Reserved matters — Condition to outline planning permission — Approval refused as access over applicant’s own land unsatisfactory — Whether refusal lawful — Whether inspector failed to consider legal submissions — Whether grant of outline permission must have implicitly accepted existing access — Whether reserved matters can be refused where satisfactory access can be provided only over land not in the ownership or control of the applicant
The respondent
company, Proberun Ltd, has the benefit of an outline planning permission for
some 90 holiday homes on land at Medham Farm, Cowes, Isle of Wight; the
permission was granted by the Secretary of State for the Environment on appeal
and was subject to certain reserved matters. One of these was that approval was
required for the means of access to the site. The respondents submitted details
of a means of access over land in its control, and because the local planning
authority, Medina Borough Council, failed to determine the application within
the time-limit the respondents appealed to the Secretary of State.
It was
acknowledged that the access proposed by the respondents was unsatisfactory,
but the respondents submitted to the inspector, appointed to hear the appeal,
that that situation must have been implicitly appreciated by the Secretary of
State when he granted the outline permission. Accordingly, it would be wrong
for the inspector to canvass solutions or arrangements that involved providing
an access over land not in the control of the respondents. The respondents’
appeal under section 245 of the Town and Country Planning Act 1971 was allowed
by Sir Frank Layfield QC (sitting as a deputy judge of the Queen’s Bench
Division). The Medina Borough Council, who did not appear in the court below,
appealed contending, inter alia, that the condition should be construed
as a negative condition and was therefore valid.
1. The issue
in contention was if on an outline permission a condition is imposed which
requires the approval of the local planning authority to be obtained of details
of access to the buildings, are the planning authority empowered to refuse to
approve proposals for access which are the best which can be achieved within
the site, on the grounds that they are not good enough? Or, in effect: can approval of detail be
refused unless the applicants are able to obtain control over land outside the
site? See p 84E.
The condition
imposed by the outline permission did not in form require any particular work
to be done within or without the site. Where a local planning authority,
perhaps because they regret that outline permission has been granted, refuse to
approve detailed proposals for access within the boundaries of the site, and
make clear that only a scheme for access which involves the developer acquiring
rights outside the land currently under its control will be approved, they are
misusing their function so as to achieve, without compensation, what would
amount to a revocation or modification of a permission already given. Such
misuse of power is patently unlawful: see p 86D.
2. The
condition in the present case could not be construed as a negative condition;
it is not worded so as to make commencement of the development dependent on the
completion of some defined scheme of works: see p 87A. The local planning
authority were therefore obliged by the condition to be willing to approve some
form of access junction between Medham Lane and
site: see p 87C.
to in the judgments
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
Grampian
Regional Council v City of Aberdeen District
Council (1983) 47 P&CR 633; 1984 SLT 197; [1984] JPL 590, HL
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
Peak Park
Joint Planning Board v Secretary of State for
the Environment (1979) 39 P&CR 361; [1980] JPL 114
Shemara
Ltd v Luton Corporation (1967) 18 P&CR
520; [1967] EGD 554; 203 EG 771
Appeal against
decision of Sir Frank Layfield QC
This was an
appeal against a decision of Sir Frank Layfield QC (sitting as a deputy judge
of the Queen’s Bench Division) ([1990] 2 PLR 19), who had quashed a decision of
the Secretary of State for the Environment, by his inspector, who had allowed
an appeal against the failure of the appellants, the Medina Borough Council, to
make a determination within time of an application by the second respondents
for the approval of reserved matters the subject of a condition in an outline
planning permission.
Porten QC and Nicholas Nardecchia (instructed by Glanvilles Damant, of Cowes)
appeared for the appellants, Medina Borough Council.
Cochrane QC and Adrian Trevelyan-Thomas (instructed by Titmuss Sainer &
Webb) appeared for the first respondents, Proberun Ltd.
respondent, the Secretary of State for the Environment, did not appear and was
not represented.
following judgments were delivered.
GLIDEWELL
LJ: This is an appeal against a decision of Sir
Frank Layfield QC, sitting as a deputy High Court judge on October 9 1989, when
he quashed a decision of an inspector of the Department of the Environment
given by letter dated June 27 1989. The matter has a long history, to some of
which it is necessary to refer.
Proberun Ltd,
the present respondent company, are the owners of land, some 105 acres in
extent, at Medham Farm, near Cowes, Isle of Wight. The land lies at some
distance from the nearest public highway, Newport Road. The land is connected
to Newport Road by a narrow unmade track called Medham Lane (or, in some of the
plans, Medham Farm Lane). Medham Lane emerges on to Newport Road immediately
north of a dwellinghouse. Opposite — that is to say, on the west side of
Newport Road and slightly to the south — is the junction of another minor road
with a small roundabout at the junction. The site, the subject of the appeal
and of all the relevant applications, is the 105 acres of Medham Farm, plus Medham
Lane to its junction with Newport Road, and I shall hereafter refer to that
combined area as ‘the site’.
On September
12 1978 the then owner of the site applied for planning permission to erect 63
detached bungalows and 27 semi-detached bungalows on the site. The application
was an application for full planning permission, not an application for an
outline permission. It said in terms, as indeed did all the relevant
application forms, that the applicant owned no land outside the application
site, or at any rate no land in the vicinity.
The plans
included with the application were a site plan and a plan showing the intended
layout of the houses. However, an earlier permission, to which
at the junction of Medham Lane with Newport Road.
On February 15
1979, while that application was in contemplation, the then owner and the
borough council, the present appellants, entered into an agreement under
section 52 of the Town and Country Planning Act 1971, which was expressed to be
reached in contemplation of the grant of planning permission.
By clause 1 of
that agreement
The Owner
hereby covenants with the Council that he and his successors in title will at
all times hereafter observe the following covenants:
There follow
five covenants, of which (d) was ‘to provide adequate and suitable access to
Medham Farm to the satisfaction of the Council’. A week after that agreement
was made, on February 22 1979, a full planning permission was granted ‘in
accordance with the application and the plans referred to in the application’.
The permission contained no detail relating to access to the site.
That
development was not carried out. There was on the permission the usual
condition providing that the permission would lapse if the condition had not
been commenced within five years. It was not so commenced and the permission
accordingly lapsed on February 22 1984 through effluxion of time. However,
shortly before that happened, on January 3 1984, an application was made by
letter for the renewal of the 1979 planning permission. On March 28 1984 that
application to renew was refused by way of a formal notice of refusal of
planning permission and the reasons for refusal were stated to be:
(1) The proposal would constitute an undesirable
element of sporadic development within the Medina Valley Visual Envelope which
is a rural area and as such would affect adversely the visual amenities of the
area.
(2) The land is not allocated for development on
the Draft Cowes Local Plan and it is the intention of the Local Planning
Authority that the existing uses of the lands should remain for the most part
undisturbed.
(3) The proposed improved access is
unsatisfactory to serve the development by reason of inadequate width and
visibility.
(4) Increased use of the improved access to the
classified road (A3020) [the Newport Road] would add unduly to the hazards of
highway users.
An appeal was
entered against that refusal. It was conducted in writing, but an inspector
made a site visit in relation to it and reported on his site visit and
generally about the matter. In para 20 of his report, which is dated April 6
1985, he said:
20. Off the
appeal site, Medham Farm Lane is simply a narrow gravelled track, and much improvement
would be needed before it could properly serve a leisure village of some 90
dwellings. Its junction with the A3020 is patently sub-standard despite minor
improvements by the Highway Authority and it is at a dangerous point opposite
the B3325 junction. The A3020 is a busy road, especially in summer, and before
any leisure village were built it would in my view be essential that the
approach junction be approved at least to the minimum standard set by the
Highway Authority.
Despite that
expression of opinion, the Secretary of State for the Environment eventually
granted permission by letter dated August 26 1987. Although the appeal was
against the refusal of an application to renew a full planning permission, the
permission the Secretary of State granted on the appeal was an outline
permission. Nobody in this appeal takes any point about that.
In relation to
access, in the decision letter of August 26 1987 the Secretary of State said in
para 10:
10. With
regard to the access arrangements, the Inspector was of the opinion that Medham
Farm Lane would need much improvement before it could properly serve a leisure
village of some 90 dwellings. He considered that its junction with the A3020
was patently sub-standard and was at a dangerous point opposite the B3325
junction. These views are accepted, but it is not considered that these
objections provide grounds for refusing to renew the planning permission of 22
February 1979, because the circumstances have not materially changed since that
date. However, the Secretary of State is concerned about access and he would
not expect the local planning authority to approve details of access
arrangements until they were satisfied that these details made provision for
substantial improvements to Medham Farm Lane. It is noted that the Legal
Agreement signed in February 1979 contains a covenant that the owner and his
successors in title will provide adequate and suitable access to Medham Farm to
the satisfaction of the council and the Secretary of State would expect the developer
to honour this covenant.
The appeal, as
I have said, was allowed by way of granting outline permission. The permission
was subject to a number of conditions, of which the first was a usual outline
condition in the following words:
Approval of
the details of the siting, design and external appearance of the buildings, the
means of access thereto and the landscaping of the site (hereinafter called
‘the reserved matters’) shall be obtained from the local authority.
On October 26
1987 an application was made for approval of the means of access to the site,
that being one of the matters reserved in the condition which I have just read.
The plans
submitted with the application show that it is intended that Medham Lane should
be made up, surfaced to a uniform width and that there should be provided at
its junction with Newport Road splays. The position of the junction, however,
was inevitably not altered, because that could only be done by leaving the land
forming the site and within the control of the applicants.
The borough
council did not determine that application for approval of detail within the
required time. The highway authority, through the county surveyor, in written
observations made it clear that he, the county surveyor, took the view that the
junction would be satisfactory only if either the whole junction including the
junction with the minor road opposite was reconstructed or Medham Lane was
moved some distance to the north to emerge on to Newport Road at a different
point. Either of those solutions would of course require the acquisition of
rights over land not in the control of the appellant company.
The appeal
against the failure to make a decision in time was delegated to an inspector.
This time the inspector was making the decision and not simply reporting. In
para 2 of his decision letter dated June 27 1989, he said:
2. From my
site inspection and consideration of the submissions made at the inquiry I
judge the principal issues in this appeal to be whether the proposed road
improvements would constitute a satisfactory access for 90 dwelling units and
whether increased use of the improved junction with the A3020 would add unduly
to the hazards of existing road users.
In para 6 he
said:
6. Your
clients contend that works beyond the limits of the appeal site cannot be
required since the planning permission already obtained covers a defined piece
of land which includes Medham Farm Lane to its junction with the A3020 Newport
Road. Between Church Lane and the A3020 the appeal site and the lane have a
common boundary. There is therefore, a valid planning permission for 63
bungalows, 27 chalet bungalows, car parking and
to resile from that permission and submit reports of 3 court cases in support
of this view. As a matter of law all the appellants can be required to do is to
improve the access as best they can on land in their ownership or under their
control. This is what is proposed on the application plans and the improvements
not only amount to the best that could be achieved but also produce an
acceptable access road. Your clients say that if the Council had felt that the
proposed access was inadequate then they should have refused the original
application. In dealing with the earlier appeal the Secretary of State
concludes that objections on the basis of inadequate junction and access road
do not constitute grounds for refusing to renew the 1979 planning permission
because circumstances have not materially changed since that date.
In para 12 the
inspector noted the contents of the three reports submitted by the appellants
and said:
. . . Whilst
there are some similarities between those cases and this appeal there are also
considerable differences in the principles. Consequently, they do not carry
great weight in my determination of this case. Considered against the comments
made in the Secretary of State for the Environment’s 1987 decision letter I am
of the opinion that your clients’ proposals for the access and junction do not
reach the required standard. The means of access to the proposed dwellings
still requires approval and as I have indicated above, I consider the submitted
design to be seriously flawed.
For those
reasons he dismissed the appeal.
As I have
said, Proberun applied to the High Court to quash that decision and the matter
came before Sir Frank Layfield QC [1990] 2 PLR 19. Sir Frank Layfield dealt
briefly with the section 52 agreement. At p 23C he said:
On a careful
reading of the agreement I do not consider that it could properly be read as
imposing on the applicants any requirement or obligation whatever to provide
the means of vehicular access in whole or in part on land not the subject of
the agreement. Indeed, almost every recital and clause appears to be directed
specifically and solely to the site or, by necessary inference, to refer to the
site only.
However, he
also took the view that he was not called upon to decide as to the
applicability of the section 52 agreement and with that view we agree. For my
part, I think we are not concerned to interpret the section 52 agreement, which
is not directly in issue.
At p 24F, Sir
Frank Layfield, coming to the condition, said:
The condition,
in my judgment, does not extend to land outside the site. In that regard it is
perhaps significant that the Secretary of State appears to have recognised,
tacitly, that it was necessary to rely upon the agreement of 1979, rather than
the planning permission, if access to the satisfaction of the council were to
be obtained.
An exception
to the limitation on the importation of a condition to the application site or
that of land under the applicants’ control is that of a negative condition. The
nature of such a condition has for some years been explained in the Secretary
of State for the Environment’s Circular 1/85, The Use of Conditions in
Planning Permissions.
Then he
referred to the decision of the House of Lords in Grampian Regional Council
v City of Aberdeen District Council (1983) 47 P&CR 633, to which I
shall later refer, and said:
With respect
to Mr Burnett’s [Counsel for the Secretary of State] persuasive submission, I
can see no indication in the terms of condition 1(a) that a ‘Grampian‘
condition was intended to be imposed from the circumstances of this case. Even
if there had been the intention to do so the
should not proceed until certain statutory powers had been exercised by a third
party to bring about a particular highway improvement on land forming no part
of the appeal site and which is not under the applicants’ control.
Then at p 25D
he said:
The
inspector’s task was to consider the appeal, against a refusal to grant
approval to reserved matters, regarding the means of access to the site. The
submission of reserved matters dealing with means of access had to satisfy the
terms of condition 1(a) imposed on the grant of outline permission. The proper
test, as to whether the submitted details met the requirements of condition
1(a), was whether the means of access shown on the plans was the best means of
vehicular access that could be achieved on the site. That test does not appear
to have been applied by the inspector, nor was any similar test adopted. If the
test is met the reserved matters should be approved, provided that on all other
respects they are in accordance with the outline permission: see Shemara Ltd
v Luton Corporation (1967) 18 P&CR 520.
He therefore
quashed the inspector’s decision.
In saying that
the proper test was whether the means of access was the best that could be
achieved on the site, Sir Frank Layfield was obviously formulating that test in
relation to the facts of this case. If a satisfactory access is proposed, nobody
should be concerned to inquire whether it is the best that could be achieved.
But here it was asserted by the county council and effectively, though not
formally, accepted by the applicants that their proposals for the junction were
less than satisfactory. Therefore, the test became: what is the best which can
be achieved within the limits of the site?
The issue on
this appeal is: if on an outline permission a condition is imposed which
requires the approval of the local planning authority to be obtained of details
of the means of access to the buildings, are the planning authority empowered
to refuse to approve proposals for access which are the best which can be
achieved within the site, on the grounds that they are not good enough? Or, in effect: can approval of detail be
refused unless the applicants are able to obtain control over some land outside
the site? Astonishingly this point
appears not to have been directly decided by the courts before now.
Conditions are
dealt with in sections 29 and 30 of the Town and Country Planning Act 1971.
Section 29(1) reads:
29.–(1) Subject to the
provisions of sections 26 to 28 of this Act, and to the following provisions of
this Act, where an application is made to a local planning authority for
planning permission, that authority, in dealing with the application, shall
have regard to the provisions of the development plan, so far as material to
the application, and to any other material considerations, and —
(a) subject to sections 41 and 42 of this Act,
may grant planning permission, either unconditionally or subject to such
conditions as they think fit; or
(b) may refuse planning permission.
Section 30(1)
reads:
30.–(1) Without prejudice to the
generality of section 29(1) of this Act, conditions may be imposed on the grant
of planning permission 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;
It is
unnecessary to read para (b) of that subsection.
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), to
which I have just referred. But, again surprisingly, even for that well-known
proposition there is very little direct authority.
In Shemara
Ltd v Luton Corporation (1967) 18 P&CR 520 Diplock LJ, sitting
as a judge of the High Court, having quoted the conditions of the permission
with which he was dealing, said at p 524:
As I read
that permission it is, of course, an outline permission and it reserves to the
subsequent approval of the council any matters relating to the siting, design
or external appearance of the buildings or the means of access thereto; but I
think it restricts the right of the council to object to the proposals as to
the siting, design or access to the buildings. They may not require siting,
design or access inconsistent with the principles which I have already
enumerated and which are apparent in the sketch and the plans put forward in
the application.
The general
proposition, to which I referred a moment ago, was enunciated, or relied on, by
Sir Douglas Frank QC, sitting as a deputy High Court judge, in two decisions
made by him, namely Augier v Secretary of State for the Environment
(1978) 38 P&CR 219, which is otherwise known as Hildenborough Village
Preservation Association v Secretary of State for the Environment
[1978] JPL 708, and Peak Park Joint Planning Board v Secretary of
State for the Environment [1980] JPL 114 in a short passage at p 117. It
seems also that the point was recently raised in this court in Bradford City
Metropolitan Council v Secretary of State for the Environment (1986)
53 P&CR 55; but the Secretary of State’s decision that a condition was
unlawful was upheld on the ground that it was unreasonable and not on the
specific point under consideration.
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. That the contrary is
unarguable I regard as self evident.
I turn to
consider outline planning permission. Section 42 of the 1971 Act provides:
42.–(1) In this section and section 41 of this Act ‘outline planning
permission’ means planning permission granted, in accordance with the
provisions of a development order, with the reservation for subsequent approval
by the local planning authority or the Secretary of State of matters (referred
to in this section as ‘reserved matters’) not particularised in the
application.
At the time
relevant to this appeal the Town and Country Planning General Development Order
1977 was in force. Article 5(2) of that order provided:
Where an
applicant so desires, an application may be made for outline planning
permission for the erection of a building and, where such permission is
granted, the subsequent approval of the local planning authority shall be
required to such matters (being reserved matters as defined) as may be reserved
by condition.
The reserved
matters are defined as including the means of access to the buildings, the
subject of the development.
A condition
such as that here under consideration, which is a normal
particular work to be done within or without the site. What then are the limits
placed by the outline planning permission on the planning authority’s power to
approve or disapprove details that are submitted?
The nearest
expression of high judicial authority on the point is in the speech of Lord
Morris of Borth-y-Gest in Kingsway Investments (Kent) Ltd v Kent
County Council [1971] AC 72. The case itself was on a totally different
issue. The House of Lords held that a condition could validly be inserted in an
outline permission requiring the application for approval of detail to be made
within a given time. But in his speech Lord Morris said, at p 96A:
So if
permission is granted after an outline application the applicant clearly knows
that that permission is conditional and that it will not be of use to him until
he is able to submit details as to siting and design and the like which are
acceptable. It must, of course, be assumed that the authority will act in good
faith. They must not misuse their functions so as indirectly and without paying
compensation to achieve what would amount to a revocation or modification of a
permission already given. Any refusal by them to give approval of details
submitted to them can be the subject of an appeal to the Minister. The Minister
may overrule the authority.
In my opinion,
if a planning authority, perhaps because they regret that outline planning
permission has been granted, refuse to approve detailed proposals for access
within the boundaries of the site, and make it clear that only a scheme for
access which involves the developer acquiring rights outside the land currently
under their control will be approved, it is, to adopt Lord Morris’s wording,
misusing their function so as to achieve, without compensation, what would
amount to a revocation or modification of a permission already given. Such a
misuse of power patently is unlawful.
However, Mr
Porten QC, for the appellants, advanced his argument in an alternative way. He
relied upon the decision of the House of Lords in Grampian Regional Council
v City of Aberdeen District Council (supra). In that case the
House of Lords held that a condition on a planning permission which required
that the permitted development should not commence until something had been
done (in that case the closure of a road) outside the application site was a
valid condition. Giving the leading speech, Lord Keith of Kinkel said at p 636:
My Lords, in
my opinion there is no substance in the appellants’ contentions. In the first
place, there is a crucial difference between the 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. In this case the
proposals for development put forward by the first respondents were found by
the reporter to be generally desirable in the public interest. The only aspect
of them which he regarded as disadvantageous was the traffic problem they would
be likely to cause at the Findon House junction. That problem was capable of
being solved by the closing of the southern part of Wellington Road, something
which had at least reasonable prospects of being achieved under statutory
powers to that effect. In the circumstances, it would have been not only not
unreasonable but highly appropriate to grant planning permission subject to the
condition that the development was not to proceed unless and until the closure
had been brought about. In any event, it is impossible to view a condition of
that nature as unreasonable and not within the scope of section 26(1) of the
Act if regard is had to the provisions of section 198.
He was there
referring to the section numbers in the Scottish Act of 1972. The substance of
section 26 is effectively that of section 29 of the English Act.
Mr Porten
argues that the condition in this case can, and should be, construed as a
negative condition which thus allowed the borough council to refuse to approve
details until such work as they, or the highway authority, considered necessary
to create a satisfactory junction and access on land outside the site and
outside the developer’s control had been carried out.
I look back at
the wording of the condition itself: ‘Approval of the details of . . . the
means of access thereto’ — which means to the building — ‘shall be obtained
from the local authority’. First, it seems to me that this is a straightforward
matter of construing the condition, as indeed Sir Frank Layfield clearly
thought. The condition is a normal ‘outline’ condition. It presupposes that the
details of the access to be approved will be of an access within the site, the
subject of the permission. It is not worded so as to make commencement of the
development dependent on the completion of some defined scheme of works and, in
my view, it cannot be construed as having such a meaning. In my judgment, therefore,
the planning authority were obliged by the condition to be willing to approve
some form of access junction between Medham Lane and Newport Road which could
be created within the boundaries of the application site. It follows that in
the circumstances of this case Sir Frank Layfield was justified in adopting the
‘best means of access’ test.
But even if I
were wrong about that, there is no evidence in this case that there is any
prospect that the developers could, or might, acquire the necessary rights over
adjoining land to create a different form of junction or a junction of Medham
Lane with Newport Road at a different place. In the absence of such evidence,
there was missing the factual ingredient which rendered the Grampian
condition reasonable in that case. I refer to the passage I read from the
speech of Lord Keith. Even, therefore, if the condition, contrary to my view,
could be construed as being a negative Grampian type condition, it would
still, in my view, not be valid, because on its face it was not reasonable.
For those
reasons I would dismiss this appeal.
STUART-SMITH
LJ: I agree.
SIR DAVID
CROOM-JOHNSON: I also agree.
Appeal
dismissed with costs.
