Planning agreement — Obligations more restrictive than condition and contrary to advice in Circular 1/85 — Whether the council’s purpose in requiring the agreement rendered it unlawful
In 1985 the
then owner-occupier of Ashlings Farm, High Ongar, Essex, which was in the metropolitan
green belt, applied for planning permission to erect a house for a farm worker.
The local planning authority were concerned to prevent subsequent abuse of the
planning permission and imposed a condition, corresponding to model condition
32 in Appendix A to Circular 1/85 — The use of conditions in planning
permissions, limiting occupation of the house to persons wholly or mainly
employed, or last employed, locally in agriculture, or a widow or widower of
such a person. In addition, the authority required the applicant to enter into
an agreement under section 52 of the Town and Country Planning Act 1971 (now
section 106 of the Town and Country Planning Act 1990). The obligations imposed
by the covenant in the agreement were wider than the planning condition in that
they required the occupier of the house to be currently employed in agriculture
and precluded severance of the ownership of the house from the rest of Ashlings
Farm. The appellants became the owners of the farm in June 1987 and purchased
it aware of the terms of the section 52 agreement, which had been registered as
a local land charge. Agricultural patterns having changed, the appellants
wished to sell the house for occupation by a non-agricultural worker and apart
from the rest of the farm. In an action against the authority they sought a
declaration that the section 52 agreement was ultra vires and void.
Relying on the advice on agricultural occupancy conditions given in paras 80
and 81 of Circular 1/85, they contended that the authority had sought to
achieve by use of the section 52 agreement that which they could not achieve by
way of conditions and which they knew to be outside their planning powers.
Further, the authority’s purpose in requiring the section 52 agreement was to
ensure that they could have their own way, free from control or review by the
Secretary of State: that was not a proper planning purpose and was contrary to
the objectives of the planning legislation and public policy. The application
was dismissed by Sir Donald Nicholls V-C: see [1992] 3 PLR 103. The appellants
appealed contending that the Vice-Chancellor was wrong in law in holding that
the taking of the covenant in the section 52 agreement was within the powers of
the authority and was wrong in declining to find such requirements unlawful
under Wednesbury principles.
The
conclusions of the Vice-Chancellor, namely that the council had taken a course
which did not reveal any improper purpose which could
been activated by a non-planning consideration, were correct: see pp 139E and
140F. The powers given to a local authority by section 52 were to be used by
that authority in good faith having regard to material considerations. The
probability that the Secretary of State would, under his declared policy, set
aside on appeal a requirement for the proposed section 52 agreement was a
material consideration but it did not render unlawful the decision to make the
requirement or, if the landowner consented, the making of the agreement. If
such had been the intention of Parliament it would have required that no
section 52 agreement be entered into without the prior consent of the Secretary
of State: see pp 140F-141C.
Per curiam the powers of a planning authority under section 52 are not
controlled by the nature or extent of their powers under section 29. The two
statutory powers are distinct and the exercise of either of these distinct
powers has separate consequences and is subject to different procedures.
If a section
52 agreement is required, and the landowner agrees to enter into it, the
validity of the agreement depends upon the same primary test, namely whether it
was made ‘for the purposes of restricting or regulating the development or use
of the land’: see p 146A-D.
A section 52
agreement may go to matters beyond those that fairly or reasonably relate to
the permitted development (the second requirement stated in Newbury District
Council v Secretary of State for the Environment [1981] AC 578)
because there would be little point in enacting section 52 of the 1971 Act if
section 52 agreements were confined to those matters which could be dealt with
by way of conditions: see p 146G-H.
to in the judgments
Bradford
City Metropolitan Council v Secretary of State
for the Environment (1986) 53 P&CR 55; [1986] 1 EGLR 199; 278 EG 1473;
[1986] JPL 598, CA
Hazell v Hammersmith and Fulham London Borough Council [1992] 2 AC
1; [1991] 2 WLR 372; [1991] 1 All ER 545; (1991) 89 LGR 271, HL
Jones’
and White & Co’s Application, Re (1988)
58 P&CR 512
London
County Council v Allen [1914] 3 KB 642
Martins’
Application, Re (1988) 57 P&CR 119; [1989] 1
EGLR 193; [1989] 05 EG 85; [1988] 3 PLR 45; [1989] JPL 33
Newbury
District Council v Secretary of State for the
Environment [1981] AC 578; [1980] 2 WLR 379; [1980] 1 All ER 731; (1980) 78
LGR 306; 40 P&CR 148; [1980] JPL 325, HL
Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997;
[1968] 2 WLR 924; [1968] 1 All ER 694, CA and HL
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] EGD 1094; 272 EG 425, [1984] 2 EGLR 183; [1984]
JPL 651, HL
Pyx
Granite Co Ltd v Ministry of Housing and Local
Government [1958] 1 QB 554; [1958] 2 WLR 371; [1958] 1 All ER 625; (1958)
LGR 171; 9 P&CR 204, CA
R v Gillingham Borough Council, ex parte F Parham Ltd (1987)
58 P&CR 73; [1988] 1 PLR 7; [1988] JPL 336
R v Richmond Upon Thames London Borough Council, ex parte McCarthy
& Stone (Developments) Ltd [1992] 2 AC 48; [1990] 2 WLR 1294; [1990]
2 All ER 852; [1990] 2 PLR 109, CA
R v Tower Hamlets London Borough Council, ex parte Chetnik
Developments Ltd [1988] AC 858; [1988] 2 WLR 654; [1988] 1 All ER 961;
[1988] 2 EGLR 195; [1988] 26 EG 69, HL
R v Wealden District Council, ex parte Charles Church South East
Ltd (1989) 59 P&CR 150; [1989] 3 PLR 42; [1989] JPL 837
R v Westminster City Council, ex parte Monahan [1990] 1 QB 87;
[1989] 3 WLR 408; [1989] 2 All ER 74; (1988) 58 P&CR 92; [1989] 1 PLR 36;
[1989] JPL 107, CA
Windsor
and Maidenhead Royal Borough Council v Brandrose
Industries Ltd [1983] 1 WLR 509; [1983] 1 All ER 818; (1983) 42 P&CR
327; 266 EG 119, [1983] 1 EGLR 1395; [1983] JPL 374, CA
Appeal against
decision of Sir Donald Nicholls V-C
This was an
appeal by Colin Geoffrey Good and Rita Good, the owners of Ashlings Farm, High
Ongar, Essex, against the decision of Sir Donald Nicholls V-C [1992] 3 PLR 103 on
April 14 1992, whereby he dismissed the appellants’ application for a
declaration that an agreement under section 52 of the Town and Country Planning
Act 1971 entered into between Alan Elves and Epping Forest District Council on
January 22 1987 was ultra vires and void.
and Lady Ponsonby of Shulbrede (instructed by Moss Beachley & Mullem)
appeared for the appellants, Mr and Mrs Good.
Gray QC and Murray Hunt (instructed by the solicitor to Epping Forest District
Council) appeared for the respondent.
following judgments were delivered.
RALPH GIBSON
LJ: This is an appeal by the plaintiffs, Mr Colin
Geoffrey Good and Mrs Rita Good, in an action brought by them against Epping
Forest District Council in which they claim a declaration that an agreement
dated January 22 1987 and made between Mr Alan Elves and the council under
section 52 of the Town and Country Planning Act 1971 is void in law. On April
14 1992 Sir Donald Nicholls V-C dismissed the plaintiffs’ claims. By their
appeal the plaintiffs seek an order for that declaration in this court. The
judgment of the Vice-Chancellor is reported at [1992] 3 PLR 103.
The plaintiffs
in June 1987 bought Ashlings Farm. The farm, in High Ongar, Essex, is in the
metropolitan green belt. In 1985 the then owner, Mr Elves, applied to the
defendants for planning permission to erect a house on the farm for a farm
worker. On the farm there were then 1,000 pigs. Mr Elves needed a house for a
pig man and, because of difficulty in getting a man to do the work, Mr Elves
wanted to be able to offer the attraction of a house for husband and wife
instead of accommodation in the farmhouse for an unmarried person.
For the
reasons explained by the Vice-Chancellor in his judgment, and in order to
protect the green belt from abuse, the council took two precautions when
granting planning permission to Mr Elves on January 22 1987. The first was to
impose a condition to the effect that occupation of the new house should be
limited to persons wholly or mainly employed, or last employed locally in
agriculture . . . or a
of such a person.
The second
precaution taken by the council was to require from Mr Elves that he enter into
a covenant under section 52 of the Town and Country Planning Act 1971 of which
clause 3 provided:
(a) That the said dwellinghouse when erected
shall only be occupied by a person wholly or mainly employed in agriculture
together with the spouse or other dependants of that person and
(b) that the said dwellinghouse . . . shall not
be sold away or otherwise alienated from the remainder of the application site.
The effect of
the covenant, if valid in law, is to bind Ashlings Farm in the hands of
successive owners. The covenant was registered as a local land charge so that
the existence of it would be known to any subsequent buyer and the plaintiffs
were aware of the terms of the covenant when they bought the farm in June 1987.
The plaintiffs
wish to be free to sell the house for occupation by a person not ‘wholly or
mainly employed in agriculture’ and to sell it apart from the rest of the farm.
If the section 52 covenant is held to be void, the plaintiffs can apply to the
council for removal or variation of the condition, which was imposed upon the
grant of planning permission, as to occupation by persons so employed, and, if
the council refuse that application, the plaintiffs could then appeal to the
minister. There is, however, no provision for appeal to the minister against a
refusal by the council to waive or vary the terms of a section 52 covenant. An
application to the Lands Tribunal under section 84 of the Law of Property Act
1925 is the only route provided by statute by which the plaintiffs can seek an
order for the discharge or modification of the covenant if it was valid in law
when made.
The provisions
of section 52 of the 1971 Act are now contained in section 106 of the Town and
Country Planning Act 1990, as amended by section 12 of the Planning and
Compensation Act 1991. A person against whom a planning obligation as there
defined is enforceable may, after the expiry of the relevant period, apply to
the planning authority for modification or discharge of it. That period is five
years from the entering into the obligation or any other prescribed period of
time. By section 106B provision is made for appeal to the minister against a
refusal by the planning authority to modify or discharge the obligation. These
new provisions are not retrospective and the procedure is not open to the
plaintiffs.
At the hearing
before the Vice-Chancellor, the case for the plaintiffs presented by Mr Barry
Payton of counsel was based primarily upon the proposition that the terms of
the section 52 agreement could not lawfully be imposed as conditions; and the
power of the council to enter into a section 52 covenant was limited to the
taking of such covenants from any land owner seeking planning permission as
could properly be imposed by the council as conditions upon the grant of
planning permission. He relied for that proposition upon passages in the
judgment of Lloyd LJ in Bradford City Metropolitan Council v Secretary
of State for the Environment
ex parte Monahan [1990] 1 QB 87.1 Further, it was submitted for the plaintiffs
that the council, by the course taken in imposing the conditions and in
requiring the section 52 agreement in different and more stringent terms,
demonstrated that to their knowledge the terms of the section 52 agreement were
contrary to the policy declared by the Secretary of State; that those terms if
imposed as conditions would be struck down by the Secretary of State on appeal;
and that to seek by means of a section 52 agreement rights which could not be got
by means of planning conditions was to act for an improper ulterior purpose and
in breach of the high standard of conduct required of a local authority.
1Also reported at [1989] 1 PLR 36.
As appears
from his judgment, the Vice-Chancellor held:
(i) That the council would have been acting
within their powers as a local planning authority if they had imposed, as
conditions attached to the planning permission pursuant to sections 29 and 30
of the 1971 Act, obligations in the terms of clause 3 in the section 52
agreement. They would have been imposed for a planning purpose and would have
been valid within the threefold test stated by Lord Scarman in the Newbury case2
[1981] AC 578. The lawfulness of those obligations as conditions could not
depend upon whether the Secretary of State in the exercise of his statutory
powers of discretion would or would not have upheld them on appeal.
2Newbury District Council v Secretary
of State for the Environment.
(ii) By choosing to require Mr Elves to enter into
the section 52 agreement, in order deliberately to ‘bypass the minister’, if Mr
Elves should consent to enter into the agreement, the council had taken a
course in which there was ‘a certain lack of attractiveness’, but it did not
reveal any improper purpose which could vitiate in law the section 52 agreement
entered into by Mr Elves. In choosing the route provided by section 52 the
council were not activated by a non-planning consideration and the council were
entitled to follow it.
(iii) Since the clause 3 obligations could have
been imposed as valid conditions, the issue raised by the council as to the
scope of section 52 did not require to be decided.
By their
notice of appeal the plaintiffs contended that the Vice-Chancellor:
(i) Was wrong in law because, since the purpose
of the council was deliberately to bypass the jurisdiction of the Secretary of
State, the taking of the section 52 covenant from Mr Elves was not within the
powers of the council under section 52 because it was not ‘for the purpose of
restricting or regulating the development or use of the land’.
(ii) Wrongly declined to find that the requiring
of the section 52 covenant from Mr Elves was unlawful under the Wednesbury principles
upon the grounds argued before him: reference was made to cases including
Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment
[1985] AC 132 and to R v Tower Hamlets London Borough Council, ex
parte
By their
respondents’ notice the council again contended that the powers granted to a
local planning authority under section 52 enabled the authority to enter into a
statutory agreement with a landowner the object of which was not attainable by
the imposition of a planning condition under section 29 of the 1971 Act and,
therefore, a finding of law that a covenant could not be validly imposed by way
of condition under section 29 of the Act does not necessarily determine the
validity of an agreement imposing that covenant made under section 52 of the
Act.
In his
submissions in this court, Mr Payton for the plaintiffs supported the grounds
of appeal with further reference to authorities including Hazell v Hammersmith
and Fulham London Borough Council [1992] 2 AC 1; Padfield v
Minister of Agriculture, Fisheries and Food [1968] AC 997; R v Richmond
upon Thames London Borough Council, ex parte McCarthy & Stone
(Developments) Ltd [1992] 2 AC 481 and Pyx Granite Co Ltd v
Ministry of Housing and Local Government [1958] 1 QB 554.
1[1990] 2 PLR 109.
The essential
ground of Mr Payton’s argument was that, in exercising their powers under
section 52(1) of the 1971 Act to enter into an agreement ‘for the purpose of
restricting or regulating the development or use of the land, either
permanently or during such period as be prescribed by the agreement’ the
council must, upon the proper construction of the words in their statutory
context, exercise their powers in accordance with the development plan and
material considerations; and that must mean in accordance with the body of
planning policy, ultimately decided by the Secretary of State subject to the
will of Parliament. Planning control must be exercised said Mr Payton, for
purposes which are considered to be ‘reasonable’ by the Secretary of State
because, if any other approach were permitted, a local authority would be
acting outside the purposes and objectives of the statute rather than
furthering those purposes and objectives. Mr Payton was constrained to accept
that his proposition in effect means that a local planning authority could only
lawfully exercise their powers in a way which the Secretary of State might
reasonably be expected to approve.
These
submissions of Mr Payton are, in my judgment, unsustainable. I agree with the
conclusions of the Vice-Chancellor and with the reasons which he gave.
The powers
given to the local authority by section 52 are to be used by that authority in
good faith having regard to material considerations. If, with their knowledge
of local circumstances and having proper regard to all material considerations,
it seems to the local authority desirable or necessary to ‘enter into an
agreement . . . for the purposes of restricting or regulating the development
or use of land, either permanently or during such period as may be prescribed
by the agreement’ the local authority are clearly entitled, and it might be
said obliged, to seek such an agreement. The probability known to the council,
if that be the case, that the Secretary of State would, under his
the grant of planning permission, for the obligations in the proposed section
52 agreement, is a material fact for consideration by the local authority; but
that fact, in my judgment, clearly does not render unlawful the decision to
make the requirement or, if the landowner consents, the making of the
agreement. It is, of course, common ground that the council did give
consideration to that fact. The independence of judgment of the planning
authority under the provisions of the planning legislation is not so restricted
or puny, in my judgment, that the planning authority are required to determine
what at any time is likely to be permitted in the particular circumstances in
their area under the policy of Secretary of State and to make no decision which
would not be upheld in the exercise of his discretion having regard to his
current policy. If that had been the intention of Parliament it would have
required that no section 52 agreement be entered into without the prior consent
of the Secretary of State. As Mr Gray has demonstrated in his comprehensive
examination of the history of these legislative provisions, such a requirement
was contained in section 34 of the Town and Country Planning Act 1932 and in
section 25 of the Town and Country Planning Act 1947; but it was removed by the
Town and Country Planning Act 1968 (Schedule ix para 19) before section 52, in
the form applicable to this case, appeared in the Consolidation Act of 1971.
We were
invited by Mr Gray to consider and to decide as an additional ground of
decision, the point raised by the council in their respondents’ notice on the
ground that it is of much public importance, and in particular to local
planning authorities in their concern to protect against abuse land designated
as green belt. We heard the submissions of the parties and, in my judgment, we
should as a ground of decision state our conclusions upon this issue of law.
For the
plaintiffs, Mr Payton submitted that the dicta of Lloyd LJ in the Bradford
case and of Kerr LJ in Monahan were correct statements of the law,
that is to say that a local planning authority have no power to impose a
requirement in a section 52 agreement which amounts to a planning condition if
that requirement could not have been effectively imposed as such in a grant of
planning permission. He referred also to the passage in the judgment of Lawton
LJ in Windsor and Maidenhead Royal Borough Council v Brandrose
Investments Ltd [1983] 1 WLR 509 at p514 E-H.
Mr Gray’s
submissions were, in summary, as follows.
(i) He identified the issue thus: can a local
planning authority validly achieve by agreement any purpose which they could
not validly achieve by condition, or is the test for validity the same in each
case?
(ii) He described the history of the legislative
provisions following the decision of the Court of Appeal in London County
Council v Allen [1914] 3 KB 642 to the effect that a local
authority, which took restrictive covenants from a landowner in their area for
public purposes, could not enforce those covenants against a successor in title
of the original covenantor, because the local authority possessed no land
entitled to the benefit of the covenant. Parliament passed the Acts of 1932, of
1947, of 1968 and of 1971 to which reference has been made above.
(iii) Distinct statutory provisions apply to the
enforcement and to the discharge or modification of section 52 covenants. Such
covenants are enforceable by the planning authority against successors in title
of the original covenantor: see section 52(2). Any restriction on the use of
land imposed by a section 52 agreement is registerable as a local land charge
under the Local Land Charges Act 1975, section 1(1)(b). Any purchaser of
land, the subject of a section 52 agreement, therefore has notice of the restrictive
covenant and its existence is therefore reflected in the purchase price of the
land. Section 52 covenants may be discharged or modified by the Lands Tribunal
under section 84 of the Law of Property Act 1925.
(iv) The attaching of conditions to the grant of
planning permission in the 1971 Act was governed by section 29 which provided:
(1) . . . where an application is made to a local
planning authority for planning permission, that authority, in dealing with the
application . . .
(a) . . . may grant planning permission, either
unconditionally or subject to such conditions as they think fit; or
(b) may refuse planning permission.
Those
provisions are now contained in section 70(1) of the 1990 Act.
(v) In the Newbury District Council case
[1981] AC 578 it was accepted by the House of Lords that the law required three
tests of validity for a condition imposed under section 29, namely (per
Lord Scarman at p618):
1. The
condition must fairly and reasonably relate to the provisions of the
development plan and to planning considerations affecting the land,
2. it must
fairly and reasonably relate to the permitted development, and
3. it must be
such as a reasonable planning authority, duly appreciating its statutory
duties, could have properly imposed.
(vi) Windsor and Maidenhead Royal Borough
Council v Brandrose Investments Ltd [1983] 1 WLR 509 CA was a case
which turned upon the construction of section 52 and in which the landowner
contended, in effect, that the making of a section 52 agreement, in
contemplation of a planning permission not yet made, operated so as to preclude
the exercise by the planning authority of certain statutory powers. Lawton LJ
at p515 said:
Section 52(1)
empowers a local planning authority to make agreements to achieve ends which it
could not achieve without the consent of an applicant for planning permission.
It does not empower a local planning authority to grant planning permission
otherwise than as provided by section 26 to 29 of the Act. It follows that an
agreement made pursuant to section 52 before planning permission has been
granted . . . may become irrelevant if planning permission is not granted or
ineffective if conditions are imposed inconsistent with the agreement because
circumstances may change between the time when a section 52 agreement is made
and when the local planning authority comes to perform its public duty of
determining a planning application . . . [Counsel], on behalf of the
defendants, did not suggest that the relevant agreement in this case operated
to give the
permission, it would not have got rid of the need for consent to demolish under
the conservation order unless section 52 conferred such a power. As we have
already pointed out, sub-section 1 confers powers which are merely incidental
to the granting of planning permission.
(vii) In R v Gillingham Borough Council,
ex parte F Parham Ltd (1987) 58 P&CR 73,1 Roch J considered
whether the test for the validity of a section 52 agreement is the same as the
test for the validity of a section 29 condition as set out in the Newbury
case. Roch J held that the first and third requirements apply to section 52
agreements, but the second does not. Roch J at p81 said:
Section 52
requires that an agreement shall be ‘for the purpose of restricting or
regulating the development or use of the land . . .’ Those words allow a section 52 agreement to
go beyond matters that fairly or reasonably relate to the permitted
development. Section 52 agreements can encompass matters which restrict or
regulate the use of the land. This is not surprising because there would be
little point in enacting section 52 of the 1971 Act if section 52 agreements
were confined to those matters which could be dealt with by way of conditions.
1Also reported at [1988] 1 PLR 7.
(viii) In R v Wealden District Council, ex
parte Charles Church South East Ltd (1989) 59 P&CR 150,2
Popplewell J agreed with the reasoning of Roch J in the Gillingham case.
It was, he said, (p162) difficult to see what the purpose of section 52 is, if
the powers under it are no greater than the powers to impose conditions.
2Also reported at [1989] 3 PLR 42.
(ix) Mr Gray, in the course of his submission,
gave examples of obligations which might be validly required by the planning
authority or undertaken by the landowner as terms of a section 52 agreement
which could not be imposed as conditions. One such example supposed as
application by the owner of two farms, A and B, within the area of a planning
authority for planning permission to construct and operate an intensive
breeding establishment on farm A. Such an owner might offer, or the planning
authority might require and obtain, on the grant of such planning permission, a
section 52 agreement by the owner preventing the use of farm B for such use.
Such an agreement would, he submitted, be made ‘for the purpose of restricting
or regulating the development or use of farm B’ but the restriction contained
in it could not be imposed as a valid condition on the grant of planning
permission in respect of farm A because it would not relate to the permitted
development.
(x) In Re Martins’ Application (1988) 57
P&CR 119,3 this court affirmed the decision of the Land’s
Tribunal dismissing a section 84
in a section 52 agreement where the Secretary of State, on appeal, had granted
planning permission for development which would be in breach of the covenant.
At p124 Fox LJ said:
. . . it is
contended that where the Minister, by his Inspector, has finally determined
from a planning point of view that the erection of a house on the site was
acceptable, then the purpose of the section 37 agreement has gone and the
covenant should be discharged. This construction is, in my opinion, based upon
a misapprehension. There are, it seems to me, two statutory regimes. One is the
power of the planning authority under section 37 (and now under section 52) to
enter into an agreement regulating the development and use of land by way of
restrictive covenant in circumstances where, under the general law, it would
not be possible effectively to do so because of the rules as to the running of
the burden and benefit of covenants. The other is the power of the planning
authority under section 29 of the 1971 Act . . . to grant planning permission.
These regimes are subject to different procedures. If a person is dissatisfied
with the planning authority’s refusal of planning permission, his remedy is to
appeal to the Secretary of State under section 36 of the 1971 Act. . . . If a
person who is bound by the provisions of a section 52 agreement wishes to
escape from them he must go to the Lands Tribunal and persuade the Tribunal
that it is a proper case to exercise its jurisdiction to discharge or modify
the covenant under section 84. Nobody was obliged to enter into a section 37
agreement. If an applicant for planning permission was offered permission upon
terms that he entered into a section 37 agreement he could appeal to the
Secretary of State. But if he chose to enter into the agreement he (and his
successors in title) must accept that he can only avoid its effect through the
statutory procedure under section 84. Thus, it seems to me that, while the two
regimes impinge upon each other to some extent, they constitute different
systems of control and each has, and retains, an independent existence.
3Also reported at [1988] 3 PLR 45.
Reference was
also made to the case of Re Jones’ and White & Co’s Application
(1989) 58 P&CR 512, a decision of the Lands Tribunal.
(xi) The submission for the plaintiffs that, if an
obligation could not be lawful if imposed as a condition under section 29, it
could not be lawful as an obligation imposed by a section 52 agreement, was
based upon dicta in the Bradford case and in Monahan. The dicta
are set out in the judgment of the Vice-Chancellor. As to the Bradford
case, Mr Gray submitted that there no question arose as to the construction of
section 52 and, in particular as to whether the powers of a planning authority
under section 52 were necessarily the same in extent as those under section 29.
The comments of Lloyd LJ were directed to a suggestion that a condition which
required, as the price of granting the permission, the funding by the applicant
of works which were the responsibility of the planning authority and which was
unlawful, could have been lawful as a section 52 agreement. At p64 he said:
In my
judgement (the true principle) is neither more nor less than the third of the
three requirements identified by the House of Lords in Newbury District
Council v Secretary of State namely, that the conditions imposed
must not be manifestly unreasonable. If the proposed condition
authority to impose it; and if it is beyond the powers of the planning
authority to impose the condition, then it is beyond their powers to agree to
impose it, even if the developer consents.
Later in his
judgment he returned to the role of the section 52 agreement in such a case. At
p65 he said:
Since the
point does not arise directly for decision and since it raises questions of
considerable difficulty and importance on which we have heard only limited
argument, I propose to confine myself to two observations, one general and one
particular. The general observation is that the practice under section 52,
convenient and beneficial though it undoubtedly is, may have gone beyond what
the strict language of the section justifies. We were told that such agreements
are now very common, much commoner than they used to be. It may be that in some
future case it will be necessary for the court to consider the extent of the
powers of planning authorities to enter into agreements under section 52. I am
aware, of course, that such agreements are frequently entered into under
combined powers, that is to say under powers contained in other statutory
provisions as well as section 52.
The
particular observation is that I do not accept Mr Laws’ submission that the
present condition would have been lawful if incorporated in a section 52
agreement. If the condition was manifestly unreasonable, and so beyond the
powers of the planning authority to impose it, whether or not the developers
consented, it must follow that it was also beyond the powers of the planning
authority to include the condition as ‘an incidental or consequential
provision’ of an agreement restricting or regulating the development or use of
the land under section 52.
That
observation of Lloyd LJ did not mean, it was said, that the powers of the
planning authority under section 52 were also limited by the second of the Newbury
case requirements, namely that the obligation must fairly and reasonably relate
to the permitted development.
(xii) As to the dicta of Kerr LJ in the Monahan
case, at p116 he declined to accept as a general proposition the submission
that the view indicated by Lloyd LJ in the Bradford case was incorrect.
He continued at p116H:
Section 52
agreements undoubtedly facilitate the formulation of qualified planning
permissions in comparison with the imposition of express conditions, and no
doubt they also simplify the procedural aspects of the planning process in many
ways. They have the advantages of the flexibility of a negotiable agreement in
contrast to a process of unilateral imposition; and they are therefore no doubt
far less vulnerable to the risk of successful appeals or applications for
judicial review, which is to be welcomed. But if a particular condition would
be illegal — on the ground of manifest unreasonableness or otherwise — if it
were imposed upon an applicant for planning permission then it cannot acquire
validity if it is embodied in a section 52 agreement whether at the instance of
the applicant himself or not.
Mr Gray
pointed out that in that case there had been no reference to the relevant
authorities.
Conclusion
For my part I
accept the submission of Mr Gray that, upon the true construction of section
52, the powers of a planning authority under that section are not controlled by
the nature or extent of their powers under section 29; and I reject the
submission advanced for the plaintiffs that those powers are so controlled. The
extent of the section 52 powers is to be determined by reference to the words
there used having regard to the context. In particular, they give power to a
planning authority to enter into an agreement with the owner of the land ‘for
the purposes of restricting or regulating the development or use of the land’.
If such an agreement is required by a planning authority, and the requirement
is made for such a purpose, with due regard to relevant considerations, and is
not unreasonable (see the first and third requirements stated in the Newbury
case), such a requirement is not ultra vires merely because the purpose
could not be validly achieved by the imposition of a condition under section
29. The two statutory powers are distinct and the exercise of either of these
distinct powers has separate consequences and is subject to different
procedures.
If such an
agreement is required, and the landowner agrees to enter in to it, the validity
of the agreement depends upon the same primary test, namely whether it was made
‘for the purposes of restricting or regulating the development or use of the
land’.
Mr Payton
pointed to the fact that the word ‘development’ is defined in section 22(1) and
the word ‘use’ in section 290(1) of the Act of 1971. Nothing of any relevance
to this issue is to be derived from these definitions. The word ‘use’ is
defined as not including ‘the use of land for the carrying out of any building
or other operations thereon’. The word therefore, subject to the exclusion, has
its ordinary meaning in the English language.
This
construction is not, I think, in conflict with the substance of the dicta
of Lloyd LJ or of Kerr LJ in the two cases considered. Lloyd LJ in the Bradford
case was commenting upon a requirement which was, whether as a condition or as
a section 52 obligation, held to be manifestly unreasonable. It is not
necessary to decide in what circumstances an obligation might be manifestly
unreasonable as a condition but not manifestly unreasonable as a term of a
section 52 agreement. Lloyd LJ was not considering that possibility but rather
the suggested effectiveness of consent by the developer as a cure for manifest
unreasonableness in a section 52 agreement.
The reasoning
of Roch J in the Gillingham case appears to me, with all respect,
clearly to be right. In particular, I agree with his comment that it is not
surprising that a section 52 agreement may go to matters beyond those that
fairly or reasonably relate to the permitted development (the second
requirement stated in the Newbury case) because there would be little
point in enacting section 52 of the 1971 Act if section 52 agreements were
confined to those matters which could be dealt with by way of conditions.
It is not
clear that the statement of Kerr LJ in Monahan was intended to do more
than to approve the dicta of Lloyd LJ in the Bradford case. If
his statement is to be read as meaning that, if a provision would be
illegal as a condition not only because of breach of requirements (1) or (3)
stated in the Newbury case, but also ‘otherwise’, that is to say for
breach only of requirement (2), then I respectfully do not agree with the
statement.
I would
dismiss the appeal of the plaintiffs.
HIRST LJ: I agree.
PETER
GIBSON LJ: I also agree.
Order for costs against the appellant, not to
be proceeded with without further order of the court. Application for leave to
appeal to the House of Lords refused.
