QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF|
|(1) MR S A D REID||(FIRST CLAIMANT)|
|(2) S A D REID MOTORS||(SECOND CLAIMANT)|
|(1) THE SECRETARY OF STATE FOR TRANSPORT AND LOCAL GOVERNMENT AND THE REGIONS||(FIRST DEFENDANT)|
|(2) MID-BEDFORDSHIRE DISTRICT COUNCIL||(SECOND DEFENDANT)|
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MR P BROWN (instructed by TREASURY SOLICITOR) appeared on behalf of the FIRST DEFENDANT
Crown Copyright ©
Monday 7 October 2002
"Full application for retention of use of land without compliance with condition 2 (improvements to public highway) of Ref 11/90/1632 dated 23.6.92 for use of land and buildings as transport depot and creation of new vehicular access at Top Farm, Beadlow, CLOPHILL for S A D Reid Motors"
"This application seeks the ability to use the land as a transport depot at Top Farm, Beadlow without compliance with a planning condition that was imposed on the relevant planning permission. The condition in question is condition 2 of planning permission reference 11/90/1632, which was granted on 23 June 1992."
"The current use of the site does not correspond with the permission that was granted in 1992."
"NOTICE OF APPROVAL OF PLANNING PERMISSION
Application Site: TOP FARM, BEADLOW, CLOPHILL
"Proposed Development: FULL: RETENTION OF USE OF LAND WITHOUT COMPLIANCE WITH CONDITION 2 (IMPROVEMENTS TO PUBLIC HIGHWAY) ATTACHED TO PLANNING PERMISSION REF: 11/90/1632 DATED 23.6.92 FOR USE OF LAND AND BUILDINGS AS TRANSPORT DEPOT AND CREATION OF NEW VEHICULAR ACCESS
"Application Number: 11/2001/1810
"Valid Application Received: 03 Dec 2001
"Applicant: S A D Reid Motors
"Submitted plan Nos: 9732/1
"The Council as District Planning Authority hereby gives notice of its decision to APPROVE Planning Permission for the application set out above subject to the following conditions:
"The planning permissions
4" The appellants argued strongly that any consideration of these appeals had to take account of the implications of the fact that the whole of this site, including the enforcement notice land, was the subject of the 1992 planning permission.
5" The appellants further argued that the 2002 permission, mentioned above, was for the retention of the use for a transport depot without complying with condition 2 but with no conditions attached. In effect, this meant that there was now a planning permission for the transport depot with no conditions at all.
6 "I do not agree with this second proposition. My understanding is that the 2002 permission, whilst this is a new planning permission granted under the provisions of s73 of the 1990 Act, would have no meaning other than in relation to the 1992 permission. The 2002 permission specifically concerns the retention of the use without compliance with condition 2 attached to the 1992 permission and that is all it grants permission for. I fully accept, however, that as a matter of good practice, all the conditions that the new permission will be subject to should be restated so that the permission is complete in itself and so that there is no potentially confusing cross referencing to a previous permission. As it is, the Council's reference to no conditions on the 2002 permission means that this permission, as described on the decision notice, is itself subject to no conditions.
7 "The position, in my view, is that all the Top Farm site as shown on the plan with the application, and that includes the enforcement notice site, has planning permission to be used as a transport depot subject to all the conditions attached to the 1992 permission except condition 2. I have dealt with the appeals on this basis."
"(1) This section applies, subject to subsection (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted.
"(2) On such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted, and-
"(a) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly,
"(b) if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application."
" ... subject to the following conditions:
"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 ... "
" ... the appellants' point that storage and parking would normally be regarded as integral parts of [a transport depot] use."
" ... I consider that the storage use, in particular, which is taking place on the enforcement notice site, is not a use which can be regarded as an element of, or ancillary to, the use as a transport depot."
"The type and amount of equipment stored in this size of compound is a further indication that this is not an ancillary activity to a transport depot."
"The basic approach to this problem of protecting existing use rights from the effect of enforcement notices is set out in a number of cases, the effect of which is usefully summarised in the Planning Encyclopaedia Volume 2 at P.176.05 and goes under the name of the Mansi doctrine ... Given that existing use rights are to be protected, the question of whether it is necessary to spell those out in the enforcement notice depends on how obvious it is that the enforcement notice can and will be construed so as to protect them, in the context of a criminal prosecution. It needs to be remembered that subsequent landowners are also bound by the notice, and concern over its interpretation may affect dealings with them.
21 "In my judgment, the key issue is whether it is obvious that the existing use rights as found by the Inspector would be protected."
"I do not accept that the Council did not consider the fall-back position in relation to the appeals as a whole and I have found nothing in the evidence to the inquiry to suggest that the Council had not assessed the planning history of the site to the point where it would not have taken enforcement notice action or refused planning permission. There were complex issues raised at the inquiry concerning the interpretation of the relevant planning permissions and forceful arguments were made by the appellants and the Council on these issues. As appeals were made against the enforcement notices and the refusal of planning permission, it is difficult to see that the inquiry could have been avoided or was unnecessary."
"RETENTION OF USE OF LAND WITHOUT COMPLIANCE WITH CONDITION 2 ... ATTACHED TO PLANNING PERMISSION 11/90/1632."
"APPROVE Planning Permission for the application set out above..."
" ... for the application set out above subject to the following conditions:
"RETENTION OF USE OF LAND WITHOUT COMPLIANCE WITH CONDITION 2 (IMPROVEMENTS TO PUBLIC HIGHWAY) ATTACHED TO PLANNING PERMISSION REF:11/90/1632 DATED 23.6.92 ... "
"[permission] FOR USE OF LAND AND BUILDINGS AS TRANSPORT DEPOT AND CREATION OF NEW VEHICULAR ACCESS."
"Statement of costs