England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE No QBCOF 1998/1443/4

(Sitting as a Deputy High Court Judge )

Royal Courts of Justice

Strand

London WC2

Friday, 23rd July 1999

B e f o r e:

LORD JUSTICE PETER GIBSON

LORD JUSTICE PILL

LORD JUSTICE CHADWICK

ADUR DISTRICT COUNCIL

- v -

SECRETARY OF STATE FOR THE ENVIRONMENT and Another

(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

MR D ELVIN (Instructed by Legal Department, Adur District Council) appeared on behalf of the Appellant

MR A PORTEN QC (Instructed by Griffith Smith of Brigton) appeared on behalf of the Second Appellant

MR J STEELE QC and MR H RICHARDS (Instructed by Treasury Solicitor) appeared on behalf of the Respondent

J U D G M E N T

(As Approved by the Court )

(Crown Copyright)

LORD JUSTICE PILL: This is an appeal against a decision of His Honour Judge Rich, sitting as a Deputy High Court Judge, on 19th October 1998. The hearing before the judge arose in this way.

On 12th February 1995 Adur District Council ("the Council") served on the Shoreham Port Authority ("the Port Authority") an enforcement notice concerning land at the Brighton B Power Station site, Shoreham Harbour, Shoreham-by-Sea. The notice alleged a breach of planning control in the use of quays for the docking of ships, the loading and unloading of cargo, use of the open land on the site for the movement of vehicles and for the temporary storage of cargo and materials, and the use of any building or land in support of all these functions, without the grant of planning permission. The breach alleged by the council in the enforcement notice was the absence of planning permission rather than the breach of a condition attached to a planning permission.

The Port Authority appealed against the notice and a public local enquiry was conducted by an inspector appointed by the Secretary of State. The Inspector recommended that the appeal be allowed on the ground that the activities complained of on site were not in breach of planning control and recommended allowing the appeal under Section 174 (2) (c) of the Town and Country Planning Act 1990 ("the 1990 Act"). The Inspector recommended dismissal of the appeal on the other grounds raised under that section. The Secretary of State accepted the Inspector's recommendation on ground (c) and quashed the enforcement notice. In the decision letter of 28th January 1998 it was stated at paragraph 11:

"The Secretary of State likewise agrees with the Inspector that there are no conditions imposed in any planning permission granted or deemed to be granted under Part III of the Act which remain in force at the date of issue of the enforcement notice. He therefore agrees that the permitted development rights under Part 17, Class B of the Town and Country Planning (General Permitted Development) Order 1995 were exerciseable in relation to the appeal site at that date. The relevant terms of permitted development in this case are development by the Port Authority or their lessees for the purposes of, shipping, or in connection with the embarking, disembarking, loading, discharing or transport of passengers, livestock or goods at a dock or harbour. It is concluded that the matters complained of in the enforcement appeal fall squarely within the kind of development provided for in the Order and there has not, therefore, been a breach of planning control."

The Inspector, in his report, had summarised the matter in this way at paragraph 374 (page 96 of the bundle):

"The uses in question had ceased. Furthermore, I believe that there has been a significant interruption to any continuation of these particular activities at the site. In the circumstances I consider that even if a use for car storage or dock storage were to be presumed it would be a new and different development and would be beyond the scope of the former conditions which to all intents and purposes are defunct. More specifically, I do not consider the use of the appeal site relating to the issue of the notice was in breach of any of these conditions. In this regard it is to be noted that no such allegation was advanced by the local planning authority."

The Inspector had therefore found as a matter of fact that a use, to which I will refer in a moment, had ceased and there was an interval of time between that cessor of use and the uses referred to in the enforcement notice on the basis of which the enforcement notice was issued in 1995.

The judge allowed an appeal by the Council against the decision of the Secretary of State. The judge ordered that the enforcement notice be remitted to the Secretary of State for re-hearing and determination in accordance with the opinion of the Court.

The judge held that the land was operational land within the meaning of that term in Section 263 (1) of the 1990 Act. The Council do not appeal against that finding. Once classified as operational, the land falls within Part 17, Class B of Schedule 2 to the Town and Country (General Permitted Development) Order 1995 ("the GPDO"). That part of the Schedule is headed "Development by statutory undertakers", and the Port Authority are such undertakers. Set out in the Schedule are the development rights permitted by Article 3 (1) of the GPDO. Included in Part 17, Class B are Dock Undertakings. The Port Authority have the permitted development rights set out in the Schedule if the provisions of the Schedule apply. It is not disputed that, if they did apply, they rendered lawful the material change of use alleged in the enforcement notice and justified the Secretary of State in allowing the appeal under Section 174 (2) (c) of the 1990 Act.

The central submission of the council, accepted by the judge, was that the conditions attached to a planning permission, which admittedly had the effect of conferring upon the land the status of operational land, nevertheless remained a binding limitation upon the use of that land and excluded the development rights otherwise permitted by the Schedule.

The relevant planning permission was granted on 2nd February 1991 and was in these terms:

"Description: Retrospective application for change of use to storage of cars in connection with Port use (temporary use until December 1991)

Location: Land at former Brighton B Power Station and Coal Stockyard area, Basin Road South, Southwick

In pursuance of their powers under the above-mentioned Act and Order, the Council hereby notify you that they PERMIT the above development, in accordance with the relevant correspondence and subject to compliance with the conditions specified below.

1. The use hereby permitted shall be discontinued permanently and the land restored to its former condition, or to a condition to be agreed in writing by the Local Planning Authority, on or before the expiration of the period ending on 31st December 1991.

Reason: In order not to prejudice consideration of future proposals for the area and to enable the Local Planning Authority to review the special circumstances under which this permission is granted.

2 Notwithstanding the provisions of the Town and Country Planning (Use Classes) Order 1987 and the Town and Country Planning General Development Order 1988 (as amended), the site shall be used solely for storage of cars.

Reason: To enable the Local Planning Authority to retain control over the type of use and the anticipated level of HGV traffic generation.

3. Car transporters shall only enter or leave the site between the hours of 7.00 am and 6.30 pm on Mondays to Fridays.

Reason: To protect the residential amenities of dwellings adjoining the access road to and from the port."

The permission was granted for the storage of cars "in connection with Port use". By virtue of that permission and Section 264 (3) of the 1990 Act, the land became operational land. Section 264 (3) provides that -

"land will be operational land if -

(a) there is or at some time has been in force with respect to it a specified planning permission for its development, and

(b) that development, if carried out, would involve or have involved its use for the purpose of carrying on of a statutory undertaker's undertaking."

It is common ground now that, having regard to that statutory provision, the land in question became operational land in the hands of the statutory undertakers notwithstanding the limited nature of the permission granted and its limited duration. The judge however accepted the contention of the Council that the effect of planning conditions 1 and 2 was that the development rights otherwise permitted by the GPDO did not exist. The judge referred to the reasons given for the imposition of those conditions with their references to reviewing the "special circumstances" and retaining control over the type of use. He accepted, rightly in my view, that conditions cannot be construed merely by reference to the reasons for them. It may have been in this case, as in some others, that there were reasons in the minds of those who granted the permission, which, having regard to the general law and the wording of the permission or conditions, cannot override the plain meaning and effect of the conditions themselves.

Insofar as is material, Article 3 of the GPDO repeats provisions of the earlier Articles including that referred to in the planning permission. Article 3 (4) of the GPDO provides:

"Nothing in this order permits development contrary to any condition imposed by any planning permission granted or deemed to be granted under Part III of the Act otherwise than by this order."

Article 3 (4) may thereby restrict a planning permission otherwise granted by Articles 3 (1) and Schedule 2 of the GPDO. The judge held that the conditions attached to the planning permission still applied in 1995 and excluded the operation of the Schedule. Planning permission was required, he held, for the material change of use which has occurred.

In seeking to uphold that conclusion, Mr Steele QC, for the Council, submits that the conditions are of continuing effect. This was a temporary permission but it had the effect of excluding permanently GPDO rights which would otherwise arise by reason of a permission having been granted. He submits that temporary permissions remain on the planning register and can easily be discovered by anyone interested in the restrictions upon the use of the land. The intention of the Council, he submits, clearly expressed in condition 1, was to discontinue the permitted use permanently on 31st December 1991. He stresses the use of the word "permanently" in the condition. This was an express condition and was intended to have permanent effect and has that effect. To give effect to the intentions expressed in the conditions, the conditions attached to the permission must be given full force after such date. The use challenged by the enforcement notice is contrary to the conditions imposed by the planning permission granted by the council within the meaning of that expression in Article 3 (4) and, accordingly, the development is not permitted by the GPDO. Mr Steele refers to the value of temporary permissions which can be used as a way of "testing the water". It cannot have been intended that the grant of a temporary limited permission such as this can have the wide-ranging effect which would result from the quashing of the enforcement notice.

Mr Steele refers to the curious situation which, he submits, arises if the Secretary of State is correct in his decision. The Port Authority had none of the advantages of owners of oprational land until the council granted the very limited planning permission in February 1991. They are nevertheless, upon the Secretary of State's conclusion, in a better position following expiry of that permission than they were before its expiry. The shorter the grant of temporary permission the better it is for the statutory undertaker. This, submits counsel, creates anomalies which make a nonsense of the planning legislation. The temporary permission would constitute a Trojan horse which cannot have been intended to be present. He also refers to the benefits which accrue to the statutory undertaker by reason of the classification by statute of operational land even if the Secretary of State has not reached a correct conclusion on the issue in this case. It would be of more than academic importance.

Mr Steele also refers to Section 73 of the 1990 Act to support the submisison that planning permissions do have a continuing effect. I say now that I do not find that section of assistance on the point in issue. He also refers to Section 267 and to the anomalies which, he says, arise when that section is read with the decision of the Secretary of State. Equally, I do not find assistance in the rights which are granted to a statutory undertaker under that section.

Mr Elvin, for the Secretary of State, and Mr Porten QC, for the Port Authority, accept that when granting a planning permission not limited in time, which would otherwise have the effect of creating permitted development rights under the GPDO, a planning authority could by condition exclude the operation of Article 3 (1) and Schedule 2 Part 17 Uses B of the GPDO. Mr Elvin also submits that even upon a temporary permission there were ways in which the council could have protected its position. The first is by direction under Article 4 of the GPDO although he concedes that it may not be realistic in the circumstances because of the possible liability to pay compensation. It would also have been open to the council to refuse planning permission or, with knowledge of the effect of Section 264 if permission is granted, to enter into a planning agreement under Section 106 of the 1990 Act.

Mr Elvin and Mr Porten submit that the conditions in this temporary permission do not have a permanent effect. The word "permanent" in condition 1 can only mean until some other permission is granted or has effect. Condition 2 applies only to the period for which the permission has been granted. The condition ceased to have effect when the relevant period expired and the land was returned to its former condition under condition 1. Mr Elvin accepts that condition 1 would continue to have effect to require the Port Authority to restore the land to its former condition following the expiry of the temporary permission. A question which does not arise in this case, although we have heard tentative submissions, is as to what would have been the position in the present case had there been no interval of time between the discontinuance and restoration following the limited use and the commencement of the broad use which is claimed to follow as a matter of right from the

operation of the GPDO.

Mr Porten has referred, as has Mr Steele, to Section 72 of the Act. That provides for a conditional grant of planning permission:

(1) "Without prejudice to the generosity of Section 70 (1), conditions may be imposed on the grant of planning permission under that section:

(a) for regulating development use and under the control of the applicant, whether or not it is land in respect of which the application was made, or requiring the carrying out of works on any such land so far as appears to the local land authority to be expedient for the purposes of or in connection with the development authorised by the permission.

(b) for requiring the removal of any building or works authorised by the permission or discontinuance of any use of land so authorised at the end of the specified period and the carrying out of any works required for the reinstatement of land at the end of that period.

(2) The planning permission granted subject to such a condition mentioned in sub-section (1) (b) is in this Act referred to as ´planning permission granted for a limited period.'"

Mr Porten and Mr Elvin accept that it is under this section that the temporary planning permission was granted. They refer, however, to the linking of the condition with the development authorised by the permission and not with legal consequences by way of permission which may follow from the general law. Mr Steele, rightly, in my view, accepts that the fact the temporary permission is obtained by way of conditional grant is neutral upon the present question and upon the effect of a condition referring to the GPDO attached to the permission. It is submitted by Mr Porten and Mr Elvin that conditions, subject to which the permission is granted, relate to the actual grant and bear no reference to the GPDO once the period of duration of the permission has expired. The permission may take effect upon its own terms, and subject to the point about restoration, the conditions die with the termination of the period specified in the temporary permission.

The question also remains open as to whether it would be possible upon grant of temporary condition to exclude expressly and permanently the effect of the permitted development rights in the GPDO. Mr Elvin and Mr Porten submit that such a condition would not fairly attach to the permission granted and would be unreasonable. That point does not fall for decision on the facts in this case.

I substantially accept the submissions, on the issue which does arise, of Mr Elvin and Mr Porten. The issue turns upon the construction of the planning permission. The use was clearly stated in that permission to be a temporary use. That was made clear in the description of the development for which permission was given and in the first of the conditions attached to it. I agree that the planning permission has effect according to its terms. It is right that the second condition restricts the temporary permission to the storage of cars thereby preventing reliance on the GPDO during the period of the currency of the permission, but, in my judgment, only for the currency of the temporary permission actually granted. I cannot read the conditions as having the effect of excluding the operation of the statutory provisions relating to operational land. The conditions relate to the temporary permission granted, that is, they exclude the operation of the GPDO Schedule 2 provisions during the period of the permission. It is the use permitted by the planning permission which shall be discontinued permanently. That does not prevent development rights subsequently arising by virtue of the GPDO. Similarly, a limitation imposed in condition 2 applies only while rights are being exercised under the 1991 permission. When reliance is no longer placed on the express grant the condition does not have the effect of excluding development rights under the GPDO.

The conditions, as expressed, plainly refer to the permission actually granted, that is to the storage of cars, for a limited period. The effect of that permission is to trigger the operation of the GPDO by virtue of Section 264 (3). The GPDO having been triggered in that way, the rights conferred by it did arise in this case and were present at the time the enforcement notice was issued.

While it may be possible for a local planning authority, in granting a permission, to exclude the operation of the GPDO by appropriate conditions, the conditions upon the present permission do not achieve that result. For those reasons I would allow this appeal.

LORD JUSTICE CHADWICK: I agree. Because we are differing from the judge below, I think it right to express my own reasons.

The enforcement notice dated 1995 alleges a breach of planning control in the terms which my Lord, Lord Justice Pill, has read. That enforcement notice was quashed on 28th January 1998, in a letter written on behalf of the Secretary of State, on the ground that the permitted development rights under Part 17, Class B of the Town and County Planning (General Permitted Development) Order 1995 were exerciseable in relation to the relevant site.

Article 3 (1) of the General Permitted Development Order grants planning permission for classes of development in Part 17 of Schedule 1. Class B plainly includes development on the operational land by statutory undertakers which would cover the activities sought to be restrained by an enforcement notice in this case. It is common ground on this appeal that the land in question is operational land. In those circumstances, subject to the provisions of Article 3 (4) of the GPDO, the Secretary of State was plainly correct in deciding that the enforcement notice should be quashed.

Article 3 (4) of the GPDO is in these terms:

"Nothing in this order permits development contrary to any condition imposed by any planning permission granted or deemed to be granted under Part of the Act otherwise than by this Order."

The reference there to "any condition imposed" must be a reference to a condition which is, for time being in force. It cannot have been the intention to exclude development which would have been contrary to some temporary condition which has since expired. In those circumstances the question for consideration is this: is there a condition imposed by a planning permission which, at the date of the enforcement notice, had the effect of restricting the use to which this land could be put so as to take it outside the permission granted by Article 3 (1) and Part 17.

That question must be answered by construing any relevant planning permission. The planning permission relied upon was granted on 12th February 1991. No other relevant planning permission has been identified. The District Council relies on condition 2 of that planning permission. The condition is in these terms:

"Notwithstanding the provisions of the Town and Country Planning Act (Use Classes) Order 1987 and the Town and Country Planning (General Development) Order 1988, as amended, the site shall be used solely for storage of cars."

As a matter of language, condition 2 must have one of three meanings. Construction 1: that the site shall be used during the period ending on 31st December 1991 solely for the storage of cars. Construction 2: that the site shall be used after the period ending on 31st December 1991 solely for the storage of cars. Construction 3 : that the site shall be used, whether before or after 31st December 1991, solely for the storage of cars.

The relevance of the date, 31st December 1991, is that that is the end of the period during which the limited permission has been granted by the planning consent.

It is, to my mind, quite plain that the District Council could not have intended condition 2 to have the meaning which I have identified as construction 2. It would be quite bizarre if the Local Planning Authority, having had regard to the effect that the General Permitted Development Order would have after the determination of the permission which they were granting for a limited period - pursuant to Section 72 (1) (b) of the Town and Country Planning Act 1990 - had then gone on to decide that no use should be permitted after 31st December 1991 except use for the storage of cars.

The point can be tested in this way. When asked which condition in the planning permission of 12th February 1991 prevented the Port

Authority from using the land for the storage of cars after 31st

December 1991, Mr Steele QC, on behalf of the Local Authority, was constrained to say that it was condition 1, and not condition 2, that had that effect. He was so constrained because there is no construction of condition 2 - other than the construction which I have described as construction 1 - which could possibly have that effect. But it would be quite impossible to read condition 1 as having the effect of preventing the storage of cars on the land after 31st December 1991 if condition 2 were then to be read in the sense that I have described as condition 2. If condition 2 were to be read as if the words were "the site shall be used after 31st December 1991 solely for the storage of cars", it would be wholly inconsistent with the effect which Mr Steele says is to be given to condition 1; and, of course, the planning consent must be read as a whole.

The same reasoning excludes the construction which I have described as construction 3. That leaves only construction 1. The restriction in condition 2 plainly relates to the period during which user under the planning consent is permitted, that is to say the period ending 31st December 1991. The condition must have the effect as if it read: "The site shall be used during the period that such use is permitted solely for the storage of cars." That is a perfectly sensible construction. It gives effect to the need, during the period covered by the limited permission, to prevent that permission from having a larger effect within that period by virtue of the General Development Order.

If that is the true construction then there is no condition which, at the date of the enforcement notice, had the effect of restricting the use to which the land could be put.

I have no difficulty in accepting that the District Council did not intend that the planning permission that they were granting on 12th February 1991 should have the effect that, after 31st December 1991, the Port Authority, as statutory undertaker, should have the more extensive permission given by Part 17 of the GPDO. But accepting that the District Council did not intend the limited planning consent which it granted to have a more extensive effect is one thing; the effect in law of the permission actually granted is quite another matter. The question for the Secretary of State, and for this court, is not what the District Council may or may not have wished to achieve. The question was, and is, whether the objective for which the District Council now contends was achieved by the conditions actually imposed in the planning permission which was actually granted.

I am satisfied that objective was not achieved and that, accordingly, this appeal must be allowed.

I would be concerned if the outcome of this appeal was that local planning authorities were led to the view that there was no way in which they could prevent the extensive permissions given by Part 17 of the GPDO from arising at the end of a limited period covered by a temporary certificate. I am comforted by the assurance the objective of preventing the Part 17 permissions from arising at the end of the period of a limited permission could be achieved by a restriction entered into by Section 106 of the Act. That was not done on this occasion. On this occasion that objective was not achieved.

LORD JUSTICE PETER GIBSON: I agree with both judgments. Accordingly, the appeal will be allowed and the order of the judge set aside.

Order: Appeal allowed