Case No: CO/2566/2000
Neutral Citation Number: [2001] EWHC ADMIN 179
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Tuesday 13th March 2001

B e f o r e :

THE HONOURABLE MR JUSTICE RICHARDS

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	THE QUEEN		
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	BEDFORDSHIRE COUNTY COUNCIL
ex parte
HENLOW GRANGE HEALTH FARM LTD	Defendant

Claimant	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
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Mr R Fookes and Mr R Taylor (instructed by Messrs Blake Lapthorn for the Claimant)
Mr T Corner (instructed by Solicitor to Bedfordshire County Council for the Defendant)
Mr T Straker QC (instructed by Gerald Park for the Interested Parties)

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Judgment
As Approved by the Court

Crown Copyright ©

Mr Justice Richards: 

1.	The claimant is the owner and occupier of a property known as Henlow Grange Health Farm, a grade II* listed building.  Adjoining the property is land which is the subject of an application for planning permission by Curson Developments Limited and Henlow Building Supplies Limited, interested parties to these proceedings.  The claimant opposes the grant of planning permission.  On 15 June 2000 the relevant committee of Bedfordshire County Council passed a resolution to grant planning permission.  The resolution was, however, ineffective because the Secretary of State called in the application for determination by him pursuant to s.77 of the Town and Country Planning Act 1990.  The call-in was made by an undated letter received on 14 September 2000.  
2.	Between the date of the council’s resolution and the date of the call-in the claimant filed an application for permission to seek judicial review of the council’s resolution.  The challenge related to an offer by Curson Developments and Henlow Building Supplies, as part of their application for planning permission, to "surrender" an established use certificate (“EUC”) and interim development order (“IDO”) rights relating to the application site.  It was said that the council had erred in treating the offer as a material consideration.  
3.	Following the call-in the application was amended so as to reflect the fact of call-in but to retain the substantive grounds of challenge and to seek a declaration to the effect that the offer to surrender the EUC and IDO rights is an irrelevant consideration for the Secretary of State in his determination of the application for planning permission.  Permission to apply for judicial review was granted on that basis and the substantive hearing was fixed for a date that would enable judgment to be given before the commencement of the public inquiry on 20 March 2001.  The inspector has rightly indicated at the pre-inquiry meeting that the extent to which the inquiry will need to hear evidence and submissions on the EUC and IDO will be dependent upon the outcome of the present proceedings.
4.	Unless held to be legally irrelevant, the offer to surrender the EUC and IDO rights is likely to play a significant part in the inquiry.  In previous planning and enforcement appeals in respect of the site, which were dismissed by an inspector's decision dated 18 March 1999, the developers put forward the possibility of future mineral processing under the EUC and IDO as a fall-back position which told in favour of allowing the proposed development.  The inspector dealt with the matter in this way (para 54 of the decision):
"At this stage, therefore, it is my view that the “fall-back” position remains a significant material consideration and should be given considerable weight.  The EUC and the IDO are still in existence and the appellants made their intentions clear in relation to a continued use for minerals processing.  The HGHF [Henlow Grange Health Farm] argument that no weight ought to be given to the “fallback” position would only be relevant if it had already been decided that the EUC and the IDO were invalid and, therefore, that there was no possible likelihood of any continued minerals processing without further permission being granted.  At this stage there seems to be every likelihood that minerals processing will continue.  Until the status of the EUC is successfully challenged in an appropriate court the appellants can continue with the use."
5.	As explained later in this judgment, that is an unduly narrow approach, in that various factual and legal issues concerning the EUC and IDO may arise for consideration without questioning the validity of the EUC and IDO themselves.  But I mention the matter here in order to show the potential significance of the EUC and IDO rights and why it is that the claimant seeks a ruling of the court on whether the offer to surrender them is a material consideration.  
6.	The first and obvious question, however, is whether it is appropriate to entertain the application for judicial review at all. Judicial review is generally, though not necessarily, directed towards the validity of a decision or legislative instrument.  What the claimant seeks by this application, however, is in reality an advisory declaration, binding on the Secretary of State though he is not even party to the proceedings, as to the matters that he may or may not take into consideration in reaching a future decision on the planning application now before him. The court has jurisdiction to make such a declaration.  But whether it is right to exercise that jurisdiction in the circumstances of this case is a very different matter.
7.	Mr Fookes, for the claimant, faced up bravely to that threshold issue.  He submitted that it would be in the interests of good administration to get this matter resolved now.  The claimant's case is that the approach adopted by the inspector towards the EUC and IDO in the March 1999 decision was legally erroneous, but the claimant did not have the opportunity to challenge that approach at the time since the inspector's overall decision was favourable to the claimant (the developers' appeals were dismissed).  The approach that should be adopted by the inspector and Secretary of State in relation to the present application is a fundamental matter which is best resolved in advance.  It would only lengthen matters and cause delay if the correct approach had to be determined after the event, by a legal challenge to the Secretary of State's eventual decision on the application.  There is no alternative procedure whereby the substantive issues raised with regard to the EUC and IDO can be determined.  The points advanced are essentially points of law.  The nearest parallel is a construction summons: when considering the validity and effect of a document such as an EUC, the equivalent and appropriate procedure now is an application for judicial review seeking declaratory relief.  Mr Fookes also pointed out that this is a case where permission was granted and no application was made to set it aside.
8.	Despite those submissions I am firmly of the view that this application is inappropriate. The court is entitled to dismiss an application on that basis even though permission has been granted and has not been set aside.  It is unfortunate that the court, when deciding on the permission application, had not received a letter sent by the solicitor for Curson Developments and Henlow Building Supplies, setting out forcefully the objections of principle to the application.  It may well be that permission would have been refused if the letter had been to hand at the time.  But once permission was granted, the defendant and interested parties cannot be criticised for raising their objections at the substantive hearing rather than adopting the exceptional (and rarely successful) course of applying to have permission set aside.  Moreover the arguments that I have heard on the substantive issues have assisted in relation to the threshold issue, reinforcing my view as to the inappropriateness of these proceedings.
9.	My reasons for concluding that I should dismiss the present application as an inappropriate use of judicial review can be expressed as follow:
i)	There is in place a comprehensive statutory code governing the decision-making process in planning applications.  In a case such as the present, provision is made for a public inquiry, a decision by the Secretary of State and then an application to the court on specified grounds by a person aggrieved.  That statutory procedure is entirely apt for the determination of the questions raised by the claimant.  In general the existence of an appropriate alternative procedure is a sufficient reason for refusing to entertain an application for judicial review (see e.g. R v. Birmingham City Council, ex parte Ferrero Ltd [1993] 1 All ER 530). The circumstances of the present case do not justify an exception from the normal course.
ii)	There are particularly strong reasons for allowing a planning application to take its normal course through the statutory procedures.  Those procedures involve public participation at the inquiry stage, with the possibility of additional evidence and argument.  It is wrong in principle to decide matters on the basis of pre-emptive court proceedings involving a limited number of parties and based on the evidence that they choose to file.  In any event the resolution of any legal issues ought to take place within the context of the facts found and planning judgments made by the inspector and Secretary of State in the discharge of their statutory functions.
iii)	The particular issues raised by the claimant themselves involve questions of fact and degree that are properly the province of the inspector and Secretary of State rather than the court.  I shall expand on that later in this judgment.
iv)	The very question whether a particular consideration is material for the purposes of a planning decision must depend on the circumstances of the individual case (see Stringer v. Minister of Housing and Local Government [1971] 1 All ER 65 at 77c, per Cooke J).  It would be wrong or at the very least imprudent to make an inflexible ruling in advance that the offer to surrender the EUC and IDO rights is incapable of being a material consideration, without knowing precisely how or why the Secretary of State thought it right to take it into account. 
v)	Whether it is necessary for the court to determine the issues at all and, if so, in what form they arise for determination will depend on the Secretary of State's eventual decision on the planning application.  He might, for example, grant or refuse planning permission on altogether different grounds. There is also a possibility that the Secretary of State will not even be required to make a decision: the planning history of the site shows that applications have been withdrawn at a late stage in the past.  The court should be very slow to decide points that may not need to be decided, or to decide them in a form that may differ from the way in which they ultimately arise for decision.  
10.	Since I consider it inappropriate to entertain the application, it would be wrong for me to adjudicate upon the substantive issues themselves.  It is, however, necessary for me to examine those issues in some detail in order to make good and expand upon the point at paragraph 9(iii) above, which does form part of the reasoning in support of my decision.  
The offer to "surrender" the EUC and IDO rights
11.	In bringing these proceedings the claimant focused on the description of the development proposed in the planning application itself: 
"Restoration of 10.0 hectare site, including surrender of established use and IDO rights, to provide grazing land, woodland, landscaped areas, public footpaths and lake, totalling 8.7 hectares; together with the erection of buildings for wholesale and retail sales of building materials and supplies, laying out of car parking, roadways and external storage and display areas" (emphasis added).
12.	In the course of the proceedings it has become apparent that the position is more subtle than one of simple surrender.  Notably, what is contemplated in relation to the IDO is a section 106 agreement under which the applicants for planning permission will enter into an obligation not to exercise any of their IDO rights in relation to the application site.  That addresses one of the objections advanced by the claimant, namely that the IDO extends to a far wider area than the application site and there is no machinery for partial surrender of an IDO.  Whether any amendment is required to the planning application and what if any consequences such an amendment may have are plainly matters for the inspector.  The substantive issues should be considered by reference to the precise proposals ultimately before him.
The established use certificate
13.	The EUC is dated 19 March 1979 and relates on the face of it to the whole of the application site.  It certifies that the use of the land for "the use of a sand and gravel processing plant" was on 30 June 1978 established within the meaning of paragraph (a) of section 94(1) of the Town and Country Planning Act 1971.  I say "paragraph (a)" because, although the certificate is not entirely clear, that is how I read it and I did not understand it to be seriously in issue between the parties.  
14.	In order to understand the issues raised in relation to the EUC, I need to set out the relevant provisions of section 94 of the 1971 Act:
“(1)	For the purposes of this Part of this Act, a use of land is established if -
(a)	it was begun before the beginning of 1964 without planning permission in that behalf and has continued since the end of 1963; or
(b)	it was begun before the beginning of 1964 under a planning permission in that behalf granted subject to conditions or limitations, which either have never been complied with or have not been complied with since the end of 1963 ….
(2)	Where a person having an interest in land claims that a particular use of it has become established, he may apply to the local planning authority for a certificate (in this Act referred to as an established use certificate) to that effect ….
….
(4)	On an application to them under this section, the local planning authority shall, if and so far as they are satisfied that the applicant's claim is made out, grant to him an established use certificate accordingly; and if and so far as they are not so satisfied, they shall refuse the application.
….
(7)	An established use certificate shall, as respects any matters stated therein, be conclusive for the purposes of an appeal to the Secretary of State against an enforcement notice served in respect of any land to which the certificate relates, but only where the notice is served after the date of the application on which the certificate was granted.”
15.	As is shown by section 94(7) and is common ground before me, the effect of a valid EUC is to render the certified use immune from enforcement.  An EUC is not, however, the equivalent of the grant of planning permission and does not render the certified use lawful in the same way as planning permission would. 
16.	What Curson Developments and Henlow Building Supplies say is that the EUC gives them protection against future enforcement action, so that it remains open to them to use the land to the extent of the use so established; and the offer to surrender the EUC (by whatever mechanism surrender is achieved) is therefore capable of being a material consideration.  The claimant, by contrast, contends that the EUC is valueless, because (i) it was invalid in the first place or, if valid, is limited in scope and cannot protect against relevant enforcement action, or (ii) the "rights" conferred by it have lapsed; and the offer to surrender it cannot therefore be a material consideration.
17.	The argument as to invalidity is based on the terms of the application for the EUC.  The application, dated 30 June 1978, expressly stated that the EUC was sought on the basis of paragraph (b) of section 94(1), i.e. use in non-compliance with a condition of planning permission granted before 1964.  The planning history was briefly recited, including in particular an IDO consent granted in 1948 on condition that, inter alia:
“(f)	All plant, machinery, buildings and foundations shall be removed from the site when in the opinion of the Minister they are no longer required for the purpose.”
The application went on to state that condition (f) had not been complied with and that it had been found desirable to continue the use of the existing plant.  Thus the reference to paragraph (b) as the ground of the application.
18.	The claimant's case is that it was not open to the local authority to grant an EUC under paragraph (a) of section 94(1) on an application under paragraph (b), and that the certificate is therefore a nullity and must be regarded as no more than a piece of waste paper.  Although it is not necessary or appropriate for me to decide the point, I have strong doubts about the correctness of that case:
i)	Great caution is required in deploying the concept of nullity in administrative law.  It is a complex subject, in which the legal context is important and remedies have a significant role.  Even if there was a legal error in the issue of the certificate under paragraph (a), in my view that would not automatically deprive it of all legal effect.  I would expect the beneficiary of the certificate (including a successor in title to the land) to be entitled to rely on the certificate unless and until it was set aside or declared invalid by a court in the exercise of the court's discretionary powers.  In my view it is now far too late - over 21 years out of time - for the claimant to challenge the validity of the certificate, whether directly by an application to quash it or collaterally as a step towards the declaration that it seeks in the present proceedings. As to the decision of the Court of Appeal in Co-operative Retail Services Ltd. v. Taff-Ely Borough Council (1979) 39 P&CR 223, upon which Mr Fookes relied in support of his submissions on this issue, I need say only that it concerned a more fundamental legal error (total want of authority) than alleged here, it was the subject of a prompt application to the court, the court granted declaratory relief and the observations about nullity are to be viewed in that context.  Thus the decision does not significantly advance the claimant's case.
ii)	In any event I am far from satisfied that there was any legal error in granting a certificate under paragraph (a) when it had been applied for under paragraph (b).   If the local authority took the view that on the information provided by the applicant the case fell properly within paragraph (a) rather than paragraph (b), then in my view it would have been entitled to grant a certificate under paragraph (a) rather than paragraph (b).  Bristol City Council v. Secretary of State for the Environment [1987] JPL 718, although not directly in point, supports that view by illustrating the flexibility that exists within section 94.  The facts before me are consistent with the local authority having taken such a view.  There was sufficient in the application to bring the case within paragraph (a), but a possible doubt about paragraph (b) in that there was no evidence of the minister having formed the opinion that would be a prerequisite to any breach of condition (f) of the 1948 consent.  It seems to me that the presumption of regularity applies in this case (cf. Calder Gravel Ltd v. Kirklees MBC (1989) 60 P&CR 322, 339) and that the claimant has not advanced sufficient evidence to rebut that presumption even if it were open to the claimant to pursue the point so late in the day.
19.	The claimant's next argument in relation to the EUC is that if there is a valid certificate under paragraph (a), then it cannot protect against enforcement action for breach of condition, in particular breach of condition (f) of the 1948 consent, and the certificate is therefore valueless: it would require a certificate under paragraph (b) to protect against enforcement action for breach of condition.  There was, it is said, compliance with condition (f) in 1988 (when the previous plant was removed) and/or in 1992 (when a substitute temporary plant was removed) and the bringing of any plant, machinery, buildings or foundations onto site now would amount to a fresh breach of that condition.  
20.	I should record that Mr Corner, for Bedfordshire, takes issue with the premise to that argument.  But in any event the right course in my view is to leave it to the inspector and the Secretary of State to examine the points, to the extent that they are considered significant.  Whether any future use of the application site for "the use of sand and gravel processing plant" would be in breach of condition (f) of the 1948 consent and whether the EUC would have potential value as a shield against future enforcement action on grounds other than breach of condition are mixed questions of fact and law which are plainly better dealt with through the statutory procedures than by the present application for judicial review.
21.	The matters that I have covered so far in relation to the EUC arose out of the claimant's response to points put against them in the submissions of counsel for the other parties.  I have dealt with them first because I consider that to be the logical order.  I turn now, however, to consider the claimant's original grounds in respect of the EUC.  
22.	The main submission runs along the following lines.  On the true meaning of the EUC, which is a matter of law, the use certified as established was merely the use of the plant which was in situ at the time of the application.  Thus, when the certificate refers to "the use of a sand and gravel processing plant", that must mean the particular plant subsisting at the time of the application.  If there is any ambiguity in the certificate on that point, it is resolved by reference to the application for the certificate, which shows that the EUC was sought because "it has been found desirable to continue the use of the existing Plant".  Thus the purpose of the application was to ensure that the plant which had been retained on the site (in breach of condition (f) of the 1948 consent, as it was believed) could continue to be used and would not be the subject of enforcement action.  Once that particular plant was removed, as it was in 1988, the EUC had no further effect.  The EUC cannot be relied upon today or in the future and the offer to surrender it is therefore devoid of any significance.
23.	That submission again raises matters that in my view are best considered first by the inspector and the Secretary of State rather than by the court.  I say that for these reasons:
i)	Although determining the true meaning of an EUC is ultimately an issue of law (see Sussex Investments Ltd v. Secretary of State [1998] PLCR 172), the question needs to be examined in its full factual context.  Further, to the extent that one is concerned with whether, as a matter of ordinary language, the words of the EUC are to be construed as covering a particular factual situation, the primary judgment should be that of the statutory decision-maker and the court should have only a secondary role of intervention if the decision is unreasonable (see Cozens v. Brutus [1973] AC 854, 861, cited in Sussex Investments at 179A-D).
ii)	The detailed arguments concerning the removal and installation of plant over time and the implications of such matters for the continuing practical utility of the EUC (i.e. whether, having regard to such matters, it would still be possible for use of plant on the site to fall within the scope of the certificate) engage questions of fact and degree that are very much the province of the inspector and the Secretary of State.  That also applies to the issue canvassed before me as to whether the installation of sand and gravel processing plant constitutes operational development rather than a change of use.
24.	The claimant raises a further, alternative argument that the established use has been abandoned and cannot be resumed without planning permission.  This is really an independent point which does not depend on the complexities of the submissions advanced in relation to the EUC itself.  But it is also, as Mr Fookes accepted, very much a question of fact and degree (see e.g. Young v. Secretary of State and LB Bexley [1983] JPL 465, 468).  That being so, it is plainly a matter best dealt with by the inspector and the Secretary of State in accordance with the normal statutory procedures rather than by this court on an application for judicial review. 
The Interim Development Order
25.	The relevant background is that the 1948 IDO consent was registered as valid in June 1992 pursuant to section 22 of the Planning and Compensation Act 1991.  The consent covers a wider area than the application site: the IDO area extends to 33.05 hectares, of which 23.05 hectares is not in the ownership of the applicants for planning permission (a part of it, indeed, is in the ownership of the claimant).  The area cannot be worked for minerals extraction under the registered consent unless and until a set of conditions has been determined.  No application for the determination of conditions has yet been made.  
26.	The claimant says that there is no likelihood of future working under the IDO consent and raises other factual points as to the practical insignificance of the IDO rights.  Being factual points, they all fall properly to be considered by the inspector and the Secretary of State in determining what if any importance is to be attached to the "surrender" of IDO rights or to the existence of those rights as a fall-back position.  The question in that connection would appear to be whether there is a real possibility that the application site would be put to alternative use if planning permission were refused.
27.	The claimant also contends, however, that it is not legally open to the applicants for planning permission to surrender only part of the IDO consent, i.e. to surrender the IDO rights in so far as they relate to the application site but not in relation to the balance of the IDO area.  The statute contains no provision for the withdrawal of an IDO otherwise than by way of revocation, which carries with it compensation and rights of appeal and is not what is proposed in this case.  There is no provision for a surrender of part of the rights.   If the applicants for planning permission were to bind themselves by a section 106 obligation not to implement the IDO, that would be an unreasonable and therefore unlawful obligation.  It would have the potential to affect the remaining owners of the IDO rights without consultation, to affect (without compensation) the extent of the potential working areas owned by them, and to give rise to a conflict between the conditions that might be imposed under the IDO and the conditions imposed under any planning permission granted in respect of the application site.  The last point means that by agreeing to the section 106 obligation the local authority would be fettering its discretion to impose conditions upon the IDO area.
28.	Here too I think it right to express my strong doubts about the correctness of the claimant's case even though it is neither necessary nor appropriate for me to decide the point.  In short:
i)	A section 106 obligation not to exercise any of the IDO rights in relation to the application site would in my view fall squarely within the scope of section 106(1)(a) as an obligation "restricting the development or use of the land in any specified way".
ii)	Such an obligation would not prevent the owners of other land within the IDO area from seeking to exercise their rights under the IDO. The owners of the application site would remain subject to the potential burden of conditions in the event that an application for the determination of conditions were made by one of those other owners (cf. Morland v. Secretary of State [1999] JPL 622). 
iii)	In the event of an application being made for the determination of conditions under the IDO, the local authority would be free to impose whatever lawful conditions it considered appropriate.  It would of course have to take into account the position that existed at the time, including any planning permission (with conditions) it had granted in respect of the application site and any other extant planning permissions (with conditions) affecting the IDO area.  But that does not mean that it would be fettered in the exercise of its discretion with regard to the determination of conditions.  The logic of the claimant's argument is that a local authority is precluded from granting any planning permission in respect of any land within an IDO area on the ground that the grant of such permission might affect the conditions that it could subsequently determine in relation to the IDO consent.  I regard that as an untenable proposition.
iv)	Accordingly I take the view that the section 106 obligation would not frustrate the statutory scheme in respect of registered IDO consents and would not fetter the local authority's discretion in the future exercise of its powers under that scheme.  
v)	Whether a particular section 106 obligation is reasonable must depend on all the circumstances of the individual case; but I see no objection in principle, on grounds of reasonableness or otherwise, to an obligation of the kind here contemplated.
Conclusion
29.	As indicated earlier, I have examined the substantive case advanced by the claimant in order to explain why in my view it involves questions of fact and degree that are properly left to the inspector and the Secretary of State.  I have also expressed some (non-binding) views on the legal propositions themselves.  I have not covered all the points canvassed before me.  But I hope that what I have covered will have the incidental benefit of assisting the inspector in the pending inquiry, if only in identifying certain issues for possible consideration.
30.	As to that, I come back finally to the reservation that I expressed earlier about the approach of the inspector in the March 1999 decision (see paragraph 5 above).  It should be clear from this judgment why I take the view that the claimant has raised factual and legal issues concerning the EUC, abandonment and the IDO that can properly be explored, to the extent that they are considered significant, without questioning the validity of the EUC or the IDO themselves.
31.	For the reasons given in this judgment, however, I am also of the firm view that none of the matters raised should be entertained by this court in a pre-emptive application for judicial review.  The statutory procedures should be allowed to run their course.  
32.	The application for judicial review is therefore dismissed.