Outline planning permission — Conditions — Site access — Imposition of additional condition restricting types of vehicles permitted to use access — Whether imposition of additional condition valid — Appeal dismissed
In 1957, an application was made for outline planning permission for a substantial industrial and commercial development which included permission for three access routes to public highways, identified as 6A, 6B and 6C. Permission was granted subject to certain conditions. Condition 5 provided that the proposed accesses shown on the application plan should not be constructed until their precise location had been agreed with, and a detailed plan had been approved by, the local planning authority. The stated reason for condition 6 was to ensure a safe and satisfactory means of access to existing highways that would conform to any proposed improvements to those highways. It provided that one of the roads, leading onto a minor road, would not be used as a principal access for the reception and despatch of goods because it was narrow and was unsuitable for heavy traffic.
In January 2000, the claimant applied to the authority for approval of the precise location and detailed plans for 6C. The authority failed to provide approval within the requisite timelimit. The claimant appealed, under section 78 of the Town and Country Planning Act 1990, to the appellant, who, in May 2003, approved the access subject to conditions.
The claimant issued proceedings challenging the conditions that: (i) the access should be used by public service vehicles only; and (ii) approval of the design of the access should be obtained from the second defendant local authority prior to the commencement of construction. The judge held that, on the true construction of the 1957 permission, access for all types of vehicle was permitted: [2003] EWHC 3094 (Admin); [2003] 50 EG 94 (CS). The Secretary of State appealed to the Court of Appeal contending, inter alia, that he was entitled to impose conditions to meet concerns about the substantial increase in traffic generation that could not have been anticipated when the 1957 permission was granted.
Held: The appeal was dismissed.
By restricting use of the access to one type of vehicle, the appellant had imposed a more onerous restriction subsequent upon and outside the 1957 permission which, applying settled principles, was unlawful.
On its true construction, the 1957 permission had been granted for the building of accesses for all types of traffic that might use an industrial estate. There was no indication that any restriction had been imposed as to the kinds of vehicles that would be entitled to use them. Moreover, the proposed accesses were to link onto public highways over which all types of vehicle would travel.
Although the appellant was entitled to take account of the effect of the access upon the current road network, his powers were limited to ensuring the provision of the best access in accordance with the 1957 permission. The only reference in the original permission was to the precise location of the new accesses and the detailed plans as to their construction: Proberun Ltd v Secretary of State [1990] 3 PLR 79 and R v Newbury District Council, ex parte Chieveley (1997) JPL 1137 distinguished.
Nathalie Lieven and Daniel Kolinsky (instructed by the Treasury Solicitor) appeared for the appellant; Michael Barnes QC and Eian Caws (instructed by Redrow Group Services Ltd) appeared for the first respondent; Timothy Straker QC and Richard Humphreys (instructed by the Solicitor to South Gloucestershire Council) appeared for the second respondents.
Eileen O’Grady, barrister
