Planning permission — Approval in principle for industrial development granted in 1950 — Condition requiring detailed plans to be submitted and approved before any development took place — 1989 application for approval of details rejected — Whether 1950 permission had lapsed — Whether any ‘specified operation’ had been carried out before April 1 1974 — Whether development in breach of condition capable of being a specified operation
In 1949
Vickers-Armstrong Ltd (‘Vickers’) applied for planning permission for ‘approval
in principle to an outline development plan for permanent industry’ on the
former Brooklands motor racing circuit, Weybridge, Surrey (‘the site’), part of
which was then being used by the aircraft manufacturing industry. The
application, which was accompanied by only a site plan, was made at the
suggestion of the engineer and surveyor of Walton and Weybridge Urban District
Council (‘Walton’) to whom agents for Vickers had written with a view to the
whole of the site being zoned for general industrial purposes (subject to
appropriate reservations for open space) in the development plan then being
prepared by the local planning authority, Surrey County Council (‘Surrey’). On
April 18 1950 permission, reference WAL 326, was granted by Walton acting on
behalf of Surrey. The permission was subject to two conditions: (1) a printed
standard condition that no variations from the deposited plans and particulars
would be permitted unless previously authorised by Walton; and (2) a
typewritten condition that the approval was given ‘subject to detailed plans of
the layout of buildings, open spaces and drainage and particulars of the types
of industries to be provided, being submitted to and approved by the planning
authority before any development takes place’. Between 1949 and 1974 a large
number of applications were made and granted for permission for industrial
development on the site, but none was made specifically under condition (2) of
WAL 326. The only reference to WAL 326 was in answer to the question: ‘Is the
site within a layout plan for which permission has been granted by the local
planning authority?’ During the same
period four estate roads were constructed and a number of changes of use took
place, all without specific permission.
In 1983 the
consultation draft of a local plan prepared by Elmbridge Borough Council
(‘Elmbridge’) allocated the unbuilt-upon central part of the site as green
belt. In May 1985 the draft local plan was placed on deposit and later that
year the land was acquired by the respondents, Oakimber Ltd (‘Oakimber’). In
1986 Oakimber made four applications for planning permission for industrial,
retailing, office and recreational development. Oakimber appealed against the
deemed refusal of these applications: in March 1988 the appeal in respect of the
industrial development was allowed but the other appeals were dismissed. The
permission granted on appeal did not relate to the part of the site which was
the subject of the green belt allocation. In May 1988 the local plan was
adopted.
In June 1988
Oakimber learned of the existence of WAL 326. To test its continuing validity
they applied, on February 3 1989, for detailed approval of proposed drainage
works. Elmbridge refused to accept the application as valid on the ground that
no development to which the 1950 permission related had begun before April 1
1974 as required by para 19(1) of Schedule 24 to the Town and Country Planning
Act 1971. Oakimber applied for judicial review of this decision, contending
that WAL 326 had not lapsed as development had been begun, in the terms of
section 43 of the 1971 Act, as applied by para 21(1)
built development and on the construction of the four estate roads and the
changes of use. On March 26 1990 Hodgson J allowed the application, holding
that the roads and the changes of use were development to which the 1950
permission related, although there had been no compliance with condition (2).
He also held that the built development, the subject of subsequent specific
permissions, related to the 1950 permission, even though WAL 326 could not have
permitted such development for want of any industrial development certificate
at the time of the 1949 application. Elmbridge and Surrey appealed.
1. The true
effect of WAL 326 was to grant planning permission in principle for development
of the Brooklands site for general industrial use, but conditional upon the
prior approval of the planning authority before any physical development
or substantial change of use could be implemented: see pp 44G-46F and 52A-53F.
There was nothing unreasonable in a negative condition applying to the whole
development making it subject to detailed approval: see p 46G-H. Accordingly,
until an application was made and approved under condition (2) of WAL 326, no
development capable of being a specified operation within section 43(2) of the
1971 Act was permitted.
2. Per Purchas
and Taylor LJJ (Beldam LJ reserving his opinion), development in breach of condition
did not qualify for the purposes of para 19(1) of Schedule 24 to the 1971 Act:
see pp 48H-49D, 51G and 55C-E. Etheridge v Secretary of State for the
Environment (1983) 48 P&CR 35 approved; Kerrier District Council
v Secretary of State for the Environment (1980) 41 P&CR 284, Clwyd
County Council v Secretary of State for Wales [1982] JPL 696 and F
G Whitley & Sons Co Ltd v Secretary of State for Wales [1990] 2
PLR 44 distinguished.
3. None of the
works relied upon by Oakimber as ‘specified operations’ could be regarded as
related to the 1950 permission within the test laid down by Eveleigh LJ in Malvern
Hills District Council v Secretary of State for the Environment
(1982) 46 P&CR 58. The buildings for which permission was sought and
obtained related to the existing use of the site for aeronautical industry
purposes; they were not erected for the purpose of carrying out WAL 326, the
purpose of which was to protect the landowner who might in the future seek
permission to develop the land for general industrial purposes. The same
applied to the roads and the changes of use: see pp 50G-51E and 54A-55B.
Decision of
Hodgson J (1990) 62 P&CR 82 reversed.
to in the judgments
Camrose
(Viscount) v Basingstoke Corporation [1966]
1 WLR 1100; [1966] 3 All ER 161; (1966) 64 LGR 337, CA
Clwyd
County Council v Secretary of State for Wales
[1982] JPL 696
Etheridge v Secretary of State for the Environment (1983) 48 P&CR
35; [1984] JPL 340
Grampian
Regional Council v City of Aberdeen District
Council (1983) 47 P&CR 633; 1984 SLT 197; [1984] JPL 590, HL
Jones v Secretary of State for Wales (1990) 61 P&CR 238;
[1990] 3 PLR 102, CA
Kerrier
District Council v Secretary of State for the
Environment (1980) 41 P&CR 284; [1981] JPL 193, DC
Malvern
Hills District Council v Secretary of State for
the Environment (1982) 81 LGR 13; 46 P&CR 58; [1982] EGD 1217; 263 EG
1190; [1982] JPL 439, 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
Whitley
(FG) & Sons Co Ltd v Secretary of State for
Wales (1989) 60 P&CR 185; [1990] 2 PLR 44; [1990] JPL 678
Wilson v West Sussex County Council [1963] 2 QB 764; [1963] 2 WLR
669; [1963] 1 All ER 751; (1963) 61 LGR 287; 14 P&CR 301; [1963] EGD 565;
185 EG 683; [1963] RVR 278, CA
Appeal against
decision of Hodgson J
This was an
appeal by Elmbridge Borough Council and Surrey County Council against a
decision of Hodgson J on March 26 1990 whereby he had granted an application by
the respondents, Oakimber Ltd, for judicial review of a decision by Elmbridge
Borough Council to refuse to consider an application by Oakimber Ltd for
detailed planning approval in respect of proposed drainage works at part of the
site of the former Brooklands motor racing circuit, Weybridge, Surrey. Hodgson
J granted an order of certiorari to quash the borough council’s decision and
made a consequential declaration.
QC, Robert Gray QC and Timothy Straker (instructed by Sharpe Pritchard, agents
for the solicitor to Elmbridge Borough Council and the solicitor to Surrey
County Council) appeared for the appellants.
Keene QC and Duncan Ouseley (instructed by Lovell White Durrant) appeared for
the respondents, Oakimber Ltd.
following judgments were delivered.
PURCHAS LJ: This is an appeal by Elmbridge Borough Council (‘Elmbridge’) and
Surrey County Council (‘Surrey’) from a judgment of Hodgson J given on March 26
1990 (1990) 62 P&CR 82 on a motion for judicial review by Oakimber Ltd
(‘Oakimber’). Hodgson J ordered that a decision by Elmbridge to refuse to
consider an application for detailed planning approval be quashed and made a
consequential declaration. The application made by Oakimber was dated February
3 1989. I shall refer to this as the ‘1989 application’. It related to proposed
drainage works at part of the site of the old Brooklands motor racing track
near Weybridge, Surrey (‘the site’). It referred to an approval ‘in principle’
attaching to the site under the provisions of the Town and Country Planning Act
1947 (‘the 1947 Act’) given by Walton and Weybridge Urban District Council
(‘Walton’) acting under powers delegated to them by Surrey, who were the local
planning authority. The document recording this approval was dated April 18
1950 and I shall hereafter refer to it by its reference number ‘WAL 326’. The application
on behalf of Vickers-Armstrong Ltd (‘Vickers’) was made on the appropriate
statutory form (TP1) and was dated May 24 1949. I shall refer to this
application as ‘the 1949 application’. In its original form the application
sought approval for both industrial and residential development but it was
later amended as a result of exchanges between Walton and the agents acting for
Vickers.
Elmbridge
contended that WAL 326 had expired under the provisions of para 19(1) of
Schedule 24 to the Town and Country Planning Act 1971 (‘the 1971 Act’) and that
the 1989 application which was purported to be made under WAL 326 was therefore
a nullity. It should be noted that the 1949 application and WAL 326 predated
the statutory provision relating to ‘outline permissions’, which was Article
5(2) of the General Development Order 1950 (‘GDO 1950’).
Oakimber
contended that WAL 326 survived because development had been begun not later
than April 1 1974 in the terms of section 43 of the 1971 Act as applied by para
21(1) of Schedule 24. The resolution of this issue involves construing WAL 326
in its contemporary context and analysing the acts relied upon by Oakimber as
falling within the definition of ‘specified operations’ in section 43(2) of the
1971 Act.
History
The relevant
history can be summarised as follows: the site was that of the old Brooklands
motor racing circuit which had been built in 1907 on meadows
motor and aviation industries. Different companies designed, built and flew
their aircraft from the site. The racetrack was closed in 1939 and thereafter
the aircraft industry in particular flourished, the main post-war industry
being carried on by Vickers. In the early stage their operations were
concentrated on the east side of the site, although some aeronautical
manufacturing development had also taken place on the west side.
It is clear
that from as early as 1948 Vickers had in contemplation the possibility that at
some time in the future the site might be developed for general industrial
purposes. This led to the 1949 application, which was made after an exchange of
views and correspondence with Walton to which I shall refer in greater detail
later. A site plan based on an earlier plan dated March 1946 was prepared for
the purpose of these discussions. The plan was drawn to scale 1:2500 and showed
substantial industrial and some residential development existing in the eastern
half and small, but significant, industrial developments in the south-western
quadrant of the site. I shall refer to this as ‘the 1949 plan’.
By the late
1960s Vickers had become part of the British Aircraft Corporation (‘BAC’) but
subject to this there was continuous occupation of the eastern part of the site
for aeronautical industrial purposes between 1945 and 1985. Early in the 1970s
a property holding company named Oyster Lane Properties Ltd was established to
hold the western buildings and the land between this development and the River
Wey, which divided the site running in a roughly north-south direction. The
reason for this appears, at least partly, to have been a threat of
renationalisation of BAC.
In 1983 a
consultation draft of a local plan which included the site was prepared. This
showed the land between the eastern and south-western developed parts of the
site, upon which no building had taken place, as being allocated as green belt.
In May 1985 this local plan was placed on deposit. Oyster Lane Properties Ltd
raised objections to it. Oakimber acquired the land from Oyster Lane Properties
Ltd in November/December 1985. They made four applications under the 1971 Act
during April and May 1986. These sought permission for a number of different
kinds of development including industry, retail business, office and
recreational purposes. In August 1987 there was a public inquiry into these
applications on a deemed refusal basis. On March 17 1988 the Secretary of State
for the Environment allowed one of the four applications. This sought
permission for development including industry, warehouse, distribution and
research. He refused the applications for permission for recreation and leisure
development, office development and retail stores development.
Planning
legislation
In order to
construe WAL 326 in the context of the 1949 application and the preceding
correspondence it is necessary to consider the development of the relevant
planning legislation. Prior to July 1 1948, which was the appointed day for the
1947 Act, planning was, generally speaking, based upon the preparation of
voluntary schemes prepared either by local authorities or by private
individuals and adopted by local authorities with very limited central
government supervision. During the war years Acts passed in 1943 and 1944 gave
more power, influence and supervision to central government and extended the
powers of local authorities. It is not necessary to consider this legislation
other than to refer to para 10 of the Town and Country Planning (General
Interim Development) Order 1946 (SR & O 1946 No 1621) (‘GIDO 1946’):
10. Form of
applications for permission. — Subject to the provisions of this Article and to
the subsequent provisions of this order, any person who desires to apply for
permission under this order shall apply in writing to the interim development
authority and shall furnish to the authority, together with his application, a
plan in triplicate sufficient to identify the land to which the application
relates (hereinafter called a ‘site plan’) and particulars illustrated by plans
and drawings in triplicate, sufficient to show the proposed development:
Provided that
it shall not be necessary to furnish plans and drawings, other than a site
plan, in any case where the proposed development is sufficiently described by
the particulars together with the site plan or where the application is
expressed to be an application for general permission conditional on the
subsequent approval by the authority, or by the Minister on appeal, of the
particulars of the proposed development.
The 1949 plan
was similar in scale and detail to a ‘site plan’.
The 1947 Act
required planning authorities, in this case Surrey, to prepare comprehensive
development plans which could then be applied with some flexibility in the
control of development in accordance with sections 12 and 14 of the 1947 Act.
The
development plan was to indicate ‘the manner in which they proposed that land
in that area should be used (whether by the carrying out thereon of the
development or otherwise) and the stages by which any such development should
be carried out’ (section 5(1)). Further provisions in the 1947 Act and
regulations made under the Act provided for consultation with county districts,
the publication of the draft plan and opportunities for interested persons to
make representations, and, in appropriate circumstances, the holding of such
local inquiries or other hearings as might be necessary.
By section
12(1) of the 1947 Act permission was required in respect of any development of
land. By section 12(2) ‘development’ was defined as ‘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)
provided:
14.–(1) . . . 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; and in dealing with any such application the local planning
authority shall have regard to the provisions of the development plan, so far
as material thereto, and to any other material considerations.
The provisions
of section 14(1) were mandatory and permitted only three courses to the
planning authority, namely to grant permission unconditionally, grant it
subject to conditions or refuse it. Under section 16(3), if the planning
authority omitted to give a decision within the required time they were deemed
to have refused the application, which then afforded a right to the applicant
to appeal to the minister against the deemed refusal. In that way the planning
authority were obliged to come to a decision which was subject to review under
the appellate provisions of the statute.
Once granted,
either by the planning authority or by the minister on appeal, the permission
enured for the benefit of the land under section 18(4) of the 1947 Act unless
revoked or modified under section 21 of the Act. It therefore enhanced the
value of the land. Revocation involved the payment of compensation.
WAL 326
On April 25
1949, agents for Vickers wrote a letter to the engineer and surveyor of Walton
with which they enclosed a copy of the 1949 plan. The
details of which are unfortunately no longer available. From the first
paragraph it appears that these exchanges must have been with reference to the
preparation by Surrey of their draft development plan. It would appear that
Vickers’ objective was to preserve their position by persuading Surrey to
include the whole of the site in a zone for general industrial purposes subject
to appropriate reservations for open space. Surrey’s existing intention was to
continue its purpose as aeronautical industrial only.
The letter of
April 25 1949 is an important part of the contextual background to the 1949
application as is Walton’s reply dated May 5. The relevant parts of the letter
of April 25 read:
Town & Country Planning Act 1947
Brooklands Track and Aerodrome, Development
We have
pleasure in referring to the previous correspondence concerning the scheduling
of the above property terminating in your letter of the 25th March, 1948, in
which you suggested that our clients, Messrs. Vickers-Armstrong Limited,
Weybridge Works, should prepare a layout of the whole of the site showing the
areas on which they propose erecting buildings in the future.
The future
development of the site has received careful consideration and bearing in mind
the special zoning of the majority of the area for aeronautical and motor
undertakings, i.e. general industrial purposes, we are submitting herewith a
layout indicating the lines at present envisaged on which future development
should be planned. Having regard to the requirements of Section (5) of the Act,
we are amplifying the plan/layout by the following explanatory observations:–
(a) Density of Buildings
The scheme
devised provides than [sic] an area equivalent to approximately 33 1/3%
shall be permanently reserved as open space. Moreover the areas reserved for
industrial development will clearly not be completely covered by buildings,
but, as will be appreciated, at this stage it is not practicable to define the
size and extent of the individual future buildings. It is realised however that
the maximum total coverage by building development shall be restricted to 33
1/3% of the area of site.
(b) Interim Stage of Development
(1) It will be noted that the scheme provides
that eventually the Brooklands Aerodrome will cease to have that function, and
that the Aerodrome site will be developed for industrial purposes. The rapid
progress of aircraft design and the fluctuating production requirements of our
clients preclude an accurate forecast of when the Aerodrome as such is likely
to go out of commission — if in fact that course is adopted.
(2) It will also be noted that the plan indicates
a possible major extension of our clients’ Erecting Shop, and although this
proposal is at present only in an early formative stage, it is probable that if
the project proceeds the extension would be required within the next 3/4 years.
(c) Air Ministry Land and Buildings
The plan shows
land and buildings which are the property of our clients excepting for the
portion denoted as owned by the Air Ministry. At present this Air Ministry
Property is held by our clients at short tenancy, but negotiations are in
progress for Messrs Vickers-Armstrong Limited to purchase.
We should be
glad to hear in due course that the proposed layout is approved for
incorporation in the Council’s Development Plan.
On May 5 1949
the engineer and surveyor of Walton replied in these terms:
. . .
I do not
however, think that the County Council will incorporate in detail
unwise to do so having in mind the fact that one cannot see sufficiently far
ahead in this case to ensure that there will be no variation from the present
proposals.
If the
proposals as now made were incorporated in the development plan, there might be
some difficulty and delay in the event of your clients submitting any proposal
which was not in strict conformity with the plan. I think therefore, that the
safest policy would be to obtain approval in principle to the outline
development plan as submitted, leaving the details to be filled in from time to
time with specific applications in individual cases. If this policy was adopted
and the outline plan approved your clients would then be assured that they
could work this plan with safety.
If you agree
with my suggestions, it would be necessary to submit three more copies of the
plan and three copies of Form T.P.1. The application on T.P.1 might be made for
‘approval in principle to an outline development plan’.
This was the
context in which the 1949 application was submitted. It appears clear to me
that Vickers wished to protect their position under the development plan so as
to enable them to carry out general industrial and residential development or
to sell to someone who wished so to do. This is consistent with the use of the
description of the permission sought as ‘approval in principle to an outline
development plan for permanent industry’. This was the wording suggested in
Walton’s letter. The proposed development was described as ‘Part Industrial Development:
Part Residential Development’. The purpose for which the land was presently
used was described as ‘Aircraft and Motor Engineering and General Industrial
Purposes Small Area Residential’. To the question in box 6 ‘State whether the
proposed development involves a construction of a new or the alteration of an
existing access to or from the highway?’, the answer given was: ‘Existing areas
to be widened as shown — separate application to be made at time of actual
widening’.
The question
in box 9 and the answer are important. They are: question, ‘State whether the
permission desired is for permanent development or use or for a limited period,
and if the latter for what period?’ and the answer, as I have already
mentioned, was ‘Approval in principle to an outline development plan for
permanent industry’.
The
application was made on the printed form provided in accordance with the Town
and Country Planning (Making of Applications) Regulations 1948 (SI 1948 No
711). The proviso to Regulation 2 reads:
Provided that
it shall not be necessary to furnish plans and drawings other than a plan
sufficient to identify the land to which the application relates, in any case
where the proposed development is, for purposes of the local planning
authority, sufficiently described by the particulars together with that plan.
The
instructions on the statutory form TP1 include:
I. Site Plan.
(1) A site plan must be attached to all
applications except
(a) an application relating to a site included in
a layout plan for which permission has been granted by a Local Planning
Authority, in which case a copy of that layout plan, showing the land to which
the application relates coloured pink, will suffice, and
(b) an application relating to the extension, or
alteration of a building in a built-up area for which the full postal address
is given in the application form, in which case the Local Planning Authority
may dispense with the plan.
(2) The site plan must be drawn on a scale
appropriate to the development
application relates coloured pink, any adjoining land in the same ownership
coloured blue, and sufficient details to readily identify the site in
comparison with the Ordnance Survey Map of the same scale. The Local Planning
Authority should be consulted in any cases of doubt as to which scale is
appropriate.
II. Layout
Plan.
(3) A layout plan must be attached to all
applications for permission for building development, except as in paragraph
(4) below. The plan must be drawn to a scale of not less than 1:1250 and must
show: . . .
Subparas (a)
to (j) deal with the details required in respect of particular types of
development. The following are relevant:
(b) the position of all existing and proposed
buildings, roads, streets and carriageways thereon (distinguishing existing
from proposed), indicating for proposed buildings the maximum height for each
building which will not be exceeded, and the levels and widths of any proposed
roads and streets;
(c) the proposed use of each building and any
land not built on;
. . .
(e) if the layout is for commercial or industrial
development, the maximum floor area which will not be exceeded;
. . .
(g) the approximate lines of water supply pipes,
and of drains and sewers, giving sizes and gradients, with reference to any
existing services in the locality;
. . .
(i) the position and width of all means of access
to roads, distinguishing between existing, alteration to existing, and proposed
access; . . .
The 1949 plan
did not comply with these requirements for a layout plan in any relevant
respect. If anything it was a site plan.
The approval
sought by the 1949 application was not issued for nearly a year, ie on April 18
1950. In the meanwhile there had been correspondence passing between the county
planning officer of Surrey, the engineer and surveyor of Walton and the
ministry. This took place during the latter part of 1949 and early 1950 and
related to development at the site. It is clear from these exchanges that it
was commonly understood that Vickers were seeking protection only ‘from the
point of view of future zoning as any specific industrial building scheme would
. . . need Board of Trade support . . .’ (letter from Surrey to Walton dated
August 5 1949).
When the
relevant approval was issued it contained the following relevant provisions:
The Walton
and Weybridge U.D.C. acting on behalf of the Surrey County Council as Local
Planning Authority . . . do hereby signify in writing their approval subject to
the conditions specified in the second schedule hereto of the application for
permission for development specified in the first schedule hereto deposited by
you on the 25th May, 1949.
First Schedule
Application in principle for development of industrial site at:
Brooklands, Weybridge.
Second Schedule
1. No
variations from the deposited plans and particulars will be permitted unless
previously authorised by the Walton and Weybridge Urban District Council.
2. This
approval is given subject to detailed plans of the layout of buildings, open
spaces and drainage and particulars of the types of industries to be provided,
being submitted to and approved by the Planning Authority before any
development takes place.
The reference
to ‘the deposited plans and particulars’ must be to the 1949 plan. Para 1 of
Schedule 2 is printed and is clearly a standard condition which is part of the
form TP3. Para 2 of Schedule 2 and Schedule 1 are both typewritten and,
therefore, may be assumed to be particular to WAL 326. If there are any
contradictions or inconsistencies between the two paragraphs of Schedule 2,
then para 2 should, in my judgment, prevail.
It will be
necessary to return to consider the true significance of the conditions in
Schedule 2 to WAL 326. Before doing this I must complete the outline of the
relevant planning history. It is to be remembered that until the making of the
GDO 1950 there was no statutory provision under which an ‘outline planning
permission’ could be granted. The true position prevailing prior to this was
recognised in Ministry of Town and Country Planning Circular 87/50 which
accompanied the publication of the GDO 1950:
(4)(i) The Outline Application
Article 5(2)
(of the GDO 1950) introduced a special procedure designed to facilitate the
making of an application by a developer who wishes to know whether his building
proposals are likely to prove acceptable, before he proceeds with the
preparation of detailed plans. An application supported by a site plan only —
often described as an ‘application in principle’ — was specifically provided
for in the General Interim Development Order, 1946: and, while no specific
provision was included in the Making of Applications Regulations, many local
planning authorities have continued to deal with applications on this basis.
There have, however, been wide variations in practice, and the Minister has
concluded that the introduction of a formal procedure would serve to assist
both authorities and developers.
It is clear
that WAL 326 fell entirely within the practice described in this part of the
circular. In the event, until the application of 1989 no application for an
approval in detail had been made specifically under the provisions of para 2 of
Schedule 2. There were, however, a large number of discrete planning
applications seeking approval for industrial development made between 1949 and
1974, some of which were dated between May 24 1949 and April 1950. A schedule
exhibited to the affidavit of Brian Archibald Craig* sworn on April 25 1989
lists 10 such applications which received approval for developments dated
between November 9 1950 and May 10 1952. All the applications referred to WAL
326 in answer to the question: ‘Is the site within a layout plan for which
permission has been granted by a Local Planning Authority? If so, state the code number and date of
permission’. The nature of the developments varied but were generally
industrial — eg erection of new factory building, installation of effluent
plant, extensions of a wind tunnel, etc. It is not suggested that any of these
related to operations other than those being carried out by Vickers. Two
further schedules which were exhibited to the affidavit of David William
Laurance Jenkins† sworn on October 12
1989, listed about 270 applications made between 1949 and 1973. Mr Jenkins confirmed
that none of these was made under para 2 of Schedule 2 to WAL 326, although in
many of them reference was made to WAL 326 in the application form in answer to
the question ‘Is the site within a layout plan for which permission has been
granted by a Local Planning Authority?’
*Editor’s
note: Managing director of Oakimber Ltd.
† Editor’s
note: Town Clerk and Chief Executive of Elmbridge Borough Council
Oakimber rely
on these applications as being acts performed under WAL 326 although they were
fully fledged planning applications in their own right. They point to the fact
that during the material time for a building in excess of 500 sq ft it was
necessary to have an industrial development certificate (‘IDC’) before an
application could be considered. Therefore it must have
applications would have to be made. I will return to this submission in more
detail later.
It is now
necessary to look a little more closely at the terms of WAL 326, bearing in
mind that it is a right attaching to the land and must be construed
objectively. It is permissible to have regard to only the subjective intention
of the grantor and grantee and other circumstances in which the application was
made and the approval was given as the factual matrix against which WAL 326 is
to be construed. I must clarify my use of the words ‘subjective intention’. At
this distance of time no one is going to expect oral evidence either from the
engineer and surveyor of Walton or from a spokesman acting at the time for
Vickers. The subjective intention of the parties is to be inferred from
contemporaneous documents. In my judgment, these unambiguously demonstrate that
Vickers wished to bring about an adjustment to the draft development plan by
substituting ‘General Industrial Purposes’ for the site in place of its current
zoning — ‘Aeronautical Industry’. The development plan was being prepared by
Surrey but Vickers’ channel of communication was through Walton.
Having earlier
prepared the 1949 layout plan at a scale of 1:2500 showing not only existing
development but, by way of example, ‘the lines’ along which both interim and
final future development might evolve, Vickers in the first instance submitted
this in the hope that it could be incorporated in Surrey’s development plan.
Walton explained that this would be impracticable and in so many words, already
cited in this judgment, said that the best way in which Vickers could protect
its position would be to make a formal planning application under section 14 of
the 1947 Act for ‘approval in principle leaving the details to be filled in
from time to time with specific application in individual cases’. The 1949
application faithfully adopted the phrase ‘approval in principle to an outline
development’. This expression was before its time and did not receive statutory
recognition until the following year in the GDO 1950. There is no doubt that
both Walton and the agents for Vickers knew perfectly well what was meant by
‘approval in principle . . . to an outline development’ by reason of the
provisions of the GIDO 1946 and the practice which was then prevailing and
which was later recognised in Circular 87/50.
Vickers
submitted three further copies of the 1949 plan with their application on Form
TP1 (the 1949 application). The scale of the 1949 plan was sufficiently large
to comply with the requirements of TP1 for a site plan but not a layout plan.
It is common ground that WAL 326 must be construed together with the 1949
application.
Mr Peter
Boydell QC, who appeared for Elmbridge and Surrey, submitted that in light of
the circumstances surrounding the making of the 1949 application, the words in
box 9 ‘Approval in principle to an outline development plan for permanent
industry’ admit of only one construction, namely that approval was sought in
principle — or outline — to the development of the site generally for
industrial purposes but that no approval for any specific development was being
sought. That Walton understood the application in this sense is confirmed by
the typed, as distinct from the printed, content of the First and Second
Schedules to WAL 326. The First Schedule refers to ‘Application in principle
for development of industrial site’. (This is clearly a single concept agreed
in principle.) It is not disputed that
in construing an approval reference may be made to the terms of the application
as a result of which approval is given: Wilson v West Sussex County
Council [1963] 2 QB 764.
It was common
ground that as no IDCs had been issued in relation to the 1949 application, WAL
326 could not in any event extend to buildings: see section 14(4) of the 1947
Act. Mr David Keene QC, who appeared for Oakimber, argued that WAL 326 gave
permission to carry out industrial development, other than buildings and
excepting those specific developments requiring the submission of further
details which were listed in para 2 of Schedule 2, ie plans of the layout of
buildings, open spaces, drainage and types of industries. In effect, the only
development not excluded seemed, in the main, to be roads without drains,
stacking areas and parking spaces.
By analogy
with the provisions for granting ‘outline planning permission’ in the GDO 1950,
it was argued that the granting of planning permission ‘in principle’ was in
fact a granting of planning permission subject to reservation by way of
‘conditions’. Although para 5(2) of the GDO 1950 was restricted to permission
to develop buildings only, there was, it was submitted, no reason why WAL 326
should be so limited. Only in this way, Mr Keene submitted, could Walton’s
granting of WAL 326 be squared with their functions under section 14(1) of the
1947 Act. In other words, he contended that unless WAL 326 effected the
granting of permission to develop the site for general industrial purposes,
subject to the necessity to submit details for approval in the case of the
particular developments listed in para 2 of the Second Schedule, WAL 326 had no
content. For judicial recognition of a permission of this sort he referred to
the judgment of Lord Denning MR in Viscount Camrose v Basingstoke
Corporation [1966] 1 WLR 1100 at p 1108G which described:
For instance,
the assumed planning permission would cover the layout of an industrial estate,
complete with roads, ready for industrialists to come.
It is to be
remembered that this was a case brought under the Land Compensation Act 1961,
and the permission to develop to which reference was made was an assumption for
the purpose of calculating compensation. The concept of a planning permission
which included the laying out of roads, it was submitted, was consistent with
the existing statutory framework, eg the GIDO 1986 para 10 and the control upon
industrial development imposed by the need to have IDCs.
Attractively
as this submission was put by Mr Keene, I am afraid that I cannot agree with it
for a number of reasons in which respects I agree with the submission made by
Mr Boydell:
1. It is
contrary to the whole context of the exchanges between Walton and Vickers,
namely an objective to protect the future possibility of general industrial
development which would otherwise have been achieved by altering the zoning of
the site in Surrey’s development plan to ‘general industrial purposes’.
2. A careful
study of the 1949 layout plan reveals that although it shows specific
developmental layouts, it is expressed in tentative words, eg ‘Possible
extension to main works’, shown under box 14 on the 1949 layout; its
description in Vickers’ letter of April 25 1949 in the phrase ‘a layout
indicating the lines at present envisaged on which future planning should be
planned’ and the reference to the ‘possible major extension’ in the letter of
April 25 1949.
3. The
original proposal was that the layout should be incorporated in Surrey’s
development plan.
4. Although of
lesser significance, the correspondence between Walton and Surrey — see the
letter from Surrey dated April 5 1949 referring to the proposals set out on TP1
and illustrated on the plan:
It appears to
me that the application can only be dealt with from the point of
first place, need Board of Trade support before it could be considered under
planning powers.
5. The concept
of a general permission to go forward with laying of access roads for an
industrial scheme in the Camrose sense is inconsistent with the
requirement in para 2 of Schedule 2 to submit for approval detailed plans for
‘open spaces’ and the further requirement that the detailed plans must be
submitted and approved before any development takes place.
6. The
suggestion that the construction of estate roads could in some way be ‘hived
off’ from the rest of the development and constructed in advance in the Camrose
sense seems to me to be unreal. Until the details of types of industry expected
to come to the site and their drainage requirements were known, it would be
quite impossible to lay out the roads with any degree of commercial prudence.
This construction of WAL 326 is also inconsistent with the answer to the
question in box 6 of the 1949 application asking about the construction of a
new or the alteration of an existing access to or from a highway:
Existing
access to be widened as shown — separate application to be made at time of
actual widening.
7. The idea of
a piecemeal development is inconsistent with the expression ‘before any
development takes place’ in para 2 of the Second Schedule to WAL 326. I have
not overlooked that the requirement for approval of the detailed development
plan would appear to render para 1 of Schedule 2 otiose. This may well be, but
this paragraph is part of the printed form TP1. Where a planning approval
enables immediate development to take place, para 1 of Schedule 2 is obviously
a necessary precaution and its inclusion as a condition in the standard form
TP1 is understandable. As Mr Boydell submitted, it would also be applicable to
detailed approvals subsequently granted under para 2 of Schedule 2. Mr Keene
submits that its inclusion in WAL 326 supports his contention that certain
immediate developments were permitted. This argument, however, is inconsistent
with the plain meaning of para 2 of Schedule 2 and, in my judgment, should not
be permitted to distort a straight-forward construction of a typewritten and
therefore presumably ‘custom drafted’ condition.
In my judgment,
Mr Boydell correctly submitted that the true effect of WAL 326 was to grant a
permission in principle subject to the requirement that before any
development could be carried out a scheme should be submitted and approved
which covered the matters specifically reserved in para 2 including layout of
buildings, open spaces and drainage and types of industry to be provided.
Therefore there was no physical development or substantial change of user
relating to WAL 326 which could qualify under para 19(1) of Schedule 24. WAL
326 could not, for want of IDCs, grant permission to erect buildings. In my
judgment, there is no statutory limit to the nature or extent of a condition
which may be applied under section 14(1) of the 1947 Act provided it is
reasonable and relates to planning control: see Newbury District Council
v Secretary of State for the Environment [1981] AC 578 per Lord Lane at
p 627; and this extends to negative conditions inhibiting development: see Grampian
Regional Council v City of Aberdeen District Council (1983) 47
P&CR 633 as considered in Jones v Secretary of State for Wales
[1990] 3 PLR 102. There is nothing unreasonable in a negative condition
applying to the whole development making it subject to detailed approval.
Indeed, such a position is accepted in the GDO 1950 in relation to outline
applications: see the phrase used in para 5(2)(i): ‘before any development is
constructed’.
In my
judgment, therefore, Mr Boydell’s first contention on this appeal succeeds —
namely that until an application was made and approved under para 2 of the
Second Schedule to WAL 326 no development capable of being a specified
operation within section 43(2) of the 1971 Act was permitted. If, as Mr Boydell
submitted, the first application purporting to be made with direct reference to
WAL 326 was the 1989 application, then it is common ground that WAL 326 had
long since expired under the provisions of the 1971 Act. It is now necessary to
look in a little more detail at the provisions of Schedule 24 to the 1971 Act.
Prior to 1968
it was not the rule to attach any time-limit upon a planning permission
limiting the time during which the development could be left in abeyance. The
Town and Country Planning Act 1968 made provision for the statutory implication
of time-limits where no express limits had been included. It was designed to
eliminate a large and highly undesirable accumulation of unimplemented planning
permissions. The provisions of that Act (sections 65 to 68) were re-enacted in
Schedule 24 to the 1971 Act and it is with these provisions that this appeal is
essentially concerned:
19.–(1) Subject to sub-paragraph
(2) of this paragraph, every planning permission granted or deemed to have been
granted before 1st April 1969 shall, if the development to which it relates had
not been begun before the beginning of 1968, be deemed to have been granted
subject to a condition that the development must be begun not later than the
expiration of five years beginning with 1st April 1969.
Subpara (2) is
not relevant.
21.–(1) In sections 30(3),
43(1), (5), (6) and (7) . . . of this Act references to sections 41 and 42 of
this Act shall respectively include references to paragraphs 19 and 20 of this
Schedule.
Under para
19(1) WAL 326 is deemed to have been granted subject to a condition that the
development must be begun not later than March 31 1974. In order to succeed,
Oakimber must establish the carrying out of a specified operation as defined in
section 43 of the 1971 Act before this date. Section 43 provides:
43.–(1) For the purposes of
sections 41 and 42 of this Act, development shall be taken to be begun on the
earliest date on which any specified operation comprised in the development
begins to be carried out.
(2) In subsection (1) of this section ‘specified
operation’ means any of the following, that is to say —
(a) any work of construction in the course of
the erection of a building;
(b) the digging of a trench which is to contain
the foundations, or part of the foundations, of a building;
(c) the laying of any underground main or pipe
to the foundations, or part of the foundations, of a building or to any such
trench as is mentioned in the last preceding paragraph;
(d) any operation in the course of laying out
or constructing a road or part of a road;
(e) any change in the use of any land, where
that change constitutes material development.
‘Material
development’ as defined in section 43(3) includes any development with
exceptions as specified in paras (a) to (c) which are not
relevant to this appeal. The question therefore becomes whether any specified
operation has been timeously begun. So far as this case is concerned, (d)
and (e) are the main specified operations, though (a) may also be
relevant. In considering the application of these provisions it is important to
remember that the effect of their application is to preserve ‘vested and
valuable rights’.
Mr Keene
submitted that ‘specified operations’ had been carried out in a number of
different respects, the establishing of but one of which would be sufficient to
achieve his purpose. Operations which had as a matter of history taken place
between April 18 1950 and March 31 1974 fell, generally speaking, into two
categories:
(a) Development in accordance with fresh
applications in accordance with the regulations on form TP1 and granted on form
TP3. These were listed in the affidavit sworn by Mr Craig to which I have
referred. I shall call these ‘category (a) developments’.
(b) Development in respect of which no
application of any kind has been made. I shall refer to these as ‘category (b)
developments’. They are also referred to in Mr Craig’s affidavit and consisted
of four estate roads and a number of changes of uses such as car-parking areas
and stacking areas.
Hodgson J
asked himself the question in relation to these two categories: ‘Has there been
development?’ accepting that before any
development could be a ‘specified operation’ it had to relate to WAL 326 in the
sense that that phrase was used in the judgment of Eveleigh LJ in Malvern
Hills District Council v Secretary of State for the Environment (1982)
81 LGR 13 at p 25.
It is
convenient to deal first with category (b) developments, that is those
‘developments’ in respect of which no separate application had been made.
Hodgson J reviewed, first of all, the roads which had in fact been constructed.
Their positional coincidence with the roads shown on the 1949 plan varied from
close approximation (if not exact coincidence) in the case of road 4, to road 3
which may have served the same purpose to a road shown on the 1949 plan but
which had little or no geographical relationship. For the purpose of achieving
the continued existence of WAL 326, it was sufficient if road 4 qualified as a
‘specified operation’. It is not necessary to refer further to Hodgson J’s
careful analysis of this evidence. I must now, however, refer to some further
parts of his judgment on ‘category (b)’.
He [Mr Keene]
submits further that non-compliance with a condition does not turn the acts
relied upon into development without planning permission but into development
in breach of condition, against which the planning authority can, if they wish,
take enforcement proceedings. Such breach of condition does not, he submits,
prevent the acts done from implementing the permission. He cites Kerrier
District Council v Secretary of State for the Environment (1980) 41
P&CR 284, Clwyd County Council v Secretary of State for Wales [1982]
JPL 696 and FG Whitley & Sons Co Ltd v Secretary of State for
Wales The Times, October 24 1989.
I do not
think that the general proposition so stated is in dispute but, on behalf of
Elmbridge, Mr Boydell submits that Condition 2 is a condition precedent of the
sort considered by the House of Lords in Grampian Regional Council v City
of Aberdeen District Council (1983) 47 P&CR 633. Mr Keene submits that
the concept of condition precedent is not one which is established in English
planning law. In any event he submits that the two conditions in WAL 326 cannot
possibly be construed as conditions precedent. Whatever the answer to the first
submission, I have no doubt that conditions 1 and 2 cannot be construed as
conditions precedent or ‘negative’ conditions of the type considered in Grampian.
It seems to me to follow that, although the changes of use were in breach of
condition and the road development may have been in breach of condition, in
neither case does this prevent these developments from being developments to
which the WAL 326 permission relates.
With respect
to Hodgson J I find that I must part company with him on this part of his
judgment. Mr Boydell relied upon the judgment of Woolf J in Etheridge v Secretary
of State for the Environment (1983) 48 P&CR 35 for the proposition that
development in breach of condition would not be a
event, WAL 326 being an approval in principle only, there was no development
which could be implemented otherwise than by first obtaining approval in detail
and subsequently beginning to execute it. I have no hesitation in agreeing with
this approach.
In my
judgment, WAL 326 gave no permission for any physical development to be carried
out unless there had been prior approval of a detailed plan. The 1949
application sought only ‘approval in principle to an outline development plan’.
It is well established that a planning consent with or without conditions can
never grant more than is sought in the application.
Hodgson J, in
the passage just cited from his judgment, appeared to think that Mr Boydell
agreed with Mr Keene’s proposition that ‘development’ in breach of condition
would qualify for the purposes of para 19(1) of Schedule 24 to the 1971
Act contrary to the judgment of Woolf J.
If this were so, then he had clearly misunderstood Mr Boydell’s position, which
was, of course, exactly to the contrary. Kerrier District Council v Secretary
of State for the Environment (1980) 41 P&CR 284 referred to a
permission to build a specific house subject to conditions and not a permission
in principle and raised a different point. Clwyd County Council v Secretary
of State for Wales [1982] JPL 696 and F G Whitley & Sons Co Ltd v
Secretary of State for Wales [1990] JPL 678* raised different arguments and
issues and can likewise be distinguished. The only decision directly in point
is that of Woolf J in Etheridge and, as I have already said, I
unreservedly agree with it. It should be noted, however, that Etheridge
was cited neither to Hodgson J nor to the court in Whitley.
*Editor’s
note: Also reported at [1990] 2 PLR 44.
Hodgson J then
turned to consider seven cases of alleged change of user. He referred to ‘a
great deal of industrial building development’ as listed in the schedules
already mentioned in this judgment and to the fact that the planning authority
must have been aware of these and he also referred to the category (b)
developments. He then quoted from a letter written by Surrey on May 30 1963
confirming that they had no intention of revoking or modifying WAL 326 and
continued:
Finally, we
know that, during the 24 years up to 1974 no enforcement proceedings were taken
against a developer in respect of the roads or changes of use.
It seems to
me that there are only two possible explanations of that state of affairs. The
first is that a large and responsible undertaking did substantial development
of land without any permission at all and the planning authority, which must
have known what was going on, did nothing about it. The second is that the
planning authority considered the development to come within WAL 326 and, not
being dissatisfied with any of it, forbore to take action for the breaches of
condition 2 or (if they considered the road variations material) condition 1.
It seems to me that the second of these alternatives is much the more probable.
I do not
think it is necessary for me to look in detail at the seven alleged changes of
use. They (together with the roads) seem to me to be typical examples of what
Lord Denning MR referred to in Camrose as the ‘lay-out of an industrial
estate, complete with roads, ready for the industrialists to come’. It is clear
that not only the roads, but some at least of the car parking and storage uses,
were prepared for by, eg tarmacadaming before the industrial building took
place.
I conclude
therefore that the seven changes of use were also development to which WAL 326
relates.
Since any
development to which the permission relates will suffice, so long
Eveleigh LJ in Malvern Hills) it is not strictly necessary for me to
consider whether the word ‘relates’ bears the wider meaning contended for by Mr
Keene so that all the building development or, at least, the extension,
suffices to prevent the permission from lapsing. But, nevertheless, I ought to
reach a conclusion on this aspect of the case also.
It is plain
from its terms that WAL 326 contemplated staged industrial building development
over the whole site. When it took place was it development to which WAL 326
related? If I have understood his
submissions correctly, Mr Keene has two arguments on this aspect of the case.
First he says that condition 2 contemplates, inter alia, future built
development and therefore plainly relates to such development. Alternatively,
if condition 2 is concerned only with development which can take place without
obtaining an IDC, it still relates to future built development.
I do not
think that the first of those submissions can be right. It involves a condition
being imposed in respect of development which the permission cannot permit: see
section 14(4) of the Act of 1947.
But the
second submission seems to me to have force. The words used in para 19 of
Schedule 24 are ‘if the development to which it relates had not been begun’,
not ‘if the permitted development had not been begun’. In ordinary usage of
language I think that ‘relates’ in para 19 must be given a wider meaning than
one restricting it to development actually permitted by the consent. As I have
said already, WAL 326 plainly and in terms contemplates built development
taking place in stages and over the years. Such development plainly has taken
place and I think it is not possible to say that WAL 326 does not ‘relate’ to
that development.
In my
judgment, the failure to take enforcement proceedings in respect of the
category (b) developments can be of only limited assistance in the exercise of
construing WAL 326. At the most it can only reflect the view of the planning
officers advising the authority at the time of any particular development which
may have taken place years after the issue of WAL 326. There may, in any event,
have been numerous other perfectly valid explanations for this failure to take
enforcement action. Certainly I find no reason to reconsider my initial
construction of WAL 326 to the effect that it did not permit, without
subsequent approval of details under para 2 of Schedule 2, any physical
development such as the building of estate roads or the making of substantial
changes of use. I cannot agree that any of the category (a) or category (b)
developments related to WAL 326 and am forced to the conclusion that Hodgson J
was not justified in drawing the conclusions to the contrary which he reached.
Mr Robert Gray
QC, who appeared with Mr Boydell, directed his submissions to the third issue,
namely whether any of the developments had been related to WAL 326. The
submissions of Mr Gray may, I hope, fairly be summarised as follows:
(1) The purpose of WAL 326 was to protect the
landowner who might in the future seek permission to develop the land for
general industrial purposes.
(2) This position did not arise until the
mid-1970s. During the 1950s and 1960s all the developments for which approval
was sought and those for which approval was not sought were in relation to
Vickers’ or BAC’s aeronautical activities.
(3) There was no contemporary event which could
be objectively considered to be an implementation of WAL 326 within the tests
laid down in the Malvern Hills case.
So far as the
developments which were the subject-matter of approvals granted in respect of
discrete planning applications in the category (a)
application forms TP1 merely referred to WAL 326 as part of the planning
context, while the developments themselves related in the main to the
aeronautical activities of Vickers and not to the development of the site as a
whole for general industrial purposes.
Notwithstanding
Mr Keene’s skilful argument to the contrary, I cannot agree that these
operations can be said to have related to the development permitted by WAL 326
in the terms stated by Eveleigh LJ in the Malvern Hills case. The
permission was for ‘development of industrial site’ in respect of which nothing
was to take place physically until ‘detailed plans of the layout of buildings,
open spaces and drainage and particulars of the types of industries to be
provided’ had been submitted to and approved by the planning authority. I have
no doubt that what was contemplated by Walton and readily accepted by Vickers at
the time when WAL 326 was granted was that, if and when the site was to be
developed by Vickers or their successors in title as a general industrial site,
the overall plan was to be submitted in detail including access roads,
especially a part of the layout of buildings and drainage facilities which
would in turn depend upon the types of industry in contemplation and the
special requirements for special facilities etc. Although there was mention in
the contemporary correspondence of gradual development, I do not believe that
the parties contemplated piecemeal implementation of WAL 326. Any development
of this kind would be the subject of freestanding individual applications
supported, where necessary, by individual IDCs. In particular, I am unable to
accept that a requirement that there should be an overall plan submitted and
approved in detail in the respects listed in para 2 of the Second Schedule
would be totally impracticable from a developer’s point of view. On the
contrary, as I have said, this is what I think Walton had in mind when they
included para 2 of Schedule 2, and Vickers, in their frame of mind at the time,
would be only too ready to accept if it were necessary to achieve, in effect if
not in form, the change in the zoning for the site which they sought. In my
judgment, Mr Gray’s submissions were justified. He has satisfied me that none
of the category (a) or category (b) developments could be said to have related
to WAL 326.
For these
reasons I have come to the conclusion that Hodgson J was wrong when he held
that WAL 326 had not lapsed. I am firmly of the view that it did lapse on March
31 1974 under the provisions of para 19(1) of Schedule 24 to the 1971 Act, no
development relating thereto having been begun by that date. I would
accordingly allow the appeal, set aside the order of Hodgson J together with
his consequential declaration and would make a declaration accordingly.
TAYLOR LJ: I agree.
BELDAM LJ: I agree that the appeal should be allowed and the order of Hodgson J
of March 26 1990 should be set aside.
The question
raised by this appeal is whether a grant of planning permission dated April 18
1950 made by Walton and Weybridge Urban District Council in respect of an
industrial site at Brooklands ceased to be capable of implementation by the
respondents or their predecessors on April 1 1974.
The answer to
the question depends on:
(a) what was the development permitted by that
permission?;
(b) whether the development to which the
permission related had begun before ‘the beginning of 1968’; and
(c) whether work on construction or development
carried out on the site between April 18 1950 and April 1 1974 was development
to which that permission related.
What was
the development permitted by the planning permission dated April 18 1950?
In May 1949,
when the application for permission to develop was made, the large site whose
perimeter was bounded by the Brooklands motor racing circuit was used by
Vickers-Armstrong Ltd for aeronautical industry purposes, partly as aircraft
works and partly as an airfield. There was no immediate intention on the part
of the applicants to change that user or on the part of the planning authority
to permit its change. But it was realised that at some time in the future,
owing to technological developments in the aircraft industry, the airfield
would not be large enough for the operation of the aircraft of the future and
the applicants would probably, therefore, wish to develop other industrial uses
on the whole of the site. Accordingly, on May 25 1949, after consulting the
planning authority, they made application in principle for development of the
industrial site at Brooklands, Weybridge. At that time it was not possible to
apply for outline planning consent, though the use of the phrase ‘application
in principle for development’ was the forerunner of an outline application.
Applications for permission in principle were made under the Town and Country
Planning (General Interim Development) Order 1946 (SR & O 1946 No 1621)
para 10. An application made under that paragraph was made to the interim
development authority and had to be accompanied by a plan in triplicate
sufficient to identify the land to which the application related which was
called ‘a site plan’. It also had to be accompanied by particulars illustrated
by plans and drawings in triplicate sufficient to show the ‘proposed
development’. However, it was not necessary to furnish plans and drawings,
other than the site plan, in any case where the proposed development was
sufficiently described by the particulars and the site plan or where the
application was expressed to be an application for general permission
conditional on the subsequent approval by the authority of the particulars of
the proposed development.
The General
Interim Development Order of 1946 was superseded by the General Development
Order of 1948, which contained no equivalent provision, but it is accepted that
application for permissions in principle continued to be made as if made under
para 10 of the order of 1946.
The
application made for the development of the Brooklands site by
Vickers-Armstrong Ltd was accompanied by a site plan but not by particulars
illustrated by plans and drawings sufficient to show the proposed development.
That is not surprising since what was sought was:
Approval in
principle to an outline development plan for permanent industry.
The proposed
development was stated to be ‘Part industrial development. Part residential
development’.
On February 28
1950 the north-west Surrey area subcommittee of the planning authority met to
consider the application. It is recorded in the minutes of the meeting that the
Air Ministry and Ministry of Supply had been asked for their views regarding
‘the present use of the part of the area as an airfield’ and after
consideration it was resolved to recommend that in view of the information
received regarding the future use of part of this area as an airfield the
recommendation of the Walton and Weybridge Urban District Council be approved
and that approval be given to the proposal in principle, subject to detailed
plans of the layout of buildings, open spaces and drainage, also the types of
industries to be provided, being submitted to and approved by the planning
authority before any development takes place. This recommendation was
implemented by planning permission WAL 326 in which the council signified in
writing their approval, subject to the conditions
industrial site at Brooklands, Weybridge’. There were two conditions in the
Second Schedule:
1. No
variations from the deposited plans and particulars will be permitted unless
previously authorised by the Walton and Weybridge Urban District Council.
2. This
approval is given subject to detailed plans of the layout of buildings, open
spaces and drainage and particulars of the types of industries to be provided,
being submitted to and approved by the Planning Authority before any
development takes place.
The only plan
which had been deposited and the only particulars were the site plan and the
particulars contained in the application.
The appellant
authorities do not seek to argue that the comprehensive reservations contained
in the conditions deprived WAL 326 of the character of a permission for
development as defined in section 12 of the Town and Country Planning Act 1947.
The
respondents accept that it would have been necessary for them to furnish plans
and drawings of any proposed development; nor was it argued that the
development was sufficiently described by the particulars and the site plan; so
the permission could only grant a general permission conditional on the
subsequent approval by the planning authority of particulars of any development
for which approval might be sought in accordance with condition 2 in the future.
It did not, I would hold, itself permit construction of any works or buildings
or any development. The word ‘development’ in the condition ‘before any
development takes place’ must have the meaning given to it in Part III of the
Town and Country Planning Act 1947, section 12(2), so that detailed plans of
the layout, open spaces, drainage and particulars of the types of industries
had to be provided before any building, engineering, mining or other operations
on the land or the making of any material change in the use of any buildings or
other land could begin. And in this context, following the definition of
engineering operations in section 118 of the Act, it would preclude the making
or building of any new roads.
Thus, I would
hold that the grant of planning permission WAL 326 was effective as a grant of
permission for development of the site at Brooklands for general industrial
use, as opposed to its being devoted exclusively to the aeronautical industry,
but conditional upon prior approval by the planning authority of the layout of
any site and buildings and of the types of industry proposed before any change
of use could be implemented.
Was the
development to which the permission related begun before the beginning of 1968?
After the
coming into force of the Town and Country Planning Act 1968, the permission
granted in 1950 was, if the development to which it related had not been begun
before the beginning of 1968, deemed to have been granted subject to a
condition that the development must be begun not later than the expiration of
five years beginning with April 1 1969. It is thus necessary to decide whether
the development to which the permission related had been begun before the
beginning of 1968 or, if not, before April 1 1974. On this question the respondents
relied on the wording of section 43 of the Town and Country Planning Act 1971,
which is applied to the Brooklands permission by para 21 of Schedule 24 to that
Act. They argued that between 1950 and April 1 1974 they had begun the
development to which the planning permission related by beginning specified
operations comprised in the development. In particular they relied upon the
construction of a number of buildings and
or not. It is to be noted that to qualify, specified operations must be
comprised in the development to which the permission relates.
If I have
correctly construed the meaning of the permission granted by WAL 326, it was
not effective to grant permission for the erection of buildings or the
construction of any roads until plans had been submitted and approved, but the
respondents argue that even works and operations carried out in breach of
condition 2 of the permission could be relied upon as specified operations
beginning the work. In so far as they relied on the construction of any
buildings on the site, it is clear that they were not specified operations
comprised in the development to which the permission related. They were
entirely attributable to development in connection with the existing use of the
site for aeronautical industry purposes. The sites marked on the plan BAC 4
were, except in the case of site 12, all occupied by Vickers-Armstrong Ltd and
its successors and were used for the aeronautical industry. Site 12 was
occupied by a firm of builders whose business was confined to maintaining the
buildings and installations of the aeronautical industry. No permission had
ever been granted for the erection of buildings for any other use.
The
respondents sought to argue that the plan described by them as a site plan and
submitted in May 1949 with their application showed upon it the lines of roads
described in the key as ‘new estate roads, estate road widening and new paved
areas’. The permission granted in May 1950 was thus effective to grant
permission for the construction of these roads and areas and that as they had
since erected roads, one at least of which was approximately on the line of one
of the roads shown on the site plan, and had laid out car-parking areas, those
constituted operations comprised in the development to which the permission
related. However, this road was in fact constructed largely, if not entirely,
for the purpose of transferring partly constructed aircraft from the east part
to the west part of the aircraft factory site. Its remaining use was as access
by employees from one site to the other across the airfield. The car-parking
areas were used only by those who worked in the aeronautical industry.
Accordingly, I would hold that such works were carried out pursuant to the
existing use and were not comprised in any development to which the permission
WAL 326 related.
It was also
suggested in argument that, even if the specified operations were not comprised
in the development to which the permission related, there had been a change in
the use of parts of the land which amounted to material development under
section 43(2)(e).
Section 43(3)
defines material development to mean any development other than ‘. . . (c)
development of any class prescribed for the purposes of this subsection’.
‘Prescribed’ means prescribed by regulations under the Act; but until the
coming into force of the first regulations made under the Act the relevant
regulations were the Material Development Regulations 1967 made by the Minister
of Housing and Local Government on February 27 1967 under powers granted under
sections 98 and 99 of the Land Commission Act 1967, applied to the Town and
Country Planning Act 1968 by the Land Commission (Dissolution) Act 1971,
section 6(1) and Schedule 2, para 1(2), and continued in force under the Town
and Country Planning Act 1971, Schedule 24, para 22. Under those regulations
the carrying out of certain operations or works and the making of certain
changes of use described in paras 1 to 16 of Part I of the Schedule to them, in
so far as it might constitute development, are excepted from the definition of
‘material development’. In particular, development carried out by industrial
undertakers on land used for the carrying out of any industrial process, and
for the purposes of such process,
ways and development by the extension or alteration of buildings, so long as
the gross floor space of the original building is not exceeded by more than
5,000 sq ft, does not amount to material development (see para 7). The erection
of any building exceeding 5,000 sq ft could not have been comprised in the
development by virtue of section 14(4) of the Town and Country Planning Act
1947.
To the extent
that the respondents’ predecessors constructed roadways and erected buildings
in the course of carrying on, and for the purpose of, their user of the site
for the aeronautical industry, it did not amount to material development which
could be regarded as beginning the development to which the planning permission
WAL 326 related.
Accordingly, I
would hold that no development to which the permission WAL 326 related had been
begun before the beginning of 1968 or before April 1 1974.
On this
reasoning it is unnecessary to consider the interesting argument addressed to
the court that development carried out in breach of conditions can be regarded
as development to which the permission related and whether for the purposes of
planning permission conditions can properly be regarded as ‘conditions
precedent’. But, if it had been necessary to do so, I would have expressed my
agreement in principle with the view of Woolf J (as he then was) in Etheridge
v Secretary of State for the Environment (1983) 48 P&CR 35 that
development carried out without permission or commenced in contravention of
conditions of a permission would not be development to which the permission
related because it was development carried out in breach of planning control
and so not permitted. However, the importance and nature of the condition and
the extent of and reasons for breach may in some circumstances be relevant
considerations and I would prefer to reserve an opinion on the question for a
case in which it is necessary to decide it.
Appeal
allowed. Order below set aside and application for judicial review dismissed.
Elmbridge to have costs of appeal and below; no order as to Surrey’s costs of
appeal. Leave to appeal to the House of Lords refused.
May 21 1991.
The Appeal Committee of the House of Lords (Lords Bridge of Harwich, Ackner and
Lowry) dismissed a petition by Oakimber Ltd for leave to appeal.
