Town and Country Planning Act 1971 — Application by planning authority to quash decision of Secretary of State — Secretary of State had quashed an enforcement notice relating to a temporary builder’s hut and had granted planning permission for bungalows on the site — A point of planning law of general application involved in the case — Planning permissions granted before April 1 1969 were deemed to be subject to a condition that development must be begun not later than the expiry of five years beginning with that date — Whether as a general principle a time-expired planning permission was not a relevant consideration in deciding whether to grant a fresh permission — Judge ruled that such a time-expired permission may still be relevant or material, although not necessarily of great weight — It was part of the past history of the site — On the merits of the present application, the judge decided to quash the Secretary of State’s decision — Planning permissions for retention of the hut and for the two bungalows were quashed — The Secretary of State’s reasoning appeared to be vitiated by a failure to appreciate the distinction between a situation where there was an existing valid planning permission and the situation where a former planning position was time-expired
In these
proceedings the appellants, South Oxfordshire District Council, applied under
section 245 of the Town and Country Planning Act 1971 to quash a decision of
the Secretary of State for the Environment, the first respondent, in favour of
the second respondents, Faherty Brothers Ltd. The Secretary of State had
quashed an enforcement notice and allowed appeals against the refusal of
planning permission.
D Latham
(instructed by Sherwood & Co) appeared on behalf of the appellants; Simon
Brown (instructed by the Treasury Solicitor) represented the first respondent;
R M K Gray (instructed by Francis & Parkes, of Reading) represented the
second respondents.
Giving
judgment, WOOLF J said: In this application under section 245 of the Town and
Country Planning Act 1971 the appellants, who are the planning authority for
South Oxfordshire, are seeking to quash the decision of the Secretary of State
contained in a letter dated December 18 1978 in which, in respect of three
appeals, the Secretary of State decided to quash an enforcement notice which
the appellants had served on the second respondents, to grant conditional
planning permission for the retention of the building which was the
subject-matter of the enforcement notice, and to allow the second respondents’
two appeals against the refusal of the appellants to grant them planning
permission.
There is one
point of planning law of general application raised on which both the planning
authority and the Secretary of State indicate they would welcome guidance. The
point arises out of the provisions which are now contained in Schedule 24 to
the Town and Country Planning Act 1971. Paragraph 19 of that Schedule provides:
every
planning permission granted or deemed to have been granted before April 1 1969
shall . . . (subject to exceptions which are not relevant here) 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 April
1 1969.
The effect of
that provision is that unless the development is begun before April 1 1974 the
planning permission can no longer be relied upon as permitting the development
to which it referred. It re-enacts, as a transitional provision, the time-limit
as to the validity of planning permissions first introduced by the Act of 1968.
Similar provisions dealing with planning permissions granted under
the Town and Country Planning Act 1971 are contained in sections 41 to 44 of
that Act. In particular section 43 defines when a development is to be taken to
be begun for the purpose of section 41 and section 42 and paragraph 19 of
Schedule 24.
On behalf of
the planning authority it is contended that where development is not commenced
before the time-limit expires, on a fresh planning application the earlier
planning permission is no longer a relevant consideration which it is
permissible to take into account in deciding whether or not to grant the fresh
application.
In deciding
whether or not to grant planning permission, the planning authority is required
by section 29(1) of the 1971 Act to ‘have regard to the provisions of the
development plan . . . and to any other material considerations’, and it is
submitted that a time-expired planning permission cannot be a material
consideration. In support of this submission Mr Latham relies upon the only
previous relevant authority, which is Peak Park Joint Planning Board v Secretary
of State for the Environment and Kay (April 27 1977), a report of which
appears at [1979] JPL 618, the transcript of which is before me. The judgment
is that of Sir Douglas Frank, whose opinion as to planning matters I treat with
very great respect because of his unrivalled experience. In that case Sir
Douglas was dealing with a decision by an inspector on behalf of the Secretary
of State in which the inspector, in dealing with an appeal against the refusal
of planning permission, purported to apply circular 17/69 of the Ministry of
Housing and Local Government in deciding an application for planning permission
where there was a previous time-expired permission. The circular dealt with the
position where applications are made to, in effect, renew planning permissions
before they became time-expired and stated:
As a general
rule such applications should be refused only where
(a) there has been some material change of
planning circumstances since the permission was granted, eg a change in
planning policy for the area or in the relevant highway considerations,
(b) continued failure to begin the development
will contribute unacceptably to the uncertainty about the future pattern of
development, or
(c) the application is premature because the
permission still has a reasonable time to run.
As Sir Douglas
rightly pointed out, the reliance upon the circular on the facts of that case
was misconceived, because, unlike the circular, it did not concern a planning
permission which was not time-expired. Sir Douglas did, however, go on to say
at p 6 of the transcript:
Of course
nobody I would have thought would dispute that the existing planning permission
is something which has to be taken into account. But the whole purpose of the
amendment to the law introduced by section 38 of the 1968 Act, now sections 41
and 42 of the 1971 Act, is to as it were remove stale longstanding planning
permissions from any consideration, to prevent them inhibiting the planning
authority in their decision-making process. I therefore think that paragraph is
not a planning policy consideration. If anything it is some form of
administrative policy unrelated to planning, and if it is unrelated to planning
questions, then following the well-known principle enunciated in the Pyx
Granite Co v Minister of Housing and Local Government [1960] AC 260
it is ultra vires. This view I find supported by a reference to section
29 of the Act of 1971 where it is provided that in dealing with a planning
application the local planning authority shall have regard, so far as material
to the application, to any other material considerations (that is other than
the development plan). But as I have said the consideration must be material to
planning, and I do not think that having regard to permissions which no longer
have any effect is a planning consideration. And if the matter rested there on
the question of planning policy, then I would have had little hesitation in
quashing the decision, but in my judgment it does not end there.
The case Sir
Douglas was dealing with was a special one, because he dismissed the appeal,
taking the view that the inspector, on the way the appeal was argued before
him, had no alternative to dealing with the matter in the way in which he did.
It may be, therefore, that Sir Douglas did not intend his remarks to be
regarded as having general effect. If they were intended to be of general
effect, I am bound to say that I have difficulty in agreeing with the views
expressed.
The effect of
the changes made by the 1968 Act, now embodied in section 41 and section 42 of
the 1971 Act, is to get rid of out-of-date permissions and to allow a planning
authority, if it wants to do so, to prevent development by refusing permission
in respect of development for which permission previously existed. A planning
authority is thus in no way bound by a previous planning permission which has
expired. However, the fact that it is in no way bound does not mean that it is
forced wholly to disregard that pre-existing permission. That there was a
pre-existing permission may still be a relevant or material circumstance which
a planning authority is permitted to take into account, though it must do so
properly, and, as it is unlikely to be of great moment, not give it more weight
than appropriate. For example, it is not unreasonable for a planning authority
to want to be consistent in its consideration of planning applications, and
taking into account a planning permission which has expired and considering
whether there has been any change of circumstances on a fresh application may
assist in achieving consistency. I would regard a planning permission which has
expired as still being part of the planning history of the site. In my view, it
is not without significance that the planning authority can impose a special
time-limit which will then override the time-limit provided for by the Act. If
it does so, by the time a fresh application is made there could have been a
change of circumstances which made the special time-limit inappropriate. In
such circumstances a developer should be entitled to ask the planning authority
to take into account on a fresh application the fact that if the original
planning authority had known that that would prove to be the position, that
time-limit would not have been imposed and the fresh application would not have
been necessary. If it could be relevant to have regard to a planning permission
which has expired because of a special time-limit, it should be permissible in
the appropriate circumstances to have regard to a planning permission which has
expired because of a statutory time-limit.
Before leaving
the Peak Park Joint Planning Board case, it is right that I should say
that I see no reason why the general policy set out in the circular should be
regarded as ultra vires and I would therefore reserve the question as to
whether or not the criticism of that policy set out in the Peak Park Joint
Planning Board case is justified.
It follows
that I do not accept the planning authority’s general contention as to the law.
This, however, is not sufficient to dispose of the application. It is necessary
to consider the specific decision of the Secretary of State on the facts of
this case.
The
enforcement notice related to a temporary builder’s hut which the second
respondents justified solely on the ground that it was needed for the erection
of a bungalow which was the subject of a planning permission granted on
February 8 1957. If that planning permission were still valid, then the enforcement
notice would have to be quashed because the hut would be permitted development
under class 4 of Schedule 1 to the Town and Country Planning General
Development Order 1977. It was therefore necessary for the Secretary of State
to decide whether as a matter of fact the development in respect of which the
permission had been granted on February 8 1957 had been begun before the end of
March 1974. The second respondents contended that it had been so begun because
trenches had been dug which fulfilled the requirements of section 43(1) and
2(b). While trenches had been dug, they had unfortunately not been for the
bungalow to which the planning permission related but for a different bungalow
which had been designed so that ‘it is possible to reorientate the trenches
actually dug so that one wall more or less coincides with where the
corresponding wall of the 1957 bungalow ought to be.’ The Secretary of State did not consider this
was sufficient for the provisions of section 43. He accordingly decided that the
planning permission had expired on April 1 1974.
The Secretary
of State went on to consider the two appeals from the decisions of the planning
authority to refuse permission for bungalows on the same site, and the deemed
planning application for permission to retain the building which is the subject
of the enforcement notice. One of the bungalows which was the subject of the
appeal was of the same design as the bungalow which had been the subject-matter
of the earlier planning permission. The other differed.
In his
decision letter the Secretary of State quoted what the
appeals, which was as follows:
On the
planning merit of section 36 appeals the inspector has concluded: ‘Turning to
the section 36 appeals, this is an area of largely undeveloped country, well
away from any recognisable settlement. Although visually a bungalow here would
not be unduly prominent, and when seen from any distance to the south would
probably be dominated by the bigger house (Hadden House) standing above and to
the north of it, it would certainly intensify such residential development as
there is. Forgetting, temporarily, the history of the site it would be
difficult to distinguish a dwelling here from other dwellings nearby which
other people might apply to build. It could lead to other applications which
could not justly be resisted. However, I conclude that there is already a valid
planning permission on the site, and it would therefore be inconsistent to
reject the first section 36 appeal because the bungalow concerned is identical
with the one for which I consider permission exists. But since this bungalow is
in my view banal and unsuitable, every encouragement to build a more suitable
dwelling should be given. The bungalow in the second section 36 appeal is, I
consider, a major improvement on that for which permission exists. I consider,
therefore, that both appeals should be allowed.’
He recommended
that permission should be granted. The Secretary of State then went on:
10. These
conclusions are not accepted insofar as they relate to the validity of the
planning permission which had already been given on the site in 1957. It is
noted that the 1957 conditional planning permission was granted by the former
Wallingford Rural District Council acting on behalf of the former Berkshire
County Council. It is further noted that following local government
reorganisation measures of 1974 the present council took over the
administration of planning functions in the former rural district area and
adopted the policies of the former council. An application for a design of
dwelling different from that approved in the 1957 permission was still
outstanding and was not determined by the new council until the changeover date
for the new council which coincided with the expiry date for planning
permissions granted before the passing of the 1968 Act. The development plan
for the area had not changed since the 1957 permission and at the time of these
applications planning authorities remained which were taken over by the new
council in 1974. The character of the area too remains what it was for many
years, that is predominantly rural and agricultural with the bulk of Hadden
House standing on higher ground above the appeal site when viewed from the
south. Taking into account the history of the case which is considered to be a
vitally material consideration in this instance and bearing in mind that the
character of the area has not changed in the intervening years since 1957, the
inspector’s conclusion that the bungalows ‘would not be unduly prominent when
seen from any distance to the south and would probably be dominated by the
bigger house (Hadden House) standing above and to the north of it’ is accepted.
In the special circumstances of this case the view is taken, in agreement with
the inspector, that planning permission should be granted on these appeals.
11. The
inspector’s remarks on the design and the council’s remarks recorded in the
report about their preference for the ‘second’ design of bungalow is however
drawn to your client’s attention.
The first
thing which is to be noted about the Secretary of State’s decision is that he
has granted a planning permission for a bungalow, the design of which the
inspector concluded was ‘banal and unsuitable’. It is understandable that the
inspector should have recommended that permission should be granted for that
bungalow, because he took the view that there was already an existing planning
permission for such a bungalow so there would not be any adverse effect in
granting further permission. However, the Secretary of State had already
concluded there was no longer an existing planning permission and therefore
there was not that justification for granting planning permission in what was largely
undeveloped countryside. As the Secretary of State apparently did not disagree
with the inspector’s view of the design of that bungalow, and as the second
respondents would have been quite content with planning permission for the
second bungalow, I am bound to say that I am at a loss to understand why
planning permission for a building of the original bungalow design was granted.
Mr Simon Brown, with his usual candour, confessed that he was equally
surprised. It does suggest that there was some error in reasoning of the person
responsible for making the decision of the Secretary of State in this case.
I also find it
difficult to understand the reference that the decision should be granted on
the appeals in agreement with the view taken by the inspector. It is true that
the inspector did recommend that planning permission should be granted but it
is reasonably clear that he did so only because of his erroneous conclusion
that the original permission was still in existence. The reference by the
inspector to largely undeveloped country and intensification of residential
development and other applications seems clearly to indicate that the inspector
was averse to the granting of planning permission but for the pre-existing
permission which he regarded as still valid.
Next it is to
be noted that the Secretary of State says that the history is ‘a vitally
material consideration’. The reference to history must be because of the
expired planning permission; as I have indicated, such an expired planning
permission can be a relevant consideration, but I find it very difficult to see
how it could ever be regarded in the context of this case as being ‘a vitally
material consideration’. While the weight to be given to a particular
consideration is for the Secretary of State, such a conclusion indicates that
the person responsible for making the decision on behalf of the Secretary of
State either misdirected himself or he was acting perversely. In either event
his decision was wrong in law. It is therefore not necessary for me to decide
which is the appropriate label to apply. I suspect, however, that the person
responsible for the decision has failed to appreciate the distinction between a
situation where there is an existing planning permission which is still valid and
the position where there was a former planning permission which is no longer
valid because it became time-expired. I say this because the very words
‘vitally material consideration’ appear in the case of Spackman v Secretary
of State for the Environment [1977] 1 All ER 257, at the end of the
judgment of Willis J at p 261. In Spackman it was a previous planning
permission which was still in existence which Willis J regarded as a ‘vitally
material consideration’.
I was referred
to the case of Spackman by counsel on behalf of the second respondents
because I was asked on behalf of the second respondents if the matter was going
back to the Secretary of State to indicate that the Secretary of State’s
approach to the question of the trenches was wrong, bearing in mind that
decision. I do not, I am afraid, agree. As far as the trenches are concerned,
it seems to me that the Secretary of State’s decision was a perfectly proper
one and, indeed, probably the only possible one, bearing in mind the facts of
this case. Spackman’s case is quite different because the trenches which
were dug in the wrong position were intended for the house for which permission
had been given and not a property of different design.
It follows
that I quash the Secretary of State’s decision to grant planning permission for
both bungalows and also quash his decision to grant permission for the
retention of the hut.
Judgment was
given for the appellant with costs against the first respondent, the Secretary
of State.
