Outline permission for large Manchester development granted subject to conditions–Approval of matters reserved under outline grant–Subsequent listing of buildings in the complex under section 54 of the Town and Country Planning Act 1971–New application made for approval of revised plan designed to avoid demolition of listed buildings–Planning authority in error in rejecting new application on grounds of invalidity
By this
summons Heron Corporation Ltd and an associated company, Gerard Securities Ltd,
sought a declaration that a second application for approval of matters reserved
under an outline planning permission was valid notwithstanding that approval
had been given on the first application.
M H Spence
(instructed by Saunders, Sobell, Leigh & Dobin) appeared for the
plaintiffs, and D G Nowell (instructed by Leslie Boardman, of Manchester,
represented the defendants).
Giving
judgment, SIR DOUGLAS FRANK said that on September 20 1972 the plaintiffs made
an application for outline planning permission for what, in effect, was to be a
comprehensive development comprising offices, shops, hotel, public house,
restaurant, car-parking, discotheque, residential accommodation, filling
station and entertainment buildings. The land was a site of about 8 acres in
the centre of Manchester and there could be no doubt that the scheme was to be
one of great importance. There was sent with the application a number of
drawings on which were written the words ‘for illustrative purposes only.’ There was also sent a location plan which was
substantially varied in part to meet the wishes of the defendants. On September
5 1973 outline planning permission was granted subject to 13 conditions including
the following:
(3) Before the development is commenced, the
applicant shall submit to the council and obtain their approval under the Town
and Country Planning Acts of detailed plans and elevations of the proposals and
detailed particulars of the materials to be used in external elevations.
(4) The permission hereby granted relates solely
to the erection of buildings for the uses specified in the application and does
not imply approval of the submitted layout which has been prepared for
illustrative purposes only. . . .
(5) The permission relates only to the approval
in principle of the development of the whole of the application site and in no
way implies approval of the development of any part of the site other than as
part of an overall phased programme to be approved by the council. The detailed
plans shall include the phasing proposed together with details of the timing of
each phase.
(6) Before the development is commenced the
applicants shall submit to the council and obtain their approval . . . of
detailed plans and elevation of the proposals and particulars of materials to
be used in the external elevation.
(7) The total gross floor space of all uses in
the development shall not exceed 92,905 sq metres (1,000,000 sq ft).
On December 7
1973 the plaintiffs submitted a form entitled ‘application for permission to
develop land,’ but which was by common consent an application for the approval
of matters reserved under the outline permission, wherein the development for
which approval was sought was described as ‘demolition of existing premises and
erection of hotel, etc.’ The total gross
floor area was stated to be about 230,000 sq ft, being the hotel plus car park.
Although that application was for that part of the site which was to be
used for the hotel, there went with it a phased programme for the development
of the whole site showing commencement in September 1974 and completion in June
1980. By a notice dated February 6 1974 the council approved the plans subject
to 11 conditions. Soon after that two of the buildings in the area were listed
as buildings of special architectural or historic interest in accordance with
section 54 of the Town and Country Planning Act 1971. Accordingly, in the
absence of written consent by the defendants or the Secretary of State for the
Environment, it was an offence to execute any works for their demolition. The
construction of the hotel would have required the demolition of one of the
buildings. As a result the plaintiffs revised their layout so as to put the
hotel on a different part of the site. On August 11 1975 they made a fresh
application for approval with details showing the retention of the listed
buildings.
The city
planning officer refused to entertain the application on three grounds: (1) the
area exceeded 1m sq ft; (2) the outline permission involved the demolition of
all other buildings; (3) once reserved matters had been approved they could not
be revised or varied. These in effect were also the submissions of Mr Nowell
for the defendants, although he relied mainly on ground (3). Mr Spence for the
plaintiffs submitted that there was nothing in the Act nor in the General
Development Order 1973, which regulated applications and grants of planning
permission, to suggest that a second application could not be made. Indeed,
section 42 (2)(b) of the Act referred to approval on different dates.
In his
Lordship’s judgment not only could more than one application for approval be
made under the same outline planning permission, but in many cases this was
inevitable and the present case was one such example. It must have been clearly
contemplated, having regard to the fact that it was a common aim that the
development should be carried out in phases, that there would be a number of
applications. It was true that the local planning authority was functus officio
when it had given a decision on a particular application and it was also functus
officio in the present case in respect of the approval dated February 6
1974 in the sense that it could not now change its mind and revoke the approval
which it had given or attach further and different conditions to it. This did
not, however, prevent more than one application for approval being made under
the same outline permission. His Lordship found it impossible to draw a
distinction on grounds of validity between an application for one component of
a scheme and an application for a different component. It also offended common
sense to say that a planning permission in effect became valueless because the
listing of a building prevented the implementation of a previously approved
scheme. Under the circumstances it followed that the plaintiffs were entitled
to the declaration sought.