England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION)
(MR JUSTICE MERVYN-DAVIES)

		Royal Courts of Justice Strand London WC2A 2LL
		9 December 1994

LORD JUSTICE McCOWAN: The question raised by this appeal is succinctly set out by Mr Howell QC, counsel for the appellants,

at paragraph one of his skeleton argument which reads:

"The question raised by this appeal is whether, and (if so) in what circumstances a condition restricting occupancy imposed on a planning permission for the erection of a building may apply to a building which is not authorised by that permission."

The appeal is from a decision of Mervyn Davies J on 21 October 1992. It is reported at (1992) 66 P&CR 78. We have also had the advantage of a transcript of his judgment. In the opening passage of his judgment, the learned judge explained the background to the point he was called upon to decide. He said:

"I have to decide a preliminary issue in a consolidated action. However, the issue is tried only as between the plaintiffs and the fourth defendant in the consolidated action. The other defendants have agreed, as I understand, to be bound by any finding on the preliminary issue. The three plaintiffs are Mr Stephen Colin Handoll, Mrs Margaret Charlotte Ginette Handoll and Mrs Muriel Hazel Suddick. The plaintiffs own 5.183 acres of land at Stickney in Lincolnshire, together with a bungalow and outbuildings built thereon called The Paddocks. They acquired the property by a conveyance dated 10 December 1984 in which Mr and Mrs S J Cook were the vendors. The defendants in the consolidated action are (1) Messrs Warner Goodman & Streat. They are the solicitors who acted for the plaintiffs when the property was bought. The 2nd and 3rd defendants are the Cooks. The 4th defendant is East Lindsey District Council. The trial of the preliminary issue was ordered by Master Munrow on 16 October 1990. In brief the question is whether or not the land that has been conveyed to the plaintiffs is subject to any restriction imposed by the District Council whereby occupation of the land is limited to persons engaged in agriculture."

The plaintiffs assert that when they bought the property they were not aware of the agricultural condition. We were told that that is in issue in the proceedings. I look at the actual terms of the preliminary issue as set out in the Master's order:

"Whether the property known as the piece or parcel of land situate in the parish of Stickney Lincolnshire being number 9 on the sheet Xc6 (1904) on the Ordnance Survey Plan containing 5.183 acres or thereabouts together with the messuage or dwelling house and outbuildings erected thereon or some part thereof and known as The Paddocks, West Fen Lane, Stickney aforesaid is subject to any restriction imposed by the East Lindsey District Council or otherwise whereby its occupation is limited to a person solely or mainly employed or last employed in the locality in agriculture as defined by Section 290 of the Town and Country Planning Act 1971 or in forestry or a dependant or such a person residing with him (but including a widow or widower of such person)."

The learned judge went on to recount the history of the matter. The Paddocks was built by the Cooks in l978. On 31 May 1977 Mr Cook, acting by his architect, submitted an application for planning permission. The judge said:

"The application shows on its front page that permission or approval was sought for land described as 'West Fen Lane, Stickney, Boston, Lincs' OS Sheet 90/6 Plots 9 and 10. Inside the application form one is required to state 'Location of proposed dwelling'.

That is given as 'Stickney OS Xc:6 Fields 9 and 10 (part)'."

Then the judge refers to an Outline Planning Permission which was forthcoming from the District Council. He went on:

"It is dated 22 October 1977. It gives as particulars and location of the development submitted in these terms:

'Outline application for permission to erect a dwelling and garage in connection with agriculture and for the vehicular/pedestrian access at West End Lane, Stickney. Location of development: OS Sheet No. 90.6, Field No 10pt. Grid Reference No. 534450 358580.'

It is to be noted that this permission refers to Field No 10pt whereas the application referred to 'Plots 9 and 10'. The permission stated that the subsequent approval of the District Planning Authority was required as respects some such matters as siting, design, landscaping etc."

At page 4 of the transcript, the judge continues the story:

"On 30 November 1977 an application was submitted to the District Council as respects the matters which had been reserved in the Outline Planning Permission. In this application the location of the land was simply referred to as West Fen Lane, Stickney, Boston, Lincs, Grid Reference...."

which was given,

"....The application was accompanied by drawing 770/5/77/C - Enclosure SJC3. The drawing showed the plans and elevations of the proposed bungalow and as well, in the bottom half of SJC3 (i) a block plan showing the bungalow located on enclosure 9 of the OS plan and immediately (as I see it) to the west of Enclosure 10 and (ii) at the top of SJC3, a sketch which appears to show the land the subject of the application as being in part on Enclosure 9, in Enclosure 10 and in part in Enclosure 11. Approval of the reserved matters was forthcoming on 2 December 1977. The approval is part of Exhibit SPGF2. Therein the 'location of development' is stated to be (as in the Outline Planning Permission) 'OS Sheet No 90.6, Field No 10pt, Grid Reference...."

and that given.

"The restriction as to agricultural occupancy is repeated. With this December approval received it seems that the building of the Paddocks went ahead. It is now realised that the bungalow was not being placed on the location suggested in the application plan or by the application form or on the locations shown in SJC3. Evidence was given by a chartered surveyor, Mr Christopher Job."

The Judge then recounts that, among other things, Mr Job was able to draw attention by the use of transparent overlays to some features referred to in the application plan and the undercover planning documents. At page 5 the judge says:

"It is clear from the overlay and from Mr Job's cross-examination that the bungalow is about 90 feet somewhat westerly of the location as approved by the District Council; and it is plain that as the bungalow now stands, it is wholly within Enclosure 9."

The judge continues:

"Mr Mitchell appeared for the plaintiffs. He submitted that the agricultural occupancy restriction is not binding on The Paddocks. The restriction would affect, he said, a bungalow built on land for which planning permission was given. But The Paddocks is not a bungalow built pursuant to any planning permission. It has been built on land away from that in respect of which the planning permission was to operate. He accepted, as I understand, that that meant that The Paddocks was built in breach of planning control. Since the limitation period for enforcing planning control has passed the bungalow may remain in being; but as such it is not, he said, affected by the occupancy restriction because that restriction is a term of a planning permission that has no relevance to The Paddocks as being a building put up without planning permission."

It is apparent from the judgment that against that Mr Machin, appearing for the respondent, placed reliance on the case of Kerrier District Council v Secretary of State for the Environment [1981] P&CR 284. In that case planning permission had been given for the erection of a bungalow, but it was not built in accordance with the approved plan in that a basement, not shown on the plan, was included within the bungalow. The planning permission included an agricultural occupancy restriction. The Divisional Court consisted of Lord Lane, Lord Chief Justice, and Lloyd J as he then was. It held:

"Allowing the appeal that the fact that something is done without planning permission in the sense that it did not comply with a permission that had been granted did not mean that the permission that had been granted had to be treated as a nullity; that, if it was not a nullity, there was no reason why any condition subject to which it had been granted should not bite; that nothing in Section 87 of the Town and Country Planning Act 1971 obliged a local planning authority to serve an enforcement notice if it did not wish to do so, nor, if there were two several breaches, i.e. a development without planning permission and a breach of a condition subject to which the permission had been granted, was it obliged to enforce both, and that, in the present case, the enforcement notice having been clear and unambiguous in its terms as to the breach alleged and as to the steps required to be taken to remedy it, there had been no justification for quashing it."

The vital part of the judgment of Lord Lane (with which Lloyd J agreed) for the purposes of this case is to be found on page 288.Lord Lane said:

"The matter is put well in an affidavit filed on behalf of the council on their application for an extension of time for leave to appeal as follows:

'It is a matter of considerable concern for the applicant, and no doubt other local planning authorities would share that concern, that where an agricultural occupancy condition is attached to a planning permission for a dwelling, and that permission would not have been granted without such a condition, the developer may be able to avoid the operation of the condition by constructing a building which does not conform with the submitted plans. In some cases, the departure from the plans may not be immediately apparent upon inspection of the of the building. After the lapse of four years from the date of completion of the building the local planning authority has no power to require its demolition or alteration.'

We approach the question first as a matter of principle. The reasoning of the Secretary of State comprises four steps: (1) the dwelling-house actually built differed materially from that shown on the approved plan; (2) therefore, it was built without planning permission; (3) therefore, the planning permission was never implemented; (4) therefore, the condition never applied.

Step (1) involves a finding of fact that does not appear anywhere in the Inspector's report. It is the starting point of the allegation of breach of natural justice, to which we shall return briefly later. Step (2) is well established law. Steps (3) and (4) involved, as it seems to us, a non sequitur. When one speaks of something being done without permission, it may mean one of two things. It may mean that no permission has ever been granted at all, or it may mean that permission has been granted but that which has been done has not complied with that permission. The fact that something is done without permission in the latter sense does not mean that the permission must be treated as a nullity, and if it is not a nullity, we see no reason why any condition the subject of which permission has been given should not bite. The error in the Secretary of State's reasoning may lie in his reference to the planning permission never having been implemented. Implementation is not, as we understand it, a term of art in this connection. In one sense, the planning permission plainly was implemented since without the planning permission the house would never have been built at all. Having relied on the permission to build a house, it would seem strange that the occupiers should not be bound by the condition, particularly if it was by reason of their own default that the plans were not complied with. If the house had complied with the plans, the occupiers would have been bound by the condition. They can hardly be in a better position because the house did not comply with the plans. Two blacks do not make a white in this or any other branch of the law."

Having cited a large part of that passage, the learned judge said at page 8F of the judgment:

"I accept that The Paddocks was built without permission. It was built without permission in the sense that a permission was granted but that what was then done did not comply with that permission. In that situation I respectfully agree with Lord Lane that the permission ought not to be treated as a nullity. That being so there is no reason why the occupancy restriction should not be enforceable. Accordingly, I answer the preliminary issue in the affirmative."

In the court below the argument for the appellant in reply to the Kerrier authority was that Kerrier was distinguishable because there the departure from the terms of the planning permission was simply a matter affecting the interior parts of a building built on the very site for which planning permission was given, while here the building had, on the judge's finding, been built (as Mr Mitchell put it) "as much as 90 feet away". Mervyn-Davies J, while accepting the departure was of greater degree, did not accept that there was a distinction in the principle.

I turn to consider the way the matter has been put for the appellants in this court by Mr Howell. He has helpfully taken us to a number of provisions of the Town and Country Planning Act 1971, the first of those being Section 22(1):

"In this Act, except where the context otherwise requires, "development", subject to the following provisions of the section, 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 of other land."

Section 23(1) reads:

"Subject to the provisions of this section, planning permission is required for the carrying out of any development of land."

Section 33(2) reads:

"Where planning permission is granted for the erection of a building, the grant of permission may specify the purposes for which the building may be used; and if no purpose is so specified, the permission shall be construed as including permission to use the building for the purpose for which it is designed."

Mr Howell points out that that latter provision is important in the context of this case because if the permission does not cover the building, the use of the building will also not be permitted. He then took us to section 23(9)(1):

"Subject to the provisions of sections 26 to 28 of this Act, and to the following provisions of this Act, where an application is made to a local planning authority for planning permission that authority, in dealing with the application, shall have regard to the provisions of the development plan, so far as material to the application and to any other material considerations and --

(a) subject to sections 41, 42, 70 and 77 to 80 of this Act, may grant planning permission either unconditionally or subject to such conditions as they think fit."

Section 25 reads:

"Any application to a local Planning Authority for planning permission shall be made in such manner as may be prescribed by regulations under this Act, and shall include such particulars and be verified by such evidence, as may be required by the regulations or by directions given by the local planning authority thereunder."

Mr Howell then diverted to the Town and Country Planning (General Development) Order 1977, article 5 (2):

"Where an applicant so desires, an application may be made for outline planning permission for the erection of a building and, where such permission is granted, the subsequent approval of the local planning authority shall be required to such matters (being reserved matters as defined) as may be reserved by condition. The application shall be made on a form, as required by the preceding paragraph, shall describe the development to which it relates, shall be accompanied by a plan sufficient to identify the land to which it relates (together with such additional copies, not exceeding three, of the form and plan as may be required by the local planning authority) and may contain such further information (if any) as to the proposal as the applicant desires:"

He stresses the words there "sufficient to identify the land".

He took us back to the Town and Country Planning Act 1971 and in particular to section 27(1).

"Without prejudice to section 26 of this Act a local planning authority shall not entertain any application for planning permission unless it is accompanied by any one or other of the following certificates...."

and I need only read (b):

"A certificate stating that the applicant has given the requisite notice of the application to all the persons (other than the applicant) who, at the beginning of the period of twenty-one days ending with the date of the application, were owners of any of the land to which the application relates, and setting out the names of those persons, the addresses at which notice of the application was given to them respectively, and the date of service of each such notice."

Mr Howell says that illustrates the importance of identifying the land.

He went on to argue that the second reason for knowing the land to for which the permission relates is to be found in section 33(1).

"Without prejudice to the provisions of this Part of this Act as to the duration, revocation or modification of planning permission, any grant of planning permission to develop land shall (except in so far as the permission otherwise provides) enure for the benefit of the land and of all persons for the time being interested therein."

"Enure for the benefit of the land" -- Mr Howell's point is that the permission runs with the land. Because of that feature, you are looking to see not the intention of the parties but the effect of the permission. Hence, he says, under section 34(1) and (2)(a) a register is required to be kept. That is:

"....a register containing such information as may be so prescribed with respect to applications for planning permission made to that authority, including information as to the manner in which such applications have been dealt with."

Finally he took us to section 87(2), which reads:

"There is a breach of planning control if development has been carried out, whether before or after the commencement of this Act, without the grant of planning permission required in that behalf in accordance with part III of the Act of 1962 or part III of this Act, or if any conditions or limitations subject to which planning permission was granted have not been complied with."

Turning to his skeleton argument, he said by way of submission in paragraph 10:

"That the learned judge was right to hold that a building constructed otherwise than in accordance with the terms of a planning permission (including any details properly approved pursuant to a condition imposed on that permission) is not authorised by it and, therefore that The Paddocks was built without permission. The planning permission granted did not authorise the building constructed and accordingly the works involved were not permitted and were unlawful."

That is what the judge found as I see it, and I agree with it.

Mr Machin, for the respondents, specifically conceded that this paragraph is accurate.

In the next paragraph, Mr Howell says:

"If a permission does not apply, then the condition subject to which it was granted has no application. In this case, therefore, the agricultural occupancy condition did not apply to the Paddocks as the permission on which the condition was imposed did not apply to it."

To my mind, that follows from paragraph 10. However, Mr Machin says that it did apply to it because it was buuilt sufficiently close for there to be a nexus. For my part, Mr Machin having made the concession that he did, I find it incomprehensible that he could go on to submit that further point.

Mr Howell then devoted his attention to criticising the decision in Kerrier District Council v The Secretary of State. He submits that one of the troubles there was that, so far as one can see, the court was not referred to two important and relevant previous decisions in cases to which I shall refer. He is unable to say with certainty that they were not cited to the court. All that he can say is that they are not referred to in the judgment.

The first of those cases is Noble v Armitage [1962] EGD 534 a decision of the Divisional Court. I need do no more than read this short passage from the first judgment, given by Lord Parker, Chief Justice, the other two judges agreeing with him.

"The short point here is really whether that enforcement notice is a good and sufficient notice. The point that is taken is that it is nowhere recited or alleged that the development for which permission was given was ever carried out, and accordingly there can be no breach of a condition attached to a development until the development is carried out. For my part, I think it is necessary and it certainly follows the cases to which I need not refer, that in an enforcement notice alleging a breach of condition the development in question must be recited and referred to. Here it is to be observed that what is recited is merely that planning permission was granted for the storage of coal and parking of lorries. It does not go on to say that coal has been stored and lorries parked, but that the conditions have not been complied with. On that short ground, and that alone, I would allow this appeal and send the case back to the justices with a direction that they should acquit."

The other decision is Sheppard v Secretary of State for the Environment and Another [l974] EGD 837, a decision of Willis J. It is only necessary for me to read one short passage from

Willis J's judgment at page 848:

"It is clear from a number of cases dealing with enforcement notices that a planning authority cannot succeed for breach of condition unless the development to which it was attached by the planning permission has actually been carried out."

In my judgment, in the light of those previous decisions, there is force in Mr Howell's contention that the reasoning of the Divisional Court in Kerrier is flawed.

He has a further point to make upon it however. What he says is:

"works which do not comply with the permission and any conditions to which it is subject do not constitute the implementation or commencement or a planning permission."

He continues:

"A permission is not implemented in any sense when something is done which the permission does not authorise merely because it would not have been done if permission had not been granted."

He relies here on the decision of the Court of Appeal in F G Whitley & Sons Ltd v The Secretary of State for the Environment [1992] 3 PLR 72. To make the point, it will suffice if I read one short passage from the judgment of Woolf LJ at page 80:

"As I understand the effect of the authorities to which I am about to refer, it is only necessary to ask the single question: are the operations (in other situations the question would refer to the development) permitted by the planning permission read together with its conditions? The permission is controlled by and subject to the conditions. If the operations contravene the conditions they cannot be properly described as commencing the development authorised by the permission. If they do not comply with the permission they constitute a breach of planning control and for planning purposes will be unauthorised and thus unlawful. This is the principle which has not been clearly established by the authorities. It is a principle which I would have thought made good sense since I cannot conceive that when section 41(1) of the 1971 Act made the planning permission deemed subject to a condition requiring the development to be begun by a specified date, it could have been referring to development other than that which is authorised by the permission."

It seems to me that that authority fully supports Mr Howell's contention.

Mr Howell then makes the point that what underlay the decision in the Kerrier case was the fear that if it went the other way, the wrong-doer would get a benefit. I have some sympathy with that contention. But, Mr Howell says that on a correct analysis of the situation, the wrong-doer is actually worse off because he has no permission to use the building, and the local planning authority could serve an enforcement notice to prevent any use of the building by alleging that there had been an unpermitted change of user. I would accept that contention.

Lastly, Mr Howell submits that Kerrier is in any event distinguishable. He puts it in this way in his skeleton

argument:

"The building constructed was on the approved site: it merely included an unapproved basement. In this case The Paddocks was constructed outside the application site and not in the position which the local planning authority subsequently purported to approve. An outline application was required to 'be accompanied by a plan sufficient to identify the land to which it relates'. The identification of that land is of significance as 'any grant of planning permission to develop the land shall (except in so far as the permission otherwise provides) enure for the benefit of the land and of all persons for the time being interested therein.' Similarly, a planning condition is a local land charge which is to be registered by reference to the land affected by it."

He drew our attention to section 5(3) of the Local Land Charges Act 1975. If it were necessary, therefore, I would agree with this point also that Kerrier is in any event distinguishable.

It follows that I accept the contentions of Mr Howell. In my judgment the Kerrier case was wrongly decided. I would answer the question raised in the present case in the negative and I would allow the appeal.

LORD JUSTICE PETER GIBSON: The judge below very understandably followed the decision of the Divisional Court in the Kerrier case. Although we are differing from the distinguished judges who constituted that court, I am wholly persuaded by the inexorable logic of Mr Howell's lucid argument that that decision cannot stand. If a development does not comply in a material respect, or to a material extent, with the planning permission which has been granted, I cannot see how an occupancy condition attached to the permission for the development which was not carried out can have application to the unauthorised development which was carried out. For this reason, and for the reasons given by my Lord, I too would allow this appeal.

SIR JOHN MAY: I agree with both the judgments which have been delivered. Although we are holding with the decision of the Divisional Court in the case of Kerrier to have been wrong, I do not think I need add anything on my own account.

Appeal allowed: applicant's costs; Legal Aid Taxation. Leave to apply to the House of Lords.