England and Wales Court of Appeal (Civil Division) Decisions

Case No: A2/2000/0593

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE MOTT
SITTING AS A HIGH COURT JUDGE

Royal Courts of Justice
Strand, London, WC2A 2LL

Thursday 9th November 00

B e f o r e :

LORD JUSTICE PETER GIBSON
LORD JUSTICE SCHIEMANN
and
MR. JUSTICE MAURICE KAY
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
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JEREMY CAHILL (instructed by Hulme &co Worcester) for the Appellants
DAVID PARK (instructed by Ian George Marshall, Wychen District Council Legal Section, Penshore) for the Respondents

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Judgment
As Approved by the Court

Crown Copyright ©

This is the Judgment of the Court :

1. This appeal from a decision of His Honour Judge Mott sitting as a High Court Judge concerns an unfortunately worded notice of the grant of planning permission. 2. The relevant bits of the notice read as follows:

Part I. Particulars of application:-
Particulars and location of development:-
ANCHOR MEADOW, ANCHOR LANE, HARVINGTON

PERMANENT SITING OF A RESIDENTIAL CARAVAN.
******************************************************

Part II. Particulars of decision:-

The Wychavon District Council hereby give notice in pursuance of the provisions of the Town and Country Planning Act 1971 that PERMISSION HAS BEEN GRANTED for the carrying out of the development referred to in Part I hereof in accordance with the application and plans submitted subject to the following conditions:
01. The uses hereby authorised shall be discontinued and all works required for the reinstatement of the land to its former use and condition shall be carried out not later than F year (s) from the date of this permission.
02. The consent shall relate to the amended plans (s) dated 2nd. June 1987 and no other.

03. This permission shall inure for the benefit of:- MRS. M.T. U. FISHER only.

The reasons for the conditions are:-
01. To enable the Local Planning Authority to monitor the effects of the proposal on the environment.
02. To define the permission.
03. The proposal is approved solely on the grounds of the special circumstances attached to the case.
Decision date:- 16th October 1986.

3. There are a number of oddities about this notice. Although it seems that the decision date is the 16th October 1986 and although permission is granted for the carrying out of development in accordance with plans submitted the consent is expressed to relate to amended plans dated the 2nd. June 1987. Further, and more importantly for present purposes, although permission is expressed to have been granted for the carrying out of the development referred to in Part I and Part I refers to permanent siting of a residential caravan, the first condition read with its reason clearly envisages something other than permanent siting. The third oddity is that the first condition looked at by itself does not indicate for how many years the permission is to run. The last oddity is that it is not entirely clear what is meant by the “date of this permission”.

4. Mrs. Fisher asked the Judge for 2 declarations.

5. (1). A declaration that the planning permission issued was for permanent siting of a residential caravan on the site, and
(ii) a declaration that the first condition is and was ultra vires alternatively is and was void for uncertainty and of no effect.
The defendants counter-claimed for the following relief:

(i.) A declaration that the planning permission was a temporary planning permission for a period of 5 years:
(ii). ..............
(iii) .............
(iv) In the alternative that if condition no. (1) attached to the first planning permission is found to be void and of no effect a declaration that condition no. (1) is not severable from the planning permission and in consequence that the first planning permission is of no effect.
(v) In the further alternative rectification of the first planning permission to give effect to the true intention of the defendant in issuing that planning permission that it was to be subject to the condition:
“The uses hereby authorised shall be discontinued and works required for the reinstatement of the land to its former use and condition shall be carried out no later than 5 years from the date of this permission”.

6. The Judge made the following order:
It being found that condition no. (1) attached to the first planning permission is void and of no effect it be declared that condition no, (1) is not severable from the planning permission and in consequence the first planning permission is of no effect.

7. In the notice of appeal the claimant asks for that order to be set aside and that it be ordered that
(1) it be declared that the first planning permission was for permanent siting of a residential caravan.
(ii) it be declared that purported condition (condition (1)) which was attached to the said planning permission is and was void for uncertainty and of no effect.
(iii) in the alternative that the said condition (1) is ultra vires.

8. For their part the defendants served a respondents’ notice contending that the Judge’s decision should be affirmed on the following additional ground namely:
“That condition no. (1) attached to the first planning permission ought to be construed so that it had the effect of limiting the life of the planning permission to 5 years, or that the condition ought to be rectified so as to provide that effect”.

The Issues

9. It can be seen that the substantial points at issue are first whether condition (1) is intra vires, second, if so, what its meaning is and third, if the condition is meaningless what effect this has on the permission.


History
10. The history of the matter appears to be as follows:

11. On 20th August 1986 Mrs. Fisher applied for planning permission for “The permanent siting of a residential caravan to be occupied between the months of June to March inclusive”. On 16th October 1986 the officers put before the Planning Committee a report which read as follows and so far as present relevant:

“Proposal
The permanent siting of a residential caravan to be occupied between the months of June to March.

Policies
Contrary to policy RC.1 in the Hereford and Worcester Structure Plan unless it is considered that there is a special need and then only a temporary permission may be granted.

Consultations
Parish Council No objection in principle, but requests that any approval should be subject to the following conditions:
(a) that it will be for the sole use of the owner.
(b) that no commercial operation shall be conducted from the property.
(c) that a less obtrusive siting be considered.
County Surveyor has no objection.

Officer comments
[After setting out the special case made out by the applicant in person the officers continued]

“The caravan is already in position, and where it is sited at present can be seen from the Fish Anchor Inn and the Cleeve Road. If the Committee wish to approve the caravan, then it should be brought forward and situated behind an existing mature hedge and trees”.

Recommendation
Defer for negotiation on siting”.

12. At the meeting of the planning Committee on the 16th October 1986 it was resolved “that consideration of the application be deferred pending the expiration of the advertisement period and the Planning Officer and Architect, in consultation with the Chairman and Vice Chairman, be authorised to determine the application”

13. Shortly thereafter on 24th October 1986 a letter was sent, signed by R.W. Alexander, Principal Development Control Officer to Mrs. Fisher. It read as follows:

“Re proposed permanent siting of a residential caravan, Anchor Meadow, Anchor Lane, Harvington.
With reference to the above application which went to a Planning Committee meeting on 16th October. The Committee approved the principle of a permanent siting for the caravan subject to it being relocated nearer to the southern boundary of the site behind the existing hedge. The caravan would then be much less visible from the Cleeve Road.
If you are agreeable to this, you must submit two copies of an amended location plan showing the caravan sited immediately behind the hedge along the southern boundary of your land”.

14. Some months later, no amended plan having been submitted, Mr. Alexander’s assistant Miss Ansell came to see Mrs. Fisher and her husband at Anchor Meadow. She asked that their original caravan, which was then on the site, be moved nearer to the river, behind the existing hedge. However the lock was immediately behind the hedge and the caravan could not therefore be moved there. Miss Ansell admitted that she didn’t know that the lock was behind the hedge. Whilst Miss Ansell was there, stakes were put into the ground to mark the location to which she wanted the caravan moved. The stakes marked the location shown on the plan stamped as received by the defendant on the 2nd June 1987 which is the one referred to in the planning permission. Sometime in June the notice, the relevant terms of which I have already set out, of the approval of planning permission was served on Mrs. Fisher.

15. One may wonder why the writ was not issued until 1998. That appears from the subsequent history. On 28th. September 1987 Mr. Alexander wrote to the Clerk of the Parish Council stating:
“A 5 year temporary planning consent for the siting of a residential mobile home at Anchor Meadow, Anchor Lane, Harvington, was granted to Mrs M. Fisher on 16th October 1986. This was subject to an amended siting which was agreed on the 2nd June 1987”.

Mrs. Fisher deposes that she continued to believe that she had a permanent consent until she received a visit from the defendant’s enforcement officer followed by a letter in which the area planning officer made clear his view that her planning permission was only a temporary one for 5 years. Mrs. Fisher thereupon made an application to renew the consent granted on the first application and a new permission, this time clearly for a 5 year period, was granted on 10th December 1991. In October 1997 she made yet a further application for renewal. This was refused. Thereupon she asked the defendants to agree that the first consent was a permanent consent. They didn’t and therefore she issued the writ.

16. The defendant expressly wishes us to resolve the legal issue as to the present effect of the first permission. It does not suggest that a more sensible course would be to appeal the 1997 refusal of planning permission or pursue some other course.

17. Mrs. Fisher swore an affidavit on 10th September 1999 in support of her case and exhibiting the letter of 24th October 1986 apparently signed by Mr. Alexander. Mr. Alexander in a written statement made on 29th October 1999 states:

“Following the Planning Committee Caroline Ansell wrote to the claimant on 24th October 1986 although my name appears at the end of the letter as it did in respect of all letters from Officers in my Department at that time. I cannot be sure if I would have seen that letter prior to it posting”.

18. A little later he states:
“In practice I would make any delegated planning decision after consulting with the Chairman and Vice Chairman of the Planning Committee. In this case it was obvious there were particular problems in achieving satisfactory screening of the mobile home and therefore I would have imposed a 5 year time condition on the permission so that monitoring might take place of how, and if, the permitted development would be assimilated into the environment, and the Condition used would be the same as that shown as Condition (1) on the planning permission dated 16th October 1986. I am quite sure that I intended that a temporary permission of 5 years should be created by the imposition of Condition (1). The reference in Condition no. (1) to “F” year(s) was obviously an unfortunate typographical error, made when the planning permission was prepared.”.

19. He states that the land is adjacent to the River Avon in an extremely attractive open riverside area which is part of the open countryside where Government, Structure and Local Plan Policies are generally directed towards the protection of the countryside from inappropriate development which would include the siting of caravans and mobile homes.

The Judgment.
20. The crucial part of the judgment reads as follows:

“I have come to the conclusion that not merely can the claimant not make out an unarguable case that a permanent approval was intended but the balance of probability is, on the available evidence, against it.
The Committee and the officers of the Council were clearly aware of the relevant policies and of the structure plan. It required a special case for them to contemplate any permission at all. There has been no suggestion as to what extra special features there may have been here to lead them to depart completely from the current policy....
Moreover, the issue of the approval in the form in which it is must itself be a strong indication that at the time of the issue a conditional consent was intended.
But for the strange “F” this would have been an entirely normal conditional consent. The “F” was not put there in order to show that a proforma condition did not apply in this case. It was a clerical error in what was intended to be a valid condition. As a matter of probabilities I accept what Mr. Alexander says about his intention over the relevant period to grant only a temporary permission. It is much less clear to me that the actual limit was intended to be.....
In truth no explanation [of the letter of 24th October 86] is very satisfactory and it may in the end simply be down to carelessness and poor communication.
In any event Mr. Alexander seems to have signed the letter without reading it properly. It was and is a deplorable state of affairs.
It will be appreciated that in reaching this conclusion I have not taken into account events after June 1987.
....
The next problem is what happens to the purported condition. It is not ambiguous, it is quite meaningless.
...
In the present case there is no document associated with the approval notice nor any contemporaneous evidence at all to shed light on what “F” ought to be. Subject to any question of rectification the condition is void for uncertainty.

It follows from what I have said that the Council cannot obtain rectification.
...
....
The final question is whether this invalid condition can be severed from the rest of the approval so as to leave standing a permanent consent......
It is correct to say.... that the consent could stand without it, but the intended limitation of time was of fundamental importance. It would make the difference between on the one hand putting the use of the land for the caravan beyond the Council’s control for as long as the claimant owned it, and on the other hand enabling the Council to reassess the situation after so many years, have the caravan removed and thereby keep control of the situation. It seems to me that in the field of planning there are unlikely to be many factors as fundamental as this. Permanent and temporary consents are very different creatures”.

The defendant’s claim for rectification
21. It is convenient to deal first with the defendant’s claim for rectification. We consider the Judge was quite right to refuse this for the reasons which he gave. Quite apart from the fact that he was entitled not to be certain that what was intended was a five year period, we have grave reservations as to whether the equitable remedy of rectification, although available in respect of some unilateral transactions (see Snell’s Equity, 30th Ed. (2000) paragraph 43-14, is in principle available in respect of a notification of planning consent. We were referred to no case in the books where such a remedy has been granted although there are some fleeting references to rectification in Slough Estates Ltd. v Slough B.C. and another (no. 2) [1069] 2. Ch. 305 at pages 314 and 320. There may well be substantial objection in principle to the grant of such a remedy even in the case of the clearest mistakes - for instance a time condition where the time limit appearing in a condition is 500 years and the reason given is that it is desirable to keep the situation under review during the near future. The objection in principle seems to us to be that it is impossible to identify, in relation to a public document on the strength of which others not in possession of the land may have arranged their lives, even the appropriate parties to any such action for rectification.

However, it is not necessary to come to a decision the point of principle. It is clear that the Judge was justified on the facts of the present case and that there was no strong irrefragable evidence of what period of years the Council intended to insert in condition (1).

The appellant’s submissions
22. In his able submissions Mr. Cahill maintained that:
1. The letter of the 24th October 1986 showed that the intention of the Committee with which Mr. Alexander apparently did not disagree was that permanent consent should be granted. This would be in line with what the parish Council considered appropriate.
2. At the lowest, it was not clear that Mr. Alexander intended only a temporary consent, especially since
3. it was not permissible to look at material arising after the decision in order to discover what was in the mind of the decision taker;
4. the letter of 24th October 86 was written before the permission was issued and therefore one could look at it.
5. That letter was written after the Committee meeting of 16th October 86 and therefore is a clearer indication of what was in the decision taker’s mind than the report to Committee a few days before.
6. Condition (1) was not ambiguous but meaningless and it should therefore be disregarded.
7. If one severed the condition and the reason for it then one would have a permission which would be good on its face and would correspond with that for which permission had been sought. The notice would indicate that “permission had been granted for the carrying out of the development referred to in Part 1 hereof”, Part 1 being the “permanent siting of a residential caravan”.

The respondent’s submissions
23. These in substance were:-
1. The planning policies, as the report to Committee made plain, indicated that only temporary permissions should be granted and then only if there was, as admittedly there was here, a special need.
2. If the Committee had intended to depart from established policy one would have expected to see this evidenced in the resolution delegating the power to issue a notice of permission rather than in some letter written 8 months before the issue of notice of permission.
3. The Committee clearly was not making a decision but was giving a steer to those to whom it had delegated the power to make a decision.
4. In any event even if members of the Committee were on 16th October 1986 willing to grant a permanent consent this was on the basis that the caravan would be sited behind a hedge. That never proved to be possible. The result was that, long after the Committee’s decision, the caravan was sited in a place other than that which had been before the Committee.
5. The decision had been that of the persons to whom the power of decision had been delegated and in those circumstances one should look at the notice which was issued rather than what happened before Committee.
6. It was apparent from that notice read as a whole that it was intended to issue a temporary permission and not a permanent permission albeit that it was not clear from that document for how long the temporary period should be.
7. In those circumstances it was clear that the time condition was of fundamental importance.
8. The condition, if it could not be construed or rectified as referring to 5 years, was void.
9. Since the condition was of fundamental importance it could not be severed from the permission and the permission fell with the condition.

Conclusion

24. The crucial document in this case is the Approval Notice the material parts of which we have set out. As Mr. Cahill justifiably stresses, the opening words of Part II giving the particulars of the Council’s decision unambiguously state that permission has been granted for the carrying out of the development referred to in Part I (viz. the permanent siting of a residential caravan in Archer Meadow). But there are three contra-indications in the document itself which run counter to a permission for that permanent siting. The first is Condition (1). That indicates expressly that it was intended that the use thereby authorised should be discontinued and reinstatement carried out within a limited period. But it is impossible to discern from the document itself how many years “F year(s)” were intended to convey. The typist may have intended “F” as the first letter of “four” or “five” or may have typed that letter in place of a digit; we just do not know. That a conditional permission limited to a number of years was intended is supported by the second contra-indication, viz. the first of the reasons expressed for the conditions. The enablement of the Council to monitor the effects of the proposal on the environment strongly suggests that no permanent grant was intended but that the position was intended to be reviewed after a number of years. The third contra-indication is the provision limiting the permission to a single named person. This was no permanent planning permission in any ordinary sense , as it would not run with the land but was personal to Mrs. Fisher and would come to an end at the latest on her death. But it would be very odd if the Council were really intending that despite the special case made out by Mrs. Fisher for permission for the caravan (that some control should be exercised over that area of the land where the caravan was to be sited and the river), Mrs. Fisher personally was to be given that permission for the remainder of her life however old and incapable of exercising that control she became. That personal grant only makes sense in conjunction with a permission limited to a number of years.

25. Mr. Cahill very properly accepts that the Approval Notice, despite the initial words of grant of permanent planning permission, would have taken effect as a temporary grant for a limited number of years if that number had been specified. In our judgment it is plain from the face of the Approval Notice that only a temporary grant was intended, though it is impossible to say for how many years it was to last.

26. Is that conclusion falsified by the admissible evidence? In construing the Approval Notice one can look at documents referred to in the Approval Notice such as the planning application and the amended plans dated 2 June 1987. It may be that it is permissible also to look at other documents which predate the issue of the Notice such as the letter of 24 October 1986 from Mr. Alexander to Mrs. Fisher, but we cannot see how such documents can prevail over the intention discernible from the Approval Notice itself. Further it is to be noted that (a) that letter did not accurately convey what was decided at the meeting on 16 October 1986 and (b) more than 8 months were to elapse before the Approval Notice was issued. In that period Miss Ansell’s visit to the site revealed that the position on the ground was not what had been envisaged by the Council’s officers in October 1986. We agree with Mr. Cahill that documents brought into existence after the Approval Notice cannot assist in construing the Approval Notice, tempting though it is to treat the letter of 28 September 1987 from Mr. Alexander as closest in time to the issue of the Approval Notice and as therefore indicating what was really intended by that Notice. Nor can Mr. Alexander’s retrospective thinking expressed 13 years after the event in his witness statement.

27. Can the court apply a blue pencil to those parts of the Approval Notice which as they stand make no sense? In our view once one concludes that there was an intention, discernible from the Notice itself, that there should only be a temporary grant of planning permission but one cannot say for how long, it becomes impossible for the court to apply a blue pencil to strike out all references to a temporary consent so as to leave a permanent consent. In our judgment the approach of Lord Morris in Kingsway Investments v Kent County Council [1971] A.C. 72 at pp. 102-3 is applicable to a case such as the present. The condition that the permission should only be temporary for the reasons stated in the Approval Notice can objectively be seen to be of fundamental importance to the Council in making the grant and cannot be deleted so as to leave the grant of permanent permission subsisting. As is stated in Wade: Administrative Law, 8th ed. (2000) at p. 295:
“The court may be particularly disinclined to perform feats of surgery where an invalid condition is one of the terms on which a discretionary power is exercised. If an invalid condition is attached to a licence or to planning permission, the permission without the condition may be such as the licensing authority would not have been willing to grant on grounds of public interest. The right course for the court is then to quash the whole permission, so that a fresh application may be made.”

1. This appeal is dismissed.

Order: Appeal dismissed with costs. The Respondent’s costs to be subject to a detailed assessment, if not agreed, and not to be enforced without leave of the court. Legal aid assessment of the Appellant’s costs.

(This order is not part of the approved judgment)