Compensation for refusal of planning permission formerly granted by development order — Article 4 direction withdrawing temporary permission for holding markets — Application for planning permission to operate a Sunday market refused — Claim for compensation — Whether application for planning permission must be in terms for same development formerly permitted by GDO — Whether claim for compensation valid where application for planning permission made prior to issue of article 4 direction
On September 9
1988 the claimant company applied for planning permission to hold a market
‘each Sunday’ on a site at Lea Valley Nursery, Waltham Abbey, Essex. On
September 25 1988 they commenced operating the market in reliance on the
temporary permission granted by Class IV in Schedule 1 to the Town and Country
Planning General Development Order 1977 (now Class B in Part 4 of Schedule 2 to
the Town and Country Planning General Development Order 1988 (SI 1988 No 1813))
to hold a market on any land on not more than 14 days in any calendar year. The
application for planning permission was refused on January 23 1989. On March 21
1989 the company gave notice of appeal to the Secretary of State for the
Environment against that refusal. On February 2 1989 the local planning authority
issued a direction under article 4 of the GDO withdrawing the permitted
development right to hold markets on the site with effect from February 10 1989
and on March 10 1989 they issued an enforcement notice. On July 25 1989 the
article 4 direction was approved by the Secretary of State. Appeals against the
refusal of planning permission and the enforcement notice were dismissed on
January 17 1990.
By letter
dated July 9 1990 the company’s solicitors notified the council of a claim for
compensation under section 165 of the Town and Country Planning Act 1971
(section 108 of the Town and Country Planning Act 1990) in reliance on the
refusal of planning permission of January 23 1989 and the subsequent dismissal
of the company’s appeal against that refusal. The council disputed the claim,
which was referred to the Lands Tribunal. On the hearing of a preliminary point
of law as to the validity of the claim, the council contended: (1) that to
found a claim for compensation under section 108 of the 1990 Act the application
for planning permission which was refused must be in terms an application for
the development formerly permitted by the GDO: here the application was for a
wider form of development to hold a market ‘each Sunday’; (2) that an
application for planning permission made prior to the issue of an article 4
direction was not made in accordance with section 108; and (3) that the claim
was out of time as it was made more than six months after the date of refusal
of planning permission by the local planning authority.
was invalid.
Section 108 of
the Town and Country Planning Act 1990 envisaged, first, an article 4 direction
whereby the permission granted by article 3 and Schedule 2 was withdrawn and an
express application for planning permission thus rendered necessary if it was
sought to carry out the formerly permitted development; second, an application
for permission for the development formerly permitted; and, third, a decision
by the local planning authority to refuse that permission or to grant it
subject to conditions. Only where all three steps had been taken could the
right to compensation crystallise. Without deciding whether it might include
proposals for other forms of development, the application must at least relate
specifically to the formerly permitted development so as to enable the local
planning authority to consider it and to refuse it or grant it. The application
made by the company ‘to use the land as a market each Sunday’ could not have
been treated by the local planning authority as an application to exercise the
’14-day rights’ granted by the GDO, which was a substantially different form of
development. Thus, the application was not ‘an application for development
formerly permitted’ within the terms of section 108: see pp 159H-160E. By
similar reasoning, the relevant application for planning permission must follow
and not precede the issue of the article 4 direction: see p 160E-G.
Per curiam: A decision by the Secretary of State dismissing an appeal against
a refusal of planning permission is itself a refusal of planning permission
made under Part III of the 1990 Act and therefore attracts the operation of
section 108. Accordingly, the decision of the Secretary of State, or his
appointed inspector, could be ‘the decision in respect of which the claim is
made’ for the purpose of the six-month time-limit imposed by regulation 14(2)
of the Town and Country Planning General Regulations 1976 (SI 1976 No 1419):
see pp 160G-161B.
referred to in the decision
Preliminary
point of law on a reference to the Lands Tribunal
This was a
preliminary point of law on a reference to the Lands Tribunal of a claim by
Strandmill Ltd against Epping Forest District Council under section 165 of the
Town and Country Planning Act 1971 (section 108 of the Town and Country
Planning Act 1990) in respect of a refusal of planning permission to hold a
Sunday market on land at Lea Valley Nursery, Waltham Abbey, Essex.
Gordon (instructed by Isadore Goldman) appeared for the claimants, Strandmill
Ltd.
Hockman QC and Verity Jones (instructed by the solicitor to Epping Forest
District Council) appeared for the compensating authority.
following decision of the tribunal was delivered.
HIS HONOUR
JUDGE MARDER QC: This is a preliminary point of law
arising from a claim for compensation under the provisions of what is now
section 108 of the Town and Country Planning Act 1990. The claimants notified a
claim for compensation in July 1990 and the issue now raised is whether that
claim is sustainable.
The parties
agreed for the purposes of this preliminary issue a full statement of facts but
in relation to the point of law arising it is sufficient to summarise the facts
of the matter as follows.
The
subject-matter is an area of mainly open land totalling 11.75 ha and known as
Lea Valley Nursery at Waltham Abbey within the district of Epping Forest
District Council (‘the council’). At the material times the land was occupied
by the claimant company under the terms of a licence granted to them in 1988,
which permitted the company to use the land for the purposes of a market on
Sundays only.
On September 9
1988 the company applied for planning permission to the council. The proposed
development was expressed to be to ‘operate a market each Sunday’. In a letter
which accompanied that application the company stated:
We shall be
opening on Sunday September 25th, relying on the General Development Order to
the 1971 Town and Country Planning Act, which gives a deemed planning
permission for a market 14 days in any calendar year. Together with the 14 days
in 1989 this gives 6 months of operation. This should give your authority
sufficient opportunity to monitor the operation of the market while determining
the application.
A Sunday
market in fact commenced operation as the company had stated on September 25
1988. The operation of the market on subsequent Sundays was the subject of
prolonged enforcement proceedings under the Shops Act and Planning Acts1,
the progress of which is not directly relevant for present purposes.
1See R v Epping Forest District Council, ex parte
Strandmill Ltd [1989] 3 PLR 94.
On January 23
1989 the council refused the company’s application for planning permission to
use the land as a Sunday market, on what may be described as planning and
environmental grounds.
On March 21
1989 the company gave notice of appeal to the Secretary of State for the
Environment against that refusal of planning permission.
On February 2
1989 the council issued a direction under article 4 of the General Development
Order 1988, whereby the permission granted by virtue of article 3 and the
Schedule for use of the land for holding markets on not more than 14 days in
any calendar year was withdrawn. The direction came into force on February 10
1989 and would expire at the end of six months, unless disallowed or approved
by the Secretary of State. The Secretary of State in fact approved the article
4 direction by letter dated July 25 1989.
By letter
dated January 17 1990 an inspector appointed by the Secretary of State issued a
decision, following a local inquiry into the
council’s refusal of planning permission dated January 23 1989. The inspector
dismissed both appeals.
Finally, by
letter dated July 9 1990 the company’s solicitors notified a claim for
compensation under what was then section 165 of the 1971 Act, in reliance on
the refusal of planning permission on January 23 1989 and the subsequent
dismissal of the company’s appeal against that refusal.
The
statutory provisions
The statutory
aprovisions relevant to the issues are now to be found in sections 107 and 108
of the 1990 Act; in the General Development Order 1988; and in the Town and
Country Planning General Regulations 1976.
By virtue of
article 3(1) of the General Development Order 1988 ‘planning permission is
hereby granted for the classes of development described as permitted
development in Schedule 2’.
So far as is
relevant, Class B in Part 4 of Schedule 2 describes the permitted development
as the use of any land for the purpose of holding a market on not more than 14
days in total in any calendar year.
So far as is
material, article 4(1) of the General Development Order provides as follows:
If . . . the
appropriate local planning authority is satisfied that it is expedient that
development described in any Part, Class or paragraph in Schedule 2 hereto, . .
. should not be carried out unless permission is granted for it on an
application, . . . they may . . . give a direction that the permission granted
by Article 3 shall not apply to –
(a) all or any development of the Part, Class
or paragraph in question in an area specified in the direction; or
(b) any particular development, falling within
that Part, Class or paragraph, which is specified in the direction.
It should be
noted that the effect of an article 4 direction is not an absolute prohibition
of development of the kind at which it aims but only to require an express
application for planning permission to be made. It is further to be noted that
the direction may apply to a specific development on a specific site or extend
over a range of developments in a wider area.
Section 107 of
the 1990 Act provides for the payment of compensation in cases where planning
permission has been revoked or modified, ie by the making of a revocation or
modification order under section 97. Section 108 applies the machinery of
section 107 to the case where planning permission has been withdrawn by an
article 4 direction.
So far as is
material, section 108 provides as follows:
108. – (1) Where –
(a) planning permission granted by a
development order is withdrawn (whether by the revocation or amendment of the
order or by the issue of directions under powers conferred by the order); and
(b) on an
application made under Part III planning permission for
to conditions other than those imposed by that order,
section 107
shall apply as if the planning permission granted by the development order –
(i) had been granted by the local planning
authority under Part III; and
(ii) had been revoked or modified by an order
under section 97.
Finally,
regulation 14 of the Town and Country Planning General Regulations 1976
provides (so far as is material) as follows:
14. – (1) A claim for
compensation made to a local planning authority under [section 108 of the 1990
Act] . . . shall be in writing and shall be served on that authority . . .
(2) The time within which any such claim . . .
shall be served shall be –
(a) in the case of a claim for compensation, 6
months . . .
from the date
of the decision in respect of which the claim . . . is made . . .:
Provided that
the period may be extended by the Secretary of State in any particular case.
Submissions
As objection
to the validity of the company’s claim to compensation has been taken by the
council as compensating authority, the burden is upon them to make good their
objections and, accordingly, I invited Mr Stephen Hockman QC to begin.
Mr Hockman
relied upon three points, reflected in the statement of the preliminary
questions of law, each of which, if correct, would render the company’s claim
for compensation invalid.
The first
submission made on behalf of the council was that it was a condition precedent
to a claim for compensation under section 108 that the application for planning
permission must be in terms an application for the development formerly
permitted by the GDO. In the present case the company’s application was not for
development formerly permitted by the GDO but was for a wider form of
development. What was required to found a compensation claim under the section
was the refusal of planning permission to carry out that development for which
permission had been withdrawn by the article 4 direction. 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 GDO rights to hold the market on not more than 14 days per year.
Thus the council’s refusal in this case could not be construed as a refusal of
the development formerly permitted by the GDO and, accordingly, the clear and
express wording of section 108(1)(b) could not apply to the company’s
application and the council’s refusal. If regard was had to the inspector’s
decision on appeal the same result followed. By the time of the inspector’s
decision, the article 4 direction was in force. The inspector had no
application before him to consider the reinstatement or revival of GDO rights.
He dismissed the company’s appeal from refusal of the different and wider
application to hold markets each Sunday.
Mr Hockman’s
second submission, closely related to the first, was that section 108 clearly
contemplated the withdrawal of planning permission by an article 4 direction
followed by an application for the development formerly permitted. Hence the
company’s application, made prior to the issue of the article 4 direction, was
not made in accordance with the section.
Finally, it
was submitted that the time-limit for making a claim imposed by regulation
14(2) of the Town and Country Planning General Regulations 1976 had not been
complied with. The time-limit is six months ‘from the date of the decision in
respect of which the claim . . . is made’. The ‘decision’ referred to was, it
was submitted, that of the local planning authority refusing planning
permission and not that of the inspector, who had only dismissed an appeal
against that decision. The company was accordingly out of time.
Mr Richard
Gordon, on behalf of the company, criticised the stance of the council as
formalistic and argued that the scheme of the Act was not intended to place
formal obstacles in the path of a claimant. He submitted that the only
requirements of a valid claim under section 108 were three-fold, namely a
permission granted by the GDO; withdrawal of that automatic planning permission
by an article 4 direction; and refusal of an application under Part III of the
Act for permission to carry out the development formerly permitted. Mr Gordon
submitted that there was no warrant in the wording of the section, and no
practical necessity, for the application to be made after the article 4
direction had been issued; the requirements of paras (a) and (b) in section
108(1) were conjunctive but not in terms sequential. Nor was it necessary for
the application to be limited to include only the development formerly
permitted. The company’s application in this case contained within it the
development formerly permitted. The greater included the lesser. He pointed out
that the only reference to time in section 108 was in subsection (2), which did
not apply to the withdrawal of planning permission by an article 4 direction.
By reference to the maxim expressio unius exclusio alterius, he submitted
that no limitation on time for the making of an application of this kind was
applicable in this case.
Mr Gordon
further contended that an application remained an ‘application made’ within
section 108(1) until that application had been determined by a decision;
accordingly, since a decision was not taken until the appeal had been
dismissed, the application was still an ‘application made’ at the time and
after the article 4 direction took effect.
As to the
council’s third contention, the ‘decision’ referred to in regulation 14(2) is
the decision which triggers the claim and, in this case, was that of the
inspector dismissing the company’s appeal. Accordingly, the claim was put
forward by the company within the time limited by regulation 14(2).
Decision
In my
judgment, the construction of these provisions contended for by Mr Hockman on
behalf of the council is correct. It seems clear to me from the language used
that the scheme of section 108 envisages, first,
and the Schedule is withdrawn and an express application for planning
permission rendered necessary if it is sought to carry out the formerly
permitted development; second, an application for permission for the
development formerly permitted; and, third, a decision by the local planning
authority to refuse that permission or to grant it subject to conditions. Only
when all three steps have been taken can the right to compensation crystallise.
As to the
nature of the application to be made, I cannot accept the argument of Mr Gordon
based on the proposition that the greater includes the lesser. Whether the
application made must relate exclusively to the formerly permitted development
or may include proposals for other forms of development in addition I do not
find it necessary to decide. In my view, however, the application made must at
least relate specifically to the formerly permitted development so as to make
clear to the local planning authority the subject-matter of the application and
thus enable them to consider it and to refuse or grant it.
In the present
case the only application on which the company relies was an application ‘to
use the land as a market each Sunday’. The local planning authority could not
have treated that as an application to exercise ‘the 14-day rights’ granted by
the GDO and could not in response have granted planning permission in those
terms. The two forms of development are substantially different and there is no
power in the local planning authority to grant planning permission for
something substantially different to what has been applied for. Thus the
application made by the company was not ‘an application for development
formerly permitted’ within the terms of section 108.
A similar
reasoning leads me to conclude that the relevant application for planning
permission must follow and not precede the issue of the article 4 direction; it
is only in that instance that the local planning authority have an opportunity
to consider the application and either to refuse or to grant it. No application
for planning permission and no express grant would in any event be necessary
prior to the making of the article 4 direction and, if made, it must at any
rate be doubtful whether the local planning authority would have power to deal
with it otherwise than by a determination under section 64 of the Act that an
application for planning permission was not required. For this reason also, it
is my view that the application made by the company in September 1988 was not one
which satisfied the requirements of section 108.
That is
sufficient to decide the preliminary point of law in favour of the council. I
indicated in the course of the hearing that I was unpersuaded as to the third
point taken by Mr Hockman for the council. In my view, a decision by the
Secretary of State dismissing an appeal against a refusal of planning
permission is itself a refusal of planning permission on an application made
under Part III and therefore attracts the operation of section 108. In relation
to the provisions of regulation 14 of the General Regulations 1976, I can see
no reason why that decision of the Secretary of State or his appointed
inspector cannot be ‘the decision in respect of which the claim is made’ for
the purpose
correct, a claimant would in normal circumstances be required to lodge a claim
for compensation while still pursuing an appeal against the refusal of planning
permission. If that appeal were to succeed, the exercise of lodging a claim for
compensation would be pointless. It is no answer to say, as Mr Hockman
submitted, that the Secretary of State has a discretion under the proviso to
regulation 14(2) to extend the time ‘in any particular case’.
I would,
therefore, have decided the third point in favour of the claimants but that
does not affect my conclusion that, for the reasons stated earlier, the
application made by the company is not a valid claim for compensation under
section 108.
At the close
of the hearing the parties were invited to make representations as to costs and
I have considered letters dated January 22 and 24 1992 from the council and a
letter in response dated January 28 1992 from the claimants’ solicitors. I see
no reason in this case to depart from the general principle that costs follow
the event and, since the decision on this preliminary point disposes of the
reference, the order of the tribunal will be that the claimants will pay the
costs of the council, such costs if not agreed to be taxed by the registrar of
the tribunal on the High Court scale.
Preliminary point of law decided in favour of
council; claimants to pay council’s costs.
