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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> The Health & Safety Executive v Wolverhampton City Council & Anor [2010] EWCA Civ 892 (30 July 2010)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2010/892.html
Cite as: [2010] NPC 91, [2010] EWCA Civ 892, [2011] PTSR 645
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
The Hon. Mr Justice Collins
CO/7276/2009
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE LONGMORE
and
LORD JUSTICE SULLIVAN
____________________
| THE HEALTH & SAFETY EXECUTIVE |
Appellant |
|
| - and - |
||
| WOLVERHAMPTON CITY COUNCIL |
Respondent |
|
| - and - |
||
| VICTORIA HALL LTD |
Interested Party |
____________________
Robert Griffiths QC and Ms Estelle Dehon (instructed by Legal Services, Wolverhampton) for the Respondent
James Maurici (instructed by Reed Smith LLP) for the Interested Party
Hearing dates : Tuesday, 18th May/Wednesday, 19th May 2010
____________________
Crown Copyright ©
- In these proceedings the Appellant ("the HSE") applied for judicial review of two decisions made by the Respondent ("Wolverhampton"):
(1) a decision on 4th August 2008 to grant planning permission; and
(2) a decision on 29th May 2009 to refuse to make an order under section 97 of the Town and Country Planning Act 1990 ("the 1990 Act") revoking or modifying that permission. - In his Order dated 5th November 2009 Collins J. granted the HSE permission to apply for judicial review. In respect of the first decision, he allowed the claim and granted declaratory relief that Wolverhampton had failed to: (i) notify the HSE that it was minded to grant permission; (ii) notify the HSE that it had granted permission; (iii) give an adequate summary of its reasons for granting permission; and (iv) provide a summary of relevant policies when granting permission. He dismissed the HSE's challenge to the second decision.
- There is no appeal against the first limb of the Order: the grant of declaratory relief as to Wolverhampton's failures when granting planning permission. In this appeal the HSE appeals against the second limb of the Order: the Judge's rejection of the claim and consequential refusal to grant any relief in respect of Wolverhampton's decision not to revoke/modify the permission.
- On 4th August 2008 Wolverhampton granted the Interested Party ("Victoria Hall") planning permission for the erection of four blocks (blocks A-D) of student accommodation containing 668 study bedrooms with ancillary facilities on a plot of land between Culwell Street and Lock Street, Wolverhampton ("the development"). Some 95 metres away from the development, on the other side of a railway line, there is a liquefied petroleum gas (LPG) facility operated by Carvers LPG (Wolverhampton) Ltd. ("Carvers"). LPG is a dangerous substance within the meaning of Council Directive 96/82/EU of 9th December 1996 on the control of major accident hazards involving dangerous substances. The LPG facility has hazardous substances consent under section 4 of the Planning (Hazardous Substances) Act 1990.
- Because the proposed development involved the provision of residential accommodation in the vicinity of dangerous substances and because those substances were "toxic, highly reactive, explosive or inflammable" Wolverhampton was required to consult the HSE on the application for planning permission for the development. It did so on 6th September 2007, and was advised in a letter produced by the HSE's online consultation software (known as PADHI+) that:
- Despite this warning, when considering the planning application Wolverhampton failed to consult further with the HSE, failed to obtain its own advice as to the safety implications of permitting a substantial amount of residential accommodation in this location, and despite being obliged to do so, failed to give the HSE advance notice of its intention to grant planning permission for the development, and failed to notify the HSE that it had granted permission. The HSE first discovered that planning permission had been granted on 16th December 2008, over four months after the grant of permission, and since, works had commenced prior to the grant of permission, five months after the works had commenced. By the time the HSE became aware of the development, work on three of the blocks A, B and C was well advanced. Work on block D, which was the closest block to the LPG facility, had not commenced.
- The HSE attempted to find a solution with Wolverhampton. A meeting was held on 7th January 2009 at which the HSE said that its preferred option would be to relocate Carvers. The outcome of the meeting was that Wolverhampton agreed:
- In a letter dated 23rd February 2009 to the Head of Development Control at Wolverhampton, the HSE set out the procedural failures that had resulted in the HSE being deprived of the opportunity to ask the Secretary of State to call in the application, said that serious safety concerns still remained, and asked Wolverhampton to issue an order:
- So far as relevant, section 97 of the 1990 Act provides:
- At this stage, the HSE does not appear to have appreciated that a revocation order under section 97 would have been of little use in respect of blocks A, B and C because their construction was well advanced and any such order would "not affect so much of those operations as [had] previously been carried out": see sub-section 97(4) above. However, Wolverhampton, as the local planning authority should have appreciated that it was still possible to prevent the construction of the block that was closest to Carvers, block D.
- Wolverhampton's response dated 3rd March 2009 to the letter dated 23rd February was to suggest a meeting between the interested parties, including Carvers, to discuss potential ways forward. The letter also said:
- In reply, the HSE said:
- In an email dated 27th March 2009 the HSE expressed its concern at the delay in arranging a meeting, pointed out that the proposed date for the meeting "will mean that the Development will move closer to completion", and asked Wolverhampton, if the meeting could not be held earlier, "to make arrangements for the Development to be suspended forthwith and until we meet with you in May".
- The notes of the meeting, which took place on 8th April 2009, record that block D, with 100 study bedrooms had not been started, and there was "a verbal agreement that it would not be started until market conditions improved". Blocks A, B and C were almost complete and the first students to take up residence were due to arrive at the beginning of the academic year in October 2009.
- Two weeks passed, and there was still no indication from Wolverhampton as to how it intended to proceed. In a letter received by the HSE on 5th May 2009, Mr Edwards said that the HSE had requested Wolverhampton to either revoke the planning permission or to negotiate with Carvers to seek either the removal of the LPG tanks or a reduction in the amount of LPG stored on Carver's site. Having said that "Clearly any of these courses of action could involve substantial costs to the Council", he asked for further information about "Risk Assessment" and the "LPG installation at Carvers".
- Mr DeCort responded by email on 8th May 2009, saying that the questions raised in Woverhampton's letter would be answered in the next few days. Once again, he stressed the urgency of the matter:
- In a letter dated 18th May 2009 the HSE pointed out that much of the information requested had already been provided, but it nevertheless answered the questions that had been raised. The letter continued:
- Wolverhampton's reply in a letter dated 29th May 2009 was as follows:
- In a letter before action dated 22nd June 2009, the Treasury Solicitor told Wolverhampton that the HSE proposed to challenge two decisions: (1) the decision to grant planning permission on 4th August 2008; and (2) the decision to refuse to revoke or modify that permission, dated 29th May 2009.
- In its response dated 26th June 2009 Wolverhampton said:
- In its Claim Form filed on 9th July 2009 the HSE contended that the decision not to revoke the permission was irrational and inadequately reasoned, and was unlawful because Wolverhampton had had regard to the cost of having to pay compensation under section 107 of the 1990 Act. The grounds explained what it was that was being sought by way of revocation:
- By the time of the "rolled up" hearing before Collins J. on 14th – 15th October 2009 blocks A-C had been completed and were occupied by students. In its Skeleton Argument for the hearing the HSE made it clear that it no longer sought a quashing order in respect of the planning permission. It sought declaratory relief that the grant of permission was unlawful. Once again, the HSE made it clear that the relief it sought in respect of the second decision was confined to Block D:
- In his Order dated 5th November 2009 Collins J. granted the HSE permission to apply for judicial review, ordered Wolverhampton to provide a full summary of its reasons for granting planning permission and a summary of the relevant policies it had taken into account when granting permission, and granted the HSE declaratory relief that Wolverhampton had failed to:
- Collins J. also ordered that the HSE's challenge to the decision dated 29th May 2009 not to revoke or modify the permission be dismissed. Before Collins J. both Wolverhampton and Victoria Hall had argued that the challenge to the decision dated 29th May 2009 was premature because it was merely the expression of a provisional view, and not a final decision that a revocation order would not be made. Collins J. did not accept those submissions, and there is no Respondent's Notice.
- Collins J.'s reasons for refusing to order Wolverhampton to reconsider the exercise of its section 97 powers (para.44 judgment) are contained in paragraph 40 of his judgment:
- The HSE accepts that it was impossible to revoke the entirety of the permission: see subsection 97(4) (para.9 above). However, Mr Coppel QC submitted that this was not what was being sought by the HSE. It was seeking the revocation/modification of the permission insofar as it related to block D. Collins J. had rejected the second part of the HSE's claim on a false premise.
- In paragraph 40 of his judgment Collins J. gave four reasons for rejecting the HSE's challenge to Wolverhampton's decision on 29th May 2009 not to exercise its section 97 powers:
(i) impossibility, because blocks A, B and C had been completed;
(ii) inappropriate, because the planning permission was not being quashed;
(iii) impact on Victoria Hall, which would "probably be put out of business
even if compensation was eventually payable"; and
(iv) no immediate risk, because the HSE had failed to take immediate action. - With the possible exception of reason (iv), all of these reasons would have been compelling reasons for Wolverhampton to decide not merely that it should not, but that it could not, lawfully exercise its powers under section 97 so as to revoke the entire permission. However, they do not justify Wolverhampton's failure to consider the exercise of its powers under section 97 so as to prevent the construction of block D. Once the letter before action had been received (para.19 above), Wolverhampton could have been in no doubt that what was being sought by the HSE under section 97 was an order revoking/modifying the permission in respect of block D only.
- Collins J. can be forgiven for dismissing this aspect of the HSE's claim on a false basis because Wolverhampton's response to the Claim has throughout been far from clear or consistent. Both Mr Griffiths QC and Mr Maurici referred us to the correspondence and notes of meetings (paras.7-17 above) and submitted that, at least prior to the letter before action, the HSE was seeking revocation not only in respect of block D, but also in respect of blocks A-C, all of which were either wholly or partially within the inner or middle zones. I accept that the HSE does appear to have been confused as to precisely what could be achieved by an order under section 97, but it is difficult to see how any confusion on its part could possibly be of any assistance to Wolverhampton in this appeal. As the local planning authority, Wolverhampton could reasonably be assumed to know the ambit of section 97, particularly since its letter dated 29th May 2009 was written after it had taken "some preliminary legal advice" (not from Wolverhampton's current representatives). Even the most "preliminary" legal advice should have told Wolverhampton that by 29th May 2009 an order under section 97 could "bite" only on block D. Since block D was the closest block to Carvers, a section 97 order which would have the effect of preventing its construction was an option which should have been considered with care by any reasonable local planning authority.
- Having heard Mr Griffiths' submissions, we were uncertain as to whether it was being contended on behalf of Wolverhampton that it: (a) had not considered making a section 97 order in respect of block D, because (inter alia) that was not what the HSE had been asking for; or (b) had considered making a section 97 order in respect of block D only. In answer to our questions Mr Griffiths said that we would be entitled to conclude that Wolverhampton had not considered whether to make an order in respect of block D alone. I have no doubt that that is the correct conclusion, and that Collins J. did reject this part of the HSE's Claim on a false premise.
- Would it have been inappropriate to order Wolverhampton to reconsider the exercise of its section 97 powers because the planning permission was not being quashed? Mr Griffiths, and Mr Maurici on behalf of Victoria Hall, submitted that it would be inappropriate to grant relief in respect of the decision on 29th May 2009 because the primary challenge – to the grant of planning permission - had failed. They relied on the following passage in the judgment of Simon Brown LJ in R v North West Leicestershire District Council ex p. Moses (No 2) [2000] Env LR 443 at pp.457-8:
- While those observations were wholly appropriate on the facts of that case, the present case is very different. In North West Leicestershire planning permission to extend a runway had been granted in 1994. Construction began on 1st February 1999. The Applicant's Solicitor first questioned the validity of the permission on 4th February 1999. Application for permission to apply for judicial review was made on 24th April 1999. By the time the matter came before Scott Baker J. on 14th September 1999 the eastern extension of the runway had been completed and the western extension was virtually complete. It was completed the following month. Unsurprisingly, permission to apply for judicial review was refused on the ground that both the delay and the resultant prejudice were "enormous".
- In the present case, permission to apply for judicial review was granted. It was too late to quash the permission because blocks A-C had been completed, but declaratory relief was given in respect of the "unlawful failures" of Wolverhampton in processing the application and granting permission (para.42 judgment). Unlike the permission for the runway, which was a single entity and in respect of which a revocation order would have had the same practical effect (apart from the payment of compensation) as a quashing order, the permission in this case related to four distinct blocks of flats. The fact that three of those blocks had been constructed meant that it was inappropriate (as the HSE had recognised prior to the hearing) to quash the permission; but it did not mean that it would necessarily be inappropriate, while leaving the permission in place for the benefit of blocks A-C, to modify it so as to ensure that the construction of block D could not lawfully commence.
- Turning to the impact on Victoria Hall, it would, of course, have been affected by an order under section 97 preventing the construction of block D, but it had already made it clear that it had no intention to construct block D until market conditions had improved: see para.14 above (Mr Maurici told us that this was still the position). Moreover, it would be entitled to compensation under section 107 of the 1990 Act. Victoria Hall had said in its evidence that it would become insolvent if the permission was quashed and it was prevented from receiving any rental income because blocks A-C could not be occupied, but it did not suggest that it would be "put out of business" if the permission was revoked in respect of block D. Mr Crompton, its Chief Executive Officer, said in his Witness Statement that if block D could not be constructed Victoria Hall "would be unable to carry out development in accordance with the planning consent, resulting in lost revenues and development opportunities".
- The final reason given by Collins J. for not ordering Wolverhampton to reconsider the exercise of its section 97 powers was "the reasonable view that the HSE's failure to take immediate action shows that the risk could not be regarded as immediate". The failure of the HSE to take "immediate action" had not been relied on by Wolverhampton as a reason for not making a revocation order under section 97. It must be remembered that by the time that the HSE learned of the development, construction of blocks A-C was well under way. In those circumstances, it was not in the least unreasonable for the HSE to explore with Wolverhampton whether there might be a solution that avoided litigation between two public bodies. The correspondence and notes of meetings (see paras.7-17 above) make it clear that the HSE was repeatedly attempting to impress upon Wolverhampton the urgency of the situation. With the benefit of hindsight, it would have been well advised to commence judicial review proceedings earlier, but it was entitled to proceed on the basis that Wolverhampton, as a responsible local planning authority, would know the ambit of section 97, would act with a degree of urgency, and would make strenuous efforts to remedy a situation that had arisen as a result of its own procedural failures in determining the planning application.
- While it was not irrational for Wolverhampton to refuse to revoke the entire permission (because such a course was legally impossible) it most certainly was irrational for Wolverhampton to fail even to consider whether to revoke/modify the permission in respect of block D alone. Although no reasons are given for the decision in the letter dated 29th May 2009, it is clear from the earlier correspondence and the notes of the meeting on 8th April 2009 that one of the reasons (Mr Coppel QC submits on behalf of the HSE, the only reason) why Wolverhampton decided not to exercise its powers under section 97 was because it was concerned that it would be liable to pay "substantial costs" as compensation. Before Collins J. it was submitted on behalf of the HSE that this was not a material consideration for the purposes of section 97(2). Collins J. found it unnecessary to decide this point (see para.40 of his judgment, para.25 above). If the HSE's appeal is allowed and Wolverhampton is ordered to reconsider whether to exercise its powers under section 97 in respect of block D, we will have to resolve this issue (see below, paras. 39-61). Even if it is assumed that Wolverhampton was entitled to take its potential liability to pay compensation under section 107 into account when deciding whether or not to exercise its powers under section 97, its consideration of this factor was fatally flawed because it considered, not the compensation that might be payable if the construction of block D alone was prevented, but the "high costs" that would be payable if the planning permission for all of the blocks in the inner and middle zones (i.e. blocks A-D) was revoked, even though it should have appreciated that this never was a feasible option because of the provisions of sub-section 97(4).
- For these reasons, I am satisfied that Collins J. was persuaded to refuse relief in respect of Wolverhampton's decision on 29th May 2009 on a false premise. The absence of a Respondent's Notice did not deter either Mr Griffiths or Mr Maurici from submitting that Wolverhampton's decision not to make a section 97 order was justified on grounds other than those relied upon by Collins J. They submitted that, although no reasons were given in the letter dated 29th May 2009, it was clear from the correspondence, in particular Wolverhampton's reply to the letter before Claim (para.20 above), that faced with a number of options Wolverhampton had decided that the better option was to leave the development, which made an important contribution to the regeneration of the Canalside Quarter of Wolverhampton in situ, and to remove the "problem", Carvers, which might otherwise frustrate the regeneration of the Canalside Quarter, by either moving the LPG facility to a different site, or modifying the hazardous substances consent for the existing LPG facility. It was submitted that it was for Wolverhampton to decide what was the best way forward, and it was entirely rational for it to conclude that the best way was to "resolve the problem at the source", i.e. to remove, or modify the consent for, the LPG facility.
- I readily accept that it was for Wolverhampton as the local planning authority to decide what was the best way forward, but a decision to rule out taking action under section 97 as one of the options had to be a rational one applying conventional Wednesbury principles. Thus, Wolverhampton had first to correctly direct itself as to the ambit of its powers under section 97, and then to reach a decision not to exercise those powers having regard to relevant, and not irrelevant, considerations. For whatever reason, Wolverhampton did not properly direct itself as to the ambit of section 97, and so did not consider whether to use its powers under that section to prevent the construction of block D. It appears to have decided not to act under section 97 because of the high costs to the Council of doing something which was no longer possible once blocks A-C were almost complete, namely revoking the entire permission. Further, there is nothing to indicate that in reaching its decision on 29th May 2009 Wolverhampton considered the extent to which preventing the construction of block D would reduce the risk to prospective occupiers of the development. Block D was the closest block to Carvers and at that stage the only advice as to risk available to Wolverhampton was that which had been provided by the HSE. While in an ideal world removal of the problem at source might well be the preferred option, it is difficult to see how action under section 97 in respect of block D could sensibly have been ruled out in the absence of any information as to whether, and if so, how, when and at what cost to Wolverhampton, it might be possible to remove the problem at source. Such information was not available on 29th June 2009, it was not available before Collins J., and it is still not available. Wolverhampton's decision on 29th May 2009 was therefore unlawful. The HSE's appeal should be allowed, the second decision should be quashed, and Wolverhampton should be ordered to reconsider whether it should exercise its powers under section 97 so as to revoke/modify the permission insofar as it relates to block D.
- If a planning permission is revoked or modified under section 97, compensation is payable under section 107 of the 1990 Act:
- In Alnwick the local planning planning authority had applied to quash an order made by the Secretary of State under section 97 (using the "default power" conferred by Section 100) that modified an outline planning permission granted by the local planning authority. It contended that in deciding to make the order the Secretary of State had ignored a material consideration: the local planning authority's liability to pay compensation under section 107. Richards J. rejected that submission. At pages 142-143 of his judgment he said:
- In Usk the Claimants contended that the decision of the National Park Authority (NPA) not to make a discontinuance order under section 102 of the 1990 Act in respect of a caravan and camping use of land within the National Park was unlawful because it had had regard when reaching its decision to its liability to pay compensation under section 115 of the Act. Section 102 provides (so far as relevant):
- The Claimants in Usk relied on the decision in Alnwick. It was submitted on behalf of the NPA that Alnwick was wrongly decided. In paragraph 195 of his judgment Ouseley J. recognised
- Ouseley J. considered that this approach was supported by a number of authorities, which he discussed in paragraphs 203-204 of his judgment. Having further considered the implications of "expediency", Ouseley J. set out his overall conclusion on this issue in paragraph 211 of his judgment:
- Mr Coppel submitted that Usk was wrongly decided; Ouseley J. had erred in laying too much stress upon the need for there to be a decision under sections 97, 102 and 172 as to whether a particular course of action – making a revocation order or a discontinuance order, or issuing an enforcement notice – was "expedient". Sub-sections 97(2), 102(1) and 172(1)(b) prescribed the matters to which a local planning authority could lawfully have regard when deciding whether it was expedient to make a revocation or discontinuance order, or to issue an enforcement notice: "the development plan and….any other material considerations".
- Local planning authorities are required to have regard to the development plan and any other material considerations when taking a number of decisions under the 1990 Act, e.g. decisions to:
- I readily accept that there must be a consistent approach to the meaning of "material considerations" in the enactments which comprise the "planning code", and that, as Richards J. said in Alnwick, a consideration must in broad terms be a "planning" consideration in order to be a material consideration for the purpose of all of the enactments referred to in paragraph 45 above. I would also endorse Richards J's summary of the position:
- It is common ground that a financial benefit or disbenefit to a local planning authority as a result of a grant or refusal of planning permission, devoid of any land use consequences of the decision, is not a material consideration for the purposes of section 70(2) of the 1990 Act. Does it follow that a local planning authority may not have regard to its liability to pay compensation when deciding whether it is expedient to make a revocation order or a discontinuance order? In my view, the mere fact that the word "expedient" is to be found in sections 97(1) and 102(1) but not in section 70(2), is not, of itself, a sufficient reason for concluding that a local planning authority may lawfully have regard to its liability to pay compensation when deciding whether to make an order under section 97 or 102. The question is one of substance, not semantics, and the need for decisions under sections 97(1), 102(1) and 172(1)(b) to appear to the local planning authority to be "expedient" is, in part at least, a reflection of the different character of the decisions that have to be taken under those enactments.
- In Jeffery v First Secretary of State [2006] EWHC 2920 (Admin) the Claimant challenged the Secretary of State's decision to confirm a discontinuance order on the basis that he had wrongly equated the decision to confirm the order with a decision whether to grant planning permission (para.31). Having concluded that the Secretary of State had applied the correct test, I also found that the challenge was devoid of substance:
- The precise phraseology is of less importance than the nature of the decision required of the local planning authority under the enactment in question. As Ouseley J. pointed out (para.202, see para.42 above), a local planning authority does not initiate the decision-making process under section 70. Assuming that an application for planning permission is validly made, a local planning authority must respond to it by either granting or refusing planning permission. A decision to take no action is not an option: a failure to take a decision on a planning application within the prescribed period is treated as a "deemed refusal" for the purposes of an appeal to the Secretary of State: see section 78 (2).
- It is the local planning authority that initiates the decision making process under sections 97, 102 and 172. Having done so, it may decide to take no action because it considers that it would not be expedient to make a revocation order or a discontinuance order, or to issue an enforcement notice. When deciding whether or not to take action under a particular provision in the 1990 Act, the local planning authority would be expected to be familiar with the content of the 1990 Act as a whole. It would have to consider what would be the consequences under the Act of taking action under a particular provision and whether action under some other provision in the Act would be more appropriate. The 1990 Act must be read as a whole for the purpose of ascertaining Parliament's intention. Since Parliament expressly provided that the local planning authorities will be liable to pay compensation if they decide that action should be taken under certain powers conferred by the Act, it must be inferred, in the absence of clear words to the contrary, that Parliament expected that a local planning authority would have regard to its liability to pay compensation under one part of the Act when deciding whether or not to exercise a power under another part of the Act. A decision under section 97 is not taken in isolation, it is taken within the statutory framework of the 1990 Act. If that statutory framework imposes a liability to pay compensation if a certain course of action is taken, there is no sensible reason why that liability should be ignored (in the absence of an express instruction to do so) when a decision is reached under the Act as to whether that action should be taken.
- I do not consider that the obligation imposed by subsections 97(2) and 102(1) to have regard to the development plan and any other material considerations should be read as an express prohibition against the local planning authority also having regard to the other provisions of the 1990 Act, and in particular to its liability to pay compensation under sections 107 and 115, when deciding whether to exercise the power conferred by sections 97 and 102. Subsections 97(2) and 102(1) tell the local planning authority that in deciding whether it is expedient to make a revocation order or a discontinuance order it must have regard to certain matters, they do not say that the authority must not have regard to the other provisions of the Act, including those relating to compensation.
- When deciding whether Parliament intended that decisions under sections 97 and 102 should be made without regard to the liability to pay compensation imposed by sections 107 and 115, the practical consequences of the Alnwick approach are relevant. In Alnwick the local planning authority had clearly made an egregious error in granting planning permission. In his report to the Secretary of State the Inspector had described the decision as "grossly wrong", and "so demonstrably and seriously perverse such that significant harm to Alnwick's vitality and viability as a shopping centre is likely to occur" (p.133). In these circumstances there is an obvious attraction in the proposition that such a gross planning "mistake" should be put right regardless of the cost to the local planning authority responsible for making the mistake. However, it was not suggested by Mr Coppel that a distinction could be drawn between section 97 and section 102 in this respect. The powers conferred by both sections, and in particular by section 102, are not confined to putting right "mistakes" made by the local planning authority. Section 102 empowers a local planning authority to make a discontinuance order in respect of "any use of land" or "any buildings or works": see section 102(1)(a) and (b), para.41 above. Those uses or buildings may have the benefit of planning permission, but equally they may have been in existence for very many years, since before the advent of planning control. Did Parliament intend that local planning authorities should decide whether to make discontinuance orders in respect of such uses and buildings without any regard to cost to the authority of doing so? Although a planning permission will, by definition, have been granted when a decision falls to be made under section 97, that permission may not have been a "mistake" at the time when it was granted. The policy framework may have radically changed and the change may have been brought about by a change in Government policy, e.g. as to the amount or location of housing provision within a particular region, over which the local planning authority had no control. If there has been such a change in policy, revocation of a permission granted under earlier policies may well be "expedient" if regard is had only to (current) planning considerations. I do not consider that Parliament in enacting sections 97 and 107 intended that local planning authorities should have to ignore the cost to the authority's ratepayers (now council taxpayers) of revoking such permissions.
- After more than sixty years of a comprehensive code of planning control since the appointed day, 1st July 1948, under the Town and Country Planning Act 1947, it may well be the case that the scope for rectifying "mistakes" under section 97 or removing non-conforming uses or buildings under section 102 will now be limited. However, it must be borne in mind that the power to make revocation orders and discontinuance orders was conferred by the 1947 Act in substantially the same terms as those now contained in the 1990 Act: see sections 21 and 26 of the 1947 Act. Under both sections the local planning authority was (as it is now) required to have regard to the development plan and any other material considerations: see subsections 21(1) and 26(1). At that time, while some uses and buildings would have been granted planning permission under earlier enactments dealing with Town and Country Planning, most would have been commenced or constructed before the advent of a comprehensive system of planning control; and many of the earlier permissions would not have been granted in the context of a comprehensive system of development plans. From a purely planning point of view there would have been a legacy of numerous inappropriately sited uses and buildings. Against this background, I do not believe that, in requiring local planning authorities to have regard to the development plans that had yet to be prepared under the 1947 Act and to other material considerations, Parliament was thereby prohibiting the newly appointed local planning authorities from having regard also to those provisions (sections 22 and 27) in the 1947 Act which it had enacted and which provided for the payment of compensation if a revocation order or a discontinuance order was made. Correcting the planning "errors" which had occurred prior to 1st July 1948, however "expedient" that might have been in purely planning terms, would have been hugely expensive. As with the 1990 Act, the 1947 Act must be read as a whole. When introducing these powers Parliament did not intend that local planning authorities should decide whether revocation or discontinuance was expedient solely on planning grounds and regardless of public expense.
- While compensation is no longer payable for a refusal of planning permission, under the 1947 Act compensation was payable if planning permission was refused for development of any class specified in Part II of the Third Schedule to the Act ("existing use" development): see section 20 and the Third Schedule to the 1947 Act. When deciding whether to grant or refuse planning permission under section 14(1) of the 1947 Act the local planning authority was required (as it is now) to have regard "to the provisions of the development plan….and to any other material considerations". Parliament, having imposed an obligation to pay compensation if, e.g. an application for planning permission to enlarge an existing building by not more than one-tenth was refused (see para.3 in Part II of the Third Schedule), could not reasonably have intended that that obligation should be ignored by local planning authorities when they were deciding whether to permit or refuse such applications. Under the 1990 Act the financial consequences of granting or refusing a planning permission, insofar as they do not relate to the use and development of land, are no longer relevant because they are not planning considerations for the purpose of section 70(2) and the 1990 Act does not make any express provision for such financial consequences (the right to compensation for Third Schedule Development having been repealed). Where the Act does make provision for such consequences if certain action is taken, there would have to be a very good reason for inferring that Parliament intended that they should be ignored when deciding whether or not to take that action.
- The fact that compensation will be payable to those who would be adversely affected by the making of an order under section 97 or 102 must be a relevant consideration when a decision is taken as to whether it would be expedient to make the order. It is common ground that the hardship that would be suffered by the landowner whose permission is revoked, or the occupier whose use has to be discontinued, or building removed, is one of the "material considerations" for the purposes of sections 97(2) and 102(1). If that is so, it must also be relevant that the hardship which would otherwise be the consequence of making the order will be mitigated, to the extent that a monetary award can do so, by an award of compensation under the Act. It would be curious if the order-making authority could have regard to the fact that compensation will be payable to those adversely affected by the order, but could not have regard to the fact that it, through its council tax payers, will be liable to pay that compensation.
- Mr Coppel submitted that the authorities relied upon by Ouseley J., Westminster Bank v Minister of Housing and Local Government [1971] AC 508, Hoveringham Gravels Ltd v Secretary of State for the Environment [1975] 1QB 754 CA, R v Exeter City Council ex p. J.L. Thomas & Co Ltd [1991] 1 QB 471, R v Bassetlaw District Council ex p. Oxby [1998] PLCR 283, R v Caradon District Council ex p. Knott (1999) 80 P & CR, and R v North West Leicestershire District Council ex p. Moses(No 2) [2000] Env. LR 443 (see paras.203 and 204 of Ouseley J's judgment) did not support the proposition that the financial consequences for the local planning authority of making an order under section 97 or 102 were relevant. I accept that those authorities are not on all fours with the facts in Usk (and Ouseley J. did not suggest that they were), but they do establish the proposition that there are circumstances in which the local planning authority when deciding whether, and if so what, action to take under the 1990 Act, is entitled to have regard to the fact that it will have to pay compensation under the Act if it decides upon one course of action rather than another. It is entitled to have regard to that factor, not because a different meaning is given to 'material considerations' in those cases, but because the obligation to pay compensation in certain circumstances is incorporated into the statutory planning code, to which the local planning authority must have regard when taking a decision under an enactment forming part of the code.
- Mr Coppel submitted that in each of these cases either the point was not in issue (Hoveringham), or the local planning authority was seeking to achieve a proper planning purpose: to improve the highway in the Westminster case; to secure the redevelopment of a site in the Exeter case; or to quash a permission that had been unlawfully granted in Oxby. In Caradon the Court had decided that the decision must be taken for a proper planning purpose. However, none of these cases suggests that, provided the local planning authority does have regard to the development plan and other material (planning) factors, it may not also have regard to the financial implications, in terms of its liability to pay compensation under the 1990 Act, when deciding whether to take a particular course of action under the Act.
- In Caradon a revocation order and a discontinuance order had been made to secure the removal of a partially built dwelling. There was no suggestion that those orders would not be effective in securing that planning objective. The local planning authority then decided to take enforcement action. Apart from the desire to avoid having to pay compensation in respect of the revocation and discontinuance orders the local planning authority was unable to identify any other reason why it might have thought it "expedient" to issue the enforcement notice (p.171). Mr Coppel particularly relied on this passage in the judgment:
- Mr Coppel submitted, correctly, that if a local planning authority was entitled to have regard to its liability to pay compensation under sections 107 and 115 when deciding whether it was expedient to make an order under section 97 or 102, the weight to be given to that factor would (subject to Wednesbury rationality) be a matter for the local planning authority. He submitted that in practice it would be impossible to establish that undue weight had been given by the authority to its liability to pay compensation, and it would therefore be able to avoid taking any action under sections 97 and 102 to correct even the most egregious planning mistakes, such as occurred in the Alnwick case. There is some force in this concern, but it should not be overstated. The starting point must be that Parliament would have expected that local planning authorities would conscientiously discharge their duties under the 1990 Act. If there is maladministration in the grant of a planning permission a complaint may be made to one of the Commissioners for Local Administration in England ("the Local Government Ombudsman"), who may recommend the payment of compensation to a complainant. An error of law in the grant of a planning permission can be the subject of proceedings for judicial review. If there is a serious planning "mistake" which the local planning authority refuses to put right because it is not prepared to pay compensation, the Secretary of State can exercise the default power conferred by section 100. While the local planning authority's liability to pay compensation will be a relevant factor, it will be for the Secretary of State to decide what weight should be attributed to it. If a mistaken grant of planning permission was causing significant harm in planning terms, the Secretary of State would be entitled to give very little weight to the local planning authority's contention that it would cost a great deal to correct the mistake under section 97 and/or 102.
- Mr Coppel submitted that there was, in reality, no prospect of local planning authorities being compelled at the suit of third parties, such as local amenity or environmental groups, to take action under section 97 or 102 to achieve objectives which, while they would undoubtedly be "expedient" in purely planning terms, would also be massively expensive for council taxpayers. He submitted that the answer to this point lay in the development plan. Local planning authorities could include policies in their development plans dealing with existing, inappropriately sited uses or buildings. Such policies could have regard to the cost of removing such buildings or uses because "the resources likely to be available for implementation" of both the Regional Spatial Strategy (RSS) and the Local Development Documents (LDD) are one of the matters to be considered in the preparation of such plans: see sections 5(3)(e) and 19(2)(i) of the Planning and Compulsory Purchase Act 2004. The requirement to have regard to the resources likely to be available for carrying out the proposals in a development plan was introduced by the Town and Country Planning Act 1968, which repealed the system of development plans introduced in the 1947 Act and replaced them with Structure Plans and Local Plans (now replaced by RSSs and LDDs).
- The fact that, since the 1968 Act, local planning authorities have been required to have regard to the likely availability of resources when preparing their development plans does not answer the point made in paragraphs 53 and 54 (above). The powers to grant or refuse planning permission and to make revocation or discontinuance orders have been in existence, in substantially the same terms, since the appointed day in 1948. At that time there was no express obligation to have regard to resources in development plan preparation, which resulted in a number of unrealistic policies, a defect in the earliest development plan system which the 1968 Act attempted to remedy. In any event, it should not be assumed that the new development plan system will be able to descend into the necessary level of detail so as to enable local planning authorities to resist applications by third parties for revocation or, more particularly, discontinuance orders, which would undoubtedly be expedient in purely planning terms, but would also be hugely expensive, simply by reference to policies in a development plan. Given that the liability to pay compensation is imposed by the 1990 Act, it would be odd if the individual local planning authority's liability to pay compensation either was, or was not, a relevant factor under section 97 or 102 depending upon the precise terms of policies (or the lack of them) in its development plan.
- For these reasons, which I fear I have expressed at excessive length, I agree with Ouseley J's conclusion in Usk that Alnwick was wrongly decided on this issue and should not be followed. In summary, Parliament's intentions in enacting the 1990 Act are to be ascertained by considering the Act as a whole. Decisions under sections 97 and 102 are not taken in a vacuum, they are taken within a statutory framework which requires compensation to be paid if orders are made under those sections. In this statutory context the obligation to have regard to the development plan and other material (planning) considerations in subsections 97(2) and 102(1) should not be construed as though it was a prohibition upon having regard to the provisions relating to compensation in sections 107 and 115 of the Act.
- I would allow the appeal and order Wolverhampton to reconsider the exercise of its powers under section 97 in respect of block D in accordance with the principles, including those relating to compensation, set out above.
- I find that I am to have the deciding voice on the matter of planning law which divides the acknowledged experts. Richards J in Alnwick and Pill LJ in this case say that in deciding whether to modify or revoke a grant of planning permission, the planning authority is not entitled to take into account the fact that compensation will be payable to the landowner however substantial that compensation will be; Ouseley J in Usk (albeit in the context of discontinuance rather than modification or revocation) and Sullivan LJ in this case say that the fact of compensation is payable is a matter which the planning authority may, in an appropriate case, take into account.
- My own infinitely less expert view is that the fact and amount of compensation are matters which the planning authority is entitled to take into account for two main reasons. The first reason is that there does seem to me to be a difference between the grant or refusal of planning permission on the one hand and the modification, revocation or downright discontinuance on the other. That is, of course, primarily reflected by the fact that compensation does not enter the equation in the first category of case. This compensation ultimately derives partly from council taxpayers for whose interest a planning authority must have regard. But the difference is also to my mind reflected in the statutory language which in the case of modification, revocation or discontinuance introduces the concept that such course of action must appear to be "expedient" to the planning authority before it embarks on it. No such wording appears in the statutory language relating to the grant or refusal of planning permission.
- My second reason is that whereas brightline rules are useful (and often necessary) in private law, they tend to be much more troublesome in public law. The view that the fact and the amount of compensation can never be taken into account by a planning authority has, to my mind, an inappropriately absolute ring to it. A private pocket may be required to pay up although the heavens fall around it, but such a principle can be awkward where the public purse is involved and public authorities have budgets within the limits of which they must, if possible, keep.
- That does not, of course, mean that a planning authority would be entitled to refuse to modify or revoke a planning permission previously granted by invoking a vague concept of cost to the public purse. If the fact of compensation is to be a factor in its decision, the planning authority will have to say in terms what the amount of compensation is likely to be and precisely why it is expedient for that sum not to be paid in circumstances in which modification or revocation might otherwise be appropriate. That is unlikely to be an easy or straightforward exercise.
- On this matter, therefore, as on the other issue in the case, I agree with Sullivan LJ and would make the order which he proposes in para 63 of his judgment.
- I agree with the conclusion of Sullivan LJ, at paragraph 38, that Wolverhampton's decision on 29 May 2009 was unlawful and that the appeal should be allowed on the basis stated by Sullivan LJ in that paragraph. I agree with his reasons for reaching that conclusion.
- Looking to the future, the question posed by Sullivan LJ, at paragraph 39, then arises:
- Section 97 of the 1990 Act provides:
- Under section 100, the Secretary of State may, subject to the provisions of the section, himself make such an Order "if it appears to the Secretary of State that it is expedient that an Order should be made under section 97". Section 107, set out by Sullivan LJ at paragraph 39, makes provision for the payment of compensation "where planning permission is revoked or modified by an Order under section 97".
- It is necessary to consider other sections of the 1990 Act in which the same or a similar test to be applied when making planning decisions is expressed. Section 70(2) of the 1990 Act provides that where an application is made to a local planning authority for planning permission:
- Section 102 of the 1990 Act makes provision for Orders requiring discontinuance of use or alteration or removal of buildings or works. It provides, in so far as is material:
- The relevant paragraphs from the judgment of Richards J in Alnwick have been set out by Sullivan LJ in paragraph 40 and I will not repeat them verbatim. Richards J held:
- I agree with Richards J in Alnwick that what is capable of amounting to a material consideration for the purposes of section 97 must be the same as in relation to the determination of planning applications under section 70. Its use in a context in which compensation may follow from a decision does not affect what is comprehended by the term "material considerations", which are planning considerations related to the character, use or development of the land.
- As Richards J accepted, financial considerations which fairly and reasonably relate to the development are capable of being material considerations. In R v Westminster Council Ex party Monahan [1990] 1 QB 87, desirable improvements to the Royal Opera House could not be financed unless offices were permitted as part of the development. The local authority was held entitled to have regard to "the financial realities of the overall situation", per Kerr LJ, at page 111F. The same approach had been followed in Hoveringham.
- The general principle was stated by Cooke J in Stringer v Minister of Housing & Local Government [1970] 1 WLR 1281, at 1294:
- The basic structure of the legislation has remained remarkably consistent since the seminal Town & Country Planning Act 1947 ("the 1947 Act") described by Sir Desmond Heap as "a brand new beginning in the matter of control over land and its development" (The Land and the Development; or the Turmoil and the Torment). I refer to its provisions because Sullivan LJ has relied on the presence in them of the expressions, the effect of which is disputed, as supporting the conclusion he has reached.
- The central feature of the 1947 Act was the requirement in section 5 that local planning authorities carry out a survey of their area and, within a limited time, "submit to the Minister a report of the survey together with a plan (hereinafter called a 'development plan') indicating the manner in which they propose that land in that area should be used (whether by the carrying out thereon of development or otherwise) and the stages by which any such development should be carried out".
- Section 14(1) of that Act provided that in dealing with an application for planning permission "the planning authority shall have regard to the provisions of the development plan, so far as material thereto, and to any other material considerations".
- Section 21 of the 1947 Act dealt with revocation and modification and the present test appeared:
- Section 22 made provision for the payment of compensation following such a revocation or modification. Power to revoke or modify has always been, and remains, strictly limited in time. Section 21(3) of the 1947 Act provided that it may be exercised "at any time before [building or other operations] have been completed" or "at any time before the change [of the use of the land] has taken place".
- Section 23 empowered a local planning authority to take enforcement proceedings where development of land is carried out without a grant of planning permission. An enforcement notice could be served if the authority considered it "expedient to do so having regard to the contents of the development plan and to any other material considerations".
- A power to order the discontinuance of an authorised use was conferred in section 26(1) of the 1947 Act "if it appears to a local planning authority that it is expedient in the interests of proper planning of their area (including the interests of amenity), regard being had to the development plan and to any other material considerations".
- Sullivan LJ has relied on the power conferred in the 1947 Act to make revocation orders and discontinuance orders. He rightly states that in 1947, there would have been, from the then current planning point of view "a legacy of numerous inappropriately sited uses and buildings" (paragraph 53). Parliament in 1947 cannot have expected the local planning authorities established by the Act, he finds, to ignore financial considerations when deciding whether to put that right. It would have been "highly expensive" to correct planning errors which had occurred prior to 1 July 1948, the date when the new planning regime took effect.
- I do not accept that analysis. The consistent theme in the legislation has been that planning decisions should be made in accordance with the development plan and any other material considerations. The 1947 Act introduced the concept of the development plan which became the primary planning document for the local planning authority's area. That approach was enhanced by section 54A of the 1990 Act, now section 38(6) of the 2004 Act. A good environment and development were to be achieved by means of a development plan, or a series of development plans. It was not contemplated in 1947 that England (and Wales) would be transformed overnight into Blake's Jerusalem. The route to progress was through the new development plans and not through extensive use of discontinuance orders.
- It is of less direct relevance but the philosophy behind the 1947 Act was not only that development should be controlled but that the development value of land, over and above the value attributable to existing use of the land, should be taken into public ownership. In Canterbury City Council v Colley [1993] AC 401, Lord Oliver of Aylmerton stated, at page 407B:
- That throws light on the scheme of the 1947 Act and the perceived need for a balancing factor to ensure fairness to the owner of the land. With that starting point, it is difficult to conclude that the prospect of paying compensation could form part of the decision making process in relation to revocation. The perceived need for fairness is undermined if the prospect of paying compensation itself impacts on the decision to revoke.
- Section 20 of the 1947 Act made provision, not present in the current legislation, for payment of compensation on refusal of permission in certain cases. The categories included a limited enlargement of an original building for which planning permission may not now be required. The categories of cases are specified in Part II to the Third Schedule of the Act. Again, it is fairness to the landowner that requires provision for compensation. That is undermined if the decision whether to revoke can turn on protection of the taxpayer.
- As a starting point, I agree with Sullivan LJ, at paragraph 47 that the issue does not turn upon the presence of the word "expedient" in sections 97(1), 102(1) and 172(1)(b) and not in section 70(2), though the presence of the word is central to the reasoning of Ouseley J who, in Usk, repeatedly relied on the word. Sullivan J, as he then was, reasoned the issue in Jeffery, cited at paragraph 48. The word expedient must be read in context: is it expedient having regard to the development plan and to any other material considerations? The word permits latitude in an evaluation but the evaluation must be based on matters lawfully taken into account, in my view considerations relating to the character, use or development of the land.
- The basic approach, as Mr Coppel QC contended, was and is to require planning for the future by preparation and use of a development plan. Power has been granted to revoke planning permissions in limited circumstances, and even to order discontinuance of uses. That provides a safeguard against the implementation of future inappropriate or unlawful planning permissions. It was not intended as the primary route to a better environment. Judicial review of decisions claimed to be unlawful, the use of which remedy has developed substantially since 1947, is another route whereby decisions may be quashed without the payment of compensation.
- That approach is confirmed by the introduction, in the arguably less visionary and more practical age of the Town & Country Planning Act 1968, of a requirement that local planning authorities, in formulating their policy and general proposals in development plans, to become known as structure plans, have regard "to the resources likely to be available for the carrying out of the proposals of the structure plan" (section 2(4)(b)).
- I do not consider that the cases cited by Ouseley J, and now Sullivan LJ at paragraph 56, assist Wolverhampton's case. What they do establish is that, when alternative remedies are available, the local authority may take the cheaper course. In Westminster Bank v Minister of Housing and Local Government [1971] AC 508 it was held that where Parliament had chosen to set up two different ways of preventing development which would interfere with schemes or street widening, one under the Highways Act and the other under the Planning Act, it was not an abuse of power in the local authority to choose to exercise those powers which did not place a burden on the ratepayers (Lord Reid at page 530 C-F). Oxby concerned an application to quash on the ground of bias or apparent bias rather than revocation. In Oxby, Hobhouse J stated, at page 294E:
- Hobhouse J referred to "planning grounds" for the decision and to the right of a person "to state that he opposes the revocation and the matter thereafter proceeds in a way which parallels the procedure following the refusal of a planning application".
- In Caradon the challenge was to a decision to issue an enforcement notice rather than an order for discontinuance. In Caradon, Sullivan J stated, at page 171:
- The case was decided on other grounds but Sullivan J's statements of principle appear to me to support those of Richards J in Alnwick. The statements of principle of Hobhouse J in Oxby also support them.
- Thomas is the case most helpful to the Wolverhampton cause. Simon Brown J accepted that a permission was lawfully granted even if a substantial part of the motive for doing so was the avoidance of the payment of compensation which would have been payable under a discontinuance order. However, counsel for the local authority whose decision was challenged accepted that the planning permission must always be granted "out of a genuine desire to see the application site developed as permitted" (page 378G).
- Simon Brown J referred to the planning considerations present, the wish to encourage residential development in a particular area and the impact of the proposed development on existing users. He stated, at page 483, that it was "the duty of the planning authority to decide between it [the interests of the existing user] and any proposed competing use and to take this decision solely in the light of the public interest". Simon Brown J cited Planning Policy Guidance Note 1 (1988) which provided that "the purpose of the planning system is to regulate the development and use of land in the public interest". That approach emphasises land use considerations and far from supports the proposition that liability to pay compensation is a material consideration in a decision whether to make a revocation order. The decision was held to be lawfully taken on planning grounds even if a substantial part of the motivation may have been to save money.
- I respectfully disagree with Sullivan LJ's statement, at paragraph 57, that the cases do not suggest that a local planning authority considering a revocation order may not have regard to the financial implications under the 1990 Act. They establish only that the revocation route is not obligatory if other lawful routes are available. They appear to me to affirm the principle that planning decisions are to be taken on land use considerations.
- Reliance cannot properly be placed as a safeguard, justifying reliance on financial considerations, on the role of the Secretary of State under sections 98 and 100 of the 1990 Act (paragraph 59 above). The Secretary of State can be expected, as the principal planning authority, to apply a planning judgment in this context, whether under section 98 or section 100. It was not the intention and would, in my view, be undesirable and unlawful, if the Secretary of State were required to intervene and examine the finances and financial priorities of local authorities in order to decide what weight should be attributed to the local authority's liability to pay compensation.
- What is not a material consideration in all other contexts under the planning act does not become a material consideration in the present context. Broadly though the expression "material considerations" has been construed, those considerations remain essentially planning considerations. The material considerations to be taken into account in making a decision whether to revoke do not include the effect on the local authority's finances of a decision to revoke.
- Sir Frank Layfield QC, in his article "Material Considerations in Planning: The Law" (JPL 1990, Occ. Pap. 17) expressed the view that a material consideration "must be a planning consideration, that is one that is related to the character, use or development of the land". He also stated that the risk of an award of costs on an appeal against a refusal of planning permission was not a material consideration. It cannot be a planning consideration. The views of that distinguished practitioner support the approach of Richards J in Alnwick.
- Section 97 of the 1990 Act confers a statutory power and not a statutory duty. Given the scheme of the legislation, and the primacy of the development plan, there is no presumption that existing undesirable uses will be discontinued under section 102 or that the power to revoke, which is strictly limited in time, will be exercised.
- The central point is that planning decisions must be taken on planning grounds. In the planning process, the development plan has primacy. It looks to the future. In preparing the plan, the local planning authority must have regard to financial resources and that is a safeguard against wholesale discontinuance or grandiose planning proposals.
- I agree that sections 97 and 102 are to be considered within a statutory framework under which compensation may be payable if orders are made. That consequence does not have the effect of creating a right, when taking planning decisions, to depart from the statutory requirement to base decisions on planning considerations.
- If one turns to practical matters, I do see a risk, if financial considerations are to weigh heavily, as they may do, on a decision whether to revoke, that the careful procedures normally followed to ensure that decisions inappropriate on planning grounds are not taken will operate less effectively. If it is established that a permission recently granted can be revoked for financial reasons, a deterrent to facile decision making would be removed.
- Having allowed the appeal, I would direct that Wolverhampton considers whether to make a revocation order on the basis stated in this judgment.
Lord Justice Sullivan :
Introduction
Factual Background
"The assessment indicates that the risk of harm to people at the proposed Development is such that HSE'S advice is that there are sufficient reasons, on safety grounds, for advising against the granting of planning permission in this case."
(emphasis as in original)
"to consider what might be done to remedy the situation where there will be incompatibility between a major hazard and the development of student accommodation."
"pursuant to s.97 of the Town and Country Planning Act (TCPA) 1990 to revoke or modify planning permission to develop land in this application. The purpose of granting the order in this matter, would be to disallow the development and completion of student accommodation, particularly those buildings in the inner and middle zone of Carver Ltd (liquefied petroleum gas installation)."
"(1) If it appears to the local planning authority that it is
expedient to revoke or modify planning permission to
develop land granted on an application made under
this Part, the authority may by order revoke or modify
the permission to such an extent as they consider
expedient.
(2) In exercising their functions under subsection (1) the
authority shall have regard to the development plan
and to other material considerations.
(3) The power conferred by this section may be exercised
(a) where the planning permission relates to the
carrying out of building or other operations, at
any time before those operations have been
completed;
(b) ….
(4) The revocation or modification of permission for the
carrying out of building or other operations shall not
affect so much of those operations as has been
previously carried out."
"You have asked the Council to issue an order to revoke or modify the planning permission. If the Council deemed this appropriate have you considered appropriate modifications?"
"1. In terms of modification or revocation, it is necessary for the Council to prevent building of the accommodation within 185 metres of the LPG installation at the major hazard site operated by Carver Gases Ltd.
Alternatively you may wish to discuss with Carver Gases Ltd an amendment to the Hazardous Substances Consent that is sufficient to significantly reduce the land use planning consultation zones around the site."
The letter continued:
"As I explained in my previous letter, your Council did not notify HSE that it was minded to grant planning permission for this application. When HSE became aware, HSE Inspectors met with Stephen Alexander, Head of Development Control, on 7 January 2009. However, I am content to arrange a further meeting at your earliest convenience if it would help you to quickly reach a view on this case and in particular whether your Council will grant an order under s.97 of the Town and Country Planning Act 1990 to revoke or modify planning permission to develop the land in this application."
In a covering email dated 16th March the HSE stressed the need for Wolverhampton "to reach a view urgently on this case, and in particular whether you will grant an order pursuant to s.97 of [the 1990 Act] to revoke or modify permission to develop the land in this planning application".
Under "Options to resolve the problem" Mr De Cort, one of the HSE's representatives at the meeting:
"said that there were 3 options which should be examined to resolve this. They were:
1. Revoke the Planning Permission for blocks in the
Inner and Middle Zones
2. Move Carvers from their site
3. Reduce the LPG inventory at the Carvers Site and
amend the hazardous substance consent to a lower
level."
Mr Edwards, Wolverhampton's Chief Regulatory Services Officer:
"confirmed that no decision had been taken by Wolverhampton City Council in relation to any of the options but considered it most unlikely that option 1 would be pursued because of the potentially high costs of doing so. Mr De Cort commented that such a course of action had been taken in relation to a residential development next to a water sealed gasholder in Tower Hamlets at a high cost to the LPA. However, discussions centred around the other two options."
After further discussion, it was noted that:
"Any of the options would require compensation. There would therefore need to be a dialogue between Carvers and Wolverhampton City Council on how best to achieve a positive outcome.
Mr De Cort emphasised the need for Wolverhampton City Council to reach a decision quickly on the action it intended to take, inform HSE of its decision, and to implement those actions with the aim of achieving a solution before the anticipated date of occupation of the accommodation. He also said that HSE would provide appropriate support within its areas of responsibility to help to achieve a timely and positive solution. He also advised that HSE would consider whether further action may be appropriate e.g. by seeking a judicial review, if a satisfactory response was not received from Wolverhampton City Council."
"I would like to take the opportunity to reiterate that it is important that this issue is resolved as a matter of urgency. HSE's safety concerns still remain; to this end it does not wish the development in the inner zone to begin. HSE requests that Wolverhampton Council provides an undertaking that the development in the inner zone will not commence, and development in the middle zone will not continue until it has reached a decision (and notified HSE in writing) on whether it will grant a revocation or modification order further to the terms outlined in Peter Baker's letter dated 23 February 2009."
By this time it was known that blocks C and D were within the inner zone and blocks A and B were partly within the middle zone.
"HSE wishes to resolve this issue as a matter of urgency and would be grateful if Wolverhampton City Council could notify HSE in writing by Monday 25th May in respect of whether it will issue an order pursuant to s.97 of the Town and Country Planning Act (TCPA) 1990 to revoke or modify planning permission to develop land in this application. As outlined in Peter Baker's letter dated 23rd February 2009, HSE was not provided with the opportunity to request the Secretary of State to call in this application for her own determination when Wolverhampton City Council was minded to grant planning permission, therefore serious concerns in relation to the development still remain.
As you are aware, the purpose of granting an order pursuant to s.97 TCPA 1990 would be to disallow the development and completion of student accommodation, particularly those buildings in the inner and middle zone of Carver Ltd (liquefied petroleum gas installation).
If Carvers Ltd approached HSE for advice, it could advise on the suitability of the Neachells Lane site for a transfer of Carvers LPG operations, provided that such a request is received in the next few weeks.
In the meantime, HSE would be grateful if Wolverhampton City Council could agree to an undertaking that the development in the inner zone will not commence, and development in the middle zone will not continue until it has reached a decision (and notified HSE in writing) on whether it will grant a revocation or modification order."
"The Council has now taken some preliminary legal advice and from a careful consideration of all the information available can see no justification for revoking or modifying the planning permission in question. We are currently awaiting further information together with the substantive advice and we will keep you informed.
In the meantime, with reference to your letter of 18 May, paragraph (g), we would be grateful if you could liaise with Carvers to secure their consent and let us have the information duly requested as soon as possible as we consider it to be relevant."
In paragraph (g) of its letter dated 18th May the HSE had said that it did have information in respect of Carver's site, but it had obtained the information in confidence and would have to ask Carvers for permission to release it.
The HSE applies for judicial review
In respect of the latter decision, the letter before action said:
"The HSE understands that the development has now commenced, but that as yet, no work has commenced on 'Block D' of the development, which is the block which is entirely within the Inner Zone. The HSE also understands that 'Block C' (which is also in the Inner Zone) has now been completed. The HSE takes the view that there are therefore two courses of action open to the Council:
(1) That they resolve to revoke or vary the planning permission granted, so as to ensure that the permission insofar as it relates to the development of Block D is revoked; or
(2) That they accept that the permission was unlawfully granted, and thereby resolve to consent to an order quashing it as a whole.
The HSE's preferred course of action would be the latter of the two, as it has concerns about Block C coming within the Inner Zone and would welcome the opportunity to ensure that the whole development can be reconsidered."
"In order to assist the HSE in deciding how best to protect the public interest in this matter, it may help you to know that Leading Counsel's preliminary advice is that, given the number of people already living, working and congregating within the danger zones of the LPG installation, together with the development potential of land within those zones which, if realised, would increase the number of such people, it is manifest that the most appropriate course is to relocate the installation, if need be compulsorily. This is something the Council will consider further with its advisers.
Whilst the City Council has yet to formalise its position in relation to that advice from Leading Counsel, it may be that the HSE will wish to consider of its own volition whether to pursue such a course would be a more responsible and beneficial use of its powers than its proposed judicial review against the City Council."
"As the Defendants are no doubt aware, an order revoking or varying can only 'bite' on development which has not yet been completed. As such, in the present case, only Block D could properly be the subject of such an order. Given that it is Block D which is closest to the Carvers installation, and is wholly within the 'Inner Zone', it was clearly irrational not to revoke or vary the permission in that respect."
The relief sought was twofold: (1) an order quashing the grant of planning permission; and (2)
"In respect of the refusal to vary or revoke, an order
requiring the Defendants to revoke the permission
(which will only have effect on the parts of the
Development not yet complete). The HSE notes that if
the planning permission is quashed, this remedy will
become academic."
"132. …. An order revoking or varying a
planning permission can only "bite" on development
that has not yet been completed. As such, in the
present case, only Block D could properly have been
the subject of such an order. Given that it is Block D
which is closest to the LPG Installation and given that
Block D is wholly within the "Inner Zone", it was
irrational for Wolverhampton not to countenance any
variation or revocation of the planning permission.
133. In its Summary Grounds of Resistance …..
Wolverhampton describes this ground as "startling."
There is no reason for anyone to be startled:
(1) The variation or revocation of the planning
permission would necessarily be limited to Block
D and the developer would be fully compensated
for this.
(2) Block D is the block that presents the
greatest risk to human safety.
(3) Wolverhampton has not suggested any
other method to lessen the danger that the
erection of Block D would present to those living
in it.
150. The relief sought is that the second decision be
quashed and that Wolverhampton re-make the decision
in accordance with the judgment of the Court."
The decision of Collins J.
i) notify the HSE that it was minded to grant permission, in contravention of paragraph A5 of Annex A to Circular 4/2000;
ii) notify the HSE that it had granted permission in contravention of paragraph A9 of Annex A to Circular 4/2000;
iii) give an adequate summary of the reasons for granting planning permission, in particular by failing to give any reason for rejecting HSE's safety objection; and
iv) provide a summary of the relevant planning policies in the grant of permission.
"The relief sought was a revocation of the permission. That itself was impossible if only because the building of Blocks A, B and C had by then been completed. In any event it was entirely inappropriate inasmuch as the planning permission was not being quashed and the interested party would be seriously affected and probably put out of business even if compensation was eventually payable. The impact on an interested party of a revocation or modification is a relevant consideration: see Vassillou v Secretary of State for Transport [1991] 2 All ER 77. But Mr Coppel submits that the cost of compensation is not a relevant consideration in deciding whether a modification or revocation should be issued. He relies on a decision of Richards J in Alnwick DC v Secretary of State (2000) 79 P&CR 130. I do not need to decide whether this is correct since the impact on the interested party coupled with the completion of three of the four blocks and the reasonable view that the HSE's failure to take immediate action shows that the risk could not regarded as immediate entirely justifies a refusal to revoke or modify. Certainly, the refusal cannot be regarded as irrational."
The HSE's grounds
The entire permission or block D alone?
Should relief be refused on other grounds?
"In a case like this, where the primary challenge fails on grounds of long delay and resultant prejudice, it would be absurd if the applicant could nevertheless succeed, at huge expense to the respondent District Council, by being held entitled to compel modification of the planning permission under section 97 or discontinuance of use under section 102 particularly when other powers exist to impose any necessary restrictions."
Compensation
"(1)…where planning permission is revoked or modified by an
order under section 97, then if, on a claim made to the
local planning authority within the prescribed time and in
the prescribed manner, it is shown that a person
interested in the land…
(a) has incurred expenditure in carrying out work which
is rendered abortive by the revocation or
modification; or
(b) has otherwise sustained loss or damage which is
directly attributable to the revocation or modification,
the local planning authority shall pay that person
compensation in respect of that expenditure, loss or
damage."
When Wolverhampton reconsiders whether to exercise its powers under section 97 in respect of block D may it take into account, as one of the material considerations, its liability to pay compensation to Victoria Hall under section 107? Mr Coppel, relying on the decision of Richards J. (as he then was) in Alnwick District Council v Secretary of State for the Environment, Transport and the Regions (2000) 79 P & CR 130, submitted that the answer to this question was "No". Mr Griffiths and Mr Maurici, relying on the decision of Ouseley J. in R (Usk Valley Conservation Group) v Brecon Beacons National Park Authority [2010] EWHC 71 (Admin) submitted that the answer was "Yes".
"I turn back to the main issue, whether the cost to the local planning authority of paying compensation is capable of being a material consideration as a matter of general principle (i.e. leaving aside the separate argument about specific land-use consequences for the council). The Inspector and the Secretary of State proceeded on the basis that it is not, since it is not a land use planning matter. In my judgment that was a correct approach.
A decision maker will often be entitled, if not required, to take into account as a relevant or material consideration the financial consequences of his decision. Consideration of the effects of a decision on others is a normal aspect of the decision-making function and there is no difference of principle between financial effects and other effects. The observations of Nicholls L.J., in Vasiliou v Secretary of State for Transport as to the relevance of the adverse effects of a ministerial order were directed to the specific context of an order extinguishing or expropriating an individual's rights but are in my view capable of more general application. Nor is the point limited to the effects of a decision on others. It also applies to the financial consequences for the decision maker himself. Where decisions involve the expenditure of public funds, the decision maker will normally be entitled or required to take into account matters such as the availability of funds and competing demands on those funds.
All that, however, is at a level of generality. Whether a particular consideration is one that a decision maker is entitled or required to take into account in the exercise of a statutory power depends ultimately on the statute conferring that power. A statute may restrict the range of permissible considerations either expressly or by implication. Whether it does so is to be determined by reference to its provisions and to the statutory purpose.
In the exercise of their functions under sections 97 and 100 of the 1990 Act with regard to the revocation and modification of planning permissions, local planning authorities and the Secretary of State are required to have regard to "material considerations" (see section 97(2)). What is capable of amounting to a material consideration for this purpose must in my view be the same as in relation to the initial determination of planning applications, i.e. the "material considerations" referred to in sections 70(2) and 54A. Although the courts have adopted a flexible approach towards the concept, a consideration must in broad terms be a "planning" consideration in order to be material for that purpose. Any consideration which relates to the use and development of land is capable of being a planning consideration (see Stringer v. Minister of Housing and Local Government [1970] 1 W.L.R.1281, at 1294).
It follows that financial consequences are capable of amounting to a material consideration in so far as they relate to the use and development of land. R. v. Westminster Council, ex parte Monahan is an example. The need for a connection with the use and development of land was helpfully spelled out in the application of that decision in Northumberland County Council v Secretary of State for the Environment.
It also follows, however, that in so far as financial consequences do not relate to the use and development of land, they are not capable of amounting to material considerations. In my view that is fatal to the general proposition for which [Leading Counsel on behalf of the Council] contends, that the cost to the local authority may be taken into account irrespective of land-use consequences. I see no warrant for treating cost as a permissible consideration even where it is not a "material consideration" within the meaning of the legislation. It is wholly consonant with the statutory purpose that decisions under sections 97 and 100 should be guided only by planning considerations. It cannot have been the legislative intention, in introducing provision for the payment of compensation, that the impact of such payment upon a local planning authority's financial position should condition the exercise of the powers to revoke or modify planning permissions. Payment of compensation enters into the picture only after a decision to revoke or modify has been taken. Its purpose is simply to ensure that persons interested in the land are compensated for any loss they suffer by reason of the revocation or modification of the permission."
"(1) If, having regard to the development plan and to any other material considerations, it appears to a local planning authority that it is expedient in the interests of the proper planning of their area (including the interests of amenity)-
(a) that any use of land should be discontinued or that any conditions should be imposed on the continuance of a use of land; or
(b) that any buildings or works should be altered or removed, they may by order -
(i) require the discontinuance of that use, or
(ii) impose such conditions as may be specified in the order on the continuance of it, or
(iii) require such steps as may be so specified to be taken for the alteration or removal of the buildings or works,
as they may be."
Compensation for a discontinuance order is payable under section 115:
"(1) This section shall have effect where an order is made under section 102-
(a) requiring a use of land to be discontinued,
(b) imposing conditions on the continuance of it, or
(c) requiring any buildings or works on land to be
altered or removed.
(2) If, on a claim made to the local planning authority within the prescribed time and in the prescribed manner, it is shown that any person has suffered damage in consequence of the order -
(a) by depreciation of the value of an interest to which
he is entitled in the land or in minerals in, on or
under it, or
(b) by being disturbed in his enjoyment of the land or
of such minerals, that authority shall pay to that
person compensation in respect of that damage."
"the force of the reasoning in Alnwick that the language of the considerations to which the authority shall have regard is the same as that used in s70 for the initial grant of permission. The financial benefit to a planning authority from the grant of permission, devoid of any land use consequence related to the decision, would be legally irrelevant. So too therefore should be the cost to the authority of a revocation or discontinuance order."
He concluded that section 102 required a decision as to whether a discontinuance order was expedient in the interests of the proper planning of the order making authority's area (para.197). In paragraphs 198-202 he considered the implications of the need to consider expediency:
"198. An expedient decision would, to my mind, necessarily require attention to be paid to the advantages and disadvantages of taking one or other or none of the available steps under s102. These advantages and disadvantages should not be confined to those which the subject of the notice would face; they should be measured against the advantages and disadvantages to the public interest at large, including the costs and effectiveness of the various possibilities. The question of whether the cost to the public is worth the gain to the public is, I would have thought, the obvious way of testing expediency. At least, it is difficult to see that expediency could be tested without consideration of that factor.
199. Local authorities owe duties of prudence in respect of the public money they receive and spend. Parliament should be taken to legislate on the basis that that well-established duty is to be upheld and not ignored. Where public money is at stake, because the statute has made compensation part of the statutory scheme being invoked, I would have thought that it was obvious that its cost was a consideration relevant to expediency, in the absence of clear contrary words. The word "expediency" entirely apt to require attention to be paid to that, and wholly inapt to exclude consideration of the consequential liability which would face the authority taking the discontinuance, or for that matter, revocation decision.
200. It would be extraordinary for Parliament to require a decision, which could have very large adverse financial consequences, to be taken by a public body which at no stage could lawfully consider those consequences, however great or disproportionate the cost. This is even more so where those compensation consequences are an essential part of the statutory provisions pursuant to which the decision is being made. For Parliament to legislate that these direct statutory adverse financial consequences of a planning authority's decision were legally irrelevant to its decision would require the clearest possible wording to that effect. No doubt Parliament could legislate for an obligation to take decisions requiring perhaps substantial public expenditure while forbidding the decision-maker to consider how much it would cost and how it could cope with the consequences of its decision, but this obligation to be imprudent would require express wording and not a nicety of textual analysis of certain similarities of wording in different contexts in the Planning Act.
201. It is plain that s 102 does not require such a blinkered approach. S102, like s97 and s 172, deals with expediency decisions: what if anything should be done about a state of affairs which has arisen. They are processes which an authority can initiate to deal with that state of affairs, if it is expedient to do so. There is no obligation to take enforcement action in respect of every breach of planning control, nor to take revocation or discontinuance proceedings in respect of lawful uses or permissions which the authority wishes had not been granted. The notion of "expediency" in the context of a decision as to what to do, if anything, about a state of affairs which has arisen, brings with it the issue of whether the gain is worth the cost, which I regard as an obvious part of any decision on expediency. The cost and time of taking enforcement proceedings balanced against the prospects of success and the gain from success would be obviously relevant to the decision on enforcement proceedings.
202. Although Richards J. in Alnwick may be right to say that what is expedient must be judged in a planning context, that context is provided by the statutory provision itself. The inclusion of the notion of "expediency" contrasts s 102. s97 and s172, enforcement, with s 70, the grant of permission whether prospective or retrospective. This shows quite clearly that these provisions, two of which are expropriatory, must be approached quite differently from the grant of a s70 permission. They are not the same as a reconsideration of the original planning decision allowing only for the fact that it has been granted and may have been implemented; it is not the same as an application for a retrospective grant of permission. "Expediency" is not part of the s70 decision-making process which, by contrast, is initiated by the applicant and not the authority, and requires the authority to reach a decision one way or the other having regard to the development plan and other material considerations. A proper and substantial meaning has to be given to that contrast and to the notion of "expediency". No interpretation of s102 which fails to draw a very clear distinction between decisions under s70 and decisions under s102, or s97 and s172 for that matter, can be correct."
"211. There are textual differences between s102 and s97 to which [Counsel on behalf of the NPA] referred, and unlike s97, s102 can cover developments which are and developments which are not lawful, or about the lawfulness of which considerable uncertainty may exist. But I do not regard those as the real basis for not following Alnwick. I disagree with it and do not feel that, long-standing decision though it is, I can follow it. Where I cannot agree with it is that, with great respect to its careful analysis and the strength of the argument about the similarity of wording between s70 and s97, it gives far too little weight in my view to the different statutory contexts and effects of the decisions, to the impact which the word "expedient" was meant to have, to the problem created by an obligation to ignore the statutory financial consequences of the decision and to the logical effect of the earlier authorities. The way in which the argument was presented also appears to have been rather different."
i) grant or refuse planning permission, section 70(2);
ii) determine the duration of a planning permission, section 91(2);
iii) determine the time within which application for approval of reserved matters must be made in accordance with an outline planning permission, and the duration of such a permission, section 92(6);
iv) make a revocation/modification order, section 97(2);
v) make a discontinuance order, section 102(1);
vi) issue an enforcement notice, section 172(1)(a).
Local planning authorities are also required to have regard to "any material considerations" when making decisions under the Planning (Listed Buildings and Conservation Areas) Act 1990, see e.g. sections 18(1)(b), 23(2), 26(2) and 81A(1)(b); and the Planning (Hazardous Substances) Act 1990, see e.g., sections 9(2), 18(2) and 24(1).
"Any consideration which relates to the use and development of land is capable of being a planning consideration….
It follows that financial consequences are capable of amounting to a material consideration insofar as they relate to the use and development of land….
It also follows, however, that insofar as financial consequences do not relate to the use and development of land they are not capable of amounting to material considerations."
"42….Although the claimants focus upon the word "expedient" in section 102 and contend that there is no such "expediency" test when deciding whether or not planning permission should be granted, it is important to consider not simply the words in the relevant enactments but the reality of the decision making processes behind the words, otherwise the exercise is simply one of semantics, devoid of any substance.
43. It is true that section 177(1) of the Act does not in terms require the first defendant to consider whether it is:
"…expedient in the interests of the proper planning of (an)
area"
when deciding whether or not to grant planning permission for development which is alleged in an enforcement notice to constitute a breach of planning control.
44. Section 177(1)(a) merely provides that:
"On the determination of an [enforcement notice] appeal
under section 174, the Secretary of State may --
(a) grant permission planning in respect of the matter stated in the enforcement notice as constituting a breach of planning control, whether in relation to the whole or any part of those matters or in relation to the whole or any part of the land to which the notice relates…"
45. However, the reality is that planning permission will not be granted by the Secretary of State under section 177(1)(a) if she considers that granting permission would not be expedient in the interests of the proper planning of the area. Conversely, permission will be granted if, in her view, a grant of planning permission would be expedient in the interests to the proper planning of the area.
46. In deciding what is "expedient" the fact that the development has been carried out and is therefore in existence on the ground, and is not simply proposed, (as in a planning appeal under section 78 of the Act), may well be one of the "other material considerations" which will have to be taken into account. See R v Leominster District Council ex parte Pothecary [1997] 3 PLR 91 per Schiemann LJ at page 103….
47. To take an obvious example, while it not might not be "expedient" to make a discontinuance order in respect of a long established residential or employment use situated in the green belt, an application for planning permission to establish a new residential or employment use in the green belt would ordinarily be expected to meet a very different reception. The difference results not from the inclusion of the word "expedient" in section 102(1) and its omission from sections 79(1) and 177(1), but from the fact that the existence of the development and the implications of its being in existence, for example that the residential property may have been a home for very much years or the employment use may be a long established local employer and/or provider of useful local services et cetera, will be among the other "material considerations" to which any decision taker, whether the first defendant or a local planning authority, will be bound to have regard. Whether there is in reality any substantial difference in deciding whether, on the one hand, planning permission should be granted or refused under section 177(1), and, on the other, whether a discontinuance order should or should not be confirmed in respect of the same development, will depend more upon the facts of the particular case than the precise phraseology of the respective enactments."
"Under section 172(1), it must appear "expedient" to issue an enforcement notice, not for any purpose, but for a proper planning purpose. It would not be lawful for a local planning authority to serve an enforcement notice upon a landowner, for the sole purpose of reducing the compensation payable to that landowner if his land was going to be acquired by the local planning authority, for example, under a compulsory purchase order. Issuing an enforcement notice must have some planning purpose. The reduction of a potential liability to pay compensation is not, on its own such a purpose."
The authority's sole purpose in that case was to avoid the payment of compensation. If the desire to avoid having to pay compensation under section 107 or 115 was the sole factor considered by a local planning authority when deciding whether it was expedient to make a revocation order under section 97 or a discontinuance order under section 102 its decision would not be lawful because it would not have had regard to the development plan or other material considerations. Provided the local planning authority does have regard to those considerations, it need not shut its eyes to the fact that the Act will require it to pay compensation if it takes action under section 97 or 102.
Conclusions
Lord Justice Longmore
Lord Justice Pill
"When Wolverhampton reconsiders whether to exercise its powers under section 97 [of the 1990 Act] in respect of block D may it take account, as one of the material considerations, its liability to pay compensation to Victoria Hall under section 107?"
That raises a question of general importance in planning law. Sullivan LJ has set out the relevant paragraphs from the judgment of Richards J in Alnwick, on which HSE relies and those from the judgment of Ouseley J in Usk, on which Wolverhampton relies. Sullivan LJ has concluded that Alnwick was wrongly decided on this issue and should not be followed. I set out my reasons for concluding that Richards J was correct.
"(1) If it appears to the local planning authority that it is expedient to revoke or modify any permission to develop land granted on an application made under this Part, the authority may by order revoke or modify the permission to such extent as they consider expedient.
(2) In exercising their functions under subsection (1) the authority shall have regard to the development plan and to any other material considerations."
By virtue of section 98, if the making of a revocation order is opposed, it requires confirmation by the Secretary of State, subject to a procedure set out in the section.
"In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations."
Section 38(6) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act"), which replaced, in substantially the same terms, section 54A of the 1990 Act, provides:
"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."
"(1) If, having regard to the development plan and to any other material considerations, it appears to a local planning authority that it is expedient in the interests of the proper planning of their area (including the interests of amenity)—
(a) that any use of land should be discontinued or that any conditions should be imposed on the continuance of a use of land; or
(b) that any buildings or works should be altered or removed,
they may by order—
(i) require the discontinuance of that use, or
(ii) impose such conditions as may be specified in the order on the continuance of it, or
(iii) require such steps as may be so specified to be taken for the alteration or removal of the buildings or works,
as the case may be."
The same expression "that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material consideration" appears in section 172 dealing with the issue of enforcement notices. Sullivan LJ has referred, at paragraph 45, to other sections of the 1990 Act in which the expression appears.
"What is capable of amounting to a material consideration for this purpose must in my view be the same as in relation to the initial determination of planning applications, i.e. the 'material considerations' referred to in section 70(2) and section 54A.
. . .
It also follows, however, that in so far as financial consequences do not relate to the use and development of land, they are not capable of amounting to material considerations.
. . .
It is wholly consonant with the statutory purpose that decisions under sections 97 and 100 should be guided only by planning considerations.
. . .
Payment of compensation enters into the picture only after a decision to revoke or modify has been taken."
"In principle, it seems to me that any consideration which relates to the use and development of land is capable of being a planning consideration. Whether a particular consideration falling within that broad class is material in any given case will depend on the circumstances."
Broadly though the term "material considerations" has been applied, that test has been used consistently.
"If it appears to the local planning authority that it is expedient, having regard to the development plan and to other material considerations . . . "
"The philosophy behind the Act of 1947 was not only that development, whether it consisted of building operations or change of user, should be controlled but that the development value of land, over and above the value attributable to an artificially defined 'existing use' of the land, should be taken into public ownership. Thus, when the Act came into force on the appointed day, 1 July 1948, a landowner became entitled to develop his land in a way not classified as an existing use only upon payment to the public purse, in the shape of a Central Land Board, of a development charge under section 69 of the Act which was to be calculated, in effect, by reference to the amount by which the value of the land was enhanced by permission for the proposed development."
The case was concerned with the assessment of compensation upon revocation of a permission. In the Court of Appeal (1992) 64 P & CR 275, Taylor LJ had stated, at page 282:
". . . The 1947 Act provided for development charges to be payable on the grant of planning permission and compensation for revocation or modification was the balancing factor to ensure fairness to the owner of the land. Development charges were abolished by the Town and Country Planning Acts of 1953 and 1954. Nevertheless, the provisions relating to compensation for revocation and modification have continued in the same form . . ."
"In my judgment this is a legitimate and proper attitude for the council to adopt. If they are entitled to have the consents set aside without the payment of compensation, that is what should occur and they should not lend themselves to the payment of inappropriate and unnecessary compensation by reason of exercising their power under section 97."
However, when explaining the statutory scheme provided in sections 97 and following of the 1990 Act, Hobhouse J stated, at page 293:
"[They] are in effect a mirror image of the provisions governing the grant of planning consents. The criteria to be applied are still planning criteria."
"It is well established that a local planning authority wishing to achieve a particular planning purpose, for example, the improvement of a highway or the safeguarding of an ancient monument, and faced with a choice between different statutory powers to achieve that end, may choose to adopt that statutory power which avoids or minimises its liability to pay compensation (see the Westminster Bank, and the Hoveringham cases). It follows that, faced with a need to remove unacceptable development, a local planning authority is entitled to choose enforcement notice action rather than making a discontinuance order, if enforcement notice action would be possible.
But that is not the position in the present case. The council was not choosing between two statutory means of removing unwanted development. The orders were already in force that would remove the development from the land. So no further planning purpose would be served by issuing an enforcement notice to precisely the same effect.
Under section 172(1), it must appear "expedient" to issue an enforcement notice, not for any purpose, but for a proper planning purpose. It would not be lawful for a local planning authority to serve an enforcement notice upon a land owner, for the sole purpose of reducing the compensation payable to that land owner if his land was going to be acquired by the local planning authority, for example, under a compulsory purchase order. Issuing an enforcement notice must have some planning purpose. The reduction of a potential liability to pay compensation is not, on its own, such a purpose."