County matter — Jurisdiction — Functions of local planning authority — Schedule 1 para 3 to the Town and Country Planning Act 1990 — Whether planning application to be determined by county council or district council
In November
1994 A&W Demolition Ltd, waste disposal contractors, applied for planning
permission to develop a recycling and transfer station for waste products by
the demolition of existing buildings with the exception of one. The appellant
district council objected to the grant of planning consent contending that the
respondent county council had no jurisdiction, in particular, in relation to
proposals for buildings, as these proposals did not involve a county matter.
Latham J held that the county council had jurisdiction. The district council
appealed contending: that the functions of the district and county planning
authorities as defined are mutually exclusive; that in the application for
development for use of land for waste disposal (a county matter), A&W
Demolition Ltd had also included an application for permission to build 10 B1
units (a district matter); that on a true construction of para 3 of Schedule 1
to the Planning and Compensation Act 1991, the county council had no
jurisdiction to determine a combined application; and that either the county
council should sever a hybrid application where separate and district uses
could be discerned, or they should require the applicant to make a fresh
application to the county planning authority confined to the county matter and
another application to the district council confined to the district matter.
The words of
the Schedule did not permit severance of the planning application. There is no
support in the legislation for the proposition that an application could be
treated as a number of different applications each relating either to separate
planning units, or separate developments: see p93E–F. The words of Schedule 1,
para 3 to the Act are clear. The power of the district planning authority to
determine an application for planning permission is subject to para 2. That it
is subject to an application which relates to a county matter being decided by
the county planning authority: see p94F. Applying the test in Burdle v Secretary
of State for the Environment [1972] 1 WLR 1207, the substance of the
application by A&W Demolition Ltd was one which related to a county matter.
The fact that it also related to a district matter was immaterial.
to in the judgments
Burdle v Secretary of State for the Environment [1972] 1 WLR 1207;
[1972] 3 All ER 240; (1972) 70 LGR 511; 24 P&CR 174; [1972] EGD 678; 223 EG
1597, DC
Appeal from
the decision of Latham J
This was an
appeal by the appellants, Wokingham District Council, against the decision of
Latham J dismissing their application for a declaration that it was beyond the
jurisdiction of the respondents, Berkshire County Council, to determine an
application for planning permission made by A&W Demolition Ltd for
development of land, and seeking an order prohibiting the county council from
further considering the application.
(instructed by Sharpe Pritchard) appeared for the appellants, Wokingham
District Council.
Alesbury (instructed by the solicitor to Berkshire County Council) appeared for
the respondents.
following judgments were delivered.
BELDAM LJ: Wokingham District Council appeal from a decision of Latham J on
March 17 1995 dismissing their application for a declaration that it was beyond
the jurisdiction of Berkshire County Council, the respondent council, to determine
an application for planning permission made by A&W Demolition Ltd for
development of a site, Arborfield in Berkshire, and refusing to grant an order
prohibiting the county council from further considering that application.
A&W Demolition Ltd is an established waste disposal contractor. It already
carries out waste disposal processing at Binfield in Berkshire and, on November
1 1994, it applied for planning consent to develop a site of approximately 2.1
ha at part of a former army camp at Poperinghe in Arborfield. On the site there
were 24 separate buildings which by the 1970s had been converted to use for
piggeries.
In October
1992, planning consent had been given to a change of use of the buildings to
use class B1 as offices for research and development of products or processes
or for any industrial processes or uses which could be carried out without
detriment to the amenities of the area. Except for one office on the site, the
application proposed that the buildings should be demolished and in their place
the applicant proposed to erect a recycling and transfer station for waste
products. The operation was to be confined to inert material, builders’ waste,
brick, rubble, concrete, soil, timber, metal, cardboard and paper. No household
toxic waste would be processed. The facility was intended to serve Wokingham
and its environment and to involve a quantity of some 200 tons a day. The
processing was to take place in a covered building. Accordingly, no nuisances
were likely to arise. Car parking would be provided and upon another part of
the site 10 industrial units would be erected for class B1 use. They were
comparatively small units arranged in a line and running across the site.
The applicants
asserted that their proposal offered a considerable enhancement over the
existing permitted use of the site and that it was in accordance with the
consultation draft of the waste management plan for Berkshire under which the
site was provisionally allocated for the handling and processing of waste of
the kind proposed. The county council on receipt of the application sought
consultation with the district council whose subcommittee for development
control reported on November 23 1994. Subject to careful landscaping, highway
provision, control over the hours of operation and ensuring that the business
units were retained as small units, the subcommittee suggested that the
district council could raise no objection to the application. However, some of
the members of the committee raised the question whether the county council had
power to deal with all the proposals contained in the planning application and
requested the solicitor to the council to obtain a further legal opinion of the
question.
Advice was
obtained that the recycling and transfer station was clearly a county matter,
but as the use of the class B units did not appear to be connected with
recycling or the transfer station they were not a county matter, and the
function of determining an application in relation to those units had to be
determined by the district council. So the district council wrote to the county
council stating that they did not consider that the function of determining the
application was exercisable by the county council. In addition, however, the
district council raised a number of objections which they said were highlighted
as supporting a refusal of planning permission. The first was an objection
based on road safety and traffic generation in the vicinity of the site. The
other four objections referred to the likely effect on the neighbourhood and
environment of a waste transfer and recycling process on the site in question
which, as previously indicated, had been allocated for that purpose.
The county
council did not accept the district council’s contention that they had no
jurisdiction to determine the application. The county environment officer
prepared a report for the development control and waste regulation committee on
December 7 1994. But before the application could be considered, the district
council launched these proceedings on December 6 1994; so the application for
the waste transfer and refuse disposal facility was stalled.
Since 1972,
the exercise of control over development of land has been divided between the
county council, on the one hand, and the district council, on the other. The
county council have the wider responsibilities, producing a structure plan for
the area, and the district council have responsibility for local development
plans which give effect to the strategy set out in the structure plan.
Formerly, all applications for planning permission were made to the district
council. Some development was, however, regarded as affecting the wider
interests of the community and was reserved for decision to the county council.
It was the duty of the district council to send an application of this kind for
decision by the county council. An application to use land or to construct
buildings for processing of or disposal of waste was reserved for decision by
the county council.
Since the Town
and Country Planning Act 1947, the legislation has been consolidated in 1962
and in 1971, but by 1990 it was decided that a further consolidation was
necessary together with the consolidation of related legislation. The Town and
Country Planning Act 1990 has since been further amended. Before amendment, the
relevant provisions of the Town and Country Planning Act 1990 were:
1.— (1) In a non metropolitan county —
(a) the council of the county is the county
planning authority for the county, and
(b) the council of the district is the district
planning authority for the district,
and references
in the planning Acts to a local planning authority in relation to a
non-metropolitan county shall be construed, subject to any express provision to
the contrary, as references to both the county planning authority and the
district planning authorities.
…
(3) In
England … [and in Wales] all functions conferred on local planning authorities
by or under the planning Acts shall be exercisable both by county planning authorities
and district planning authorities.
…
(5) This
section has effect subject to any express provision to the contrary in the
planning Acts and, in particular —
…
(c)
Subsection (3) has effect subject to [section 4 and] Schedule 1 (which contains
provisions as to the exercise of certain functions under this Act by particular
authorities and liaison between them).
The first
Schedule to the Act contains provisions for the distribution of functions
between local planning authorities. Para 1 defines county matter. In para 3,
under the rubric ‘Planning and special control’, it is provided:
(1) The
functions of a local planning authority of determining —
(a)
applications for planning permission;
…
shall, subject
to sub-paragraph (2), be exercised by the district planning authority.
(2) The
functions of a local planning authority of determining any such application as
is mentioned in sub-para (1) which appears to the district planning authority
to relate to a county matter shall be exercised by the county planning
authority.
(3) Every
application mentioned in sub-paragraph (1) shall be made to the district
planning authority.
(4) The
district planning authority shall send to the county planning authority, as
soon as possible and in any case not later than seven days after they have
received it, a copy of any application for planning permission which appears to
them to relate to a county matter.
(5) Subject
to sub-paragraph (6), the district planning authority shall send to the local
highway authority, as soon as may be after they have received it, a copy of any
application for planning permission which does not appear to them to relate to
a county matter.
In addition to
the county matters, as defined in para 1 of the Schedule, the Secretary of
State has made regulations to the Town and Country Planning (Prescription of
County Matters) Regulations 1980, which prescribes certain classes of
operations and uses of land as a county matter. By para 2(a):
the use of
land or the carrying out of operations in or on land for the deposit of the
refuse or waste materials;
(b)
the erection of any building, plant or machinery designed to be used wholly or
mainly for purposes of treating, storing, processing or disposing of refuse or
waste materials.
are prescribed
as county matters.
By the
Planning and Compensation Act 1991 significant changes were made to the making
and determination of applications for planning permission. Para 3 of Schedule 1
was amended so that it now reads:
(1) The
functions of a local planning authority of determining applications for
planning permission … shall, subject to sub-para (2) be exercised by the
district planning authority.
(2) The
functions of a local planning authority of determining any such application as
is mentioned in sub-paragraph 1 which relates to a county matter shall be
exercised by the county planning authority.
Subparas 3 to
6 were repealed. The effect of these changes was that instead of all planning
applications being made in the first place to the local planning authority
dealing with district matters, only those which dealt with a district matter
were made to the district planning authority. Applications which related to
county matters had to be made to the county planning authority.
Further, it
will be seen that the functions of the district planning authority are
expressly said to be subject to subpara 2. It is the construction of this
amended para 3 of Schedule 1 which has given rise to the argument in this case.
The argument for the appellant district council is that, notwithstanding that
the application was an application for development for use of land for waste
disposal (a county matter), A&W Demolition Ltd had also included an
application for permission to build 10 B1 units (a district matter). It is said
that on the true construction of para 3 of Schedule 1 the county council had no
power to determine such a combined application. There is no express provision
in the act or the schedule for determination of planning
applications which include both county and district matters and that from the
overall scheme of the planning legislation parliament clearly intended to
confer distinct powers on the county planning authority and the district
planning authority to be exercised separately.
It was
submitted by Mr Robert Fookes for the district council that parliament plainly
intended that there should be a match between the powers granted to the county
council as the body responsible for the development plan and their powers to
grant permission for development
district council to produce the local plan and to grant permission for
development in district matters. Thus parliament did not intend to confer on
the county planning authority power to determine applications reserved to the
district planning authority. The functions of the district and county planning
authorities as defined are mutually exclusive.
Mr Fookes
suggested that the court should be guided in this matter by the approach taken
in the decision of this court in Burdle v Secretary of State for the
Environment [1972] 1 WLR 1207, a case in which the occupiers of land
carried on a number of separate uses at the same site. It was alleged that in
one of these separate uses a change of use had occurred and an enforcement
notice was issued and served. Questions were raised whether the enforcement
notice should apply to the whole of the premises or only to the part on which a
change of use had occurred. The court held that parts of a single unit of
occupation could be considered as separate planning units and suggested the
test to be applied was whether there were two or more physically separated and
distinct areas used for substantially different and unrelated purposes. Mr
Fookes suggested that that approach should be applied to the present
application: the court should consider that there were, in effect, two
applications for planning consent, one a district matter and the other a county
matter. Notwithstanding that this would involve the applicant in additional
expense and require him to deal with two different authorities, parliament
nevertheless considered the expense and convenience of the applicant to be but
a mere intrusion on the important division of bureaucratic boundaries.
Before leaving
the case of Burdle v Secretary of State for the Environment, I
should refer to the judgment of Lord Bridge, then Bridge J. He said at p1212C:
What, then,
are the proper criteria to determine the planning unit which should be considered
in deciding whether there has been a material change of use? Without presuming
to propound exhaustive tests apt to cover every situation, it may be helpful to
sketch out some broad categories of distinction.
First,
whenever it is possible to recognise a single main purpose of the occupier’s
use of his land to which secondary activities are incidental or ancillary, the
whole unit of occupation should be considered.
He then cited
authority for that proposition and went on:
But,
secondly, it may equally be apt to consider the entire unit of occupation even
though the occupier carries on a variety of activities and it is not possible
to say that one is incidental or ancillary to another. This is well settled in
the case of a composite use where the component activities fluctuate in their
intensity from time to time, but the different activities are not confined
within separate and physically distinct areas of land.
Thirdly,
however, it may frequently occur that within a single unit of occupation two or
more physically separate and distinct areas are occupied
used for a different main purpose (together with its incidental and ancillary
activities) ought to be considered as a separate planning unit.
To decide
which of these three categories apply to the circumstances of any particular
case at any given time may be difficult. Like the question of material change
of use, it must be a question of fact or degree.
He then
considered the changing nature of activities upon a site and said:
It may be a
useful working rule to assume that the unit of occupation is the appropriate
planning unit, unless and until some smaller unit can be recognised as the site
of activities which amount in substance to a separate use both physically and
functionally.
I consider
that in that judgment Lord Bridge was pointing to the fact that in the last
case what had to be looked at was the substance of the separate use physically
and functionally.
Mr Fookes also
argued that to achieve the intention of parliament, either the county council
had to sever a hybrid application where separate and distinct uses could be
discerned and confine their decision only to the county matter or,
alternatively, they should require the applicant to make a fresh application to
the county planning authority confined to the county matter and another
application to the district council confined to the district matter.
In his clear
and concise judgment, the learned judge held that the words of the schedule did not permit of severance as
envisaged by the appellant. ‘The application as a whole either is or is not one
which can be dealt with by a county council.’ He saw no support anywhere in the
legislation for the proposition that an application could be treated as a
number of different applications each relating either to separate planning
units, or separate developments. He thought that to construe the schedule in that way would produce an
administrative nightmare as the developer, district council and county council
each tried to determine how many applications, from what development and in
what planning unit were subsumed within the one overall application. I agree
entirely with those observations.
But further
argument was advanced to the judge by Mr Fookes, as it was to us, that if the
words ‘relates to a county matter’ were construed in their widest sense, every
application for planning permission which impinged, however slightly, on a
county matter would have to be considered by the county planning authority. He
emphasised that these days only certain types of matter were reserved as county
matters and that the county planning departments no longer had the expertise or
assistance to deal with matters which might be regarded as local matters. He
said that some restriction had to be placed on the meaning of the words
‘relates to’.
In dealing
with this argument, and in its counter put forward on behalf of the county
council, the judge suggested that parliament intended there
was best expressed by a qualitative test whether the application included a
county matter and, if so, whether the predominant purpose of the application
was a county matter.
Before this court,
Mr Fookes raised the spectre of district and planning and county planning
officers wrestling with the problem whether one or other of the purposes for
which a planning application was made was predominant. He said they would have
to consider whether one or other exceeded the 51% margin necessary to make it
predominant. For my part, I think there is great difficulty in qualifying plain
words of an Act of parliament. Mr Fookes suggests that there are three ways in
which the words ‘relates to’ could be interpreted. First of all, the literal
which would require that however remotely the application was related to a
county matter, it was to be regarded as a county matter for the purposes of the
application. Second, he says that the words might be construed in the way in
which the learned judge construed them as subject to the qualitative
restriction that the application must relate predominantly to a county matter.
That, as he said, raised all the difficulties of deciding which was the
predominant. Third, he said that it might be regarded as qualified by the words
‘exclusively or solely’. But that would be to read into the Schedule to the Act
words which are not there, words which parliament has not used and which it
could easily have used. It would have been very simple had it been intended
that a county authority should only consider those applications which related
solely to county matters for the draftsman to have made that abundantly clear
in the amendments to para 3 of Schedule 1. It seems to me significant that he
did not do so.
I do not think
that on the proper construction of para 3 of Schedule 1 it is necessary to
consider relative purposes. In my view, the words of Schedule 1, para 3 to the
Act, are clear. The power of the district planning authority to determine an
application for planning permission is subject to para 2. That it is subject to
an application which relates to a county matter being decided by the county
planning authority. The words are not qualified but clearly, to adapt the words
of Lord Bridge from the excerpt cited from the case of the Secretary of
State and Burdle, a planning authority receiving an application for
planning permission directed to them would ask themselves in the ordinary way
is this application in substance an application for permission to develop land
in a county matter. Applying that test in the present case, A&W Demolition
Ltd’s application quite clearly was an application which in substance related
to a county matter. The fact that it also related to a district matter is, in
my view, immaterial. There are ample powers for consultation between
authorities contained in the legislation which if used sensibly by authorities
would, in my view, eliminate the kind of difficulties emphasised in this
appeal.
For example,
in the Town and Country Planning General Development Order 1988 there are
elaborate provisions for consultation before the grant of permission. Under
para 19, under the rubric ‘Consultation with County Planning Authority’, a
district planning authority are required by para 19 of Schedule 16 to the Local
Government Act 1972 to consult the county
permission. Para 19 provides that they shall not determine the application
until they have given sufficient time for the county planning authority to
consider the notice. Under para 20, in applications relating to county matters,
a county planning authority are required, before determining an application for
planning permission, to consult with the district authority and give them a
reasonable opportunity to make recommendations about the manner in which the
application is to be determined, and is required to take any such
recommendations into account. No doubt any county planning authority, in deciding
an application which related to a county matter but which also raised the
question of planning consent for a district matter, would pay great attention
to any submissions made by the district planning authority.
In my
judgment, the application in the present case related to a county matter and
the respondents were the authority to decide it. Accordingly, I would dismiss
the appeal.
HUTCHISON
LJ: I confess that I found the issues to which this
case gives rise by no means easy to resolve. In the course of his judgment
Latham J said:
The answer
depends upon the proper construction of the phrase: ‘ … such application …
which relates to a county matter … ‘ in Schedule 1 para 3 of the 1990 Act.
What that
relationship should be is nowhere expressly defined. I accept, however, that I
should approach the construction of the phrase on the basis that parliament
must have intended there to be a match between the policy responsibilities of
the respective councils, on the one hand, and their control responsibilities on
the other.
In his most
persuasive submissions to us, Mr Fookes adopted that as the correct approach
and one can see that there is much to commend it. However, not without
hesitation, I am in the end satisfied that the construction of the plain words
at para 3 of Schedule 1 to the Act which Beldam LJ has advanced is the correct
one. I therefore agree that this appeal should be dismissed.
POTTER LJ: I agree. I have considerable sympathy with the learned judge in
the task which he faced in seeking to propound a test which, on the one hand,
had regard to the fact that the phrase ‘related to’ in Schedule 1 para 3(2) is
not in any way qualified and is, on the face of it, apt to include any
application which in whole or in part relates to a ‘county matter’, and, on the
other hand, allowed for the fact that, if too rigidly or scrupulously applied,
it might involve the county council in deciding an application in truth
designed to obtain a decision at county council level in respect of a site
predominantly to be used for purposes quite independent of those falling within
the definition ‘county matter’.
However, I
consider that by importing the concept of ‘predominant purpose’ into the test
to be applied, he put the matter too high, bearing in
is to ensure that determination of applications relating to county matters
should be effected by the county council. I also consider that to require
consideration of the ‘purpose’ behind an applicant’s application is, in
principle, undesirable, since it might suggest the county council should have
regard to matters outside the four corners of the application as contained in
the documents placed before them.
I consider
that a more appropriate test is one which simply has regard to the substance of
the application as it appears from the documents, and that the question of
whether or not an application relates to a county matter depends on whether the
content of the application is such that, having regard to the proposed overall
user of the site in question, that part of the application which relates to a
county matter forms a substantial element of the application.
The appeal
was dismissed.
