QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| MONMOUTHSHIRE COUNTY COUNCIL
|- and -
|(1) THE NATIONAL ASSEMBLY FOR WALES
(2) HOWARD REES
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Walters (instructed by Treasury Solicitors) for the First Defendant
Mr Rees (in person)
Crown Copyright ©
Mr Justice Mackay:
"(1) The permission hereby granted shall relate solely to the parking of 2 heavy goods vehicles within the area edged red on the approved plan.
(2) This permission shall enure for the sole benefit of the occupiers of the adjacent dwelling house known as Farthing Hill and the vehicles parked within the above area shall be those vehicles driven by the occupants of the dwelling house only."
The decision letter:
"1. This section applies …… 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 previous permission was granted or that it should be granted unconditionally they shall grant planning permission accordingly and –
(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."
"Considering only the conditions subject to which planning permission should be granted will be a more limited exercise than the consideration of a "normal" application for planning permission under s.70 but ….. will depend on the nature of the condition itself. If the condition relates to a narrow issue such as hours of operation or the particular materials to be employed in the construction of the building the local planning authority's consideration will be confined within a very narrow compass. Since the original planning permission will still be capable of implementation the local planning authority looking at the practical consequences of imposing a different condition as to hours or materials will be considering the relative merit or harm of allowing the premises to remain open until, say, 10 o'clock rather than 8 o'clock in the evening, or to be tiled rather than slated ….. in my view however the position is different where ….. an application is made under s.73 to alter a condition so as to extend the period for submission for reserved matters at a time when the original planning permission is no longer capable of implementation by reason of the effect of s.93(4) because time for submission for reserved matters has expired.
While the council are constrained to consider only the question of the condition subject to which planning permission should be granted, in deciding whether to grant a planning permission subject to different conditions under paragraph (a) or to refuse the application under paragraph (b) are they required to ignore the fact that the original planning permission is no longer capable of implementation, so that if they adopt the latter course it will not be possible for the development to take place whereas if they adopt the former course it will be possible for the development to take place? In my view there is nothing in s.73 that requires the local planning authority to ignore the practical consequences generally of imposing a different condition and this is surely a most important practical consequence …..
The local planning authority have to have regard to the factual circumstances as they exist at the time and to have regard to the facts that exist at the time of their decisions. If at the time the original planning permission is incapable of implementation by reason of s.93(4) I can see no basis in the statutory code for requiring the local planning authority to ignore that important fact."
"I agree that if it does not now matter from a planning point of view whether the future development of the site is governed by Condition X as imposed on the old permission or Condition Y as suggested by an applicant then the authority would be wrong to refuse permission just because they objected to the development in principle. An example might be a proposed change in the fenestration in a building …. the comparison is not between the present effects of Condition X imposed now and the present effects of Condition Y imposed now but rather between the present effects of Condition X imposed years ago and the present effect of Condition Y imposed now".
On the particular facts of the Powergen case it was beyond argument in his judgment that current planning policy and effects had to be taken into consideration because, to adopt the words of Sullivan J, the original outline permission was "incapable of implementation".
"Does it matter from a planning point of view today whether those who drive lorries on to the site are the occupiers of the adjacent dwelling house or not?"
The Inspector answered this question at paragraph 20 of his decision, which was in the event to delete Condition 2, which he described as:-
"unnecessary because the visual impact of heavy goods vehicles does not depend on their ownership [or] the identity of their drivers".
"I can see no reason why its modification or deletion would have any perceptibly adverse visual impact on the rural street scene or the wider local landscape setting."
statute but attempting to give effect to the sense of it, the Inspector was indeed having regard to wider planning considerations, but in any event was considering a case where, whatever the outcome of the application, there existed an original grant which was capable of implementation. In my judgement the Inspector identified the issues appropriately and dealt with them in a way in which he was entitled to do.
"I was not able to identify any specific parking area for the 2 authorised heavy lorries and it would be perfectly possible to find a secluded spot within the appeal site where they could be completely hidden from the public gaze. Whether or not that would amount to material change of use requiring planning permission is not for me to decide and it would not be appropriate for me to comment further on that aspect of the case because of the fact that it is now the subject of a separate appeal".
This is said to have been a perverse finding. In my judgement there is no force in this allegation. The Inspector was only seized of the problem of Condition 2 namely who could park, rather than Condition 1, what could they park and where.
"whether or not the disputed condition satisfies all of the relevant tests above".
Monmouth ask me to find, having considered the report to the planning sub-committee and the minutes of its meeting on the 20th December 1984 that if Condition 2 had not been imposed permission would have been refused. They say the Inspector failed to apply the same test himself and he should have done.
MR JUSTICE MACKAY: Miss Sabic, is that the right pronunciation?
MISS SABIC: That is.
MR JUSTICE MACKAY: You are here today on behalf of the claimant, is that right?
MISS SABIC: Yes, my Lord.
MR JUSTICE MACKAY: Thank you.
I formally hand down my judgment in this matter in accordance with the draft previously circulated to counsel and as finally approved by me. Any member of the public in this court or in Cardiff interested in obtaining a copy should apply to my clerk who will provide a copy for them. Likewise, any member of the press may so do.
Are there any matters arising from this? Mr Walters, it is your judgment, in effect. You ask, I imagine, for the claim to be dismissed, is that right?
MR WALTERS: My Lord, yes.
MR JUSTICE MACKAY: What else do you ask for, if anything?
MR WALTERS: I ask for costs on the general principle, obviously, of the order being a dismissal of the appeal. I ask for those to be subject to summary assessment. A schedule of costs has been served on the claimant, and your Lordship should have a copy signed and dated 4th June.
MR JUSTICE MACKAY: Well, I should do, but I do not, I am afraid it may have gone astray. I am being handed one now, thank you very much.
MR WALTERS: My Lord, perhaps I can reply to any matters rather than expand at this stage?
MR JUSTICE MACKAY: I think that is the usual way. Let me just cast an eye on it for myself, thank you.
Yes, Miss Sabic, in principle, is there a reason why the defendants should not have their costs?
MISS SABIC: No, my Lord.
MR JUSTICE MACKAY: Thank you. Do you have any objection to a summary assessment and/or do you have anything to say to me on any of the items on this schedule, so far as their amount is concerned?
MISS SABIC: My Lord, I do not have any objection to the summary assessment. The only issue that we take is on the second page; the attendance at judgment on 6th June by the instructing solicitor on the other side is down for one hour.
MR JUSTICE MACKAY: Yes.
MISS SABIC: My Lord, we would seek to reduce that time since the handing down of the judgment is not going to take one hour. That is the only issue.
MR JUSTICE MACKAY: He has his travel and his waiting as well.
MISS SABIC: That is right, my Lord.
MR JUSTICE MACKAY: Yes, I think I might give you a win on that then. Are there any other items you wish to attack?
MISS SABIC: No, my Lord.
MR JUSTICE MACKAY: Thank you very much. Well, Mr Walters, you have your work cut out to justify that £150. Are you going to do so or shall I strike it out?
MR WALTERS: My Lord, as there is travel and waiting I would simply ask for -- it would be a nominal sum, I agree, in respect of the attendance to reflect the actual time?
MR JUSTICE MACKAY: £50 you can have. That is £100 off.
MR WALTERS: I am obliged.
MR JUSTICE MACKAY: There is no VAT on this, is there?
MR WALTERS: No there is not.
MR JUSTICE MACKAY: So I would simply reduce the 4692 to 4592. Nothing else is challenged, so it seems to me that you should have your costs, that they should be summarily assessed at £4,592.
MR WALTERS: Thank you, my Lord.
MR JUSTICE MACKAY: Does that deal with all matters so far as you are concerned?
MR WALTERS: My Lord, it does. In the event the video link has only been for my benefit so I am grateful for that, my Lord. I think it does reflect partly in the costs.
MR JUSTICE MACKAY: I think it is a sensible way of doing it. Miss Sabic, do you have any other application?
MISS SABIC: No, my Lord.
MR JUSTICE MACKAY: Thank you very much. So be it then. There will be judgment for the Defendants, this claim will be dismissed with the First Defendant's costs summarily assessed at £4,592.
I thank both counsel who argued the case before me for their assistance and their forbearance. This judgment took a little time to emerge, but I am afraid this is the first time I have been back in London since hearing the case in Wales. Thank you very much.