QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|CARTER COMMERCIAL DEVELOPMENTS LIMITED (claimant)|
|SECRETARY OF STATE FOR THE ENVIRONMENT (defendant)|
Smith Bernal Reporting Limited,
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
Mr T Morshead appeared on behalf of the Defendant
Crown Copyright ©
"... erection of retail store, use class A1, with coffee shop, petrol filling station and carparking facilities".
"Before the store hereby permitted is first opened for trading the flood prevention works identified in the appraisal report "Proposed Improvements to Rodden Brook and River Frome Appraisal of Options", prepared by Lewin Fryer and Partners, shall be completed in accordance with details to be submitted to and approved by the Local Planning Authority".
"In order to ensure that flood risks affecting the site are reduced to an acceptable level permitting development on the appeal site without making flooding worse elsewhere".
"Before the store hereby permitted is first opened for trading the highway works shown on drawing number ... shall be completed in accordance with details to be submitted for approval by the Local Planning Authority, they shall consist of traffic signals at the junction of Rodden Road with the A362 and alterations to Styles Hill to include a right turning lane on the A362; a distributor road within the site to provide access to the application site, adjoining farm and industrial land; a roundabout at the junction of the distributor road with the A362; provision of a footway/cycle track alongside the A362".
"In order to ensure that the development makes satisfactory provision for highway access and the consequences of additional traffic flows on the surrounding highway network".
"The purpose of this Condition is fully accepted by the applicants.
"It is clear from discussions with yourselves and the Environment Agency that the Lewin Fryer measures taken as a whole are more extensive than necessary to fulfill this purpose and would have a greater detrimental environmental impact than is desirable. The suggested Variation to Condition 04 therefore seeks to provide for the consideration of other flood alleviation measures which can achieve the same purpose but with a lesser environmental impact".
"Mendip District Council should be aware that the effect of this variation will be to acknowledge expressly that alternative flood alleviation schemes can be submitted and considered which are more environmentally sensitive than the Lewin Fryer proposals".
"Permission for Development
"The Mendip District Council, being the Local Planning Authority for the said District, Hereby Grants Conditional Permission, in accordance with the submitted application and the accompanying plan(s), but subject to the conditions hereunder stated.
"Proposal: Variation of Condition Number 04 of [the 1992 permission] (Concerning Flood Alleviation Works)
"Location: Land at Wallbridge, Frome.
"Conditions Attached to Permission and Reasons Therefor:
"1 Before the store permitted under [the 1992 permission] is first opened for trading the floor prevention works identified in the appraisal report "Proposed Improvements to Rodden Brook and River Frome: Appraisal of Options", prepared by Lewin Fryer and Partners and dated 20th March 1992, or such other scheme as may be prepared and submitted for the purposes of flood prevention, shall be completed in accordance with details to be submitted to and approved in writing by the Local Planning Authority.
"Reason: In order to ensure that flood risks affecting the site are reduced to an acceptable level permitting development on the site without causing flooding elsewhere to the detriment of land and property".
"I conclude that [the 1998 permission] is an independently viable permission, which incorporates all the conditions of [the 1992 permission] ... This permission was validly implemented by the works carried out in October 1997 and remains extant".
"It is not disputed that the A362 floods frequently. The Environment Agency confirms that the Rodden Road junction, the lowest point along this part of the A362 ... floods on average once each year ... The appellant's scheme does not, and is not intended to, affect the levels of flooding on the A362".
"... would ensure that the food store development would have no significant impact on flood water levels. The Environment Agency confirms that the proposed scheme would ensure that flooding in the area would not increase, due to the food store development, and that the store itself could be protected during a one in a hundred year flood event ... But the appellant's evidence makes it clear throughout that the scheme being put forward is not intended to address the impact of flooding on the A362, as it is an off-site problem that already exists, which the food store development cannot be expected to resolve ..."
"... necessary and reasonable to require that the flooding problem on the A362 is resolved before the food store proceeds. It is reasonable because it is directly related to the development. Without the food store, people would not be attracted to the site and so would not be put at risk".
The Claimant's submissions
"In looking at the aims and the Condition, the appellant relies on the reason, particularly the phrase 'permitting development on the site without causing flooding elsewhere to the detriment of land and property'. If that were the only test to be applied, the appellant's scheme would be acceptable, since it is not disputed that it would leave existing flood water levels unaffected; it makes matters neither better nor worse. But such a narrow interpretation, based purely on part of the reason, must be rejected for two main reasons. First, it ignores the initial part of the reason, which states 'to ensure that the flood risks affecting the site are reduced to an acceptable level'. If the reason is to be considered, it must be read as a whole. It is the Council's opinion that 'flood risks affecting the site' means the risk of flooding on the A362, the main road serving the site, which would continue to flood under the appellant's scheme.
Second, and more importantly in my view, is that the appellant's approach elevates the reason above the condition. I acknowledge that local planning authorities have a duty under article 22(1)(a) of the Town and Country Planning (General Development Procedure) Order 1995 to state clearly and precisely the full reasons for Any Conditions imposed on a planning permission. But the courts have held that failure to state reasons does not invalidate the condition and, as the Council points out, enforcement action is taken in respect of the breach of a condition. Whilst the reason may therefore be taken into account, it cannot be determinative".
"When the condition and reason are read as a whole, I find no ambiguity".
"(1) The general rule is that in construing a planning permission which is clear, unambiguous and valid on its face, regard may only be had to the planning permission itself, including the conditions (if any) on it and the express reasons for those conditions.
"(2) This rule excludes reference to the planning application, as well as to other extrinsic evidence. Unless the planning permission incorporates the application by reference, in that situation the application is treated as having become part of the permission. The reason for normally not having regard to the application is that the public should be able to rely on a document which is plain on its face without having to consider whether there is any discrepancy between the permission and the application.
"(3) For incorporation of the application in the permission to be achieved, more is required than a mere reference to the application on the face of the permission. While there is no magic formula, some words sufficient to inform a reasonable reader that the application forms part of the permission are needed, such as '... in accordance with the plans and application' or '... on the terms of the application', and in either case those words appearing in the operative part of the permission dealing with the development and the terms in which permission is granted. These words need to govern the description of the development permitted.
"(4) If there is an ambiguity in the wording of the permission, it is permissible to look at extrinsic material, including the application, to resolve that ambiguity".
"... that it could take many more years to implement a scheme such as that proposed in the Lewin Fryer report, even if the Environment Agency were to place it in its capital programme immediately".
The Defendant's submissions
"2. Relevant to planning
"3. Relevant to the development to be permitted
"6. Reasonable in all other respects".
MR KATKOWSKI: I am obliged, my Lord. I ask, therefore, for an order that the decision letter of 19th November 2001 be quashed, and that the claimant's costs be paid by the first defendant, the Secretary of State, in a sum to be the subject of detailed assessment, if not agreed beforehand.
MR JUSTICE SULLIVAN: Can you resist any of that?
MR MORSHEAD: No, certainly not in principle. I simply remind your Lordship that the appeal was made on two grounds, and my learned friend has advanced only one of them.
From the Secretary of State's point of view, I could not say that additional costs have be incurred by the Secretary of State in dealing with the second ground, but I do not know what additional costs my learned friend's team have incurred in preparing for the second ground prior to this skeleton argument.
MR JUSTICE SULLIVAN: Not much in his skeleton argument, anyway.
MR MORSHEAD: No, but your Lordship will have seen that some work at least has gone into preparing a master trial bundle, none of which has been necessary to refer to in the course of the hearing, and, my Lord, without trying to foreshadow or anticipate here what might be the outcome of the taxation, it is possible that some of the work that was done was work that need not have been done if the grounds had been articulated, as Mr Katkowski put them in his skeleton argument, rather than as was put in the detailed grounds.
If your Lordship is looking for the --
MR JUSTICE SULLIVAN: No. I was just thinking that the way to deal with that, surely, is to say it goes for detailed assessment, but just to add a rider that the costs judge is to consider the extent to which, if at all, additional costs were incurred in preparing the master trial bundle to deal with ground two.
I would have thought if you have that, then you are protected on that, are you not?
MR MORSHEAD: My Lord, yes. I am grateful.
MR JUSTICE SULLIVAN: I have not asked Mr Katkowski to respond, but it is pretty obvious that if ground one was to succeed, then ground two was quite unnecessary, and query whether ground two would have availed. He obviously took the view that it would not have availed him on its own if he did not succeed on ground one, anyway. Yes, he is nodding.
So that will be the order, and either in the order itself, or those behind you can note, that I expressed the view in open court that the costs judge should justify -- I do not express any view about it, but just simply consider whether any extra costs were incurred in respect of ground two.
MR MORSHEAD: I am grateful. Thank you, my Lord.
My Lord, I have an application for permission to appeal. Your Lordship's judgment touches on the relationship --
MR JUSTICE SULLIVAN: It is an interpretation point, and generally speaking on interpretations, what is absolutely clear to one person is equally clear in the opposite direction to somebody else. So, subject to what Mr Katkowski may say, I would say that there is a real prospect of a different interpretation, and of a different approach being adopted, so I give you permission on that ground.
MR MORSHEAD: My Lord, perhaps my reason for mentioning that is, as it were, the second ground on which appeals can sometimes be made, it being the first time that I know of in which the relationship between the considerations that test validity of connections of construction --
MR JUSTICE SULLIVAN: Yes.
MR MORSHEAD: That may be another reason.
MR JUSTICE SULLIVAN: You have a narrow point, but it is a point of construction, and there is the famous Court of Appeal case where a two man Court of Appeal and each of them looked and the other said: it is perfectly clear, and the other said "yes", and then they gave different interpretation.
Do you want to say anything against that, Mr Katkowski?
MR KATKOWSKI: Yes.
MR JUSTICE SULLIVAN: In the light of what I have said, you would like to say something? Not with much hope, I suspect.
MR KATKOWSKI: My Lord, yes. Obviously, I resist the application, although in hope rather than in expectation, I suppose.
My Lord, it is a straightforward interpretation, as my Lord explained, with great respect to my Lord and to my learned friend. It has made no new law at all, and so therefore, with great respect, this does not seem to be a matter that should entertain or detain the Court of Appeal, but I anticipate that my Lord is against me on resisting that.
MR JUSTICE SULLIVAN: Thank you very much. Yes, I am.
I simply say that it is an interpretation point and there is a real prospect that a different interpretation might be preferred. Thank you very much.