by Thomas Graham
The Town and Country Planning Act 1968 introduced what are now sections 56, 91 and 92 of the Town and Country Planning Act 1990 providing a mechanism intended to prevent the accumulation of unimplemented planning permissions by providing for the expiry of planning permissions not “initiated” within stipulated periods of time.
By section 56 operational development is deemed to be initiated on the earliest date on which any material operation listed in section 56(4) begins to be carried out. The works can be very minor. For example, in Malvern Hills District Council v Secretary of State for the Environment (1982) 263 EG 1190 the Court of Appeal held that marking out a proposed road with pegs qualified. In High Peak Borough Council v Secretary of State for the Environment [1] JPL 366 the digging of a trench was sufficient, despite the fact that it was later backfilled. A change of use is initiated when the new use is instituted.
The Government’s recent consultation paper, Efficient Planning, proposes to amend the criteria now in section 56 to require the developer, if he wishes to keep his planning permission alive, to complete 10% of the total cost of the development as opposed to executing the very minor works presently required. It states:
A trench dug 20 years previously could justify development on land intended in a subsequent development plan to remain as open countryside. It is important for the efficient running of the planning system and for environmental considerations that unimplemented permissions should not be kept alive indefinitely.
One could, however, question the apparent assumption that the problem is confined to unimplemented planning permissions. There is, now, ample evidence to show that planning permissions which have been implemented in the distant past, and then (for all practical purposes) discontinued, can surface to wreak havoc.
In Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [5] AC 132; (1984) 272 EG 425 Lord Scarman described existing use rights as “hardy beasts with a great capacity for survival”. This article will argue that the same can be said of planning permissions. The question is whether this should be the case.
Mineral extraction
Durham County Council v Secretary of State for the Environment [0] 2 PLR 103 provides an excellent example. Planning permission was granted in 1947 for quarrying. The permission was implemented and quarrying carried out until 1956. The site was then used as a refuse tip until 1976. In 1982 the developer made an unsuccessful application for permission to extract sand and gravel from the site. Neither the developer nor the council knew about the 1947 permission. The developer commenced extraction in 1986. An enforcement notice was served by the council. The developer appealed, saying that quarrying did not constitute a breach of planning control and relying upon the, now discovered, 1947 permission.
The Court of Appeal upheld the Secretary of State’s decision that, despite the intervening use of the site as a refuse tip, the 1947 permission was still extant. A planning permission to extract minerals is not spent until the quarry forming the permitted site is exhausted. The intervening use as a tip was not inconsistent with the earlier permission for quarrying because, as a matter of fact, it was possible and economically viable to extract sand and gravel from beneath the tipped areas. As such, it was open to the landowners to take up the quarrying where their predecessors had left off in 1956.
The mere fact that quarrying can be carried out for many years is not, by itself, the whole problem. Section 7 of the Town and Country Planning (Minerals) Act 1981 (now Sched 5, para 1 to the 1990 Act) introduced the rule that every permission for mineral extraction must be subject to an overall time-limit. In the case of permissions before February 22 1982 (presumably including the above-mentioned permission) the statutory lifespan is 60 years. The difficulty lies in the fact that quarrying can be discontinued for many years and then resumed when, by chance, a forgotten permission is discovered. In the meantime, the disused quarry could have been allocated as open countryside.
One could be forgiven for breathing a sigh of relief at this point and saying that, at least, mineral extraction is a very particular case. Unfortunately, this is not so.
Change of use
A material change of use is said to be “spent” when the new use is instituted. One could, therefore, reasonably expect that if planning permission is granted for a change from use A to use B then, once the change of use B is instituted, use A ceases to be of importance. This expectation is, however, frustrated when the change of use is permitted by the General Development Order. In Cynon Valley Borough Council v Secretary of State for Wales [6] 2 EGLR 191; (1986) 280 EG 195 planning permission was granted, and implemented, in 1958 for use as a fish-and-chip shop. Then from 1978 to 1983, the premises were used for an antique shop. This was permitted by the General Development Order. In 1983 the local planning authority refused permission for use as a hot food take away. The Court of Appeal held that the 1958 permission was “spent” when implemented and was, therefore, no longer available. The court then went on to hold that a fresh planning permission was not needed because section 23(8) of the Town and Country Planning Act 1971 (now section 57(3) of the 1990 Act) allowed recommencement of the fish-and-chip shop use (ie hot food take away).
It is not, within the confines of this article, possible to consider all the points arising from the Cynon Valley decision, but it is submitted that the purpose attributed to what is now section 57(3) by the Court of Appeal does violence not only to the notion of letting dead uses lie but also to one of the objectives of the General Development Order. Section 57(3) provides:
Where by a development order planning permission to develop land has been granted subject to limitations, planning permission is not required for the use of that land which (apart from its use in accordance with that permission) is its normal use …
(my italics).
The Court of Appeal held that the use as a shop was “subject to limitations” because the General Development Order excluded use for the sale of hot food and certain other specified purposes. This provision therefore permitted reversion back to the fish-and-chip shop use as the “normal” use of the premises. Apart from the troubled meaning of “limitations” (see Cater v Essex County Council [0] 1 QB 424), it is difficult to see how a use which has been supplanted by another for over five years can fall within the present tense phraseology of the provisions; namely, “which … is its normal use” (my italics). If five years is acceptable, then why not 10, 20 or 50 years? It is often said that Part 3 of the General Development Order is designed, in part, to permit one-way changes to uses which are more desirable in terms of environmental impact. For example, from B2 to B1 (but not vice versa), from A2 to A1 (but not vice versa), etc.
Prior to revision of the Use Classes Order, the Secretary of State advised:
The aim is to reduce the number of classes to the minimum compatible with keeping within specific control changes of use, which, because of their environmental consequences or relationships to other uses, need to be subject to prior authority; to permit, without the need for specific application, changes in the proportion or “mix” of uses of different kinds within a single building; and, where possible, to permit change of use between Use Classes from a more “noxious” type of use to a less noxious one (the “escalator” concept).
(my italics.)
(See Appendix B, para 4, of the Property Advisory Group Town and Country Planning (Use Classes) Order 1972 Report, DOE, December 1985.)
Clearly, if the B2 or A2 uses in the above examples can be described as the “normal” use of the land and the permitted change of use can be described as being “subject to limitations”, then this “escalator” mechanism will be of no avail.
Operational development
Moving on to operational development, it would be reasonable to assume that, once a developer has implemented his permitted development, then he has elected to lay to rest any extant but inconsistent planning permissions for alternative built developments of the site. This is not necessarily the case. The legal position is that an extant planning permission for operational development is not extinguished by other inconsistent development of the subject land. This much is clear from section 75(1) of the 1990 Act which states inter alia:
…any grant of planning permission to develop land shall (expect insofar as the permission otherwise provides) enure for the benefit of the land and of all persons for the time being interested in it.
Such a planning permission can neither be abandoned by non-use nor extinguished by the land owner’s election (see Pioneer).
Pilkington v Secretary of State for the Environment [3] 1 WLR 1527 is now established as the leading authority on the relationship between mutually inconsistent planning permissions. In that case, a permission (No 601) was granted in 1953 permitting the erection of a bungalow on certain land with the rest of that land to be used as a smallholding. Permission 601 was never implemented. In 1954, a permission (No 756) was granted allowing the erection of a bungalow subject to a condition that the bungalow would be the only building erected on the site. That bungalow was erected. A further bungalow was built on another part of the site in accordance with a later grant of permission. Some years later, the landowner sought to rely on permission 601.
The Divisional Court held that permission 756 was inconsistent with and alternative to permission 601. When permission 756 was implemented, permission 601 became incapable of implementation.
Lord Widgery observed that the bungalow contemplated by permission 601 was ancillary to a smallholding which was to occupy the rest of the site. It was no longer possible to create the smallholding because the bungalow built under permission 756 was in the way. But he went on to say, in relation to permission 601:
whether or not it should be regarded as in suspense and possibly available at a future time should the development carried out pursuant to No 756 be removed is something which I do not feel compelled to express an opinion about.
He went on to say that he based his decision “on the physical impossibility of carrying out that which was authorised in No 601”.
Taking a hypothetical situation, let us assume that a developer obtained planning permission in 1970 for the construction of a petrol-filling station. He completed works to satisfy section 56 of the 1990 Act. Advised that the level of passing traffic was insufficient to finance the petrol-filling station, he accordingly obtained and implemented planning permission in 1972 for development of the site as warehousing and storage. In 1987, the road was improved and, owing to increased passing traffic, the owner wants to remove the warehouse and reactivate the 1970 planning permission for the petrol-filling station.
On the basis of the existing law, it would appear that he is able to do so. It would make no difference if the increased traffic flows now created major highway objections to a petrol-filling station at this point or if the site now falls within the green belt.
Conclusion
It is submitted that, while the operation of section 56 leaves a lot to be desired and deserves to be revised, further steps should be taken to deal with the problem of planning permissions which have been implemented yet, for all practical purposes, supplanted by later development. It is further argued that section 57(3) of the 1990 Act be amended in order to overrule the Cynon Valley decision and fulfil all the objectives of Part 3 of the General Development Order.
This paper has sought to set out the problem, but makes no attempt to prescribe the remedy. This is partly for reasons of space (because there is no single simple solution) and partly because the most difficult step is, usually, recognising that a problem exists in the first place.
