Outline planning permission — Reserved matters — Interpretation of planning condition — Whether approval of all reserved matters required before any part of development could begin — Whether legitimate expectation as to meaning of planning condition
On 25 January 1995 the respondent council granted outline planning
permission for the redevelopment of a large site owned by the applicant,
Powergen. The permission was subject to a number of conditions; condition 1
required an application for approval of reserved matters within three years.
Condition 2 required submission and approval by the council of reserved matters
‘before the development is begun’. In December 1997 Powergen made an
application for approval of reserved matters in respect of part of the proposed
development, a food store. On 12 January 1998 Powergen applied under section 73
of the Town and Country Planning Act 1990 to extend the time-limit for the
submission of the reserved matters in respect of the rest of the site to four
years. On 20
of the food store. On 3 August 1998 Powergen applied under section 73 for a
variation of condition 2 so as to restrict the operation of that condition to
those parts of the development for which approval of the reserved matters had
not been obtained. On 9 March 1999 the council refused both the section 73
applications. Powergen applied for, inter alia, judicial review of the
refusal to vary condition 2. The following issues arose for decision:
(a)
requirement of the planning permission that all reserved matters be approved
before any part of the development could begin; (b) if yes, whether, in
reliance on certain correspondence from the planning officer, Powergen had a
legitimate expectation that condition 2 would be interpreted by the council so
as to permit development to begin on a part of the site for which approval of
reserved matters had been obtained even if approval had not been granted in
respect of the remainder of the site; and (c) if the answer to (a) was yes, and
to (b) was no, whether the refusal to vary condition 2 was unlawful.
(a) The words ‘development’
and ‘site’ meant the whole development and site. The natural meaning of the
words did not produce an unreasonable and commercially unacceptable result. On
the date of the grant of the planning permission, it was possible to
contemplate that Powergen would be able and would wish to submit details of the
reserved matters of the whole of the site within the three-year period. Section
73 is designed precisely to give the kind of flexibility that is required in
the real
appeal to the commercial absurdity to the natural interpretation of condition
2. Under condition 2 all reserved matters were to be approved before any part
of the development could begin: see p97F.
(b) The planning officer had no actual authority to vary or waive
the planning conditions. The legitimate expectation argument failed for the
fundamental reason that the officers had no delegated power to vary or waive
the planning conditions, to which the planning permission was subject, and any
undertaking purportedly given by them was not binding on the council. The
representations relied on were not sufficient to found a legitimate
expectation: see p102E et seq.
(c) The decision to refuse to vary condition 2 was not unlawful
having regard to the decisions in R v London Docklands Development
Corporation, ex parte Frost (1996) 73 P&CR 199 and Pye v Secretary
of State for the Environment [1998] 3 PLR 72: see p103H et seq.
Allied London Property Investment Ltd v Secretary of
State for the Environment (1996) 72 P&CR 327
Lever Finance Ltd v Westminster (City) London Borough
Council [1971] 1 QB 222; [1970] 3 WLR 732; [1970] 2 All ER 496; (1970) 21
P&CR 778, CA
Maritime Electric Co Ltd v General Dairies Ltd [1937]
AC 610; [1937] 1 All ER 748, PC
Pioneer Aggregates (UK) Ltd v Secretary of State for
the Environment [1985] AC 132; [1984] 3 WLR 32; [1984] 2 All ER 358; (1984)
82 LGR 488; 48 P&CR 95; [1984] 2 EGLR 183; 272 EG 425; [1984] JPL 651, HL
Preston v IRC [1985] AC 835
Pye v Secretary of State for the Environment, Transport
and the Regions and North Cornwall DC [1998] 3 PLR 72; [1999] PLCR 28;
(1998) 95(19) LSG 25
R v Inland Revenue Commissioners, ex parte MFK
Underwriting Agencies [1990] 1 WLR 1545; [1990] 1 All ER 91
R v London Docklands Development Corporation, ex parte
Frost (1996) 73 P&CR 199
R v Secretary of State for the Environment, ex parte
Percy Bilton Industrial Properties Ltd (1975) 74 LGR 144; 31 P&CR 154
Western Fish Products Ltd v Penwith District Council
[1981] 2 All ER 204; (1978) 77 LGR 185; 38 P&CR 7; [1978] JPL 623, CA
Judicial review
This was an application by Powergen UK Ltd by way of judicial
review challenging the decision by Leicester City Council to refuse to vary a
condition to allow development to be carried out without approval of reserved
matters under section 73 of the Town and Country Planning Act 1990.
of Birmingham) represented the applicant, Powergen UK Ltd.
respondents, Leicester City Council.
appeared for Safeway Stores plc as an interested party.
DYSON J: Powergen owns a large site at Raw Dykes Road,
immediately south of the centre of Leicester on which there was formerly a
power station. On 25 January 1995 Leicester City Council (LCC) granted planning
permission for ‘Redevelopment of site for Retail Use (Class A1), Business Use
(Class B1), Petrol Filling Station (Sui Generis), Public House/Restaurant
(Class A3) and Open Space.’ The interest of Safeway Stores plc derives from the
fact that it operates a food store whose turnover would be adversely affected
by the development of a food store as proposed by Powergen.
The planning permission was subject to 25 conditions, the first two
of which lie at the heart of this case. Part I describes the details of the
proposal in the way I have just summarised. Part II states:
In pursuance of its powers under the Town and Country Planning Act
1990, the Leicester City Council grants outline planning permission for the
carrying out of the development referred to in Part I hereof in accordance with
the application and plans submitted subject to the following conditions:
1. Application for approval of reserved matters shall be made
within 3 years from the date of this permission and the development shall be
begun not later than:
(a) five years from the date of this permission; or
(b) if later, two years from the date of the final approval of all
the reserved matters.
(To comply with Section 92 of the Town and Country Planning Act
1990.)
2. Detailed plans and particulars of the siting, design, external
appearance and means of access to the development, and the landscaping of the
site (referred to in Condition 1 as reserved matters) shall be submitted to and
approved by the City Council as local planning authority before the development
is begun and shall have regard to:…
In his third affidavit, Mr Cardwell of WS Atkins Consultants Ltd,
who has been advising Powergen, explains why there was a delay in submitting an
application for approval of the reserved matters. The demolition of the power
station was not completed until October 1996. Site surveys had to be carried
out to check for contamination, and diesel contamination was discovered. The
necessary remediation work was not completed until December 1997.
On 17 November 1997, Powergen let a contract for the construction
of the Link Road that was to be built across the site as part of the
development. Work on this was completed on 1 May 1998. Furthermore, Powergen
agreed to pay LCC £1m as a road licence fee. Payments were made by monthly
instalments in November 1997. A formal road contract was made between Powergen
and LCC on 13 February 1998. By March 1999 the total sum that had been expended
by Powergen in respect of the development was approximately £5.7m.
Towards the end of November 1997 Powergen was preparing to make an
application for the approval of the reserved matters. It will be recalled that
condition 1 of the planning permission required the application to be
made before 25 January 1998. There was discussion with LCC’s officers as to
whether it was necessary to submit an application for approval of all the
reserved matters by 24 January 1998. By this time, Powergen had decided only to
submit reserved matters for that part of the site that was to be developed by
William Morrisons Supermarkets plc as a superstore of some 83,000 sq ft. I
shall refer to this part of the site as ‘the food store’.
Mr Busby of the LCC Development Control Group wrote Powergen a
letter, dated 26 November 1997, which included the following:
The Council is concerned about what will happen to the rest of the
site and whether the remainder will make sense in terms of the overall planning
of the site. This is likely to affect the Council’s consideration of the
application unless other reserved matters, e.g. public open space, nature area,
footpath and cycle path networks, are submitted at the same time and it can be
demonstrated how the proposed supermarket will relate to the remainder of the
site. The deadline for all reserved matters is 24th January 1998 barring some
details that could be the subject of planning conditions should permission be
granted.
Mr Busby wrote again on 19 December saying:
Reserved matters for the other aspects of the outline scheme
should be submitted to agree with the description. If they are not submitted
before 25th January 1998 the outline permission may lapse.
At a meeting between representatives of LCC and Powergen on
3
be determined ‘owing to the commercial nature of the development’. An
application for approval of reserved matters in respect of the food store was
made on 22 December. On 8 January 1998 Powergen submitted a number of
amendments to the application. As it stated in its letter of that date, only
the food store was the subject of the application, but it had supplied ‘an
indicative layout of the remainder of the site’. The application was duly
registered.
Powergen decided to seek an amendment to condition 1 of the
planning permission, to enable it to submit proposals for the reserved matters
in respect of the rest of the site. Accordingly, on 12 January 1998 it made an
application to LCC under section 73 of the Town and Country Planning Act 1990
(the Act) to extend the time-limit for the submission of the reserved matters
to four years.
On 14 January 1998 Mr Evans, Assistant Director Urban Management of
LCC, wrote a letter to Powergen on which Mr Taylor QC relies heavily for one of
his submissions. Having referred to the fact that the officers had advised that
an indicative layout showing the feasibility of satisfactorily developing the
remainder of the site in accordance with the outline planning permission was
necessary, Mr Evans continued:
With regard to the ‘registering’ of the application, it is in all
the parties’ interests that the Council is absolutely sure that the application
is a valid one (for example, should there be a legal challenge to a subsequent
planning decision). The application for reserved matters approval was in fact
only
of the site. The deadline for submitting reserved matters for the whole site is
25th January. The advice of the Council’s Head of Legal Services has been
sought to ensure the application is a valid one. I am advised it is but also
that unless a reserved matters application for the rest of the site is received
by 25th January the outline permission for the remainder of the site will
lapse. You are no doubt aware of this too.
Mr Busby wrote a letter to similar effect on 16 January.
Powergen did not submit an application for approval of reserved
matters in respect of the remainder of the site before 25 January 1998, or at
all. The application for approval of the reserved matters in relation to the
food store site was approved by LCC on 20 May 1998.
By letter to Mr Cardwell, dated 22 June 1998, Mr Busby noted that
Powergen did not intend to make an application to vary condition 2 to allow for
development on part of the site to proceed before approval of reserved matters
on the rest of the site, and continued:
Development can proceed only if the Section 73 application
(98/0044) for the variation of condition 1 of the outline permission to allow
for an extension of the time limit for the submission of reserved matters is
approved and subsequent applications for approval of all outstanding reserved
matters are also approved.
On 3 August 1998 Powergen applied under section 73 for a variation
of condition 2 so as to restrict the operation of that condition to those parts
of the development for which approval of the reserved matters had not been
obtained. It also made a fully detailed application for planning permission for
office, restaurant and public house development on part of the site for which
approval of reserved matters under the 1995 permission could have been sought.
This application did not cover the entirety of the balance of the site, and it
excluded the food store. LCC granted permission on 4
On 9 March 1999 LCC refused both the section 73 applications. They
refused to vary condition 1 so as to extend the time for submission of reserved
matters for approval, and they also refused to vary condition 2 to allow work
to start on the food store without obtaining approval of the reserved matters
in respect of the rest of the site. The reasons given for the refusal to vary
condition 2 were:
1. The effect of varying condition 2 would be to allow work to
begin on a food superstore having reserved matters approval. That development
would be contrary to Policy S6 of the Leicester Local Plan which states that
planning permission will not normally be granted for superstores on the city.
2. There is no quantitative need for additional large food stores
in the Central Leicestershire area.
3. The regeneration of the site by development of retail uses in
preference to other more central sites identified for regeneration and which
have been identified as being available, suitable and viable, could have an
adverse effect on the continued investment in the City and other centres by
competing for investment.
In the proceedings before me, Powergen does not seek to challenge
the refusal to vary condition 1. The relief it claims, however, includes an
application for judicial review of the refusal to vary condition 2.
Issues
The following issues arise:
(a) whether, upon the true construction of condition 2, it was a
requirement of the planning permission that all reserved matters be approved
before any part of the development could begin;
(b) if yes, whether Powergen had a legitimate expectation that
condition 2 would be interpreted by LCC so as to permit development to begin on
a part of the site for which approval of reserved matters had been obtained,
even if approval had not been granted in respect of the remainder of the site;
(c) if the answer to (a) is yes, and (b) is no, whether the refusal
to vary condition 2 was unlawful.
First issue: the true construction of condition 2
Mr Taylor submits as follows. It was not a requirement of the
planning permission that the whole site had to be developed in one stage, or
even that the whole site had to be developed. The development comprised
discrete elements, namely the food store, various office buildings, a public
house etc. Moreover, condition 8 expressly contemplated the possibility of the
development being undertaken in phases, viz: ‘If the development is
carried out in phases…’. It is commercially unrealistic to require all the
details of this large site to be finalised before permitting any part of the
development to begin. On the literal interpretation for which the respondents
contend, the planning permission was unworkable. It is absurd to demand of
Powergen that it finalise the details of the office buildings as a condition of
being permitted to start work on the food store, when it has not yet found
tenants for those buildings. To require Powergen to incur the expense of
preparing a detailed design of the offices on a speculative basis makes no
commercial sense.
As for the language of condition 2 itself, the word ‘development’
can mean either the whole or a part of the development, and the court should
give a purposive and sensible commercial meaning to the word, and construe it
as if it refers to the parts and not the whole of the development.
Mr Taylor also relies on R v Secretary of State for the
Environment, ex parte Percy Bilton Industrial Properties Ltd (1975) 31
P&CR 154 in support of his argument. Since this authority is relevant to
the first two issues that I have to decide, I need to consider it in a little
detail.
The facts were as follows. In 1952 outline planning permission was
granted to develop 22 acres of land for industrial purposes. The permission
contained the condition:
The approval of the local planning authority is required before
any development is commenced, to its (a) siting …
From time to time thereafter, details were put forward and approved
in
approval of details in respect of areas that had not yet been built on. The
local planning authority made no decision with regard to these applications.
The Secretary of State held that: (a) he had no jurisdiction to deal with the
appeals since they were out of time; and (b) the applicant was in breach of the
condition requiring approval of details as to siting, in that, since no
development of any kind could lawfully have taken place until agreement had
been reached with regard to the siting of the buildings, the entire development
had been unlawful.
It is important to note that the statutory three-year time-limit
for the approval of reserved matters did not apply to cases where outline
planning permission had been granted before 1 April 1969. Accordingly, if the
permission granted in 1952 was a single permission, the time-limit did not apply.
The main judgment was given by Lord Widgery CJ. At pp158‑159 he rejected
the argument that there was a collection of separate permissions, rather than a
single and indissoluble permission. He then went on to consider whether the
single permission had been varied, and decided that, on the facts of that case,
it had not. It seems to me, therefore, that the Bilton case clearly does
not assist Mr Taylor on the first issue. I shall return to it when considering
the second issue.
I cannot accept Mr Taylor’s submissions, and largely for the
reasons advanced by Mr Ouseley QC and Mr Davey. At one stage of his argument,
Mr Taylor appeared to pray in aid the understanding of the officers in support
of his interpretation of condition 2. Later, however, I believe that he
accepted that the question of interpretation was one for the court, and that it
had to be determined solely on the basis of the meaning of the permission
itself, and any documents incorporated by reference into it. As Mr Ouseley
points out, the planning permission is a public document, not a private
document between Powergen and LCC.
In my view, the literal and natural interpretation of condition 2
is that it requires all details to be submitted etc before development can
begin. This interpretation does not require the addition of any words. The
natural meaning of ‘the development’ is all the development that is the subject
of the application, and the natural meaning of ‘the site’ is all the site that
is the subject of the application.
Part II of the planning permission states that permission is
granted for the ‘development referred to in Part I hereof’. Part I lists all
the elements of the development and not merely some parts of it. Moreover, Mr
Taylor accepts that the word ‘development’, where it appears in condition 1,
means the whole or entire development. Condition 2 refers to:
Detailed plans … to the development, and the landscaping of the
site (referred to in condition 1 as reserved matters) shall be submitted …
before the development is begun…
It would be strange if the word ‘development’ were to bear a
different meaning in the two conditions, but that is the effect of Mr Taylor’s
submission.
Mr Ouseley examined a number of the other conditions where the
words ‘development’ and ‘site’ appear, and submitted that in those conditions
the words refer to the whole development or site. It could not be intended that
these words bear different meanings in the different conditions. It is
sufficient to mention condition 8, which provides:
If the development is carried out in phases, then the approved
landscaping scheme shall also be carried out in phases, each phase of the
landscaping scheme to be carried out within one year of completion of the phase
of development to which it relates.
It is clear that the word ‘development’ in condition 8 must be a
reference to the whole development. The other conditions relied on by
Mr
I would accept that it is not impossible for the same words to bear
different meanings in the same document. But, in my view, it is reasonable to
suppose that it was intended that words should bear the same meaning in
different parts of the document unless the context clearly showed otherwise. I
find nothing in the planning permission to indicate that, where they appear in
condition 2, the words ‘development’ and ‘site’ mean anything other than the
whole development or site. The express reference to condition 1 in condition 2
powerfully suggests that Mr
me that Mr Taylor’s interpretation is not the natural meaning of the words used
in condition 2. As was implicitly acknowledged by Powergen in its application
to vary the condition on 3 August 1998, that interpretation requires the
insertion of the words ‘or phase of the development’ after ‘before the
development’ and before ‘is begun’.
The question remains whether what I consider to be the natural
meaning of the words cannot have been intended because, as Mr Taylor submits,
it produces an unreasonable and commercially unacceptable result. I do not
think that it does. Viewing the situation as at the date of the grant of
planning permission, it was possible to contemplate that Powergen would be
able, and wish, to submit details of the reserved matters of the whole of the
site within the three-year period. But if it became clear that Powergen was
unwilling or unable to submit details of all the reserved matters before 25
January 1998, it could make an application under section 73 of the Act to vary
condition 1, or conditions 1 and 2 together. So far as material, section 73
provides:
(1) This section applies, subject to subsection (4), to
applications for planning permission for the development of land without
complying with conditions subject to which a previous planning permission was
granted.
(2) On such an application the local planning authority shall
consider only the question of the conditions subject to which planning
permission should be granted, and —
(a) if they decide that planning permission should be granted
subject to conditions differing from those subjects to which the previous
permission was granted, or that it should be granted unconditionally, they
shall grant planning permission accordingly; and
(b) if they decide that planning permission should be granted
subject to
granted, they shall refuse the application.
…
(4) This section does not apply if the previous planning
permission was granted subject to a condition as to the time within which the
development to which it related was to be begun and that time has expired
without the development having been begun.
It seems to me that section 73 is designed precisely to give the
kind of flexibility that is required in the real world of commercial
development. Indeed, the facts of this case show how that section was intended
to be invoked in order to relax the requirements of the conditions of a
planning permission in appropriate cases. Powergen applied for a relaxation of
both condition 1 and 2. This was because, unless condition 1 was varied so as
to allow further time for application for approval of reserved matters, or
condition 2 was varied so as to allow development to be begun in respect of any
phase that had received detailed approval, the outline planning permission
could not be implemented after 24 January 1998. If Powergen had made those
applications at a time when the planning permission was still capable of
implementation, there is no reason to suppose that it would not have succeeded.
Suffice it to say that section 73 provides a complete answer to Mr Taylor’s
appeal to the commercial absurdity of the natural interpretation of condition
2. I am wholly unpersuaded that the natural interpretation is commercially
unrealistic or absurd. Accordingly, I decide the first issue in favour of the
respondents.
Second issue: legitimate expectation
The argument advanced on behalf of Powergen is as follows. The LCC
letters of 14 and 16 January 1998, and the course of dealing thereafter (until
LCC’s letter of 22 June), amounted to a clear and unequivocal representation
that LCC interpreted condition 2 as permitting Powergen to start part of the
development (namely the food store) without having submitted and obtained
approval of reserved matters on the remainder of the site. Particular reliance
is placed on the statement that:
Unless a reserved matters application for the rest of the site is
received by 25th January, the outline permission for the remainder of the site
will lapse.
It is said that these words amounted to an implied representation
that the permission for that part of the site in respect of which an
application for approval of reserved matters had been made by 25 January
would not lapse, and could be implemented.
In answer, Mr Ouseley and Mr Davey deploy a number of arguments.
Their fundamental point is that, even if the officers did purport to make a
representation on behalf of LCC that the part of the development that had been
the subject of reserved matters submissions could be constructed in the absence
of submission of the remaining details required, the council could not be bound
by a wrong interpretation of condition 2. That is because a planning condition
can only be modified by way of the statutory procedures set out in section 73
and 73A of the Act, and, in any event, the
waive strict compliance with conditions to which planning permissions were
subject.
As Mr Ouseley points out, since the hypothesis on which the second
issue is to be considered is that (as I have held) condition 2 does not bear
the meaning for which Mr Taylor contends, the effect of the legitimate
expectation argument, if accepted, is that Powergen will have achieved a
variation of condition 2 without going through the relevant statutory
procedures. The starting point is that the law of town and country planning is
public law. It is an imposition in the public interest of restrictions on
private rights of ownership of land. The courts should not introduce principles
or rules derived from private law unless expressly authorised by parliament to
do so, or it is necessary to give effect to the purpose of the legislation: see
per Lord Scarman in Pioneer Aggregates (UK) Ltd v Secretary of
State for the Environment [1985] AC 132 at pp140H-141C.
A planning condition can only be modified by the statutory
procedures to which I have referred. It can only be modified by an application
for planning permission. An application for planning permission is a public act
and there are relevant statutory provisions for publicity, consultation and
representations: see sections 65 and 71(2)(a) of the Act, and Articles 6, 8, 10
and 19 of the Town and Country Planning General Development Procedure Order
1995. If such procedures were not followed, interested third parties would be
unable to make representations against the grant of planning permission and
have those representations taken into account.
There have been a number of cases in which the court has had to
consider whether a public body can be estopped from performing its statutory
duties. It has been held that a public body with limited powers cannot bind
itself to act beyond its authority, and if it purports to do so, it will not be
held to any undertaking that it has given outside its powers, since it cannot
extend its powers by creating an estoppel: see De Smith, Woolf and Jowell on Judicial
Review of Administrative Action (5th ed) paras 13-028. Estoppel in
public law will not lie so that a public body is bound by its own mistake: see Maritime
Electric Co Ltd v General Dairies Ltd [1937] AC 610 at p620.
The application of these principles, specifically in the planning
field, finds very clear expression in Western Fish Products Ltd v Penwith
District Council [1981] 2 All ER 204. In that case, the plaintiff proceeded
to carry out development on a site without obtaining planning permission, in
reliance on assurances from the planning officer that there was an established
use so that an application for planning permission was not necessary. The
planning authority eventually served enforcement notices. The plaintiff sought
a declaration that it was entitled to be treated as having planning permission.
Its action failed. In dismissing the appeal, the Court of Appeal rejected an
estoppel argument. At p219, Megaw LJ (giving the judgment of the court) applied
the principle that an estoppel could not be raised to prevent the council from
discharging their statutory duty of determining planning applications.
He recognised, however, that there were two kinds of exception to
the
such, delegates to its officers powers to determine specific questions, any
decisions they make cannot be revoked. An example of the application of this
exception is Lever (Finance) Ltd v Westminster (City) London Borough Council
[1971] QB 222. The second is that if a planning authority waives a
procedural requirement relating to any application made to them for the
exercise of their statutory powers, they may be estopped from relying on lack
of procedural formality.
Leaving on one side trivial matters, I find it difficult to discern
the true scope of these exceptions. For example, the first exception seems to
recognise that an authority may be estopped from performing their statutory
duty if, under delegated powers, its officers have made decisions that are
outside the powers of the authority themselves, but it is not clear to me how
far this goes. It seems that the court in Western Fish was anxious to
limit the scope of the exceptions to the general principle.
However, I do not have to decide this question, since the court
also made clear that there must be some evidence to justify the person dealing
with the planning officer in thinking that what the officer said would bind the
authority. Holding an office, however senior, cannot be enough by itself: see
p220G-H.
Mr Taylor’s argument faces the insurmountable obstacle that, in
this case, the planning officers had no actual authority to vary or waive the
conditions to which the planning permission was subject. Mr Taylor submits that
they had ostensible authority, but he has been unable to point to any holding
out by LCC.
Mr Taylor seeks to overcome this problem by submitting that, in
agreeing to waive the strict requirement of condition 2, the planning officers
were acting within the ‘managerial discretion’ vested in planning officers to
administer planning control. He referred me to section 172 of the Act, which
gives a local planning authority a discretion to issue an enforcement notice
where it appears to them that there has been a breach of planning control and
it is expedient to issue the notice. But, in my view, section 172 is
irrelevant.
First, it has no application to anticipatory breaches of planning
control. Second, section 73 is the provision that parliament has enacted to
deal with situations where a developer wishes to develop land without
compliance with conditions previously attached to a planning permission. What
is required in such circumstances is that the developer apply for planning
permission. I do not accept that the provisions of section 73 can be
sidestepped by persuading a local planning authority, still less an
unauthorised officer, to vary or waive a condition under the guise of the
exercise of a general management discretion in the implementation of planning
permissions.
There will, of course, be areas that can properly be described as
falling within the planning authority’s discretion, and that one would expect
to fall within the officers’ delegated powers. For example, where the question
is whether the details shown in the reserved matters submission are acceptable.
Matters of that kind are not the subject of a statutory
dealt with by the planning officers to whom one would normally expect the
relevant powers to be delegated. But that cannot avail Powergen in this case.
It is true that Mr Taylor does not expressly raise an estoppel in
this case. He relies on a legitimate expectation. But, although the principle
of legitimate expectation is a public law doctrine, and estoppel belongs to the
realms of private law, the principles are very closely analogous. This was
emphasised by Lord Templeman in Preston v IRC [1985] AC 835 at
pp866G-867C. Unfairness amounting to an abuse of power will justify judicial
review where there has been conduct by a public body (in that case the Inland
Revenue) ‘equivalent to a breach of contract or breach of representations’. For
observations to similar effect, see per Bingham LJ in R v Inland
Revenue Commissioner, ex parte MFK Underwriting Agencies [1990] 1 All ER 91
at pp109D-111B. I am in no doubt that if the arguments in the Western Fish
case had been expressed in terms of legitimate expectation, rather than
estoppel, the outcome would have been the same. The contrary has not been
suggested by Mr Taylor.
Finally, on this aspect of the argument, I need to return briefly
to the Bilton case. At p159 Lord Widgery said that planning permissions
may be varied in a number of ways, including ‘by the course of dealing between
the parties and lots of things like that’. It is unclear to me what Lord
Widgery had in mind. It seems to me that I ought to regard the later and
detailed discussion in Western Fish as the authoritative statement of
the approach that I should follow.
I would hold, therefore, that the legitimate expectation argument
fails for the fundamental reason that the officers had no delegated power to
vary or waive the conditions to which the planning permission was subject, and
any undertaking purportedly given by them is not binding on LCC.
Even if all that I have said so far on this issue is wrong, I would
still reject the legitimate expectation argument for other reasons. First, in
my judgment, the representations relied on were not sufficient to found a
legitimate expectation. Secondly, in this type of case I consider that it is a
requirement of establishing unfairness that the aggrieved party is able to show
that he relied on the representation to his detriment. Powergen is unable to
show reliance.
As regards the alleged representations, the critical documents are
the letters of 14 and 16 January. The context is important. Powergen had
already submitted its application for reserved matters approval for the food
store site and it had also made an application to vary condition 1 by extending
the time for submission of the remaining reserved matters to 25
1999, although it seems that Mr Evans was not aware of this.
As the letter of 14 January makes clear, there had been discussion
about the need for Powergen to produce an indicative layout of the rest of the
site, but the letter also made it clear that the deadline for submitting
reserved matters for the whole site was 25 January 1998. In so far as the
letter was referring to the conditions of the planning permission, it was
referring to condition 1. The letter confirmed that the application that had
been submitted in relation to the food store site was valid, but it was not
addressing condition 2 at all. The officers had not been asked for their
interpretation of condition 2, or for an assurance that the strict requirements
of that condition would be waived.
Turning to the words relied on by Mr Taylor, I accept that it is a
reasonable inference that the writer was implying that, unless a reserved
matters application was received by 25 January 1998, the permission for the
food store would not lapse, and would be capable of being implemented. But it
is only an inference, and the comment relied on was gratuitous. It was not a
response to a request for advice on the meaning of condition 2, still less did
Powergen indicate that it intended to rely on any such advice. These are
relevant considerations to be taken into account when deciding whether it is
unfair for LCC now to rely on the true meaning of condition 2.
I am in no doubt that it is not unfair to permit LCC to rely on the
true meaning of condition 2. The implied representation is not especially
clear. It does not jump out of the letter. More importantly, the context of the
letter and the circumstances in which the implied representation came to be
made would, in my judgment, make it unfair to LCC to hold them to it.
Finally, I turn to reliance. There is no clear evidence that
Powergen did rely on any representation by LCC: (i) as to the meaning of
condition 2; or (ii) to the effect that compliance with it would be waived. Mr
Cardwell’s evidence merely recites the various steps that were taken by
Powergen, which I summarised earlier in this judgment. It is true that Powergen
did commit itself to various items of expenditure, but there is no evidence
that it would not have done so if the alleged representations had not been
made. The expenditure is consistent with Powergen having believed that its
application to vary condition 1 would succeed.
In any event, the evidence suggests that Powergen was already
committed to much, if not all, of the expenditure before January 1998. It is
significant that in its letter dated 31 July 1998, written in support of the
application to vary condition 2, Powergen said:
It is recognised that condition 2 seems to prevent the
implementation of Morrisons’ reserved matters approval… in advance of the
approval of detailed plans and particulars for the rest of the site.
This statement is wholly inconsistent with the assertion that
Powergen relied on the interpretation now placed on the January letters for its
understanding of the meaning of condition 2. I find Powergen’s evidence less
than satisfactory on this part of the case. I am not satisfied that it has
discharged the burden of proving reliance.
For all these reasons, I decide the second issue in favour of the
respondents.
Third issue: was the refusal to vary condition 2 unlawful?
The officer’s report that was before the council made it clear that
there was no objection to the proposed variation of condition 2 in the sense
that
satisfactory development of the whole site. The report recommended refusal on
the sole ground that changed policies favoured sustaining city centres and
that, applying those policies, a food store was not acceptable on the site. It
has already been seen that LCC accepted that recommendation.
Mr Taylor submits that it was not open to LCC to do this. He
contends that it was impermissible for the council to revisit the question of
the acceptability of the development when considering the application to vary
condition 2. That issue had been determined when the original application was
granted.
The question in what circumstances a planning authority may revisit
the principle of a development when entertaining an application under section
73 of the Act has been considered in three first instance decisions. Put
shortly, in Allied London Property Investment Ltd v Secretary of State
for the Environment (1996) 72 P&CR 327, Mr Lockhart-Mummery QC held
that it is not open to a planning authority to reconsider the principle of the
development. In R v London Docklands Development Corporation, ex
parte Frost (1996) 73 P&CR 199, Keene J took a different view. In Pye
v Secretary of State for the Environment [1998] 3 PLR 72, Sullivan J
agreed with Keene J.
The most comprehensive treatment of the issue is to be found in the
judgment of Sullivan J. Mr Taylor does not seek to persuade me that the
reasoning of Sullivan J and Keene J is wrong, although he may wish to do so in
the event of an appeal. He submits, however, that the present case is
distinguishable from those cases. It is necessary, therefore, to consider what
the ratio of those cases is.
I shall concentrate on Pye, simply because it is the more
recent, and gives the fullest consideration to the point. In that case, the
owner was granted permission to erect a dwelling. One condition required
details of reserved matters to be submitted within three years. Another
required the development to be begun within five years of the date of the
permission, or two years from the final approval of reserved matters.
An application was made for an extension of the three-year period
after it had expired. That application was refused on the grounds, inter
alia, that the effect of granting permission would be to extend the
duration of the planning permission for at least another two years, and would
be contrary to current policies. The inspector dismissed the appeal against
that refusal and the owner challenged the inspector’s decision. The application
was refused.
The key passage in the judgment of Sullivan J appears at pp86B-87E:
Considering only the conditions subject to which planning
permission should be granted will be a more limited exercise than the
consideration of a ‘normal’ application for planning permission under section
70, but as Keene
more limited will depend on the nature of the condition itself. If the
condition relates to a narrow issue, such as hours of operation or the
particular materials to be employed in the construction of the building, the
local planning authority’s consideration will be confined within a very narrow
compass.
Since the original planning permission will still be capable of
implementation, the local planning authority, looking at the practical
consequences of imposing a different condition as to hours or materials, will
be considering the relative merit or harm of allowing the premises to remain
open until, say, 10 o’clock rather than 8 o’clock in the evening, or to be
tiled rather than slated.
Equally, if an application is made under section 73 within the
original time-limit for the submission of reserved matters, while
implementation of the planning permission is still possible and is not
precluded by the provisions of section 93(4), for a modest extension of time
for the submission of reserved matters, the local planning authority’s role in
considering only the question of conditions subject to which planning
permission should be granted will be more confined than in a normal section 70
case. The practical effect of submitting details one year later than would
otherwise be allowed may be very limited.
In my view, however, the position is different where, as in the
present case, an application is made under section 73 to alter a condition, so
as to extend the period for submission of reserved matters at a time when the
original planning permission is no longer capable of implementation by reason
of the effect of section 93(4), because time for submission of reserved matters
has expired.
While the council are constrained to consider only the question of
the conditions subject to which planning permission should be granted, in
deciding whether to grant a planning permission subject to different conditions
under para (a), or to refuse the application under para (b), are they required
to ignore the fact that the original planning permission is no longer capable
of implementation, so that if they adopt a latter course it will not be
possible for the development to take place, whereas if they adopt the former
course, it will be possible for the development to take place?
In my view, there is nothing in section 73 that requires the local
planning authority to ignore the practical consequences generally of imposing a
different condition, and this is surely a most important practical consequence
of granting an application for planning permission under para (a) or refusing
the application under para (b).
It may well be the case that since the original grant of planning
permission, the arguments for carrying out the development have strengthened.
Thus, in the present case, where planning permission is for the erection of a
dwelling, the shortage of housing locally might have increased since 1992 and
Badgall might have been identified in the emerging local plan as a settlement
suitable for some additional residential development.
Granting a planning permission subject to a condition providing
for an extended period for submission of details would enable the development
to be carried out, whereas refusing the application would mean that a
permission for a much needed dwelling could not be implemented.
I do not see why, in such circumstances, the council, in
considering an application under section 73, should be required to shut their
eyes to those practical consequences. If that is correct, I do not see why the
position should be any different if the planning policies have changed since the
grant of the original planning permission so that its implementation has become
less desirable in planning terms.
The local planning authority have to have regard to the factual
circumstances as they exist at the time and to have regard to the facts that exist
at the time of their decision. If at that time the original planning
permission is incapable of implementation by reason of section 93(4), I can see
no basis in the statutory code for requiring the local planning authority to
ignore that important fact.
Mr Taylor submits that this passage is of no application in the
present case, because Powergen is not challenging a time condition. Unlike the
applicant in the Pye case, it is not challenging the refusal to vary
condition 1. He submits that the ratio of Sullivan J’s decision is that it was
open to a planning authority to reconsider the principle of the development
where the development was no longer capable of being implemented because the
relevant time-limit had expired. In the present case, he submits, the
effect of the planning permission sought under section 73 was not to extend the
duration of the original planning permission.
I cannot accept Mr Taylor’s analysis of the ratio of Pye.
The distinction that Sullivan J was drawing was between applications under
section 73 where implementation of the original permission was still possible,
and those where it was not. On the facts of that case, the effect of section
93(4) of the Act was that the original planning permission was no longer
capable of implementation because the time-limit for the submission of reserved
matters had expired. But the reasoning of the judge did not depend on the
precise reason why the original permission was no longer capable of being
implemented. The fact that, in the case of an application for a time extension,
the original permission can no longer be implemented due to the operation of
section 93(4) of the Act, whereas in the present case it is the operation of
the conditions themselves which prevents implementation, makes no difference of
principle.
In both the present case and the case of an application for a time
extension, the original permission is not capable of implementation unless the
planning authority grant the variation sought under section 73. It would be
strange if LCC were able to consider the principle of the development when
deciding the application to vary condition 1, but not when dealing with the
application to vary condition 2. The applications to vary the two conditions
were different routes to the same goal, namely preserving the ability to
implement the original planning permission beyond the date provided by the
original permission. There has been no challenge to the refusal to vary
condition 1, although it was founded on substantially the same reasons as those
which underpinned the decision to refuse to vary condition 2.
It is accepted on behalf of Powergen that, if it was open to LCC to
reconsider the principle of the development, there can be no challenge to the
decision reached.
I conclude, therefore, that on the basis that the decisions of
Sullivan J and Keene J are correct, this challenge fails.
Application dismissed.
