Outline planning permission for development of 22-acre industrial site granted in 1952–Construction of various buildings contemplated, and at various stages–Separate buildings in fact constructed by a number of independent owners between 1952 and about 1970–Development held to have been ‘begun’ for the purpose of preserving the outline permission after 1967–Secretary of State bound to hear appeals from local planning authority’s deemed refusals of applications made in 1973 for detailed permission to develop further portions of site.
In these
proceedings Percy Bilton Industrial Properties Ltd, of Park Street, London W1,
moved for orders of mandamus directed to the first respondent, the Secretary of
State for the Environment, requiring him to hear and determine appeals against
the deemed refusal in August and September 1973 by the second respondents, St
Albans District Council, of detailed planning permission for the erection of
industrial premises on parts of a 22-acre site at Colney Street, Radlett,
Hertfordshire, outline planning consent for the development of which had been
granted by St Albans Rural District Council in 1952.
Mr W J Glover
QC and Mr M B Horton (instructed by C M Crichton) appeared for the applicants,
and Mr H K Woolf (instructed by the Treasury Solicitor) represented the first
respondent. The second respondents took no part in the proceedings.
Giving
judgment, LORD WIDGERY said: In these proceedings Mr Glover moves for orders of
mandamus directed to the Secretary of State for the Environment requiring him
to hear and determine certain appeals brought by the present applicants, Percy
Bilton Industrial Properties Ltd under the town and country planning
legislation. The history of the matter begins on October 8 1952, when some 22
acres of land at St Albans, then belonging to Handley Page Ltd, were the
subject of an outline planning permission under the Town and Country Planning Act
1947. The permission is in what are now familiar terms, but it is necessary to
look a little closely at one or two of the provisions, and I emphasise that
within this single permission are embraced the whole of the 22 acres with which
this case is concerned, even though a railway separated the 22 acres into two
unequal parts. The description of the development which is sanctioned by the
permission of October 8 1952 is this. The form says: ‘Development of land for
industrial purposes at Colney Street, near St Albans, Herts.’ The permission goes on to make it clear that
it is what we now call an outline planning permission, the details of which
have to be filled in later. It is made an outline permission by a condition in
these terms: ‘The approval of the local planning authority is required before
any development is commenced to its (a) siting; (b) design; (c) external
appearance; (d) means of access.’ So the
approval of the planning authority is required
design, external appearance and access. After the grant of that planning
permission, a good deal of activity took place on these 22 acres. There were a
number of independent and separate buildings erected, and a number of independent
and separate transactions entered into. From time to time what would happen was
that the owner of the land for the time being, not always Handley Page Ltd, as
will be appreciated, would apply to the planning authority for approval of the
details which had been left undetermined when the outline permission was
granted. That of course is the obvious and logical way of dealing with such a
situation when, following an outline permission, the landowner is in a position
to put forward his proposals for details. In a number of instances what
happened was that the details were put forward for approval and approved, and
then a building was erected on the appropriate part of the site. A good example
of that happening is in connection with a building which we have referred to as
B1, where we have before us the actual formal approval of the details which had
been submitted in respect of the proposed building, and it is perfectly clear
that what is being done is obtaining approval under the existing outline permission.
In other cases, however, for reasons which may have varied considerably from
case to case, fresh planning applications were made, and sometimes a fresh
planning permission was granted which embraced part of the original 22 acres
and so on, but the planning authority and the several owners were obviously
content that this substantially should be developed piecemeal in this way, and
between 1952 and 1970 or thereabouts this sort of activity was going on.
In 1973 two
applications were made to the planning authority which gave rise to the present
motions. At that time the building B1 had long since been built. It was
completed on August 14 1967, and other buildings were either complete or in the
process of construction. On August 31 1973 the present applicants submitted to
the planning authority an application for approval of details on a site called
the ‘Dee’ site. It is not necessary to identify the location of the Dee site.
It was an area within the 22 acres which as yet had not been built upon. It
enjoyed, so the applicants thought, the advantage of the outline permission
which originally attached to all the 22 acres, and so they put forward a
perfectly straightforward application for approval of details of the buildings
proposed to be put on the site. The following month, on September 24 1973, a
similar application was made in respect of what we are to call the ‘Stinchar’
site, again part of the 22 acres and enjoying, on the applicants’ submission,
the benefit of the original outline permission. Application is made, logically
enough as it seems, for approval of the details of the development. The
planning authority made no decision in regard to either of those applications,
and under the general machinery of the Town and Country Planning Act the effect
of the planning authority taking no action was that they were deemed to have
refused the application and deemed to have rejected, therefore, the proposed
details in respect of these two sites, the Dee site and the Stinchar site. In
the ordinary way, when a local authority refuses, either expressly or by an
operation of the Act, to grant a a right which is sought there is an appeal to
the Secretary of State for the Environment, and it was an appeal to the
Secretary of State which the applicants now sought to pursue in respect of both
these applications. But when the matter was put before the Secretary of State
he did not deal with it, and the reason why he did not deal with it is clearly
set out in a letter which he writes to the solicitor for the applicants on October
4 1974 and in which he contends that the submission of the details was out of
time and in breach of the conditions attaching to the appropriate planning
permission, and that accordingly he would not deal with the application.
Therefore the matter comes to rest, as it were, when the Secretary of State
declines to play the part which the applicants expect him to play, and it then
becomes a matter for us to consider whether as a matter of law the Secretary of
State is wrong and should be instructed to proceed to hear the appeal.
The reason any
sort of difficulty arises is that in the Town and Country Planning Act 1971 a
good deal of important provision is made which is designed, I think I can
fairly say, to clear up outstanding planning permissions which seem not to be
going to be implemented. One finds one such provision in paragraph 20 of the
24th Schedule to the Act, I must read the first subparagraph of that paragraph
carefully:
Subject to
subparagraph (2) of this paragraph, where before April 1 1969 outline planning
permission (as defined by section 42 of this Act) has been granted for
development consisting in or including the carrying out of building or other
operations, and the development has not been begun before the beginning of
1968, that planning permission shall be deemed to have been granted subject to
conditions to the following effect: (a) that in the case of any reserved matter
(as defined in that section) application for approval must be made not later
than the expiration of three years beginning with April 1 1969. . . .
If one
approaches that subparagraph from the end and works backwards, it becomes
apparent that the effect of the rule in situations to which it applies is to
impose a limit of three years from April 1 1969, and thus to limit to a period
expiring on April 1 1972 the submission of details in respect of applications
to which the subparagraph applies. To what applications does the subparagraph
apply? It is perfectly easy to say. It
applies to those cases where outline planning permission was granted before
April 1 1969 for building and the development referred to in the section had
not been begun before the beginning of 1968. If those conditions are satisfied,
the case falls within the subparagraph, the obligation to obtain the approval
of details within three years becomes operative, and the failure to obtain or
apply for those details within three years would give the Secretary of State,
in my judgment, the right to reach the conclusion which he did. Thus the whole
case turns on whether the facts here before us bring the matter within
paragraph 20 or not.
Looking again
at the words of the paragraph (and everything in the end depends upon them),
the first thing which is necessary to be shown in order to bring the matter
within paragraph 20 is that outline planning permission had been granted for
building development before April 1 1969. Well, it had. The outline planning
permission was the one which I have already read, the one on October 8 1952,
and it dealt with outline permission for building development. We move on to
the next requirement, ‘and the development has not been begun before the
beginning of 1968.’ Factually what had
happened, as I have already indicated, is that before the beginning of 1968
some development had taken place. In particular, the building B1 had been
completed in 1967, and other buildings were in various stages of progress. If
you look at the 22 acres as a whole, and ask yourself whether development has
begun pursuant to the outline planning permission of October 1952, there can,
as it seems to me, be no argument but that the building has begun. On the other
hand, if it is possible in some way to break up the 22 acres into separate
parcels, it may well then be possible to argue that on certain parcels the
building has begun and on other parcels it has not. So again as one narrows the
issue, that is really what lies between the two parties in this case. Mr
Woolf’s argument, it seems to me, must start with the proposition that when the
outline planning permission was granted in October 1952 it was there and then a
collection of separate permissions and not a single and dissoluble permission.
I know he does not accept that that is what his argument amounts to, and I
accept what he says. But it seems to me that that is really the basis of it
all, and that is a basis which
when a planning permission has been granted it can be varied in a number of
ways subsequently. It may be varied by a new application. It may be varied by
the course of dealing between the parties, and lots of things like that, but I
can see absolutely nothing in the present instance to suggest that there had
been any kind of variation since the initial permission was granted. I do not
think that the mere fact that some work has been done of the kind which would
be covered by the outline permission on part of the land in any sense
segregates that part of the land and requires it to be separately treated. If
that which is done is work which would normally be done pursuant to the outline
application, I can see no reason why merely because the work is done one is
justified in severing the area into individual and separate parcels.
That really is
an end of the case in my judgment, but I have not overlooked, and I must
mention it in order to show I have not overlooked it, the argument put forward
in the correspondence on behalf of the Secretary of State that the building
work which had taken place on these 22 acres cannot have been lawful because it
was in breach of the condition of the outline permission to which I have
already referred. The words in question were, ‘The approval of the local
planning authority is required before any development is commenced to its (a)
siting. . . .’ It is argued that since
no development of any kind can take place until agreement in regard to the
siting of the buildings has been obtained, the entire development in this case
was unlawful. It seems to me that that cannot possibly be sustained. There is
no obstacle to the parties agreeing to the approval of details by stages. I do
not express any view as to whether every party can insist on this, but
unquestionably if they want to do it that way, the approval of details can be
done by stages. If one stage is approved, and it is within the consent of the
local authority that the building relevant to that one stage should take place,
then it can take place, and to suggest after what has happened that there is
anything unlawful in the planning sense about the buildings seems to me to be
entirely incorrect. For all those reasons, it seems to me that in so far as the
Dee site was concerned the Secretary of State should have accepted the appeal
and dealt with it. Similar considerations apply to the Stinchar site, save only
for the fact, as I understand it, that there is an extension of time of one
month required there before the appeal can be submitted at all. It is clear
that the Secretary of State, for reasons which seemed good to him, has not
considered any of these matters as yet, and I think the order of the court
should require him to do so. That would mean in regard to the Dee site that
mandamus should go to hear the appeal, and in regard to the Stinchar site that
the Secretary of State should give consideration to the question of whether an
extension of time should be granted. If he decides to grant an extension of
time, he should then hear the appeal which in consequence would become alive
again.
O’CONNOR J: I
agree.
LAWSON J: I
also agree.
Orders were
made accordingly, and the Secretary of State was directed to pay the
applicants’ costs.
