole circumstances, Willis J held that, despite the
deviations from the original planning permission, the works actually carried
out were specified operations and were sufficient to preserve the permission in
existence. The passage on which reliance is placed in the present case is found
in the opinion of Willis J in [1977] 1 All ER 257 at p260f. He said:
Counsel for the planning authority’s point on the
soakaway is that it is really irrelevant to the 1948 building for this reason.
The 1948 plans show soakaways connected directly by pipes to the corners of the
proposed building, whereas if the trenches dug in March 1974 are projected, two
of the three miss the notional 1948 building altogether. He suggests that the
works, if not colourable, are at least so wide of the mark that they cannot be
regarded as operations related to implementing the 1948 permission and thus not
specified operations. Counsel for the plaintiff concedes that one trench
is, as it were, off course, and that the contractor made a mistake in the
location of the soakaway and the direction of at least one trench, but that the
other two could have been moved or adapted to connect the soakaway with the
1948 house had it been built. I do not think this was a colourable operation,
nor do I find any difficulty in accepting that the contractor made an error in
locating part of the approved surface water drainage system. If the 1948 house
had been built it seems to me that a substantial part of the soakaway works
could have been used to serve it, and that any initial error by the contractor
would have had to be put right by him. If it is necessary to apply the subjective
test I am quite satisfied that the plaintiff intended the works to be related
to the 1948 plans, and that she should not suffer by reason of any error due to
the failure to comply with her instructions.
It is true that in that case Willis J appears to have
been prepared to contemplate that it might be relevant to ask whether an
operation was ‘colourable’ or with what intention it was carried out. However,
the opinion falls short of a positive affirmation that any requirement as to
intention does exist, and it contains no analysis of any reasons for
considering that any such requirement is imposed by the statute or of the
difficulties that would be inherent in applying it.
The next case was Malvern Hills District
Council v Secretary of State for the Environment (supra). In
that case the question was whether marking out the line of a road by taking
precise measurements and placing pegs was sufficient to constitute a specified
operation or whether, as the planning authority contended, there required to be
some operation that changed the physical character of the land and had some
degree of permanence. It was held by the Court of Appeal, by a majority, that
the expression ‘laying out’ of a road in the relevant section referred to the
process of planning or delineating the road on the ground, but did not require
the placing of anything in a permanent position on the land. Two passages in
the
said at p70:
This conclusion seems to me to accord with the
intention of the legislature. Sections 41 and 42 seek to ensure that land will
not be held undeveloped for an indefinite period in the hands of speculators
whose only intention is to sell the land at some future propitious date at the
enhanced value that development permission attracts. Section 43 seeks some
earnest of intention to develop. The specified operations are not necessarily
very extensive. Very little need be done to satisfy the section. That which is
done, however, must genuinely be done for the purpose of carrying out the
development. Section 43 is a benevolent section that aims at avoiding hardship
to a developer who is genuinely undertaking the development. The respondents in
this case were clearly doing that. It would, indeed, be hard to interpret
section 43 by importing a restriction on the natural meaning of the words by
reference to the decision in Parkes case.
Watkins LJ referred to a passage in the decision
of Willis J in Spackman (supra) in which Willis J remarked that
provisions that took away from the subject a vested entitlement to proceed with
a development should be construed benevolently, and said at p72:
I respectfully agree and would add that this is
especially so where, as here, the bona fides of the developers of the land —
the builders — are not assailed. The inspector found, and the Secretary of
State accepted, that the builders intended to develop the appeal site in
parallel with the nearby Huntingdon Estate that they were in the process of
building and at first to construct a length of 250 feet of the estate road and
start on about seven houses in order to give continuity of work.
Whilst the line of the road, pegged out to a
substantial extent, might have been the subject of an order of variation by the
district council before it had been completed, the pegging out was, in my
opinion, on the whole of the accepted facts an unequivocal manifestation of the
intention of the builders to begin development within the permitted time and,
weather permitting, to proceed with it from that time forward until development
was complete.
In our view, what was said by Watkins LJ provides
no significant support to the appellants’ argument. All that Watkins LJ did was
to draw attention to the fact that, in that particular case, there were strong
reasons for thinking that the developers were intending to proceed immediately
with at least part of the development. What was said by Eveleigh LJ comes
closer to providing support to the appellants’ argument, but it does appear to
us, with respect, that there is nothing in what Eveleigh LJ said to explain why
any requirement of genuine intention to develop should be read into the statute
or how such a requirement should be interpreted or applied. Eveleigh LJ
recognised that it was clear that very little need be done in order to comply
with the relevant statutory provisions. As we have said, it is clear that what
is done must be done in conformity with the planning permission about which the
question arises. In so far as what Eveleigh LJ said suggests any requirement
beyond that, it respectfully appears to us that he went further than was
necessary for the decision of the particular
intention, no adequate reason for that view was stated.
Perhaps the most positive statement in support of
the appellants’ argument is found in the decision of Buxton J in R v Arfon
Borough Council (supra). It is not necessary to go into the somewhat
complex facts of that case. It is sufficient to say that (as the note to the
decision in Journal of Planning Law observes at p251) the developers had
three obstacles to surmount in establishing that the planning permission in
question was still valid. The first was that the works that had been carried
out were authorised development not in breach of the terms of the conditions,
and the second, that the development could still physically be carried out
within the terms granted. The developers failed on both of these issues and
would therefore have failed, irrespective of the decision on the third, which
was whether the works carried out were genuinely works of development of the
permission. In dealing with the third issue, however, Buxton J referred to the Malvern
Hills case and observed that the scheme of the 1971 Act was that existing
permissions were not to be kept in abeyance forever without being in some way
implemented. The report of the decision continues at p249:
There were plenty of obvious reasons why that
should be so, not least that surrounding planning circumstances might alter. A
planning authority which gave permission to do something in 1958 may well, and
may well properly, have a different view of planning circumstances in 1995. If
that was right it would be rather surprising if commencement of development
could be satisfied purely by digging a trench in 1967, thereby freezing the
planning situation on the very large site for a period that was, in the events
that occurred in the case, some 28 years.
The question the court had to ask itself must
therefore be, in the terms of paragraph 19 of Schedule 24: had the development
to which the planning permission related been begun? If all that one did was
one of the physical acts listed in section 56(4) of the 1990 Act, in no real
sense, could it be said that one was beginning development at all. Section 56
of the 1990 Act was, in his view, there to provide examples of how a developer,
who was undertaking and intending to undertake development, could establish the
date on which he began to do so. That was what Eveleigh LJ meant by saying that
it was a benevolent section that aimed to avoid hardship to a developer who was
genuinely undertaking development. That was why the examples had to be of ‘a
material operation comprised in the development’. That was the phrase used: not
merely an operation permitted by the planning permission.
However, if there was no ongoing intention to
develop he did not see how an operation could be said to be comprised in ‘the
development’. The development did not, at that stage, exist, and may never have
existed. The ‘developer’, as he was sometimes colloquially called in planning
actions, had permission for a projected development, but he (Buxton J) did not
see how he was, in truth, doing anything comprised in the development if he
acted without an intent to carry the permitted development through. Both on the
purpose of the statute and its wording to act for some purpose, other than to
carry through the permitted development, fell outside the terms of paragraph
19.
Buxton J referred to the Pioneer case and
to Spackman (supra) but did not consider that they required him
to take any view different from that which he had just indicated. It may be
noted that Buxton J relied in part on the use of the expression ‘a material
operation comprised in the development’, which appears in section 56 of the
Town and Country Planning Act 1990, but not in the Scottish legislation that is
before us.
It appears to us that Buxton J’s reasoning, if
applied in Scotland, would read too much into the statutory provisions. To
satisfy the condition imposed by section 38 or para 15(1), what is necessary is
that the development should be begun, and in terms of section 40 a development
is taken to be begun when a specified operation begins to be carried out. Those
provisions seem to us to focus attention precisely on the physical acts carried
out, and to require an objective approach. Buxton J also gave weight to the
proposition that the requirement of a genuine intention can be derived from the
purpose of the legislation to limit the duration of old planning permissions.
As we have already said, however, it appears to us that, while the legislation
clearly has that intention, the legislation equally lays down the means by
which old planning permissions can be kept in force and it has done so in an
objective way. Further, there is, in our view, nothing in the reasoning in R
v Arfon Borough Council that provides an answer to the substantial
objections to any test based on intention.
The last case referred to is Agecrest (supra).
In that case Collins J accepted that certain works that had been carried out
were sufficient to preserve a planning permission in existence. The position in
the Arfon case was, however, that the works that had been done had been
carried out with the object of avoiding betterment levy. Collins J applied the
approach indicated by the decision of Willis J in Spackman and
considered whether the works could be said to be colourable, but held that
neither the works nor the intention of the developer could be so described and
accordingly held that the planning permission remained valid. Accordingly, the
decision adds nothing to the reasoning of the previous cases. It is, perhaps,
only necessary to observe that the approach to the question of intention
implied in the decision in Agecrest is, as the comments in the JPL
indicate, different from that taken in Arfon.
Having considered all the authorities, it is our
conclusion that there is nothing in them that compels us to adopt the approach
urged on us on behalf of the appellants. It is, no doubt, natural to feel that
it would be unsatisfactory if the person entitled to the benefit of a planning
permission could keep it in being by carrying out some work that could be
regarded as a mere token or pretence. It seems to us, however, that the
solution to that problem, if it is a problem, is more likely to be found by applying
an objective approach and considering, first, whether what has been done has
been done in accordance with the relevant planning permission, and, second,
whether it is material, in the sense of not being de minimis. It may be
that that is what Eveleigh LJ had in mind in using the word ‘colourable’ in the
passage quoted above. On that approach, the question would be one of fact and
degree, as was indicated in the High Peak case. In the present case,
however, there was no suggestion that the works done
criticism of the decision was that the reporter misdirected himself in regard
to intention. We do not, therefore, require to attempt to define the test to be
applied in cases where it is said that some work has been done as a mere token.
In our view, as we have indicated, there is no justification in the terms or in
the structure of the legislation for the imposition of an ill-defined
requirement that the specified operations should be carried out with some
particular intention. In our view, the proper test is an objective one, and it
cannot be said that the reporter misdirected himself.
The second ground of the appeal can be dealt with
very briefly. It was submitted on behalf of the appellants that in order to
satisfy section 90A(2), the applicant must show that the works or development
authorised by the planning permission would be lawful at the time of the
application, if instituted at that time. In the present case, it had been
submitted to the reporter that they would not be lawful because the necessary
sight lines at the road junction splay could not be achieved without the
consent of the owner of part of the land involved, and that consent was,
plainly, not available. There are, in our view, two short answers to that
contention. The first is that, in our view, the word ‘lawful’ looks primarily
to the position under the planning legislation. It may well be that unless the
developer can achieve the consent of the owner of part of the ground affected
by the planning permission, he cannot proceed with it in fact, but that does
not, in our view, affect the question of lawfulness for the purpose of section
90. The second is that, in our view, the reporter was correct in indicating that
the achieving of the necessary sight lines was not a condition precedent to the
commencement of any development, and that the developer might well be able to
secure the necessary consent before the relevant stage.
In the whole circumstances the appellants have not
succeeded in showing that the reporter misdirected himself in any respect and
that appeal fails.
Appeal dismissed.
