IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT LIST
(MR JUSTICE CRANE)
B e f o r e :
LORD JUSTICE JONATHAN PARKER
LORD JUSTICE RICHARDS
|QUEEN ON APPLICATION OF ORANGE PERSONAL COMMUNICATIONS SERVICES|
|LTD and Others||Claimants/Respondents|
|LONDON BOROUGH OF ISLINGTON||Defendant/Appellant|
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR C KATKOWSKI QC and MR T BAILEY (instructed by Burges Salmon, Bristol ) appeared on behalf of the Respondent
Crown Copyright ©
"3 On 30 October 2000 the first claimants made a full planning application for the installation at the Canonbury Telephone Exchange. There followed discussions between the first claimants and the defendant local planning authority, and agreement was reached that the Development Order Part 24 applied. In February 2001 the first claimants therefore withdrew their full planning application and applied for prior approval under the Development Order Part 24, paragraph A.2 (4), which involved the submission of details and plans.
4 On 4 April 2001 the defendants issued a prior approval notice, which in fact said that prior approval of details of siting and appearance were not required. But that in fact had the effect that the planning permission granted was for work in accordance with the details and plans submitted. Following that, the second claimants, as agents for the first claimants, commenced the installation work. In March 2002 the third claimants notified the defendant of an intention to install additional equipment. This was an installation for which no prior approval was required. Part of the additional equipment was to be attached to the equipment installed by the second claimant, and part was separate.
5 In May 2002 both the second and the third claimants completed work. But it is common ground that the work carried out by the second claimant, and consequently the attached work carried out by the third claimants, did not comply with the details and plans that had been submitted. The separate work carried out by the third claimants complied with the law.
6 On 14 October 2002 the Conservation Area was designated. It included the site of these installations, which site became 'Article 1 (5) land' for the purpose of the Development Order. In February and in August 2003, four Enforcement Notices were issued by the local planning authority. The effect of them was to require the removal of all the equipment installed by the second claimant and the relevant equipment installed by the third. The claimants appealed against those Enforcement Notices under section 174 of the principal Act.
7 Discussions followed between the claimants and the defendants. Following that, the claimants agreed to withdraw their appeals and the defendant agreed to vary the original Enforcement Notices. On 9 January 2004 Enforcement Notices varied under section 173A of the principal Act were issued. The effect of those varied Enforcement Notices was to require alterations to bring the installation into line with the details and plans that had been submitted. The precise wording of the original Enforcement Notices and the varied Enforcement Notices differed in paragraph (3), but I am persuaded that, in the end, nothing turns on that difference.
8 There is no doubt that alteration work at least commenced. But before work had been completed, on 25 June 2004 the Withdrawal Notices were issued. According to the claimants, the alteration work was close to completion. In the Withdrawal Notices, the defendant said this:
' ..... no permitted development rights exist pursuant to the Town and Country Planning (General Permitted Development Order) 1995 which would permit the development that the [Enforcement] Notices required to be carried out.'.
9 In a letter of the same date, the Council said this:
'The Council has now received counsel's opinion, as a result of which the Council is firmly of the view that permitted development rights granted by the Town and Country Planning (General Permitted Development) Order Article 3 (1), Schedule 2, Part 24 no longer apply to the above site. This is because of the inclusion of the site in the Highbury New Park Conservation Area on 14 October 2002. In the light of counsel's opinion the Council is further of the view that prior approvals granted before the designation of the site as a Conservation Area cannot be relied upon to authorise erection following such designation. Development has not occurred in accordance with the details in the prior approval and Notice of Intention. The works undertaken are therefore in breach of condition and unlawful. Permitted development right cannot therefore be relied upon now to carry out the development because of the Conservation Area designation.'
10 A new Enforcement Notice was issued requiring the removal of the installation. Work in fact continued, and the claimants' case is that, on 5 July 2004, some four days before the deadline that had been laid down by the defendant, the alteration work was completed. According to the claimants, the alteration work resulted in the installation complying with the original approved work. The defendants reserve their position on whether the installation is now compliant. The claimants appealed against the Enforcement Notice dated 25 June and that appeal is due for hearing before an inspector in the near future.
11 The claimants also applied for permission to apply for judicial review, permission which was granted on 2 November 2004 by Forbes J on the papers.
12 It is clear that the claimants were at fault in not complying with what was the equivalent of prior approval. The work, it is accepted, did not follow in a number of respects to the details and plans submitted. However, it is clear from the correspondence that the defendant had in mind the existence of the Conservation Area at all material times following its designation, and it is, to say the least, unfortunate that, having agreed to the alteration work in January 2004 and allowed the work to continue for several months, they then hit upon a different view of the law and issued the Withdrawal Notices. Nevertheless, the court is faced with deciding the legal issue. I turn to the basic planning legislation."
"3 (1) Subject to the provisions of this Order ..... planning permission is hereby granted for the classes of development described as permitted development in Schedule 2.
(2) Any permission granted by paragraph (1) is subject to any relevant exceptions, limitation or condition specified in Schedule 2."
Article 4 is of some importance given the judge's reasoning. It empowers the local planning authority, if satisfied that development as described in Schedule 2 should not be carried out without the grant of planning permission on an application, to give a direction that it should not be carried out unless permission is thus granted. Section 108 of the 1990 Act provides for compensation to be payable accordingly. Section 97 of the 1990 Act is parallel to Article 4 of the development order. It allows for the revocation of planning permission where the local planning authority consider it expedient to do so, and in that event Section 107 provides for compensation.
"Development by or on behalf of a telecommunications code system operator for the purpose of the operator's telecommunications system in on over or under land controlled by that operator or in accordance with his licence consisting of (a) the installation, alteration or replacement of any telecommunications apparatus."
Under the heading "Development not Permitted" this appears at A1 (h) -
"Development is not permitted by class A (a) if -
'(h) In the case of development of any Article 1 (5) land ..... it would consist of -
(i) the installation or alteration of an antenna or of any apparatus which includes or is intended for the support of such an antenna ..... "
Paragraph A.2 of Part 24 stipulated certain conditions attaching to the grant of planning permission under that Part. A.2 (4) provides that Class A development (with certain limitations) -
" ..... is permitted subject, except in a case of emergency, to the following conditions:
(ii) before beginning the development, the developer shall apply to the local planning authority for a determination as to whether the prior approval of the authority will be required to the siting and appearance of the development.
(iii) the application shall be accompanied -
(aa) by a written description of the proposed development and a plan indicating its proposed location together with any fee required to be paid; ..... "
Condition (iv) (aa) provides that the development shall not be begun until the applicant has received from the local planning authority a written notice of their determination that such approval is not required. Condition (v) requires that in that case the development must be carried out in accordance with the details submitted with the application for prior approval.
"5 The amendments made to the 1995 Order by this Order shall not apply in relation to applications for a determination as to whether the prior approval of the local planning authority will be required for the siting and appearance of the development made before the coming into force of this order."
"Every local planning authority -
(a) shall from time to time determine which parts of their area are areas of special architectural or historic interest the character or appearance of which it is desirable to preserve or enhance, and
(b) shall designate those areas as conservation areas."
"(1) A development order or local development order may include provision permitting the completion of development if -
(a) planning permission is granted by the order in respect of the development, and(b) the planning permission is withdrawn at a time after the development is started but before it is completed.
(2) Planning permission granted by a development order is withdrawn -
(a) if the order is revoked,(b) if the order is amended so that it ceases to grant planning permission in respect of the development or materially changes any condition or limitation for which the grant of permission is subject.(c) by the issue of a direction under powers conferred by the order."
"a local planning authority may withdraw an enforcement notice whether or not the notice has taken effect."
"41 It is conceded, I think, and certainly is in my view correct that a grant by Development Order where there is no prior approval required carries no acquired right to develop until work is substantially completed. The difficulty arises in relation to grant by Development Order where prior approval is appropriate. The answer to this question is not in my view at all straightforward. It seems to me that there are sufficient differences between a grant by the local planning authority and a grant by Development Order for me to disagree with claimants' counsel, Mr Katkowski QC, that the latter is a mirror image of the first.
42 My approach is this. Once a prior approval is given, the extent of the permission is clearly crystallised or defined. On the day before the designation of a Conservation Area, such permission is effective. It is necessary therefore for the defendant to demonstrate that the designation has the effect that, on the day after the designation, no such permission exists. As a matter of law, the fact that here there was an unlawful installation makes no deference [sic]. The point would be the same in law if there had been no attempt to carry out any work. The argument is that the permission cannot now operate because the Article is now Article 1 (5) land. At this point I disagree with the claimants' counsel that the word 'would' in sub-paragraph (h) of Schedule 2, Part 24 points in his favour. I am inclined to the view that, even without the existence of Article 4 of the Development Order, there is insufficient indication in the legislation that the designation of a Conservation Area takes away what had been granted and defined.
43 But the strongest argument in the claimants' favour which ultimately persuades me is that Article 4 is available. Article 4 undoubtedly permits in certain circumstances a direction which would require a specific application for planning permission. Although Article 4 can operate in a number of circumstances, it plainly can operate in a situation where a Conservation Area has been designated. In my view the scheme of the Act and of the Development Order points to Article 4 as being the correct route for a local planning authority to use, if so advised, in a situation such as the present. Article 4, if there is a further application and it is refused, can result in a right to compensation. It seems to me, therefore, that the Withdrawal Notice was wrongly issued, and that, subject to counsel's submissions, the remedies sought are available."
"Was the judge correct that the first respondent had an accrued right to develop the site in accordance with the details submitted in the application at least from the date of issue of the Prior Approval Notice, so that the right to develop was unaffected by the subsequent designation of the Highbury New Park Conservation Area?"
Mr Taylor, for the appellants, this morning formulated the question somewhat differently -
"Whether at the point of time development is to be carried out it would consist of development on Article 1 (5) land."
I apprehend, with respect to Mr Taylor, that the respondents' formulation is perhaps a little clearer.
Order: Appeal dismissed