Declaratory relief — Floating movable heliports — Whether material change of use of land — Whether temporary use — Determination of planning unit
The plaintiff
had proposals for 22 helicopter landing and taking-off sites in the 10 miles
from Chelsea Harbour to the Trafalgar Hotel, Greenwich. At these sites the
helicopters would land on, or take off, from a vessel floating, but not moored,
on the River Thames. In an action for the determination of certain questions,
the parties sought to have determined whether the proposals would constitute
operational development or a change of use. If development, whether the use of
the floating vessels and heliport for not more than 28 days in total in any
calendar year would constitute development granted permission by virtue of
section 59(2)(a) of the Town and Country Planning Act 1990 and article 3(1) and
Schedule 2, Part (4), class B to the Town and Country General Development Order
1988. The parties agreed that if the proposals were development the use of the
river as a whole for the operation of a heliport would be permitted development
within class B. However, the plaintiff contended that, for the purposes of the
general development order, the correct planning units corresponded with each of
the particular locations at which helicopters would land and the planning unit
was not the whole length of the river comprising all the proposed 22 landing
sites. The court below held that the operation of a heliport on vessels on the
River Thames would constitute a material change in the use of land. The
appropriate planning unit was the length of river consisting of the 22 sites;
accordingly the proposed use of that unit for not more than 28 days each
calendar year was permitted development under class B. Therefore, the use of a
floating vessel at each of the 22 locations for not more than 28 days each
calendar year was not permitted development. The plaintiffs appealed.
The river bed
and banks are land. The proposals are to use that land for bearing the weight
of water to support helicopter traffic. The proposal is capable of being
material in an environmental context whether looking at the sites individually
or in their totality, accordingly the use of a floating vessel not moored on
the tidal River Thames for landing and taking off by helicopters could
constitute a change for the purposes of section 55 of the Town and Country
Planning Act 1990. It is not the court’s business to make declarations in
relation to hypothetical questions. It would only be right to exercise its
discretion to make a declaration as to whether the
as a matter of law, a planning authority could not validly serve an enforcement
notice in relation to land which is larger than that subjacent to one of the
vessels. It is inappropriate to attempt to use the mechanism of securing a
declaration from the court so as to inhibit the decision makers entrusted with
deciding the planning unit for the purposes of the deemed planning permission
for a use of land limited for 28 days in each calendar year under the General
Development Order 1995.
to in the judgments
Attorney-General
ex rel Yorkshire Derwent Trust Ltd v Brotherton
[1992] 1 AC 425; [1991] 3 WLR 1126; [1992] 1 All ER 230; 90 LGR 15, HL
Bernstein
of Leigh (Baron) v Skyviews & General Ltd
[1978] QB 479; [1977] 3 WLR 136; [1977] 2 All ER 902; [1977] 1 EGLR 96; [1977]
EGD 789; (1977) 241 EG 917
Blundell v Catterall (1821) 5 B & Ald 268; [1814–23] All ER Rep
39
Burdle v Secretary of State for the Environment [1972] 1 WLR 1207;
[1972] 3 All ER 240; (1972) 70 LGR 511; 24 P&CR 174; [1972] EGD 678; 223 EG
1597, DC
Calgarth,
The; Otarama, The [1927] P 93
Church
Commissioners for England v Secretary of State
for the Environment (1995) 71 P&CR 73
Duffy v Secretary of State for the Environment [1981] 2 EGLR 163;
(1981) 259 EG 1081; [1981] JPL 811
Embrey v Owen (1851) 6 Ex 353
Fuller v Secretary of State for the Environment (1988) 56 P&CR
84; [1988] 1 EGLR 185; [1988] 01 EG 55; [1988] 1 PLR 1
Johnston v Secretary of State for the Environment (1974) 28 P&CR
424, CA
Kwik Save
Discount Group v Secretary of State for Wales
(1978) 77 LGR 217; 37 P&CR 170; [1978] 2 EGLR 134; 247 EG 562, DC
Lyon v Fishmongers Co and Conservators of the River Thames [1876]
1 App Cas 662
Parkes v Secretary of State for the Environment [1978] 1 WLR 1308;
[1979] 1 All ER 211; (1978) 77 LGR 39; 36 P&CR 387; [1978] 2 EGLR 143;
[1978] EGD 973; 248 EG 595; [1979] JPL 33, CA
Pyx
Granite Co Ltd v Ministry of Housing and Local
Government [1960] AC 260; [1959] 3 WLR 346; [1959] 3 All ER 1; (1959) 58
LGR 1; 10 P&CR 319, HL
Rawlins v Secretary of State for the Environment (1989) 60 P&CR
413; [1990] 1 PLR 110; [1990] JPL 326, CA
Trentham
(G Percy) Ltd v Gloucestershire County Council
[1966] 1 WLR 506; [1966] 1 All ER 701; (1966) 64 LGR 134; 18 P&CR 225, CA
Appeal against
the decision of Sir Hadyn Tudor Evans
This was an
appeal by Thames Heliport plc against a decision of Sir Hadyn Tudor Evans who
made declarations on an agreed application by the plaintiff and the defendants
for the determination of certain questions arising out of the plaintiff’s
proposals to provide a floating heliport on the River Thames.
Fitzgerald QC and Robert Fookes (instructed by Frere Cholmeley Bischoff)
appeared on behalf of the plaintiff.
Widdicombe QC and Michael Druce (instructed by the solicitor to Tower Hamlets
London Borough Council) appeared on behalf of the defendants.
following judgments were delivered.
SCHIEMANN LJ: This case raises several points of general interest concerning the
impact of the town and country planning legislation on the Thames and other rivers.
It concerns a
proposal (‘the proposal’) to establish a heliport facility on a vessel which
will navigate up and down a stretch of some 10 miles of the Thames stopping
from time to time in mid river at one or other of some 22 sites between Chelsea
Harbour and Greenwich to enable helicopters to land and then take off from the
vessel. A maximum of 22,000 helicopter movements per year is envisaged.
Clearly, all this may have a significant environmental impact. A planning
application for a heliport at a single land site by the Thames at Cannon Street
has already been turned down on its merits by the Secretary of State for the
Environment (‘the Secretary of State’). Some would claim an environmental
advantage of the proposal over that which has been turned down is that the
inevitable disturbance created by helicopters will be spread more thinly over a
wider area rather than being concentrated on one site. Others would say that it
is better to concentrate all the disadvantages in one place rather than encourage
helicopter landings all along the Thames. That value judgment is not for this
court which has not been given jurisdiction by parliament to make rulings on
planning merits.
The case come
before the court because the parties have sought declarations of law from the
court as to the impact of the town and country planning legislation on the
proposal. Mr Michael Fitzgerald QC on behalf of the applicants submits first
that the legislation has no impact whatever on the proposal. Alternatively he
submits that if the legislation does impact on the proposal then its effect is
to grant planning permission for it without further ado. Mr David Widdicombe
QC, who appears for Tower Hamlets London Borough Council, which have been
chosen by the 11 planning authorities potentially affected by the proposal as
the lead authority for its consideration, invites the court to reject each of
these submissions. It would manifestly be convenient for Mr Fitzgerald’s
clients simply to go ahead without asking for permission secure in the
knowledge that no enforcement proceedings can be taken. These proceedings are
designed to give them that security.
The main legal
questions of general import which we were invited to address were:
1. How, if at
all, does the legislation impact on activities carried out on boats stationary
in midstream?
2. How does
the legislation impact on an activity carried out on parts of a large area
(‘the sites’) in circumstances where:
(a) those
sites are separated from each other by other parts where the activity primarily
under consideration (‘the primary activity’) is not carried on; and
(b) the
primary activity is not carried on at more than one site at a time?
There is a
subsidiary matter which pervades this case, namely that many questions in
planning law depend on an evaluation of facts which
authorities including the Secretary of State. In general in this type of case
the courts’ jurisdiction is invoked after the decision has been made by a
planning authority when it is sought to control the legality of that decision.
While the jurisdiction of the courts to make anticipatory declarations in
planning matters before any evaluation has been done by the planning
authorities is undoubted (Pyx Granite Co Ltd v Ministry of Housing
and Local Government [1960] AC 260), the court will be extremely cautious
in making pronouncements at such an early stage. In particular the court will
not make judgments in relation to questions of mixed fact and law which are
primarily entrusted to planning authorities.
It has to be
borne in mind that parliament has provided in section 192 of the Town and
Country Planning Act 1990 a mechanism for the citizen who wishes to discover
whether a proposed use of buildings or other land would be lawful under the
planning legislation. In general it will be appropriate to use that method
rather than come to the courts for the answer. However, Mr Fitzgerald QC and Mr
Widdicombe QC submit that the court can by its judgment at this stage can help
the planning process function more smoothly and efficiently. As will appear, I
consider that up to a point it is indeed convenient for the court to make
declarations at this stage. I record in passing that the Secretary of State has
been asked by the parties whether he wishes to be joined in these proceedings,
but has taken the view that this would be inappropriate.
There are
broadly two matters of concern to the parties: is planning permission required
for the proposal and, if so, is it granted by the General Development Order
1995? I look at these matters in turn.
Is
planning permission required?
Mr Fitzgerald
QC puts his case thus:
1. It is
common ground that the proposal can only constitute development if it involves
a material change in the use of land. That is clear from the Town and Country
Planning Act 1990. Section 57(1) provides that planning permission is required
for the carrying out of any development of land. Section 55(1) provides that
development means the carrying out of building, engineering, mining or other
operations in, on, over or under land, or the making of any material change in
the use of any buildings or other land.
It is common
ground between the parties that the proposal does not involve the carrying out
of building, engineering, mining or other operations in, on, over or under
land: see Parkes v Secretary of State for the Environment [1978]
1 WLR 1308.
2. Land is
defined in the 1990 Act by section 336(1):
In this Act,
except in so far as the context otherwise requires …
‘land’ means
any corporeal hereditament, including a building, and, in relation to the
acquisition of land under Part IX, includes any interest in or right over land;
Flowing water
is not a corporeal hereditament or part of a corporeal
river solely.
3. The first
task therefore is to identify the land in relation to which the question is
asked. In the context of the present case that involves identifying its
situation vertically and horizontally.
(a) The
vertical part of this exercise involves considering such questions as ‘is land
merely the soil constituting river bed and banks or does it include the water
and air above the soil?’
(b) Turning to
the question ‘what are the horizontal boundaries of the site under
consideration?’ one must consider separately each bit of the bed of the river
over which it is anticipated that the vessel would be stationed.
4. The second
task is to see whether it is proposed to change the use of the land as
identified. As to this, he submitted that the existing use of the river bed was
to support and contain water for navigation that the carrying out of the
proposal would not alter that use and that therefore no change of use was involved
in the proposal.
5. It is only
if a change of use of that identified land is proposed that one might have to
go on to consider a third task, namely to determine whether or not that change
of use is material. He accepted that, if the court got as far as having to
consider the third task, it should proceed on the basis that a change of use could
be material. However the court should not attempt to decide whether the
proposed change of use would be material.
The following
are my views under each of those heads.
1. I accept
for present purposes that the proposal can only constitute development if it
involves a material change in the use of land.
2 and 3. It is
common ground and I accept for present purposes that whichever segment of the
bed of the river one focuses on is a corporeal hereditament and that flowing
water is not a corporeal hereditament. Mr Widdicombe submitted that flowing
water in circumstances such as the present is part of a hereditament. He based
that submission on cases such as Bernstein of Leigh (Baron) v Skyviews
& General Ltd [1978] QB 479 and the cases cited there, dealing with the
maxim cuius est solum eius est usque ad coelum et ad inferos and, no
doubt feeling forensically naked without a decent covering of case law, cited
cases referring to the rights at common law of navigation and of riparian
owners: such as Lyon v Fishmongers Co and Conservators of the River
Thames [1876] 1 App Cas 662 and the cases cited there. For my part, I do
not regard any of these cases as particularly helpful in coming to a decision
as to what constitutes land for the purposes of the Town and Country Planning
Act 1990.
So far as the
vertical identification of the land is concerned I am prepared to come to a
decision in this matter on the basis most favourable to Mr Fitzgerald’s
submissions, namely that for that purpose in the context of the present case
land means the bed and banks of the river.
So far as the
horizontal identification of the land is concerned I do not find it necessary
at this point in the argument to come to a decision. That is because, for
reasons I shall give later in this judgment, I consider the establishment of
the boundaries is primarily a matter for the planning
horizontal boundaries.
4 and 5. I am
unable to accept Mr Fitzgerald’s two-stage approach to the question whether
there would be a material change in the use of land if the proposal went ahead.
Planning law is concerned, in this context, with the effect on others of the
making of material changes in the use of land. In the context of the problems
facing the appellants and the planning authorities I do not find the separation
of the questions — ‘does the proposal involve the making of a change in the use
of land’ and ‘does the proposal involve the making of a material change in the
use of land’ — at all helpful in focusing the eye on that which matters from an
environmental point of view.
The
materiality of something will depend on the context in which it is being
examined. One must always ask: material for what purposes? If I go shopping and
put a pound of butter in my basket but just outside the shop someone swaps the
pound of butter for a pound of margarine there is no material change so far as
the weight of the basket which I have to carry on the journey home is
concerned, but there is a material change when it comes to tomorrow’s breakfast.
It is clear
planning law that one can make a material change in the use of land by carrying
on activities on that land although nothing physical is done to the land
itself. Suppose I lay protective matting over the whole of a field. That
matting would not be part of the corporeal hereditament. I then introduce a
market use with the benefit of planning permission. Then I cease the market use
and decide to change to use by massed brass bands. However, I still keep the
same protective matting lying on the land. From the point of view of the
borough engineer that might not be a material change of use of the land. No
additional stability or safety problems are involved. For him it is quite
adequate to say that before and after there were people tramping on matting
laid on earth. He could say and say correctly from his standpoint that there
had been no material change of use in the land.
However, while
indeed it would be an accurate analysis of the situation to say that both
before and after the concerts the land has been used for the purpose of
walking, standing and sitting by human beings, such an analysis is in my
judgment not adequate for the purposes of planning law. For those purposes one
must go on to ask: has anything changed on the land which is capable of being
material from an environmental point of view? Once one asks that question, one
finds that the sound emanating from the land by reason of the presence of the
massed colliery bands is potentially highly material as seen through the eyes
of the patients in the neighbouring hospital. They might well say that I have
made a material change in the use of my land. They would regard the presence of
the protective matting as being, like the line in The Importance of Being
Ernest, immaterial.
Coming closer
to the present case, I accept that it is an accurate analysis of the situation
to say that both before and after the arrival of the vessel the land underneath
it is used for bearing the weight of and confining the
do not consider that this analysis provides the answer to what I regard as the
relevant question, namely: does the proposal involve activities which may
involve making a material change in the use of the river bed and banks. Much
may depend on the nature of the solids which are suspended. If a flowing river
is dammed up and raw sewage flows where previously clear water used to flow
that would, in my judgment, be capable of constituting a material change of use
of land.
I accept that
it is an accurate analysis of the situation to say that the river bed is
currently being used for bearing the weight of water in which boats navigate
and that the implementation of the proposal may not significantly affect the
truth of that assertion. But again I do not consider that it provides the
answer to what I consider is the relevant question, namely: does the proposal
involve activities which may involve making a material change in the use of the
river bed and banks.
It seems to me
that it is an equally correct analysis to say that whereas now the land is used
for bearing the weight of water and ships which do not attract helicopter
traffic, the proposal is to use the land for bearing the weight of water and
ships which do attract helicopter traffic.
The question
which faces the court is: which of these analyses is appropriate in the context
of the town and country planning legislation? In my judgment, it is the last
because the legislation is designed to regulate questions of the human environment
and not questions of physics. One must look at the question ‘has someone made a
material change in the use of land?’ from the point of view of human beings
likely to be affected by the change which has occurred. The worm’s eye view
adopted by Mr Fitzgerald is accurate but not taken from the appropriate
viewpoint for the purposes of the planning legislation.
It is
important that the court and the planning authorities remember the words of
Lord Parker CJ recorded in G Percy Trentham Ltd v Gloucestershire
County Council [1966] 1 WLR 506 at p509D:
… town and
country planning is a comprehensive operation and … its object, namely, overall
control of development, would be seriously impeded if a narrow view were to be
taken as to the relevant considerations.
To hold, as Mr
Fitzgerald submits we should hold, that the legislation provides one answer if
the vessel is tethered to the river bed or banks but another answer if the
vessel is kept stationary by the use of its engines alone would be to take far
too narrow a view and produce a result against which commonsense rebels.
In the present
case, the carrying out of the proposal is manifestly capable of being material
in an environmental context. That is so whether one is looking at the sites
individually or in their totality.
The first
declaration sought by the plaintiffs in their originating summons was:
Whether
helicopters landing on or taking off from a vessel floating, but not moored on,
the tidal River Thames … constitutes the operational
and 336 of the Town and Country Planning Act 1990
The learned
judge answered that question as follows:
Helicopters
landing on or taking off from a vessel floating but not moored on the tidal River
Thames (as described in the Plaintiff’s first affidavit and Exhibit MBF2) would
not constitute the operational development of land but would constitute a
change of use of land for the purposes of Section 55 of the Town and Country
Planning Act 1990
For my part, I
consider that the judge went too far although he is not to be blamed for doing
so since he was acting at the express request of the parties in taking upon
himself the ultimate decision on the merits. He declared not merely that the
proposed activities could amount to making a material change of use of land,
but that they would. Mr Widdicombe conceded that on the minimal information
before the court it was conceivable that one or more of the sites might be in
such an environment and that it would be legally possible to take the view that
the landing of helicopters on a vessel stationed in that part of the river
would not amount to the making of a material change of use.
It would be
conclusive of the dispute between the parties if we rule that the landing could
not constitute development of land and therefore it was, in my judgment,
legitimate to come to the court at this stage in the hope of such a
declaration. If such a holding were correct then section 192 would have no
application to the plaintiff’s proposed activities and would not be available
to them nor would it be appropriate to apply for planning permission. However I
understand that my lords agree with me that we should not give such a negative
ruling. In those circumstances there is room for argument as to whether it is
appropriate to make any declaration at all since the court’s judgment would
seem adequate. We have heard no argument on operational development and it is
not necessary for our decision that we should express a view on the correctness
of that part of the judge’s declaration.
For my part I
would confine any declaration that we make to the following:
Helicopters
landing on or taking off from a vessel floating but not moored on the tidal River
Thames (as described in the Plaintiff’s first affidavit and Exhibit MBF2) could
constitute a change of use of land for the purposes of Section 55 of the Town
and Country Planning Act 1990.
The second
question posed in the summons for the judge was:
Whether the
operation of a heliport on the tidal River Thames as proposed in the
plaintiff’s draft agreement constitutes the development within the meaning of
section 55 of the Town and Country Planning Act 1990, namely a material change
of use of land, alternatively is capable of constituting a material change of
use.
To this the
learned judge answered:
The operation
of a heliport on the tidal River Thames as proposed in the Plaintiff’s draft
agreement … would constitute development within the meaning of Section 55 of
the Town and Country Planning Act 1990, namely a material change of use of
land.
Here the judge
was considering not the individual sites but the 10-mile stretch of the Thames
covered by the draft agreement. Mr Widdicombe submitted that it was plain not
merely that development could be involved but that it would be. I do not
consider that it would be right for this court to hold as a matter of law that
a material change of use would occur. That is a value judgment entrusted to the
planning authorities and not to this court. If my lords agree that a
declaration in relation to the first question be made in the terms proposed
earlier in this judgment there appears to me to be no necessity for any
declaration at all in relation to the second question.
Has
planning permission been granted?
For the
purposes of this part of the case, Mr Fitzgerald assumes against himself that
the court has decided, as in the event it has, that the proposal could involve
development. He submits that, absent a revocation, which would attract
compensation, planning permission is granted by The Town and Country Planning
(General Permitted Development) Order 1995 (SI 1995 No 418) (‘the GDO’). The
judge decided this case under the 1988 rather than the 1995 GDO, but nothing
turns on the difference and it is convenient to use the current version.
The Act
provides in section 58(1)(a) and section 59 that planning permission may be
granted by a development order. Although we are concerned with the general
development order, it is worth noting that planning permission can also be
granted by special development orders for specific projects such as the
proposal. The GDO by article 3(1) grants planning permission
… for the
classes of development described as permitted development in Schedule 2.
That schedule
covers a considerable number of matters which might amount to development but
which were regarded by parliament as not being of sufficient significance for
the environment to warrant requiring the developer to ask for planning
permission and thus put in motion the whole lengthy and expensive planning
process. In some cases the lack of significance is the result of the physical
nature of what is intended, in other cases it is the result of the lack of
duration of what is intended. Thus Part 4 of Schedule 2 describes under class B
as permitted development:
The use of
any land for any purpose for not more than 28 days in total in any calendar
year …
The vessel has
a length of 47.2m and a width of 13.1m. If a declaration were made that permission
has been granted by the GDO for helicopters landing on or taking off from a
vessel wherever on the Thames that vessel happened to be then a very
considerable number of potential sites would be involved. Even restricting
oneself to the proposal, 22 sites were involved, many of which were close to
one another. Thus between Lambeth Bridge and Waterloo Bridge we have five sites
in a stretch of the river which can be walked in a quarter of an hour.
Instinctively,
one feels that it would be surprising if parliament intended that a heliport
vessel successively stationed each month on each of those five sites throughout
the summer should be regarded as sufficiently transitory not to require the
invocation of the planning process. However, Mr Fitzgerald’s submission is
forceful and elegant in its simplicity. He submits that one must look at each
of the 22 sites in turn and ask oneself: has permission for the use of that
site for the purposes of a heliport for 28 days been given by the GDO? He
submits that if one asks that question the answer is in the affirmative beyond
argument. He relies on the fact that each of the sites is separated from the
others by a stretch of water upon which there is no intention that the vessel
should be stationed for the purpose of serving as a heliport. On the other
hand, he accepts that it is implicit in his submission that, if the mode of
operations were to be not as currently envisaged but were instead to involve a
slowly moving vessel which it was possible to use as a heliport while it was
moving, then no enforcement notice could be upheld unless it were shown that
there had been more than 28 days’ use as a heliport at any particular location.
In practice this would be impossible.
The parties
evidently saw the problem which faced them as follows. Taking the word ‘land’
in Schedule 2 as referring to the bed and banks of the river, does the land
refer to the whole length and breadth of the river or some part of it? How are
the confines of that part to be established? Is it, as the appellants contend,
the land underneath the ship at any one time, is it the whole of the Thames, or
is some intermediate position applicable?
They sought
the help of the court by means of an originating summons. The questions posed
in the originating summons in relation to the GDO are threefold being directed
respectively to the whole of the tidal River Thames, the area of the tidal
River Thames delimited by the two extremes of the 22 sites, namely from
Greenwich to Chelsea, and particular locations where the vessel might be at any
particular moment. The questions were formulated as follows:
3(i) Whether
helicopters landing on or taking off from a vessel floating, but not moored on,
the tidal River Thames for not more that 28 days in total in any calendar year
would constitute development granted permission by virtue of … [the GDO].
3(ii) Whether
helicopters landing on or taking off from a vessel floating but not moored on
the tidal River Thames as proposed in the plaintiff’s draft agreement … for not
more than 28 days in total in any calendar year would constitute development
granted permission … [by the GDO].
3(iii)
Whether helicopters landing on or taking off from a vessel floating
but not moored on the tidal River Thames at a particular location for not more than
28 days in any calendar year would constitute development granted permission by
virtue … of [the GDO].
The question
paper on which the parties sought and seek to examine the court is a tribute to
the examiners’ ingenuity. The judge settled down to answer it. He answered the
first two questions in the affirmative and the last question in the negative.
While I have sympathy with him for embarking on the examination paper set for
him by the parties I think he was wrong so to do, and this for a number of reasons.
The first
and second declarations
The first and
second declarations related to something which the applicants had no intention
of doing. As Mr Fitzgerald readily conceded, a mere 28 days of helicopter
operations would be of no commercial or other interest to his clients. It is
not the court’s business to make declarations in relation to hypothetical
questions. We are here to solve problems of importance to litigants and should
not put off doing that in order to give our opinions on matters of no immediate
interest to the parties: see the cases cited in the Supreme Court Practice
under Ord 15 r 16.
I note a
further, but not presently crucial point. The declarations are not clear.
Suppose two or more vessels are eventually engaged in helicopter operations.
Was the judge declaring in the first declaration that each vessel could operate
for 28 days or was he declaring that they only had 28 days between them? Could
all the vessels operate on the same day and, if so, at the same times and, if
so, how would this count towards the total?
The third
declaration
The third
declaration sought is the only one which could arguably decide a matter of
significance to the parties. A declaration that from any particular location a
vessel could operate for 28 days as a heliport (‘a positive declaration’) might
be of significant advantage to the appellants if, but only if, the result of
making such a declaration would be to ensure that any enforcement notice
thereafter issued by a planning authority under section 172 or the Secretary of
State under section 182 could be met by the assertion that it had already been
bindingly decided by the court that there had been no breach of planning
control because the required planning permission had been granted by the GDO.
If a declaration did not have that effect then it would serve no purpose.
It is
therefore important to consider the enforcement provisions in Part VII of the
Act. The most significant aspect of these so far as the present case is
concerned is that an enforcement notice must specify the precise boundaries of
the land to which the notice relates: Town and Country Planning (Enforcement
Notices and Appeals) Regulations 1991, regulation 3. Now the fixing of the
boundaries of land in relation to which it is proposed to take enforcement
action is a matter which parliament has left initially to the planning
authorities subject to control by the Secretary of State on appeal. Parliament
has provided in section 285 of the Act that the validity of an enforcement
notice is not to be questioned in the courts on
Part VII of the Act except by such an appeal. One of those grounds is that the
matters do not constitute a breach of planning control section 174(2)(c). The
control of the courts is limited by section 289 to appeals from the Secretary
of State on points of law.
In my
judgment, it would only be right for the court to exercise its discretion to
make a declaration in the context of the present case if it were persuaded
that, as a matter of law, a planning authority could not validly serve an
enforcement notice in relation to land which is larger than that subjacent to a
vessel. I am not so persuaded.
It is common
ground that there is nothing in the Act which points to the conclusion that
each site must be considered on its own. As I have indicated it is one I find I
would find surprising. What then about the case law? None of the cases have
tackled precisely the problem before us.
There are,
however, numerous cases in which the court has grappled with the problem: what
is the correct planning unit: see Burdle v Secretary of State for the
Environment [1972] 1 WLR 1207, Johnston v Secretary of State for
the Environment (1974) 28 P&CR 424, Kwik Save Discount Group v Secretary
of State for Wales (1978) 37 P&CR 170, Duffy v Secretary of
State for the Environment [1981] JPL 811, Fuller v Secretary of
State for the Environment (1988) 56 P&CR 841, Rawlins
v Secretary of State for the Environment (1989) 60 P&CR 4132,
and Church Commissioners for England v Secretary of State for the
Environment (1995) 71 P&CR 73. That phrase is not to be found in the
Act but is used by those, including the courts, who have to make decisions in
this field as a conceptual tool to help them answer a problem which faces them.
It can be useful when considering questions such as ‘on what land should I
focus when considering whether a material change of use has occurred; is it a
large site, in which case what has happened in one corner of it may not be
material, or is it the corner of the site where the change of activity has
actually occurred’ ? That was the problem in Burdle, Johnston,
and Rawlins, all enforcement notice cases. A similar problem arose in a
case where a certificate of lawfulness was sought. That was the position in The
Church Commissioners’ case. That case concerned a huge shopping complex of
300 shops. The proposal was to change the use of one of the shops. The
appellant developer identified the whole complex as the planning unit and
asserted that a change of use proposed in one of the shops would not require
planning permission. The planning authority and the Secretary of State on
appeal identified the single shop in question as the planning unit and held
that what was proposed would require planning permission. The court held they
were entitled to do so. The concept of a planning unit can also be useful in
enforcement cases in situations where part of a large site splits off and the
question arises whether the split off part can make use of a permission which
had been given for the larger site or of an existing use
Duffy and Fuller.
1 [1988] 1 PLR 1.
2 [1990] 1 PLR 110.
What one sees
time and again in these cases is that the court, while occasionally prepared to
hold that the decision maker has made an error of law in his identification of
the planning unit, repeatedly affirms that the determination of the boundaries
of the planning unit is initially for the planning authority and is essentially
a matter of fact and degree. Even where, as in Burdle, the court held
that the Secretary of State had erred in the test to be applied it sent the
case back to him to apply the correct test and indicated that the answer was an
open question.
There is
nothing in the case law to which our attention has been drawn or of which I am
aware which would preclude, for instance the Secretary of State, from
concluding that the five nearly adjacent sites to which I have referred above
are to be treated as one planning unit so as to inhibit any reliance on the GDO
for more than 28 days. The task for the decision taker when considering Part 4
of the Schedule and what is the appropriate planning unit is to look at the
phrase
‘The use of
any land for any purpose’, broadly in the light of the declared desire of the
applicant to use for one project a number of sites on the river. I do not
consider that the decision taker should define the land without reference to
the purpose.
I consider it
inappropriate to attempt to use the mechanism of securing a declaration from
the court so as to inhibit the decision takers primarily entrusted by
parliament with the difficult task of deciding these matters from forming their
own view.
The Act
provides in section 192 a method of obtaining from the planning authority a
certificate of lawfulness of use. It is noteworthy from section 193(4) that the
planning authority in dealing with an application for such a certificate is not
bound to accept the boundaries of the land specified by the applicant. If he
applies for too large a site the authority’s certificate can cut it down.
Parliament did not envisage for understandable reasons that he might apply for
too small a site. If a planning authority takes the view that the application
is made in relation to too small a site then it seems to me that their
appropriate course is to refuse to issue the certificate while perhaps
indicating that an application in respect of a larger site might fare rather
better.
I would refuse
to make any declarations in relation to the three questions posed under this
head in the summons. If I were persuaded that the only possible planning unit
for the purpose of enforcement action were the site occupied by the vessel at
any one time I might take a different view. However I am not so persuaded and
therefore regard it as inappropriate to make a declaration.
Judgment
The judge did
not, as I have done, refuse to answer the examination paper. He held at p36:
I am not
persuaded that it would be correct … to take each individual site of activity
as the basis of permitted development. While I accept that
activities are, in my view, linked … The whole area, including the banks of the
river, will be involved.
For myself, I
prefer to express no view on this. It may be that one or more of the 22 sites
can be considered as a planning unit. However, for reasons which I have sought
to indicate, I regard it as inappropriate for the court to decide in an action
for a declaration the boundaries of land to which any permission granted by the
GDO attaches.
I would therefore
allow the appeal, set aside the order made by the judge and substitute merely
one declaration, namely:
Helicopters
landing on or taking off from a vessel floating but not moored on the tidal
River Thames (as described in the Plaintiff’s first affidavit and Exhibit MBF2)
could constitute a change of use of land for the purposes of Section 55 of the
Town and Country Planning Act 1990.
WARD LJ: I begin by paying tribute to the gripping submissions advanced by
counsel, especially by Mr Fitzgerald QC. They deserve more than a mere
expression of agreement with the orders proposed by Schiemann LJ and for that
reason I express my views, albeit shortly. I answer the questions in this way:
Is planning
permission required?
1. There is no
operational development of the land as defined in section 55 of the Town and
Country Planning Act 1990, that is to say no ‘carrying out of building,
engineering, mining or other operations’ and this is so obvious that it would
not merit mention but for the fact that I note that these operations can be
carried out ‘in, on, over or under land’ (emphasis supplied). ‘Over’
must mean above, that is to say not touching or physically connected to the
land. It suggests at least that ‘land’ can extend vertically beyond its
surface. It would be odd that an operation over land is a development but that
‘a change of use in the … land’ cannot encompass a change in an activity which
takes place somewhere over/above the land. A consistent interpretation would
seem to demand a wide interpretation.
2. The
interpretation with which we are directly concerned, however, is as to the
meaning of development other than operational development, that is to say
development by:
the making of
any material change in the use of any buildings or other land.
3. Land is
defined in section 336(1) as ‘any corporeal hereditament’. The running water in
the Thames may be corporeal but it is not an hereditament because it cannot be
inherited.
A river … is
more complex consisting as it does not only of the bed and banks which contain
the water and which are capable of ownership, but of the running water which,
so long as it flows within the banks, is res nullius:’
per Lord Jauncey of Tullichettle in Attorney-General ex rel
Yorkshire Derwent Trust Ltd v Brotherton [1992] 1 AC 425 at p445G.
No ordinary users of the language will be surprised by the conclusion that
water is not land.
4. So what is
the land? It is and can only be the river bed and the river banks.
5. But what is
the use being made of the river bed and its banks? As already suggested by Lord
Jauncey, their use is to form the channel through which the tidal waters ebb
and flow.
6. The crucial
question, in my judgment, is how wide that use as a channel is to extend. I
take the answer and the right test from the judgment of Lord Denning MR in G
Percy Trentham Ltd v Gloucestershire County Council [1966] 1 WLR
506, at p512D:
You should
look at the whole area on which a particular activity is carried on, including
uses which are ordinarily incidental to or included in the activity.
So the use of
the bed and banks is to provide the channel which constitutes the tidal river.
The use which is ancillary to this container through which a navigable tidal
river runs, is the exercise of rights of passage through it and all that is
ordinarily incidental to and included in that activity. In Attorney-General
v Brotherton Lord Jauncey, comparing the right of navigation over water
and a right of way on land, said at p444H–445A:
The two
rights are similar inasmuch as each confers upon the public the right of
passage …
It may well
be, as Mr Fitzgerald contends, and as Blundell v Catterall asserts,
that this is a right upon water not upon the land, but the question is not directed
to characterising the right, but identifying the ancillary uses to which the
land, ie of the bank and bed, is put, ancillary, that is, to its primary use as
the container for the flowing water. The right of passage is described in this
way by Holroyd J In Blundell v Catterall (1821) 5 B & Ald
268, at p294:
By the common
law, all the King’s subjects have in general a right of passage over the sea
with their ships, boats, and other vessels, for the purposes of navigation,
commerce, trade, and intercourse, and also in navigable rivers …
It seems to
me, therefore, that the activity which is ordinarily incidental to the use of
this container for flowing water is the activity of ships boats and other
vessels passing over the water for the purposes of navigation, commerce, trade
and intercourse.
7. In order to
see whether there is a change in use as I have now defined it, it becomes
necessary to establish the nature of the use for which the plaintiffs seek
planning permission. Their scheme involves converting a former passenger
carrying cruiser by fitting it out with the flat deck upon which the helicopter
can land. It is, of course, necessary for this vessel to
appropriate point at which the helicopter will land and, once passengers have
embarked and disembarked, the vessel will move off again and tie up to the
bank. That, submits Mr Fitzgerald, is the ordinary navigation of the river. But
that is not the essential part of the scheme. The success of the scheme depends
upon the vessel maintaining a fixed position for howsoever long it may take for
the river taxis to arrive with passengers, for the helicopter to land and later
take off again and for the passengers then to disembark by the river taxis to
the bank. The essential part of the operation requires the maintenance of this
fixed position. Viewing the operation as a whole but recognising what its
essence is, is that a change in use?
In G Percy
Trentham Diplock LJ said at p513D, and I do not repeat this in order to be
rude to Mr Fitzgerald:
I do not
think that anywhere, except in a court of law, it would be argued with gravity
that a Dutch barn or grain and fodder stores or any ordinary farm building are
properly described as repositories. A Gloucestershire farmer would say they
were farm buildings and would laugh at their being called ‘repositories’.
Adopting that
approach, if a Thames boatman would laugh at the notion that the activity of
holding this converted cruiser stationary in the river while a helicopter lands
on it and takes off from it is an ordinary use of the channel containing the
flowing waters of the River Thames, then it would seem to me that the first
declaration as amended by my lord is justified. I venture to think the boatman
would laugh. He would no doubt see that:
(a)
maintaining the vessel accurately in a stationary position is the antithesis of
plying up and down;
(b)
helicopters landing on the converted deck is a change in the ordinary
activities taking place within the banks of the river.
In my
judgment, the scheme is capable of constituting a change in use.
8. During the
course of the hearing we had many entertaining analogies to assist, or not to
assist, the argument as the case may be. They ranged from the flying boats to
the Ark Royal and to the diver who for reasons I have now forgotten was
standing on the river bed underneath the stationary vessel. Analogies are, of
course of the most limited assistance but having reflected about the question,
I became struck with the metaphor of an old fashioned bath tub. It is a
container for water. The river banks and the river bed are likewise such a
container. The primary use is to contain the water. The ancillary use may then
range from taking a bath in it to, and I hope I do not reduce the seriousness
of the question to flippancy, playing with one’s model boats or even growing
water lilies in it. We have no difficulty in saying we are using this container
for this or that purpose. So viewed the river bed and the river banks, ie the
land, are being used by the plaintiffs.
Conclusion
The proposed
scheme could constitute a change of use of land for the purposes of section 55
of the Town and Country Planning Act 1990. Whether any such use is material or
not should be for others not this court to decide.
What
planning permission is granted by the general development order?
That depends
on the identification of the correct planning unit. I would have thought that
the plaintiff would have considerable difficulty in establishing 22 separate
planning units at each of the identified landing sites. This contention does
not seem to me to sit easily with the way in which the evidence in support of
the declaration is submitted. Mr Franklin’s affidavit states:
3. The
plaintiff … has formulated plans to operate a floating Heliport on the river
Thames in London …
5. The River
Thames, for the purposes of this summons, is the tidal part or the river down
stream of Teddington Lock.
Since it would
seem to me that the scheme envisages the use of an identifiable area or unit
being the course of the river bed between points A and B, and since the main
purpose is to move in a planned way up and down within that site for a single
purpose of getting passengers on and off a helicopter which is to land on one
and only one vessel, then there is a unity in the scheme as a whole.
That said, for
the reasons given by Schiemann LJ, I agree that it is not appropriate for us to
usurp decisions which are primarily entrusted by parliament to others.
In the result
I agree that the appeal should be allowed as he has proposed.
BELDAM LJ: For the reasons stated by Schiemann LJ, I agree that any
declaration made by the court should not go beyond the declaration he proposes.
I also agree that helicopters landing on or taking off from a vessel, floating
but not moored in the tidal River Thames, could constitute a change of use of
land for the purposes of section 55 of the Town and Country Planning Act 1990.
Mr Fitzgerald
QC for the appellants argued that the use of the helicopter landing barge to
receive and fly off helicopters at a given spot on the River Thames was
incapable of amounting to ‘development of land within the meaning of that
phrase in section 55 of the Town and Country Planning Act 1990’. The sheet
anchor of Mr Fitzgerald’s argument is the definition of ‘land’ in section 336
of the Act. ‘Land’ is there defined to mean:
… any
corporeal hereditament, including a building …
The parties
were agreed that, although the banks and bed of the river are capable of being
part of a hereditament, water flowing between the
property or proprietary right in flowing water. His right is a right to the
undiminished flow of the water from the upper owners. As Parke V-C said in Embrey
v Owen (1851) 6 Ex 353 at p369:
… it is a
right only to the flow of the water, and the enjoyment of it, subject to the
similar rights of all the proprietors of the banks on each side to the
reasonable enjoyment of the same gift of Providence.
It is only
therefore for an unreasonable and unauthorised use of this common benefit that
an action will lie …
Equally
however the parties agreed that the water of an enclosed lake, though fed by
stream at either end, would be regarded as included in a hereditament.
Further Mr
Fitzgerald was prepared to concede:
(a) That if
the appellant’s vessel was held by the fluke of an anchor in the river bed or
by line to a bollard on shore, the vessel could be regarded as making use of
land.
(b) That if a
helicopter landed on a part of the river bed uncovered at low water, it would
be regarded as making use of land.
(c) That if
the vessel grounded and the helicopter landed and flew off from it, it would be
making a use of land.
But Mr
Fitzgerald argued that, so long as the vessel’s bottom was separated even by an
inch of water from contact with the river bed and it was manoeuvring under
powered jets to maintain station over a particular part of the bed, it would
not be making use of the land. He further argued that, even when manoeuvring to
maintain station over a particular point on the river bed, the vessel was
simply exercising a public right to navigate and was not in any way changing
the use made of the land. In so far as Mr Fitzgerald’s argument rested on the
definition of land in section 336 of the Act, it seems a formidable argument
but the delicate distinctions between what is and what is not use of land so
defined and thus of development are so fine as to lead me to question whether
the argument is correct.
To begin with,
I cannot accept Mr Fitzgerald’s claim that the vessel maintaining station for a
period of an hour or more over the same spot in the river bed is exercising a
public right of navigation. While wary of any analogy with the public right of
passage over a dedicated highway, I would echo the words of Scutton LJ in The
Calgarth [1927] P 93 where at p107 he said:
Another
distinction is that in a highway by land one proceeds by physical contact, but
in water one proceeds by floating along in the water, and it is only in special
circumstances that there is any right to ground or sit on the bottom of a
river, just as there is no right to sit in the middle of a road and say one is
exercising a right to use a public roadway.
The stationary
vessel is not navigating: it is an obstruction to navigation.
Further the
helicopters landing on and taking off from the appellant’s
makes use of the water flowing over the river bed. I cannot in the context of
planning legislation regard the proprietary rights of the riparian owner in the
water ebbing and flowing between the banks and over the bed as the
determinative factor. Planning legislation is not simply concerned with the use
made of land in the narrow sense of employing the physical characteristics of a
particular part of the surface; it is concerned with an area affected by the
activity. That the operation of helicopters from the appellant’s vessel is capable
of having a considerable impact over a wider area than the immediate area
occupied by the vessel in the river, is shown by the report of September 27
1991 on the application of City of London Heliport Ltd to operate a heliport
adjoining the north bank of the Thames near Mondial House. The Secretary of
State in his decision on that application said:
The River
Thames in central London is a particularly sensitive setting for any major
development and there can be little doubt that the development of a heliport in
this location could cause significant noise and visual damage, most notably to
the river itself in terms of views from and along it as well as pleasure trips
on it and to the riverside walk which is protected by both national and local
planning policies.
The water
ebbing and flowing up the Thames makes use of the bed and banks of the river
and by using the water the vessel keeping station also makes use of the bed and
banks of the river to ensure its flotation. Accordingly, I would hold that the
appellant’s proposal is capable of amounting to material change in the use of
land and so to development within the meaning of development in section 55 of
the Act. I would accordingly make the declaration in the terms proposed by
Schiemann LJ.
Appeal allowed
in part. Application for leave to appeal to the House of Lords refused.
