Planning permission for winning of limestone — Condition requiring access to site to be by particular road and road to be improved to satisfaction of county surveyor — Validity of condition — Whether first part of condition enforceable — Whether second part positive or negative — Land required for road improvements not within application site and not within control of applicant — Whether council had power to impose second part of condition — Condition held to be invalid — Whether condition excisable from the permission or whether planning permission rendered invalid
On October 31
1947 interim development permission was granted by the former Banbury Rural
District Council to W & R Wallace Industries Ltd (‘Wallace’) for the
winning of limestone from 82 acres of land owned by them and forming part of
Bacon Farm, Swalcliffe, Oxfordshire. The permission was subject to a number of
conditions of which condition (g) provided:
Access to the
site to be by way of the road from Stourwell Barn to Wigginton Heath, this road
to be improved to the reasonable satisfaction of the County Surveyor.
In May 1948 the
county surveyor provided a specification for the widening of the road, which
work it was agreed should be carried out by Wallace. Neither the road nor the
land needed for its widening were within the application site. In August 1949
Oxfordshire County Council, which had then become the local planning authority,
granted a further planning permission for buildings, plant and machinery for
the quarry working. However, neither permission was implemented by Wallace, nor
was the road improved. Between 1947 and 1950 the tenant farmer, a Mr Taylor,
extracted some limestone for his own and other farmers’ agricultural purposes
and on March 23 1979 Redland Aggregates Ltd (‘Redland’), who held the mineral
rights for one day, dug 20 cubic yds of material which were used to improve a
farm road.
In 1980 the
land was purchased by the first four plaintiffs, the trustees of the Mouchell
Superannuation Fund. In 1986 they wished to grant to the fifth plaintiff, East
Midlands Quarries Ltd, a lease to extract minerals from the land. By writ
issued on March 20 1987 the plaintiffs claimed a declaration that the
permission dated October 31 1947 was a valid and subsisting permission which
continued to inure for the benefit of the land. The defendants, Oxfordshire
County Council, resisted the claim.
On December 15
1989 Judge Young QC, sitting as a judge of the High Court, dismissed the claim.
He concluded that condition (g) imposed two separate positive obligations: (i)
that access to the site was
this road was to be improved to the reasonable satisfaction of the county
surveyor. He held, in effect, that the first part of the condition was
unenforceable and, inter alia, that the second part gave rise to a
number of uncertainties: the condition as a whole was unreasonable, ultra
vires, and void. He held, further, that since without access the quarry
could not function at all, the condition, being of fundamental importance, was
not excisable from the permission and in consequence the permission was also
void. The plaintiffs appealed.
1. The first
part of condition (g) was invalid since there were no steps which the
landowners could take to secure or ensure that all vehicles used the prescribed
route to the site: British Airports Authority v Secretary of State
for Scotland 1979 SC 200 applied: see pp 107H-108C.
2. It was not
shown on the material before the court that the land needed for highway
widening was within the control of Wallace on October 31 1947 when the
condition was imposed. Accordingly, irrespective of whether or not it was
reasonable, the planning authority had no power to impose the second part of
the condition as a positive condition: Proberun Ltd v Secretary of
State for the Environment [1990] 3 PLR 79 applied: see pp 105G-106F,
108D-109B and 112A. Even though the condition was to be read as meaning that
the road was to be improved before the working of limestone started, its
language was positive and it could not be read as a Grampian-type
negative condition. The condition, therefore, was invalid: see p 109C-E.
3. The judge
correctly held that condition (g) was of fundamental importance to the
permission as a whole, so that the planning permission could not stand without
it: Kingsway Investments (Kent) Ltd v Kent County Council [1971]
AC 72 applied: see pp 109F-110C and 111C.
Per Glidewell LJ: Having regard to the conclusion on the validity of
the permission it was unnecessary to decide whether the judge was correct in
concluding that neither of the operations carried out by Mr Taylor and Redland
constituted the beginning of development to which the 1947 permission related
so as to prevent it from lapsing: see p 110F-H.
Per Staughton LJ: Quaere whether a planning authority were
entirely free to rely on the unreasonableness of their own condition as a
ground for saying that a planning permission which they granted was void when
the developer remained content with the condition: see p 111H.
Decision of
Judge Young QC affirmed.
to in the judgments
Atkinson v Secretary of State for the Environment [1983] JPL 599
Augier v Secretary of State for the Environment (1978) 38 P&CR
219; sub nom Hildenborough Village Preservation Association v Secretary
of State for the Environment [1978] JPL 708
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
British
Airports Authority v Secretary of State for
Scotland 1979 SC 200; 1979 SLT 197; [1980] JPL 260
Grampian
Regional Council v City of Aberdeen District
Council (1983) 47 P&CR 633; 1984 SLT 197; [1984] JPL 590, HL
Hall
& Co Ltd v Shoreham-by-Sea Urban District
Council [1964] 1 WLR 240; [1964] 1 All ER 1; (1963) 62 LGR 206; 15 P&CR
119; [1963] EGD 638; 188 EG 873; [1964] JPL 316, CA
Kingsway
Investments (Kent) Ltd v Kent County Council
[1971] AC 72; [1970] 2 WLR 397; [1970] 1 All ER 70; (1969) 68 LGR 301; 21
P&CR 58; [1970] EGD 44; 213 EG 247, HL
Medina
Borough Council v Proberun Ltd (1990) 61
P&CR 77; sub nom Proberun Ltd v Secretary of State for the
Environment [1990] 3 PLR 79; [1990] JPL 585, CA
Mixnam’s
Properties Ltd v Chertsey Urban District Council
[1964] 1 QB 214; [1963] 3 WLR 38; [1963] 2 All ER 787; (1963) 61 LGR 489; 14
P&CR 412; [1963] EGD 567; 185 EG 683; [1963] RVR 679, CA
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
Peak Park
Joint Planning Board v Secretary of State for
the Environment (1979) 39 P&CR 361; [1980] JPL 114
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
Appeal against
decision of Judge Young QC
This was an
appeal by the plaintiffs, Gordon Frederic Pedgrift, Vernon Clinton Crundwell,
Victor John Loosley and David Beddoe Thompson, the trustees of the Mouchell
Superannuation Fund, and East Midlands Quarries Ltd against the dismissal by
Judge Young QC, sitting as a judge of the High Court, on December 15 1989 of
their claim against Oxfordshire County Council for a declaration that a
permission granted on October 31 1947 for mineral workings on land at
Swalcliffe, Oxfordshire, was a valid and subsisting permission and continued to
inure for the benefit of the land.
QC and William Featherby (instructed by Taylor Joynson Garrett) appeared for
the plaintiffs, the trustees of the Mouchell Superannuation Fund and East
Midlands Quarries Ltd.
Macleod QC and Philip Petchey (instructed by Gouldens) appeared for the
defendants, Oxfordshire County Council.
following judgments were delivered.
GLIDEWELL
LJ: This is an appeal against a decision of Judge
Young QC, sitting as a judge of the High Court, who, in a judgment given on
December 15 1989, dismissed the plaintiffs’ claim and entered judgment for the
defendants.
The action
concerns the validity of a permission granted on October 31 1947 for mineral
workings on land in Swalcliffe, Oxfordshire. The judge rightly described it as
complex in the sense that it raises several difficult questions under planning
legislation, particularly legislation not now in force.
The first four
plaintiffs are the trustees of the Mouchell Superannuation Fund. They own the land,
which they purchased freehold in March 1980. In 1986 they wished to grant to
the fifth plaintiff, a limestone quarrying company, a lease to extract minerals
from the land. The defendant county council, by a letter from the county
solicitor of April 28 1986, expressed the opinion that the permission of
October 31 1947 was not valid.
The plaintiffs
commenced these proceedings by a specially endorsed writ issued on March 20
1987. By it they claim ‘a declaration that there is a valid and subsisting
permission dated 31st October 1947 which continues to inure for the benefit of’
the land, and they also claim damages.
The plaintiffs
might have taken an alternative course, the course which was taken in Pioneer
Aggregates (UK) Ltd v Secretary of State for the Environment [1985]
AC 132, that is to say to alert the county council to the fact that they were
about to make a token working of minerals and to invite the service of an
enforcement notice, then to appeal against the enforcement notice and thus to
enter, so to speak, the normal town and country planning appeal process, with
the right to make application to the High Court if they were dissatisfied with
the decision of the Secretary of State for the Environment. However, nobody has
raised the point that proceeding by way of action is in any way inappropriate
and I say no more about it.
The relevant
facts as found by the judge or as are apparent from the documents can be
summarised as follows. The land the subject of the action is an area of some 82
acres forming part of Bacon Farm, Swalcliffe, Oxfordshire. It lies in beautiful
open countryside south west of Banbury. It is one mile south of the village of
Swalcliffe and about two miles north of Wigginton. On the eastern boundary of
the land there is an unclassified road, a public highway, running from
Swalcliffe to Wigginton via Swalcliffe Grange, which is the name of a
farmhouse occupied by a family called Taylor, who farm the 82 acres and other
land to the north. Some distance south the road passes Highways Farm, where it
joins another road to Wigginton Heath. The road is metalled with a maximum
width of 8 ft 6 ins. An enclosure award of 1772 showed the road as a public
highway and set out the highway to a width of 60 ft, except for that part of it
which is closest to Wigginton Heath, where it was 40 ft. However, much of the
60 ft has been encroached upon by neighbouring farmers. The land has been
cultivated and hedges and fences have been erected much closer to the line of
the road than the actual 60 ft width. The land is underlain by oolitic
limestone strata. In the district there are several small pits from which
limestone has been extracted in the past. The judge found that that had been
done for local requirements. One such pit lies near the southerly boundary of
the land.
In 1947 the
land was owned by W & R Wallace Industries Ltd (‘Wallace’). From 1935 it
was tenanted by Mr Taylor as part of Swalcliffe Grange Farm and it still is. In
the 1930s and 1940s Mr Taylor extracted limestone from an area of adjoining land
to the west, where he had a small crusher. The judge found that Mr Taylor
carried on this activity as a part-time business, which he described as a
sideline. At that time Mr
on the land in question.
In 1947
Wallace made an application for an interim development permission for limestone
working on a site which included the land and adjoining land to the south, a
total of 227 acres. On October 31 1947 Banbury Rural District Council, the then
local planning authority, granted the permission sought, but related it only to
the land the subject of the action, that is to say the 82-acre site.
The document
containing the permission is slightly unusually worded. The material part of it
reads:
. . . the
Council as Interim Development Authority hereby permit buildings for the
purpose of proposed limestone workings to be erected on land situate at
Swalcliffe.
There then
follow a number of conditions, of which the first is:
(a) The winning of limestone to be permitted upon
the land coloured pink on the plan now submitted.
It is common
ground that it was in fact a permission for the winning of limestone and that
the land coloured pink was the 82 acres.
There are a
number of other conditions. Condition (b) dealt with the order in which the
land should be worked and it made it clear that another permission to work the
rest of the 200-odd acres would be required before that land could be worked.
Condition (c) required top-soil to be removed and used for restoration after
the limestone had been worked, as did condition (d). Conditions (e) and (f) are
not relevant, but condition (g) is really the central ground of the present
appeal. It reads as follows:
Access to the
site to be by way of the road from Stourwell Barn to Wigginton Heath, this road
to be improved to the reasonable satisfaction of the County Surveyor.
Finally,
condition (h) reads:
If the
Council and the applicants shall fail to agree on any question or permission hereunder
left for future settlement with the Council there shall be a right of appeal by
both parties to the Ministry of Town and Country Planning.
For my part, I
have no doubt that the intention of the parties was that, if they reached a
stage where there was some matter upon which they needed to but could not reach
agreement, then they agreed to refer the issue to the Ministry of Town and
Country Planning as an arbitrator to settle the difference.
In May 1948,
following the grant of that permission, the county council, after some
correspondence about the nature of the work necessary to improve the road,
agreed that the work itself should be carried out by Wallace, who no doubt
thought they could do it more
specifications. The county surveyor produced a section and a specification,
which showed that what he was requiring was a widening of the road on the
westerly side of the existing metal carriageway to a width of 16 ft of
carriageway, with the highway being 30 ft or so overall between the new
boundaries.
The proposed
specification contained the following provision under the rubric ‘Accommodation
Works’:
The
Contractors must negotiate with the owners of the land between the first and
fourth gates
— that
effectively delineated the end of the road, which I should have said was at
that time gated although it was a highway —
as before
described, for the purpose of obtaining the use of the land on the west side of
roadway.
Then it went on
to deal with the requirement that the contractors should replace fences and
gates and deal with disturbance claims.
On August 5
1949 Oxfordshire County Council, which had by then become the local planning
authority as a result of the coming into force of the Town and Country Planning
Act 1947, granted a further planning permission for buildings, plant and
machinery for the quarry workings. Thereupon the interest of Wallace Industries
Ltd in working mineral from this land apparently ceased. There was no mineral working.
There was no improvement of the road and there was no plant or building. So far
as there being no mineral working is concerned, that is subject to one
exception about which I shall say a little later on.
In September
1978 an official of the county planning department noted ‘land not as yet
worked’.
In March 1979
Redland Aggregates Ltd became interested in the land and the permission. Their
activities were also of relevance in the action.
On April 28
1986 the county solicitor wrote the letter to which I have already referred,
expressing the view that the permission of October 31 1947 was not valid, which
led to these proceedings. The pleadings raised two issues. First, was condition
(g) on the permission of October 31 1947 invalid when it was imposed and,
second, if so, did the invalidity of that condition render the whole permission
invalid? There were other obstacles
which the plaintiffs had to overcome if they were to succeed in showing that
they still had a valid permission, but those are the two to which at the moment
I address myself.
Judge Young
cited a number of authorities to which he had been referred and then set out
six principles which he extracted from those cases. The first principle was:
(a) that there is a crucial difference between a positive
and a negative condition, in that the latter was enforceable, whereas the
former is not.
That principle
he no doubt derived from the decision of the House of Lords in Grampian
Regional Council v City of Aberdeen District Council (1983)
47 P&CR 633. In that case, in order to secure that traffic to and from
proposed developments should have safe access to a nearby main road, it was
necessary to close a section of an existing minor road. The closure of that
road did not lie within the power of the applicants. It was accepted during the
course of the proceedings that a condition which positively required that
closure would be invalid, but the applicants argued that a negative condition
to the effect that the development should not take place until the road had
been closed would be valid. The decision of the House of Lords is authority for
the proposition that such a condition can be valid.
In his speech,
with which others of their lordships agreed, Lord Keith of Kinkel said at the
bottom of p 635:
The issue in
the appeal turns on the nature of conditions which may lawfully be adjected to
a grant of planning permission under section 26(1) of the Act of 1972. The
power to adject conditions is expressed in the widest possible terms: ‘. . .
[the local planning authority], . . ., may grant planning permission, either
unconditionally or subject to such conditions as they think fit; . . .’ The power is not, however, unlimited. The
nature of the limitations is well settled by authority and is compendiously
stated by Viscount Dilhorne in Newbury District Council v Secretary
of State for the Environment: ‘It follows that the conditions imposed must
be for a planning purpose and not for any ulterior one, and that they must
fairly and reasonably relate to the development permitted. Also they must not
be so unreasonable that no reasonable planning authority could have imposed
them: . . .’
The argument
for the first respondents, which prevailed before the First Division, accepted
that a condition requiring them to secure the closure of Wellington Road would,
as the reporter held, be invalid as infringing the last of these limitations,
in respect that it would not have lain within their power to bring about that
result at their own hand, and accordingly, the condition would have been
unenforceable. Authority for that was to be found in British Airports
Authority v Secretary of State for Scotland. But it was maintained
that the reporter had misdirected himself by failing to consider whether, given
that the expected traffic hazards at the Findon House junction meant that
otherwise desirable development could not be allowed to go ahead unless
Wellington Road were closed, there was any form of enforceable condition not
infringing the limitations laid down by authority which was capable of bringing
about the desired result. Such a condition, so it was argued, was a condition
that development on the site should not proceed unless and until Wellington
Road had been closed.
Before this
House, the appellants attacked the First Division’s acceptance of this argument
on the ground that the imposition on the grant of planning permission of any
negative condition related to the occurrence of an uncertain event was
unreasonable, and therefore invalid. It was maintained that there was no
practical distinction between a condition requiring a result which it was not
within the power of the applicant alone to bring about and a condition
prescribing that no development should begin until that result had been
achieved, because in either case the practical effect was to require the
applicant to bring about something which was not within his power. It was said
to be, in any event, undesirable that there should be prolonged uncertainty as
to whether the development would be able to go forward or not.
My Lords, in
my opinion there is no substance in the appellants’
positive and the negative type of condition in this context, namely that the
latter is enforceable while the former is not. In the second place, the
reasonableness of any condition has to be considered in the light of the
circumstances of the case.
The second of
the learned judge’s principles was:
(b) that a condition is void when so manifestly
unreasonable that no reasonable planning authority could have imposed it.
That is derived
from the decisions of this court in Mixnam’s Properties Ltd v Chertsey
Urban District Council [1964] 1 QB 214 and Hall & Co Ltd v Shoreham-by-Sea
Urban District Council [1964] 1 WLR 240 and from the passage in the speech
of Viscount Dilhorne in Newbury District Council v Secretary of State
for the Environment [1981] AC 578 at p 599, which was quoted in Lord
Keith’s speech in Grampian, which I therefore need not read again.
The learned
judge’s third principle was:
(c) that when a condition on land is proposed
outside the application site prudence requires that the authority should impose
conditions which make it clear that, before benefit can be obtained, the
developer must have actually secured the ability to comply with the condition
itself.
That is a
partial quotation from the judgment of Woolf J (as he then was) in Atkinson
v Secretary of State for the Environment [1983] JPL 599 at p 600. The
quotation is only partial because Woolf J continued:
For example,
in the case of a planning permission of the sort under consideration here, the
planning authority were entitled to restrict the right to use of the
dwelling-houses until after the access had been provided, or indeed to provide
that the development of the houses should not commence until after the access
road had been constructed.
The remaining
three principles in the judge’s summary are impeccable and I do not need to
cite authority for them. They were:
(d) in order to be a reasonable condition, the
party seeking to enforce it must be able to secure the result which the
condition was intended to achieve;
(e) that agreement between the parties upon the
condition in question is likely to be powerful evidence that the condition is
not unreasonable, but if in reality the condition is unreasonable then the fact
that the parties have agreed to it will not save it;
(f) that in the end, applying the principles,
each case depends upon its own facts and inferences to be drawn therefrom.
When the
permission was granted in October 1947 the legislation in force comprised the
Town and Country Planning Act 1932, as added to and amended by the Town and
Country Planning Act 1943. Those statutes provided in effect that interim
development control under the 1932 Act should extend to the whole of England
and Wales and that,
might be the subject of enforcement action. However, if interim development
permission was granted after the coming into force of the 1943 Act (as the
permission of October 31 1947 was), then, when the Town and Country Planning
Act of 1947 came into force on July 1 1948, by section 77(1) of that Act:
. . . if and
so far as that development has not been carried out . . . planning permission
shall be deemed by virtue of this section to be granted in respect thereof
under Part III of this Act, subject to the like conditions, if any, as were
imposed by the permission under the interim development order . . .
The permission
of October 31 1947, though it falls to be interpreted in the circumstances
which pertained at that time, nevertheless is also to be interpreted as if it
were a permission granted under the 1947 Act. By section 12(2) of the 1947 Act
the definition of ‘development’, which has been in force ever since that date,
was:
the carrying
out of building, engineering, mining or other operations in, on, over or under
land, or the making of any material change in the use of any buildings or other
land.
Section 14(1)
and (2) of the 1947 Act provided:
(1) Subject to the provisions of this and the
next following section, where application is made to the local planning
authority for permission to develop land, that authority may grant permission
either unconditionally or subject to such conditions as they think fit, or may
refuse permission; . . .
(2) Without prejudice to the generality of the
foregoing subsection, conditions may be imposed on the grant of permission to
develop land thereunder —
(a) for
regulating the development or use of any land under the control of the
applicant (whether or not it is land in respect of which the application was
made) or requiring the carrying out of works on any such land, so far as
appears to the local planning authority to be expedient for the purposes of or
in connection with the development authorised by the permission; . . .
Section 14(1)
is now section 70 of the Act of 1990 and section 14(2) is now section 72(1) of
that Act, which illustrates, if nothing else, that there is inflation in
legislation as in economics.
There is one
principle to which the judge did not refer, I suspect because it was not
specifically drawn to his attention. That principle is that the combined effect
of section 14(1) and (2) of the 1947 Act was, and the combined effect of the
successor provisions in the current legislation is, that a condition requiring
the carrying out of works may validly be imposed only if the works are to be
carried out on land either within the application site or on other land ‘under
the control of the applicant’. Thus, a condition purporting to require the
carrying out of works on land neither within the application site nor within
the control
the reasonableness of the condition is irrelevant.
The judge’s
failure to refer to this principle may be due to the fact that the principle —
although I believe generally accepted — had not been laid down in a decision of
this court at the time of his judgment. It was, however, to be found in two
decisions of Sir Douglas Frank QC, sitting as a deputy High Court judge, which
the learned judge in the present case cited, namely Augier v Secretary
of State for the Environment (1978) 38 P&CR 219 (a decision which was
concerned with the issue whether land for visibility splays for a road was or
was not within the control of the applicant) and Peak Park Joint Planning
Board v Secretary of State for the Environment [1980] JPL 114 at p
117, where the issue arose directly.
That the
principle is indeed correct was made clear by a decision of this court, which
has not been reported as far as I know, in Medina Borough Council v Proberun
Ltd1, decided on May 15 1990, five months after the learned
judge’s decision in the present case. In that case, giving the first judgment,
with which the other members of the court agreed, I said [[1990] 3 PLR 79 at p
85A]:
It is common
ground on this appeal that a condition may not lawfully be imposed on a
planning permission which requires the carrying out of work on land which is
neither within the application site nor under the control of the applicants.
That, it is conceded, follows from the wording of sections 29(1) and 30(1) [of
the 1971 Act], to which I have just referred. But, again surprisingly, even for
that well-known proposition there is very little direct authority.
1Reported, sub nom Proberun Ltd v Secretary of State for
the Environment [1990] 3 PLR 79.
I then quoted
three authorities, of which two were the decisions of Sir Douglas Frank to
which I have just referred, and I concluded [at p 85F]:
For my part,
I regard the proposition agreed between counsel and contained, or implicit, in
Sir Douglas Frank’s decisions as clearly correct in law.
Even if that
did not remain still my view, it would be binding upon us.
The judge
concluded, and the argument in this court has proceeded on the basis, that
condition (g) of the October 1947 permission imposed two separate obligations:
(i) access to the site to be by way of the road from Stourwell Barn to
Wigginton Heath and (ii) this road to be improved to the reasonable
satisfaction of the county surveyor.
Judge Young
said in his judgment at p 9 of the transcript:
In this case
I have come to the conclusion, upon the facts and drawing such inferences from
the facts that I think are right, that condition (g) is manifestly
unreasonable, ultra vires, and therefore void. As a condition, it falls
into two parts. One part concerns the way and direction along which vehicles
visiting the site are to follow. The second part concerns improvement to the
road itself, in particular extending the width and upgrading the surface. In my
judgment both parts, taken together or
condition. In both parts it is a condition which calls for positive action on
the part of Wallace. It is also quite plainly a condition which calls for
improvement to the road and the control of vehicular access to the site on land
which was outside, and indeed remained outside, the control of Wallace at the
material time. As the case law shows, that is not necessarily fatal in itself,
but there is no doubt that particular care should be taken over conditions
which require works to be carried out on land in which the applicant has no
interest at the time when planning permission is granted.
The learned
judge then cited the passages from the judgment of Woolf J in Atkinson’s
case to which I have already referred, and he said:
In the present
case, the terms of condition (g) show this not to be so.
That is, it
was not shown that the development must actually have secured the ability to
comply with the condition. The judge then said:
Looking first
of all at the requirement to improve the road, what we have here, in condition
(g), is an open-ended condition with no limitation as to time, in which there
is nothing to stop quarrying operations taking place before the improvements
are done to the road. This could have resulted in damage to the existing road
surface and the verges before improvements had been commenced. Difficulties
could have arisen about when those improvements should be done. Difficulties
could have arisen about who should do the work and the extent of the works
required. They could also have arisen about the cost and about who should pay.
They could also have arisen about whether more extensive renewal was required
than at first thought. They could also have arisen with regard to where the
road was to run, since no one knew then (and still does not know) within either
of the parishes of Swalcliffe or Wigginton where the present road runs within
the allocated width of 60 or 40 feet. There might also be questions of
resolving the ownership rights of adjacent landowners . . .
Then there is
the question of access. Lorries of various sizes, cars, plant and equipment
would be going to and from the site. If the condition were to be performed
Wallace would have to secure performance of their obligation to ensure that
such vehicles approached via the road from Wigginton to Stourwell Barn.
Some vehicles would reach the site in ignorance of that condition and would go
another way. There would be others quite deliberately trying to take a short
cut if it suited them to do so. I cannot see that anything that Wallace could
have done or tried to do would have secured control of the flow of traffic and
performance of the access provision in condition (g); or for that matter that
there was anything the planning authority could have done to secure Wallace’s
performance of it either.
As to
enforcing the requirement that access should only be by the road to the south,
we were referred by Mr Macleod in the course of argument to the decision of the
First Division of the Court of Session in British Airports Authority v Secretary
of State for Scotland 1979 SC 200. That court held that a condition on a
planning permission for development at Aberdeen Airport which required aircraft
to approach and leave the airport in a particular direction was invalid. It so
held
compliance with the condition. The body which could have taken steps was the
Civil Aviation Authority, not the British Airports Authority. All the airports
authority could do would be to use their best endeavours to persuade the Civil
Aviation Authority to impose such a requirement.
Following that
test, it seems to me that exactly the same situation obtains here. I accept
that it does appear from the correspondence that in the autumn of 1947 and the
spring of 1948 the Minister of Transport (as he then was) and the county
council highways authority were willing to approve this application, subject to
what they thought was a valid condition, condition (g), and that they were
prepared to reach agreement with the then landowners on the means by which the
improvement of the road should come about. I find nothing in the correspondence
that deals at all with how the requirement that access to the site by way of
the road to the south should be ensured. Thus, in my judgment, what the judge
said about this was entirely justified. There was no way in which in the end
the landowners could secure or ensure that all vehicles used that route. The
most they could do would be to use their best endeavours. What then would be
the position if the planning authority tried to serve an enforcement notice
alleging breach of the condition?
The more
fundamental point relates, in my view, to the second part of the condition
requiring the carrying out of works to the improvement of the road. As I have
said, the learned judge did not in terms refer to the principle of law that
such a condition could be valid only if the works required were on land within
the control of the applicant or within the application site. When he said that
the fact that the works were to be carried out on land outside Wallace’s
control was ‘not fatal in itself’, that must be read — and, indeed, his third
principle must be read — as subject to the point I have enunciated.
I note that in
both Atkinson v Secretary of State for the Environment (Woolf J’s
case) and in another case to which we were referred, a decision of this court
in Bradford City Metropolitan Council v Secretary of State for the Environment
(1986) 53 P&CR 55, the land which was needed in the one case for access and
in the other case for highway widening was specifically within the application
site. In other words, the application had been so drawn as to encompass the
land within the site. The sole issue, therefore, in both those cases was, since
there is statutory power to impose a condition requiring those works on such
land, is it a reasonable condition or not?
Here the
highway adjoining the site and the land which will be needed for road widening
are not within the application site. The sole issue thus was the factual issue:
was that land within the control of the applicant? Because his mind was not specifically
directed to it, the judge did not address that question directly. But it is
clear to my mind that, if he had done, he would have found as a fact that that
land was not within the control of the applicant. That he would have been
entitled so to find I regard as absolutely clear. The widening of the highway,
even if it did not require the use of compulsory purchase powers, as it may not
have done, still could take place only if the county council exercised powers
under the Highways Act to carry out the widening to ensure that the
encroachments over the years of the 60 ft-wide highway strip should be removed.
Moreover, agreement between the county council and Wallace on the scale of the
improvement, though it obviously was somewhere near, was not shown to have been
reached.
I therefore
would conclude, if it were a matter for this court to find, that it is not
shown on the material before the court that the land needed for highway
widening was within the control of Wallace at October 31 1947 when the
condition was imposed. Therefore, in my judgment, there was no power in the planning
authority to impose this condition as a positive condition. I put it in that
way because, of course, town and country planning is and has always been a
creature of statute and, as we are reminded from time to time by the House of
Lords, planning authorities may exercise only the powers which statute gives to
them in this respect.
Mr Woolley for
the appellants argues that nevertheless, properly read, the second half of
condition (g) is a negative condition, a Grampian type condition. In
other words, it should be read that no extraction of mineral shall take place
until this road has been improved to the reasonable satisfaction of the county
surveyor.
I go this far
with him. Unlike the judge, I take the view that, for the condition to be
sensibly read, it must be read as meaning that the road was to be improved
before the working of the limestone started. But, even so, the terminology is
positive, not negative: this road to be improved. In my judgment, and this is
not mere semantics, that condition imposed, or sought to impose, upon the
applicants for the planning permission a positive obligation to take the step
of improving the road, which they were not in a position to fulfil on land
within their control.
I would,
therefore, hold that condition (g) was invalid.
Mr Woolley
argues, nevertheless, that the condition is excisable from the planning
permission so that the planning permission stands without it. This issue is one
which has formed the subject of discussion in a number of decisions, notably Hall
& Co Ltd v Shoreham-by-Sea Urban District Council [1964] 1
WLR 240, to which I have already referred, where a dictum of Pearson LJ was
quoted with approval by Lord Upjohn in Kingsway Investments (Kent) Ltd v
Kent County Council [1971] AC 72 at p 113. The test is: is the condition
which has been held to be invalid essential to or at least an important part of
the planning permission?
The judge said
at p 11 of his judgment:
I now turn to
the question of whether condition (g) is excisable from the permission as a
whole or whether the grant falls with it. In this connection, I have been
referred, for principle, to Kingsway Investments (Kent) Ltd v Kent
County Council [1971] AC 72. The analogy adopted there was the question of
‘branch or trunk’; the analogy, upon reflection, that I prefer to use in this
case is one which was floated, I think, by myself in this case itself, on this
basis. The quarry is the heart, the access is the principal artery. Via
the access come workmen, plant, lorries, both to and from the site. Without
that access the quarry cannot function at all. There can be no work there if no
one can get there. The access is crucially important to the whole operation of
the quarry and without the access the whole object of the
compliance with condition (g) in effect meant the substitution of an old road
for a new one
— I think he
must have meant the other way round —
over 1,000
yds, the road to be doubled in width and provided with new foundations, quite
apart from the question of having to dig a ditch along the side and to erect
fencing. I have come to the conclusion that this [is] a condition which is
plainly of fundamental importance to the permission as a whole . . . .
I come to the
conclusion, therefore, that condition (g) is not excisable, being of
fundamental importance, and therefore the grant of planning permission on
October 31 1947 was void.
I entirely
agree and I need use no further words of my own.
It follows, in
my judgment, that the judge was correct in finding that the planning permission
of October 31 1947 was invalid, and that is sufficient to dispose of this
appeal.
As I have
said, if Mr Woolley had succeeded on those issues, there was still another
obstacle in his way which was argued before the judge, namely whether, if the
planning permission was valid contrary to his conclusion, it nevertheless
ceased to authorise the working of minerals after March 31 1979. I will refer
to this matter very briefly.
Before 1968 there
was no general restriction on the duration of planning permissions. However,
the Town and Country Planning Act 1968 introduced the concept that a planning
permission should only authorise the development to which it related, that is
to say to be an effective permission, for a limited period. The combined effect
of section 65 of the Act of 1968, section 43(7) of the Act of 1971 and
regulation 6 of the Town and Country Planning (Minerals) Regulations 1971 (SI
1971 No 756) was that, if the permitted development was not begun by March 31
1979, the permission ceased to have effect. No development thereafter was
authorised by it.
There was
evidence before the judge that there was some digging on the land for two
relevant periods: first by Mr Taylor to extract limestone for his own and other
farmers’ agricultural purposes between 1947 and 1950 and, second, by Redland
Aggregates Ltd who, in 1979, held the mineral rights on one day, March 23 1979.
They specifically dug some 20 cubic yds of material, which was then used for
the improvement of the farm road. Their witness in court agreed — indeed
asserted, I think — that they did so for the express purpose of preserving the
effect of the planning permission, that is to say preventing it from lapsing,
on March 31 1979.
The judge
concluded that neither of these operations constituted the beginning of the
development to which the permission related. In the light of my conclusion as
to the validity of the planning permission, I do not find it necessary to
decide the issues about the duration of the planning permission in this case
save to say that they do depend upon the particular facts of the case.
I return to
make a last comment on the issue as to the validity of
Planning Act 1947. In Hill’s Complete Law of Town and Country Planning
published in 1949 the learned editor, commenting on the provision in section
14(1) of the Act that a planning authority, when granting permission, may do so
‘unconditionally or subject to such conditions as they think fit’, said:
Some degree
of care should always be exercised in drafting conditions. There is always the
possibility that some day they may give rise to a case in the High Court.
How prescient
he was.
I would dismiss
the appeal.
STAUGHTON
LJ: I agree that this appeal should be dismissed
for the reasons given by Glidewell LJ, including the final quotation with which
he ended his judgment.
I add a few
words on a point which has puzzled me since the start of this appeal. That is
whether a planning authority can assert that a condition which the authority
themselves have imposed is unreasonable, with the consequence that the
permission which the authority have granted is void. Neither counsel has been
able to point to a case where such an assertion has been made in the past, let
alone succeeded. Of course, there have been cases where a developer has
asserted that a condition imposed by a planning authority is unreasonable. If
the developer has consented to the condition being imposed, that may make his
task more difficult, but it is not an insuperable obstacle to his arguing that
the condition is unreasonable. If he succeeds, the condition goes.
Then the
question arises whether the planning permission survives without it. The
developer will argue that it does; the planning authority are fully entitled to
argue that it does not.
Mr Macleod
argues that a condition which is unreasonable is ultra vires the
planning authority; hence the planning authority are as much entitled as
anybody else to say that it is invalid. In support of that he refers to the
observation of Lloyd LJ in Bradford City Metropolitan Council v Secretary
of State for the Environment (1986) 53 P&CR 55 at p 64 that vires
cannot be conferred by consent. Although said in the context of a case where
the developer challenged a condition as unreasonable but arguably had consented
to it, the principle must, according to Mr Macleod, be equally applicable to a
case where the planning authority seek to rely on their own unreasonableness.
Second, Mr
Macleod observes that it was Banbury Rural District Council which originally
imposed condition (g) and it is Oxfordshire County Council which now say that
it was unreasonable. This issue did not feature in the argument before the
judge, or in the notice of appeal, or initially in the argument of Mr Woolley
for the appellants in this court. When it was raised, he did not adopt it with
any great enthusiasm. Nevertheless, I would be reluctant to rule sub
silentio that a planning authority are entirely free to rely on the
unreasonableness of their own condition as a ground for saying that the
permission which they granted is void when the developer remains content with
the condition. I do not think it necessary to reach that conclusion in this
case.
The second
part of condition (g) fails, as Glidewell LJ has explained, not because it is
unreasonable but because the planning authority had no power to impose it
whether reasonable or not. I can see no ground for not permitting Oxfordshire
County Council to rely on that contention, so I would dismiss this appeal also.
FARQUHARSON
LJ: I agree that this appeal should be dismissed.
Appeal
dismissed with costs.
