Original planning permission for house on small site — Subsequent planning permission for house on same site — Second permission implemented — Land for original permission not conveyed — Endeavour to implement original planning permission — Planning authority issuing enforcement notice — Whether two planning permissions on same site incompatible — Whether basis for incompatibility should be physical impossibility — Inspector finding implemented permission superseding earlier permission — Whether factor of “material change in setting” correct basis — Case remitted to Secretary of State for determination
The appeal site concerned land in a central position, adjacent to a dwelling house, Martins Court, Bodsham, Kent, in a small hamlet of about a dozen loosely sited dwellings. There had been outline planning permission, last renewed in 1983, for the erection of a house on the site. Full planning permission was granted in 1985 for a house on a larger site, which included the smaller site covered by the 1983 outline permission. The house was not sited on the 1983 site but extended to the north and west of it. The 1985 plan was implemented and the dwelling house known as Martins Court was sold to its present occupier. The whole of the site was not conveyed and an area corresponding to most but not the whole of that covered by the 1983 outline permission was retained by the developers. In 1986 they started building on the original site after the inspector made it clear that he had considered the design merits only, but took no view on the compatibility of the outline permission with the Martins Court permission. The council issued an enforcement notice. In Pilkington v Secretary of State for the Environment (1973) 230 EG 1737 it was held that where there were two planning permissions for the same site and they were inconsistent with one another, the implementation of one rendered the other impossible to implement where it could not be carried out consistently with the permission already implemented. In Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment (1984) 272 EG 425 it was held that incompatibility was a matter of common sense. In particular, it was the duty of the local planning authority to regard each planning application as a proposal in itself and not to relate one application or permission to another to see if they were contradictory. Further, permission to allow building work to take place would be affected by the setting in which the building would lie. The inspector stated in the instant case, on appeal against the enforcement notice, that the two permissions should be assessed on the basis of whether the setting of “either permitted dwelling was so compromised as to preclude implementation reasonably in accordance with the plans as approved”. That was a matter of fact and degree. In his decision the inspector held that the two planning permissions were incompatible. The applicants, Prestige Homes, appealed.
Held The case was remitted to the Secretary of State without any indication of which way it should go.
1. The inspector had stated that there was no physical conflict between the physical siting of the two dwellings, but that it was reasonable that interested persons should conclude in the light of all the facts that the implemented decision had superseded the earlier decision. However, the decision in Pilkington had referred to physical impossibility. Where it was no longer possible to effect the earlier planning permission, it was no longer effective ie the result of implementing the second planning permission made the first impossible to implement. That doctrine was confirmed in the Pioneer case.
2. In the present case, the second planning permission could be implemented. Mere incompatibility was not enough to bring the doctrine into force.
3. The inspector had not complied with Pilkington in the present case and the court would not extend the doctrine because the planning register would be unsafe. The inspector had used the wrong basis in considering whether the two planning permissions were in conflict with one another.
4. The question of whether the setting of Martins Court would be materially affected by a dwelling on the appeal site would also have to be reconsidered on the planning merits. The question of the clearing of trees on the site was also a question of fact which the court was not in a position to assess.
Matthew Horton QC (instructed by Champion Miller & Honey, of Tenterden) appeared for Prestige; and James Holdsworth (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment. The planning authority did not appear and were not represented.
