General Development Order — Preliminary issue — Licence — Claimant company occupying land — Licence permitting company to use land for market on 14 days per year — Company applying for planning permission to operate market each Sunday — Permission for market on not more than 14 days per year withdrawn — Sunday market commenced — Enforcement notices following — Whether greater included lesser — Council’s contention that compensation not payable upheld
The company occupied an area of mainly open land totalling 11.75 ha, known as Lea Valley Nursery, Waltham Forest, within the district of Epping Forest District Council. The company occupied the land under the terms of a licence which permitted use of the land for purposes of a Sunday market. In 1988, the company applied to the council for planning permission, proposing development to operate a market “each Sunday”. The company stated that it relied on the general development order, which gave deemed planning permission for a market on 14 days in any calendar year. The Sunday market commenced and was the subject of prolonged enforcement proceedings. The company’s application for planning permission was refused and the council also issued a direction under article 4 of the General Development Order 1988 whereby permission granted for use of the land for holding markets on not more than 14 days in any calendar year was withdrawn. The company’s appeal to the Secretary of State for the Environment was refused and the article 4 direction approved. In reliance on that refusal, the company made a claim for compensation under section 107 of the Town and Country Planning Act 1990, which provided for the payment of compensation in cases where planning permission had been revoked, modified or withdrawn under an article 4 direction. The council objected to the claim in a preliminary point of law.
Held The claim for compensation was refused.
1. The council had argued, inter alia, that it was a condition precedent to a claim for compensation that the application for planning permission had to be in terms an application for the development formerly permitted by the general development order. In the present case the company’s application was not for such development but was for a wider form of development. Upon the application in fact made by the company, the council could have granted or refused planning permission to hold markets “each Sunday”, but could not have refused the exercise of the general development order rights to hold the market on not more than 14 days per year. Thus the council’s refusal could not be construed as a refusal of the development formerly permitted and, accordingly, the clear and express wording of section 108(1)(b) could not apply. The same result followed on the inspector’s decision on appeal.
2. The council were correct in contending that it was clear from the language used that the scheme of section 108 envisaged: (a) an article 4 direction whereby the automatic permission granted by article 3 and Schedule 2 was withdrawn and an express application for permission rendered necessary if it was sought, to carry out the formerly permitted development; (b) an application for permission for the development formerly permitted; and (c) a decision by the local planning authority to refuse that permission or to grant it subject to conditions. Only when all three steps had been taken could the right to compensation crystallise.
3. Further, the court could not accept the proposition that the greater included the lesser. The application had at least to relate specifically to the formerly permitted development so as to make clear to the local planning authority the subject-matter of the application for their consideration. In the present case the only application was to use the land as a market each Sunday, which could not have been treated as an application to exercise the 14-day rights granted by the GDO. The two forms of development were substantially different and there was no power in the local planning authority to grant planning permission for something substantially different to what had been applied for. The company’s application was not “an application for development formerly permitted” within section 108.
4. The relevant application for planning permission must follow and not precede the issue of the article 4 direction; it was only in that instance that the planning authority should have an opportunity to consider it.
Richard Gordon (instructed by Isadore Goldman) appeared for the claimant, Strandmill Ltd; and Stephen Hockman QC and Verify Jones (instructed by the solicitor to Epping Forest District Council) appeared for compensating authority.
