Planning permission for minerals extraction — Condition requiring scheme of working to be agreed by local planning authority — Permission subject to time-limit — Approval of scheme of working delayed — Operations commenced before approval and before expiration of time-limit — Scheme approved by Secretary of State after expiry of time-limit — Whether valid implementation of planning permission — Whether enforcement notice timeous
In November
1973 the Secretary of State for Wales granted planning permission for the
extraction of minerals from land at Moel Findeg, Maeshafn, Clwyd. The
permission was subject to a number of conditions. One of these provided that no
working should take place except in accordance with a scheme to be agreed with
the local planning authority
further condition required the development to be begun before November 30 1978.
In May 1976 the respondent developers purchased the site, paying a price which
reflected the value of the planning permission. In July 1977 they made an
application for approval of a scheme of work. There was a long delay by the
county council in considering the application and it was not until October 26
1978 that the planning subcommittee decided not to approve the proposals. On
November 2 1978 the developers applied to the Secretary of State for his
approval, seeking an urgent reply in order that action could be taken before
November 30. It was impractical for a decision to be given in the time
available, so on November 28 the developers commenced operations on the site
without approval, which continued until December 8 1978. On May 10 1982 the
Secretary of State issued his approval, but expressed no view on whether the
permission had been validly implemented. On September 5 1983 work was carried
out in accordance with the approved scheme, which was a continuation of the
operations commenced in November 1978.
On December 2
1983 the council issued an enforcement notice alleging the carrying out of
development without planning permission. On appeal against the notice, the
Secretary of State upheld the notice, agreeing with his inspector that there
had been a breach of planning control because the condition requiring agreement
to a scheme of working was a condition precedent which had not been complied
with and the planning permission ceased to be capable of implementation after
November 30 1978. The developers then appealed to the High Court. Sir Frank
Layfield QC, sitting as a deputy judge, allowed the appeal, which the Secretary
of State had resisted: [1990] 2 PLR 44. Upon the Secretary of State’s decision
not to take the matter further, the planning authority obtained leave to appeal
to the Court of Appeal.
1. The single
question was whether the development was permitted by the planning permission
read together with the conditions. The permission was controlled by and subject
to the conditions. If the operations contravened the conditions they could not
properly be described as commencing the development authorised by the
permission. If they did not comply with the permission they constituted a
breach of planning control and for planning purposes would be unauthorised and
thus unlawful. In this case, the mining operations to which the planning
permission related were those authorised by the permission, not those which
were unauthorised because they contravened conditions contained in the planning
permission: see p 80A-D.
2. In the
absence of express statutory provision, it accorded with the intent of the
legislation if the approval of a scheme were obtained after the expiration of
the time-limit, as long as the application had been made before the specified
time-limit and either the operations which had taken place were immune from
enforcement or the approval was obtained prior to enforcement action: see pp
84F-G and 88B-G.
3. Whether or
not the planning permission had been implemented
considering whether enforcement action was possible and, if it was, leaving the
outcome to be determined in the enforcement proceedings. That was a sensible
and practical solution to the possible problems in obtaining approval. If the
planning authority or the Secretary of State did not regard it as desirable,
where a time-limit had expired, to give approval to reserved matters, they were
not under a duty to do so. They could take the stand (so long as they acted
reasonably) that the developer had lost his chance. If, however, they gave approval,
no purpose would be served in requiring a fresh application for planning
permission: see p 85B-D. That approach accorded with the policy of the
legislation as explained in Thayer v Secretary of State for the
Environment [1991] 3 PLR 104 at p 109F. It was not intended to be a charter
for developers to ignore conditions intended to be complied with before a
planning permission was implemented. If a developer did not comply with a
condition, he could have enforcement action or any other available action taken
against him. However, when the merits of enforcement proceedings came to be
considered, it was necessary to take into account the situation as it existed
at that time and, in particular, whether any approval required by a condition
had been obtained: see pp 85E-86B.
4.
Accordingly, the minerals operations having been commenced and the application
for approval having been made before the expiry of the time-limit, the relevant
operations no longer being enforceable against the approval having been obtained
prior to the enforcement notice, the developers’ appeal to the Secretary of
State should have been allowed: see p 86B-C.
Per Parker LJ: The delay by the planning authority in dealing with the
application for approval was regrettable and fell far short of what the
developers were entitled to expect: see p 87D-E.
Decision of
Sir Frank Layfield QC [1990] 2 PLR 44 affirmed on different grounds.
to in the judgments
Etheridge v Secretary of State for the Environment (1983) 48 P&CR
35; [1984] JPL 340
Hughes v Doncaster Metropolitan Borough Council [1991] 1 AC 382;
[1991] 2 WLR 16; [1991] 1 All ER 295; (1990) 89 LGR 257; 61 P&CR 355, HL
LTSS
Print and Supply Services Ltd v Hackney London
Borough Council [1976] QB 663; [1976] 2 WLR 253; [1976] 1 All ER 311;
(1975) 74 LGR 210; 31 P&CR 133; 240 EG 711, [1976] 2 EGLR 148, CA
R v Elmbridge Borough Council, ex parte Health Care Corporation
Ltd (1991) 63 P&CR 260; [1991] 3 PLR 63; [1992] JPL 39
R v Elmbridge Borough Council, ex parte Oakimber Ltd [1991] 3
PLR 35; sub nom Oakimber v Elmbridge Borough Council (1991) 62
P&CR 594; [1992] JPL 48, CA
Staffordshire
Moorlands District Council v Cartwright
(1991) 63 P&CR 285; [1992] JPL 138, CA
Thayer v Secretary of State for the Environment [1991] 3 PLR 104;
[1992] JPL 264, CA
Thomas
David (Porthcawl) Ltd v Penybont Rural District
Council [1972] 1 WLR 1526; [1972] 3 All ER 1092; (1972) 71 LGR 89, CA
Appeal against
decision of Sir Frank Layfield QC
This was an
appeal by Clwyd County Council against the decision of Sir Frank Layfield QC,
sitting as a deputy judge of the Queen’s Bench Division, on October 18 1989
([1990] 2 PLR 44), whereby he allowed an appeal by F G Whitley & Sons Co
Ltd against a decision dated October 26 1988 of the Secretary of State for
Wales who had dismissed an appeal against an enforcement notice issued by the
county council as minerals planning authority. The county council did not
appear at the hearing before Sir Frank Layfield but obtained leave to appeal
against his decision from Mustill LJ.
Sullivan QC and Thomas Hill (instructed by Sharpe Pritchard, agents for the
solicitor to Clwyd County Council) appeared for the appellants.
QC and Paul Stinchcombe (instructed by Clement Jones & Co, of Holywell,
Clwyd) appeared for the respondent developers, F G Whitley & Sons Co Ltd.
Secretary of State for Wales did not appear and was not represented.
following judgments were delivered.
WOOLF LJ: This is an appeal against a judgment of Sir Frank Layfield QC,
sitting as a deputy judge of the Queen’s Bench Division, given on October 18
1989 [[1990] 2 PLR 44].
Sir Frank
Layfield allowed the appeal of F G Whitley & Sons Co Ltd (‘the developers’)
against a decision of the Secretary of State for Wales dated October 26 1988,
in which the Secretary of State had dismissed the developers’ appeal against an
enforcement notice served upon them by Clwyd County Council who are the
minerals’ planning authority for the county of Clwyd.
The Secretary
of State resisted the appeal of the developers before the deputy judge and on
the appeal being allowed, he was granted leave to appeal to this court. The
Secretary of State subsequently decided not to pursue that appeal and informed
the planning authority of this. The planning authority had not appeared in the
court below, being content to leave the Secretary of State to contest the
appeal. However, on being informed that the Secretary of State did not intend
to pursue an appeal against the decision of the deputy judge, the planning
authority served a notice of appeal and obtained leave to appeal from Mustill
LJ.
Mr Jeremy
Sullivan QC, who has appeared on behalf of the planning authority on this
appeal, submits, as reflected in his outline submissions, that the ‘appeal in
this matter raises a point of principle of great importance to local planning
authorities generally. It is also of great importance specifically, because of
the site with which this appeal is concerned’. By the time the appeal came
before this court, there had been three further decisions of the courts (two
were of another division of this court) and Mr Sullivan contends that their
effect is that this court has no alternative but to allow the appeal and restore
the decision of the Secretary of State and to do otherwise would mean we had
been misled by the blandishments of Mr Read’s ‘jury’ advocacy on behalf of the
developers.
The issue
which was before the deputy judge, and is now before this court, is whether the
developers have lost the benefit of a planning permission, which had been
granted to them to carry out mining operations, as a result of their failure to
comply with the conditions to which the permission was subject. As the
determination of that issue depends on whether the previous authorities can be
distinguished, it is important to examine with some care the limited factual
context in which the issue arises.
The facts
The history
starts on November 15 1973, when the Secretary of State granted the developer’s
predecessors in title planning permission for the extraction of silica, stone
and sand from a site at Moel Findeg, Maeshafn, near Mold, Clwyd. The site is
within the Clwydian range which in July 1985 was designated an area of
outstanding natural beauty. The planning permission was subject to 11
conditions four of which, conditions 2, 3, 4 and 11, are important. So far as
relevant, they provide as follows:
2. No
working shall take place except in accordance with a scheme to be agreed
with the local planning authority or, failing agreement, as shall be determined
by the Secretary of State and such scheme shall among other matters include
provision for
(a) the
order, direction depth and method of working, . . .
3.
Progressive restoration of the site shall take place in accordance with a
scheme to be agreed with the local planning authority or, in default of an
agreement, to be determined by the Secretary of State, such scheme to be agreed
or determined before working takes place, and the scheme shall, among
other matters, include provision for . . .
4.
Landscaping of the site shall take place in accordance with a scheme to be
agreed with the local planning authority or, in default of agreement, to be
determined by the Secretary of State, such scheme to be agreed or determined before
working takes place.
11. The
development hereby permitted shall be begun on or before 30th November 1978.
(Emphasis
supplied)
In May 1976
the developers purchased the site, paying a price which reflected the value of
the planning permission. In July 1977 they made an application for approval of
the matters referred to in conditions 2, 3 and 4. Bearing in mind that they had
until November 30 1978 to begin development, this should have been sufficient
time in which to obtain the necessary agreement. However, this did not prove to
be the case. On December 2 1977, the developers wrote to the council
complaining that ‘it is quite unreasonable not to have received a decision from
you’. On December 30 1977, the planning authority responded explaining that the
proposal had been explored in some depth but ‘by reason of the location of the
site, prominence in landscape terms, and the highway and other factors
involved, the nature of these proposals will inevitably engender considerable concern’;
and therefore the proposals needed careful appraisal. However, the letter
concluded by pointing out that the matters referred to would be the subject of
discussions and expressed the hope that it would be possible to arrive at a
solution acceptable both to the
the planning authority for further details and eventually the developers
satisfied the planning authority’s planning officer so that in his report for
the meeting of the planning subcommittee of September 13 1978, he wrote:
Although
there is strong local feeling against the development, as well as the
allegation that the local road system is inadequate to accommodate heavy
haulage traffic, I have received no objections to the scheme as finally
submitted . . . It must be accepted that provision for the development has
already been granted by the Secretary of State for Wales; this being so, the
County Planning Authority can only seek to ameliorate, as far as possible, the
effects of the working upon local residents and upon the surrounding area,
within the terms of the original permission. I am of the opinion that the
present scheme is the best possible under the circumstances and I make my
recommendations accordingly.
However,
notwithstanding the contents of that report, at the meeting on October 26 1978
the planning subcommittee of the planning authority decided to accept the
recommendation of a site inspection subcommittee not to approve the proposals.
Having had this setback, on November 2 1978, the developers applied to the
Secretary of State for his approval seeking an urgent reply ‘in order that
action may be taken prior to the prescribed date of 30th November 1978’, and
offering, because of the very limited time available, to visit Cardiff to
discuss the issues with the Welsh Office. However, it was quite impractical for
the Secretary of State to give a decision in the time available. In these
circumstances, as the inspector who conducted the planning appeal found, the
developers ‘had no alternative but to commence mineral operations within the
site’. The operations which commenced were limited and ceased on December 8
1978, but subject to compliance with the conditions of the planning permission,
it is common ground that they would constitute the commencement of development
before November 30 1978 for the purposes of condition 11 and also the
commencement of development for the purposes of the statutory time-limits to
which I will refer hereafter.
On November 29
1978, the developers made an application for renewal of the planning permission
in identical terms to that which was previously granted in 1973 but the
permission was refused on February 7 1979.
As the
planning authority did not take any enforcement action in relation to the work
which was carried out in 1978, by virtue of section 87(4) of the Town and
Country Planning Act 1971, after the period of four years that development
became immune from enforcement.
Although the
November 30 1978 deadline had passed, the developers continued to press the
Secretary of State to agree the matters which had been reserved by the three
conditions. Eventually, after he had been given further information and further
representations had been made, the Secretary of State, on May 10 1982, issued a
detailed determination approving the matters reserved in conditions 2, 3 and 4.
In doing so he stated that he was not expressing any view on the question
‘whether or
stated was ‘a separate question’. Mr Sullivan indicated in the course of
argument that the scheme approved by the Secretary of State did not materially
differ from the one which was rejected by the planning subcommittee.
Having
belatedly obtained the determination of the Secretary of State, on September 5
1983 work was carried out on the site in accordance with the approved scheme
which was a continuation of the operations commenced in 1978. This resulted in
an enforcement notice being issued on October 10 1983 which was withdrawn and
this was followed by a fresh notice on December 2 1983. The developers appealed
against the second notice and made a separate application for planning
permission. Their appeal and the application for planning permission were
eventually rejected by the Secretary of State, in accordance with the
recommendations of his inspector, on October 20 1988. It was this decision
which resulted in the appeal to Sir Frank Layfield.
The relevant
statutory provisions
The permission
which was granted in 1973 constituted mining operations to which the Town and
Country Planning (Minerals) Regulations 1971 [SI 1971 No 756] applied. Those
regulations refer to the Town and Country Planning Act 1968. However, at the
material times the relevant principal Act was the Town and Country Planning Act
1971. It is to that Act to which I will therefore refer, although that Act has
since been replaced by the Town and Country Planning Act 1990 as amended by the
Planning and Compensation Act 1991. Although the language of the 1971 and 1990
Acts differ we were told this difference in language would not affect the
outcome of this appeal.
Section 41 of
the 1971 Act provides:
41.–(1) Subject to the
provisions of this section, every planning permission granted or deemed to be
granted shall be granted or, as the case may be, be deemed to be granted,
subject to the condition that the development to which it relates must be begun
not later than the expiration of —
(a) five years beginning with the date on which
the permission is granted or, as the case may be, deemed to be granted; or
. . .
(2) If planning permission is granted without the
condition required by subsection (1) of this section, it shall be deemed to
have been granted subject to the condition that the development to which it
relates must be begun not later than the expiration of five years beginning
with the date of the grant.
Although there
is a difference in the language between condition 11 and the deemed condition
under section 41, I do not regard this difference in language as having any
effect on the outcome of this appeal.
Section 43(1)
provides:
43.–(1) For the purposes of
sections 41 and 42 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.
The specified
operations are defined in section 43(2).
Because mining
operations are here involved, it is common ground between the parties that
instead of applying section 43(1) for determining when the development shall be
taken to be begun it is necessary to apply regulation 7 of the Town and Country
Planning (Minerals) Regulations 1971: see section 315 of the Town and Country
Planning Act 1990. Regulation 7, so far as relevant, provides:
. . .
development consisting of mining operations shall be taken to be begun on the
earliest date on which any of the mining operations to which the relevant grant
of planning permission relates begin to be carried out.
There is again
a difference between the language of section 43 of the 1971 Act and regulation
7 but I do not regard this distinction as being significant so far as the
outcome of this appeal is concerned. It is also common ground between the
parties that if at the time that the operations began on November 28 1978, the
agreement of the planning authority or the Secretary of State had been obtained
in accordance with conditions 2, 3 and 4, the development for which the
permission had been granted would have begun before November 30 1978, in
accordance with condition 11 and in accordance with section 41 of the 1971 Act
since regulation 6 of the 1971 Regulations, in the case of permission for
mining operations, substitutes a period of 10 years for the period of five
years prescribed by section 41.
The only other
statutory provision to which it is relevant to refer at this stage is section
87(4) of the 1971 Act. Section 87(4) makes it clear that enforcement action can
only be taken within four years of any specific mining operations taking place.
It is for this reason that the planning authority were not in a position to
take enforcement action against the mining operations which took place in
November 1978 and December 1978 when the enforcement notice was served on
December 2 1983. The enforcement notice therefore related to the work which had
commenced in September 1983. The planning authority were in a position to take
action against the later operations since it is quite clear, as a result of the
decision of the Court of Appeal in Thomas David (Porthcawl) Ltd v Penybont
Rural District Council [1972] 1 WLR 1526, that for the purpose of
enforcement at any rate, mining operations constitute a continuing breach of
planning control while they persist.
The
authorities
Mr Sullivan
contends that the decisions clearly establish that a planning permission can
only be implemented for the purposes of complying with both express and deemed
conditions containing time-limits, by a development which is not carried out in
contravention of planning control (which for the present purposes means not in
contravention of the conditions attached to the planning permission).
Alternatively, he contends that conditions 2, 3 and 4 of the developer’s
planning permission, properly construed, take effect as conditions precedent,
such that a failure to comply with their terms prevents the lawful
implementation of the permission.
Although, in
the light of the authorities, Mr Sullivan was right to divide his submission in
this way, in my judgment the second submission does not add anything to the
first submission and it is not necessary or helpful to try to determine whether
the conditions contained in a planning permission are properly capable of being
classified as conditions precedent. As I understand the effect of the
authorities to which I am about to refer, it is only necessary to ask the
single question: are the operations (in other situations the question would
refer to the development) permitted by the planning permission read together with
its conditions? The permission is
controlled by and subject to the conditions. If the operations contravene the
conditions they cannot be properly described as commencing the development
authorised by the permission. If they do not comply with the permission they
constitute a breach of planning control and for planning purposes will be
unauthorised and thus unlawful. This is the principle which has now been
clearly established by the authorities. It is a principle which I would have
thought made good sense since I cannot conceive that when section 41(1) of the
1971 Act made the planning permission deemed subject to a condition requiring
the development to be begun by a specified date, it could have been referring
to development other than that which is authorised by the permission. The
position is the same so far as regulation 7 and condition 11 are concerned. The
mining operations to which the planning permission relates are those authorised
by the planning permission, not those which are unauthorised, because they
contravene conditions contained in the planning permission.
The earliest
authority establishing this principle is an authority which could have been,
but was not, referred to Sir Frank Layfield, Etheridge v Secretary of
State for the Environment (1983) 48 P&CR 35. In that case I was the
first instance judge who determined an appeal to the High Court. In the course
of giving judgment I stated the principle to which I have just been referring.
However, my remarks in that case were obiter and, in any event, would
not be binding on this court. However, in the recent case of Oakimber Ltd
v Elmbridge Borough Council (1991) 62 P&CR 5941 Purchas
LJ (with whom Taylor LJ agreed), as one of the two grounds of his decision,
‘unreservedly’ agreed with my judgment and Beldam LJ indicated his views in
this way at p 6162:
On this
reasoning it is unnecessary to consider the interesting argument addressed to
the court that development carried out in breach of conditions can be regarded
as development to which the permission related and whether for the purposes of
planning permission conditions can properly be regarded as ‘conditions
precedent.’ But if it had been necessary
to do so, I would have expressed my agreement in principle with the view of
Woolf J (as he then was) in Etheridge v Secretary of State for the
Environment that development carried out without permission or commenced in
contravention of conditions of a permission would not be development to which
the permission related because it was development carried out in breach of
planning control and so not permitted. However the importance and nature of the
condition and the extent of and reasons for breach may in some circumstances be
relevant considerations and I would prefer to reserve an opinion on the question
for a case in which it is necessary to decide it.
1Also reported at [1991] 3 PLR 35, sub nom R v Elmbridge
Borough Council, ex parte Oakimber Ltd.
2[1991] 3 PLR 35 at p 55C.
The next case
which is relevant is the case of R v Elmbridge Borough Council, ex
parte Health Care Corporation Ltd decided on May 23 1991 by Popplewell J.
There is no report of that case available but we were provided with a
transcript1. That case was heard on an application for judicial
review which challenged a decision of the local planning authority that an
outline planning permission had not been validly implemented. The outline
planning permission had been subject to a condition requiring development to be
commenced within five years. Detailed approval was obtained within the
five-year period but that detailed approval was subject to the applicants in
that case ‘prior to the commencement of the works’ satisfying ‘the District
Planning Authority that the land required for the provision of sight lines at
the access to Manor Road South is available for this purpose and that
thereafter such land shall be kept free of all obstructions’. Within the
five-year period the applicants had failed to comply with this condition. In
the course of a detailed judgment Popplewell J considered a number of
authorities and, at [1991] 3 PLR 63 at p 79G, he said:
Even if I
were wrong about that, I entirely agree with the view expressed by Woolf J in Etheridge
and by the Court of Appeal in Oakimber, namely that development carried
out without permission or commencing in contravention of conditions of a
permission is not development to which the permission related because it was
development carried out in breach of planning control and so not permitted. I
do not have to consider whether strictly I am bound by the Court of Appeal in Oakimber
or whether what was there said was obiter because I am persuaded by the
logic of the argument, even if I am not as a matter of jurisprudence required
to follow it.
1Reported at [1991] 3 PLR 63.
The final case
to which I should refer, so far as the principle is concerned, is the case of Staffordshire
Moorlands District Council v Cartwright, May 24 1991 (unreported),
of which we were also provided with a transcript. In that case Purchas LJ, with
whose judgment the other members of the court agreed, applied what he had said
in the earlier judgment in Oakimber and, at p 30C made a categoric
statement that ‘Works or changes of user in contravention of the permission
concerned cannot be specified operations’ and on this basis came to the
conclusion that as a condition of the planning permission had not been complied
with that a planning permission had not been implemented by the development
which had taken place on the site.
I was no doubt
influenced by the Court of Appeal’s decision in LTSS
[1976] QB 663 in Etheridge v Secretary of State for the Environment. In
the LTSS case the question at issue was whether a landowner, being required by
an enforcement notice to discontinue a use of land begun without planning
permission, was entitled to resume the use being made of the land immediately
before development which was the subject of the enforcement notice, if the
previous use was an established use commenced in contravention of planning
control. The answer to this question depended on section 23(9) of the Act of
1971. That section provided:
Where an
enforcement notice has been served in respect of any development of land,
planning permission is not required for the use of that land for the purpose
for which (in accordance with the provisions of this Part of this Act) it could
lawfully have been used if the development had not been carried out.
The Court of
Appeal held that the previous use, although it had been immune from enforcement
proceedings, was not a use for which (in accordance with this Part of this Act)
(the land) could lawfully have been used if the subsequent development had not
been carried out. This description of what the LTSS case was about I
have taken from the speech of Lord Bridge in Hughes v Doncaster
Metropolitan Borough Council (1990) 61 P&CR 355. In the Hughes
case Lord Bridge, having identified that this was the subject-matter of the LTSS
case, went on to say, at p 364:
Your
Lordships have not been invited to overrule this decision, nor do I see any
reason to do so. All three members of the court emphasised the importance of
the words in parenthesis as justifying a narrow construction of the subsection
and with this I have no quarrel. But in so far as the reasoning in the
judgments goes further and may suggest that a use of land begun without planning
permission between July 1, 1948 and December 31, 1963, must be treated for all
purposes and in all contexts as unlawful I am unable to agree with it.
The House of
Lords therefore decided that compensation was payable for the compulsory
purchase of land in respect of an established as opposed to a permitted use. In
the course of his speech, Lord Bridge pointed out that if a local planning
authority wished to secure the removal of a building or the discontinuance of a
use of land at a time when the building or use were no longer amenable to
enforcement proceedings this can only be done subject to statutory safeguards
and subject also to the obligation to pay compensation (pp 362-363). I draw
attention to the Hughes case because it indicates that in a context of
planning and related legislation, the failure of a planning authority to take
enforcement action can, for some purposes, give a developer rights which he
would not otherwise have. This result will be taken further when section 1911
of the
against lawful. However, at the present time, unless there is some basis upon
which it is appropriate to distinguish the earlier decisions of this court in
the Oakimber and Staffordshire Moorlands District Council cases,
it is clear to me that although the developers may have been unfairly treated
by the planning authority, this court has no alternative but to allow this
appeal.
1As substituted by section 10(1) of the Planning and Compensation Act
1991.
Can the
earlier authorities be distinguished?
The obvious
differences between the facts of the present appeal and the earlier cases are
two-fold. First, unlike those other cases, prior to the enforcement action
being taken, here the developers had obtained the approval required by
conditions 2, 3 and 4. (I treat the determining of a scheme by the Secretary of
State as equivalent to an approval.)
Second, operations which cannot be enforced against took place prior to
the time specified in condition 11. Does it matter that the approval necessary
for compliance with conditions 2, 3 and 4 was obtained after the date specified
in condition 11, when operations had been commenced prior to that date which
complied with that condition and those operations could not be the subject of
enforcement action? In my judgment, it
does not.
In the absence
of authority indicating otherwise, there are three possible dates by which this
approval of the planning authority or Secretary of State should have been
obtained if the planning permission is to survive. The first candidate would be
the date on which the operations relied on as implementing the permission
commenced. The argument in favour of this date is that unless approval is
obtained by this date the operations would be, at the time that they occurred,
in breach of planning control. However, if the approval which covered the
operations had been given after the operations but prior to the expiry of the
time-limit it would be technical in the extreme to treat what had gone before
as not complying with the time-limit. As long as the approval had been obtained
and the operations complied with that approval, it would be of no practical
significance whatsoever which came first — the approval or the operations —
from the planning point of view. It is true that until the approval was
obtained, technically enforcement action could be taken, but once the approval
has been obtained there would be no practical possibility of enforcement
proceedings succeeding, since the results that the conditions were designed to
achieve would in fact have been achieved within the intended timescale. When
the machinery for enforcement of the 1971 Act is considered as a whole, the
first candidate is not consistent with the intent of the legislation. It is
true that the developer, by commencing operations before obtaining approval,
would be taking risks. He would be taking a risk that he might not obtain
approval and a risk that the authority could, for example, serve a stop notice
or take other enforcement action. However, if the developer is prepared to take
these risks then the purpose of the legislation is achieved by permitting the
permission to be lawfully implemented irrespective of whether or not the
approval is before the commencement of the operations.
The second
candidate is the time limited for implementing the permission. Although the
development has to be commenced by this date, the conditions do not expressly
require the approval to be obtained by this date. There is, however, a clear
implication that the developer will have applied for permission before that
date. As long as the developer has applied for the approval, I would not draw
the implication that the approval must be obtained by this date. It must have
been reasonably obvious to Parliament that there would be many situations where
although a developer had made a timeous decision to apply for approval, that
approval, through no fault of the developer, could not be obtained until after
the expiration of the time-limits for implementing the permission. Where this
happens and the developer had already implemented the permission by commencing
operations pending the outcome of approval, it could be grossly unfair to the
developer to regard him as being time barred. Indeed, the operations which took
place to comply with the time-limit may be a matter which would not be affected
by the terms of the approval, although they would still contravene a blanket
prohibition on the commencement of operations. Alternatively, they may be of no
significance from a planning point of view so no reasonable planning authority
would contemplate enforcement action. I cannot accept that it was intended that
in these circumstances a planning permission should be of no effect because of
a deemed condition under section 41 of the Town and Country Planning Act 1971
or under a condition in the terms of condition 11 in this case. It is not
without interest to note, for the purposes of ascertaining the policy of the
Act, that section 42 of the 1971 Act, in dealing with outline planning
permissions, expressly requires in section 42(2) that the application for
approval of reserved matters should be made not later than the expiration of
three years beginning with the date of the grant of outline planning permission
and then provides that the development should be implemented by whichever is
the later of two dates; the first date being the expiration of five
years from the date of the grant of outline permission and the other being the
expiration of two years from the final approval of the reserved matters. In the
absence of express provision of the sort contained within section 42, in the
case of permissions other than outline permission, I take the view that it can accord
with the intent of the legislation if the approval is obtained after the
expiration of the time-limits as long as the application has been made before
the specified time-limits and either the operations which have taken place are
immune from enforcement or the approval is obtained prior to enforcement
action. If the operations can be and are the subject of enforcement action the
position is different, since in the context of the enforcement proceedings the
question of whether an approval, and if so what approval, should be given can
be decided by the Secretary of State, the Secretary of State using if necessary
his powers to grant a fresh planning permission.
Mr Sullivan
submitted that there are ample remedies in the hands of the developer
preventing him from being prejudiced by delays on the part of the planning
authority in dealing with an application for approval. While I agree that in
theory there may be action which a
in many situations he will have no protection against unwarranted
procrastination on the part of the planning authority or the Secretary of
State, as is illustrated by the facts of this very case. Substantial financial
hardship could be caused to a developer by such delay where, as here, the
planning permission has considerable commercial value. While the developer is
unlikely to have a satisfactory safeguard, the planning authority have already
a remedy in their existing enforcement powers and will have increased remedies
(when sections 187A and 187B of the 1990 Act are implemented1) in
the form of breach of condition notices and injunctions. It is in these
circumstances that I consider that the third candidate provides the correct
solution to the question and that whether the planning permission has been
implemented has to be tested by examining the situation in an enforcement
context by considering whether enforcement action is possible and if it is
leaving the outcome to be determined in the enforcement proceedings. This is a
sensible and practical solution to the possible problems in obtaining approval.
Obviously, if the planning authority or the Secretary of State does not regard
it as desirable, where a time-limit has expired, to give approval to reserved
matters they are not under a duty to give approval. They can take the stand (as
long as they act reasonably) that the developer has lost his chance. If,
however, they give approval, no purpose would be served in requiring a fresh
application for planning permission.
1Section 187B came into force on January 2 1992: Planning and
Compensation Act (Commencement No 5 and Transitional Provisions) Order 1991 (SI
1991 No 2905). Section 187A came into force on July 27 1992: Planning and
Compensation Act (Commencement No 11 and Transitional Provisions) Order 1992
(SI 1992 No 1630).
Such an
approach is in accord with the policy of the legislation. That policy is
clearly expressed in a passage from a third recent judgment of Purchas LJ in Thayer
v Secretary of State for the Environment [1991] 3 PLR 104. It was an
appeal involving similar considerations to those which arise on this appeal and
Purchas LJ said, at p 109F:
In reviewing
the approach made by the inspector to this issue it is important to remember
the purpose for which the condition was imposed in the 1973 permission or, if
it had not been so imposed, would have been imposed by statute under section 41
of the 1971 Act, namely to prevent the accumulation of planning permissions.
The history of this part of the planning legislation is well known. By 1968 an
evil had been recognised which called for remedy in that Act. This was an
accumulation of a large number of planning permissions which had not been taken
up by developers and which, under the existing legislation, attached to the
land unless the minister acted under his powers of revocation, which involved,
of course, compensation where appropriate. Local authorities, therefore, were
embarrassed by these continuing permissions over which they had effectively
lost control. A developer who genuinely set about exploiting his permission
rather than filing it away against ‘a rainy day’ was not the object of the
legislation imposing time conditions which came into effect in the Town and
Country Planning Act 1990.
I should also
make it clear that the approach which I have sought to identify is not intended
to be a charter to developers to ignore conditions which are intended to be
complied with before a planning permission is implemented. If it is not already
clear, I make it absolutely clear now, that if a developer does not comply with
a condition he can have enforcement action or any other available action taken
against him. The only consequence of the approach indicated in this judgment is
that when the merits of the enforcement proceedings come to be considered, it
is necessary to take into account the situation as it exists at that time and,
in particular, whether or not at that time any approval required by condition
has been obtained.
The result is
therefore that in this case, the operations having been commenced and the
application for approval having been made before the expiry of the time-limits,
the relevant operations no longer being enforceable against the approval having
been obtained prior to the enforcement action, the developers’ appeal to the
Secretary of State should have been allowed.
I am conscious
that in giving my reasons for this decision I have not referred to the
reasoning set out in the judgment of the learned deputy judge. The explanation
for my not doing so is two-fold. First of all, with one exception, the relevant
authorities were decided after Sir Frank Layfield delivered his judgment and
the one authority to which he could have been referred was not referred to him.
In addition, the deputy judge was left under a misapprehension that the
planning authority were seeking to enforce out of time against the earlier
mining operations and not the later mining operations.
It only
remains for me to indicate that I would dismiss this appeal and acknowledge my
indebtedness to the extremely able submissions of Mr Sullivan and Mr Read.
PARKER LJ: I agree that this appeal should be dismissed for the reasons given
by Woolf LJ. I add some observations of my own because I consider it desirable
to emphasise certain features of this case.
Each of
conditions 2, 3 and 4 of the planning permission of November 15 1973 provided
for a scheme to be agreed with the local authority or, in default of agreement,
by the Secretary of State, and for such scheme to be agreed or determined
before work pursuant to that permission was commenced. The position, therefore,
was that in default of agreement the Secretary of State was obliged in each case
to determine a scheme. He could not merely determine that the scheme rejected
by the local authority was rightly rejected and stop there. If he was of that
opinion he would then have had to go on and determine upon an amended or
substitute scheme. This appears to me to follow without more from the wording
of the conditions. If, however, there were any doubt about that, such doubt
must surely be dispelled by the fact that condition 11 put upon the developer
an unqualified obligation to begin work on or before November 30 1978. This he
could only do within the conditions if the three schemes had been agreed or
determined prior to that date. The Secretary of State was therefore, at least prima
facie, obliged, prior to that
application for him to do so.
In most cases
in which similar conditions applied there would be no difficulty about this.
Disagreement would occur and the developer would apply for determination by the
Secretary of State in ample time to enable him to determine the scheme before
the deadline imposed by condition 11 or, in its absence, the statutory deadline
which, in the case of mining operations, is 10 years from the date of grant.
In the instant
case, however, things went badly wrong. Although the developers presented
schemes for approval in July 1977 when there were 16 months remaining before
the deadline, it was not until sometime prior to September 13 1978 that the
county planning officer, who had been in charge of negotiations, reached
agreement with the developers and recommended acceptance or agreement of
schemes put forward by them in a report to the planning subcommittee to be held
on that date. It is to be observed, first, that that report approves the
schemes submitted in July 1977 as amended by two letters of June 20 1978
subject to certain conditions not presently relevant and, second, that it
specifically refers to the deadline date of November 30 1978.
It can only be
described as regrettable that it should have taken so long for the local
authority’s officers to reach this stage. It is even more regrettable that,
with knowledge of the deadline, it was not until October 26 1978 that the
planning subcommittee rejected the schemes. All that happened on September 13
1978 was that the matter was referred to a site inspection subcommittee. At
that time it must or should have been apparent to the planning subcommittee
that, if the developers were to have the slightest chance of obtaining a
determination from the Secretary of State in time to meet the deadline, a
decision was a matter of great urgency. In those circumstances, to have taken
six weeks to reach a decision appears to me to fall far short of what persons
in the position of these developers are entitled to expect.
Be that as it
may, the developers promptly applied to the Secretary of State. It was then, no
doubt, impractical to expect the Secretary of State to fulfil his obligation to
determine the schemes before November 30 1978 but this was not due to any fault
on the part of the developers. They were then in the impossible position that,
in order to comply with condition 11 and preserve their position, they had to
begin work on or before November 30 but, were they to do so, they would be in
breach of conditions 2, 3 and 4 notwithstanding that they were entitled to have
the schemes determined in time to enable them to comply with such conditions.
Not
surprisingly it was decided to start work. With the full knowledge of the local
authority enough work was done (conditions 2, 3 and 4 apart) to comply with
condition 11. Thereafter work ceased. The local authority considered but
decided against enforcement procedures.
On May 10
1982, some three and a half years after the developers’ application, the
Secretary of State determined schemes under conditions 2, 3 and 4 which were
not materially different from the schemes rejected by the planning
subcommittee. In so doing he made it clear that it was, in effect, without
prejudice to the question whether the 1973 permission
my view, inordinate.
Work was then
resumed and the enforcement action in respect of that work was taken. It is
that enforcement action with which we are concerned. That work was in
accordance with the schemes as finally determined by the Secretary of State.
The enforcement procedure must, therefore, necessarily fail unless the original
grant has lapsed because the work done prior to November 30 1978 preceded the
determination of schemes to which, at the time when it was done, the developers
were entitled, which was in accordance with the schemes as finally determined
and in respect of which no enforcement action was any longer available.
Had the
developers not applied for determination prior to the deadline, I can readily
accept that the work done prior to November 30 1978 would not have preserved
the position but given that, as I think, the result of so doing was an
entitlement to a determination, and thus to work, the situation is very
different. To comply with his own purpose and intent and, in my view, the
purpose and intent of Parliament, the work done must be regarded as complying
with condition 11 notwithstanding the terms of conditions 2, 3 and 4.
In the course
of argument the hypothetical situation was discussed where permission had been
granted to build a road from A to B, with a condition that work should not be
begun until the route has been determined by the Secretary of State and a
condition that work should be begun by a particular date. In such a case Mr
Sullivan QC submitted that, if the route had not been determined by the date,
but the developer had done work at point A which would be necessary whatever
route might be determined, this could not amount to an implementation of the
permission. I cannot accept this. Suppose the Secretary of State had, prior to
the date, determined the first 90% of the route and written to the developer
saying that he expects to determine the remaining 10% in the next few days.
Suppose, further, that this occurred a month before the deadline but that, 10
days later, a fire in the department destroyed all relevant papers and injured
the official or officials who had been dealing with the matter, as a result of
which the final 10% was not determined by the deadline. In such circumstances
it appears to me that it would be quite impossible to say that work done at
point A did not amount to a valid implementation of the grant.
I am conscious
of the need, because planning permission runs with the land, to ensure that it
can be readily ascertained whether a grant is still valid or not. If the test,
in circumstances such as the present, is simply whether an application for
determination had been made before the deadline I see no difficulty.
SIR DAVID
CROOM-JOHNSON: I agree with both judgments and have
nothing further to add.
Appeal
dismissed with costs. Application for leave to appeal to the House of Lords
refused.
