QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF BATCHELOR ENTERPRISES LIMITED||(CLAIMANT)|
|NORTH DORSET DISTRICT COUNCIL|
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MR PETER HARRISON (instructed by Legal Services, North Dorset District Council) appeared on behalf of the DEFENDANT
Crown Copyright ©
The factual background
"The owner shall at all times hereafter maintain that part of the property shown coloured green on the plan annexed as a grassed open area in a clean and tidy condition free from any buildings or other structures of any kind dedicated in perpetuity as a grassed area of open space land for the benefit and enjoyment of the public."
The area shown coloured green comprised part of the island of land enclosed between accesses A and B and the A350. After construction of the houses had commenced, it was discovered that access B across the former forecourt was a public highway. The partially constructed houses obstructed the highway. Worked ceased and the claimant sought to resolve the problem by making a number of applications. An attempt was made, unsuccessfully, to obtain a stopping up order for access B, leaving access A as the sole means of access to the A350. Application was also made for planning permission for a four house scheme which would leave accesses A and B in situ.
"The area now measures 17m x 50m maximum, is in a very prominent position in the street scene, and is clearly visible from the A350 and from Greenfield Road. It is enjoyed by residents for dog exercising, children's play and walking. The new access would occupy about one fifth of the remaining green area. That reduction in its size, the introduction of the new road and its footways, and the prominence of the new bollards associated with the stopping up of access A, would result in the character and appearance of the area being materially harmed ...
"Also, the availability of an alternative permission may be a material consideration. The new junction is not needed for the redevelopment of the Oakcrest Service Station site. [an application] has been approved subject to formalities for a redevelopment of four dwellings which (i) would be high density; (ii) could be achieved without a new junction; (iii) would not require the stopping up of roads; and (iv) would retrieve much of the grassed area from beneath the partly completed development."
"60. The grassed area is too close to a busy main road to be of utility for children's play and too small for dog walking. Also, it seems to me that the Promoters are entitled to have their scheme considered on its merits rather than -- as is suggested by the District Council -- significant weight being placed upon the fact that the local planning authority has resolved to approve a development that would make the closure of accesses A or B unnecessary."
"I consider therefore the main issues to be whether the proposal would (1) harm the character and appearance of the locality; and (2) prejudice highway safety."
"69. The swathe of grassland that would remain after the introduction of the new access and the widening of the footway would be about 50 per cent of that which existed before construction of the five dwellings commenced and about 80 per cent of that which is the subject of the section 106 agreement. Its frontage would however, albeit only slightly, still extend further to the south east than the garden to the most easterly of the four bungalows, and its north western limit would be unchanged. As a consequence the transitional visual role served by the grassland would not be materially affected by the appeal works, indeed its value to the local scene could be enhanced if, as is suggested by the Promoters, some tree planting took place behind the visibility splay.
"70. I conclude therefore on the first issue that the proposal would not materially harm the character and appearance of the surrounding area. It would thus accord with adopted and emerging policies that seek to protect the environment."
"79. The Council submits that any planning permission granted for the new access would be incapable of implementation without contravening the terms of the section 106 agreement, ie the new access would occupy the eastern end of the green area that the Agreement protects. However whilst the council is clearly correct, this need not affect the granting of permission. I say this for two reasons:
"80. First, the promoters can agree at any time with the District Council for the agreement to be modified. Should the Secretary of State decide to grant permission, in considering whether or not to treat with the Promoters I would expect the Council to take into account the Secretary of State's reasoning and my conclusions in this report -- particularly those relating to the significance of the open space in terms of its impact on its character in the context of its setting. Secondly, after 30 July 2004, and by virtue of section S106A(4)(b) of the 1990 Act, the Promoters can apply to the District Council for the agreement to be modified. This would only be two years in, to a planning permission with the normal implementation period of five years."
"7. The Secretary of State notes that the North Dorset District Council granted planning permission for five dwellings on land to the south east of the appeal site. That planning permission was subject to a section 106 agreement to maintain the grassed area fronting Greenfield Road in a clean and tidy condition free of any buildings or other structures of any kind dedicated in perpetuity as a grassed area of open space land for the benefit and enjoyment of the public. Part of the open space covered by the section 106 legal agreement forms part of the appeal site. The Secretary of State considers that the existing section 106 agreement is a legal matter between the Council and the developers and does not prevent the granting of planning permission for this development.
"8. The Secretary of State notes that the grassed area is small, approximately 17m x 50m and is very near the busy main A350 Chippenham to Poole Road, which is a primary transport route. He accepts that the area of grass does serve as a visual link or green buffer between the open countryside and the residential development. He notes that about 50 per cent of the grassed land would remain after the construction of the new road and widening of the existing footpath along the grassed area. The remaining grassed area would be landscaped. Despite the loss, he agrees with the inspector (IR 70) that the proposal would not materially harm the character and appearance of the surrounding area and would accord with the development plan and emerging plan which seeks to protect the local environment."
"The Secretary of State considers that the proposed new road would not materially harm the character and appearance of the surrounding area."
"Although, in law, there is no entitlement to apply under section 106A of the Town and Country Planning Act 1990 to amend or vary such an agreement until five years has elapsed, there is no reason why the Council cannot agree to vary such an agreement within the first five years. The inspector did not defer from that view -- indeed, in his report he stated: 'the promoters can agree at any time with the District Council for the agreement to be modified'. It is therefore considered reasonable in this case for the reasons indicated below.
"The appeal to provide an alternative vehicular access to Greenfield Road was ALLOWED. The Secretary of State allowed the formation of an alternative access to Greenfield road and the stopping up of the existing accesses. The Secretary of State was aware of the encroachment into the open area specified by the section 106 agreement and made no objection. There are no planning reasons to refuse this request to vary the obligation.
"In particular, the Secretary of State, in coming to his decision, agreed with the inspector's comments on the section 106 agreement. More particularly at paragraph 80 of his report, the inspector commented that he expects the Council to take into account the Secretary of State's reasoning for his conclusions, particularly those relating to the significance of the open space in terms of impact on its character and the contents of the setting.
Having referred to paragraph 69 of the inspector's report, the planning officer's report concludes by saying:
"The effect of the development and the new road was therefore fully considered in the appeal process and there are no planning grounds for refusing to vary the 106 agreement in order to bring it in line with the Secretary of State's decision. Although there is no obligation in law to accept such an application (until after 30 July 2004), it would be unreasonable under the circumstances not to accept it and to agree to the requested variation to the 106 agreement."
"4. The Parish objected on the grounds that the Secretary of State pointed out that the existence of the section 106 agreement is a legal matter between the Council and the developers. It considers that any reduction in size of the land to be retained as open space would detract from the open aspect upon entering the village. There should be a buffer to the development. Any diminishment would substantially harm the character of the area.
"5. Eight objection letters from local residents in the village have also been received on the same grounds to those identified by the Parish above, and in addition the following grounds:
• The southern entrance has already been lost -- the remainder of the green area should be preserved.
• The proposed entrance would be dangerous.
• The open space as required by the agreement would make a pleasant focal point for the village echoing the meadows on the other side of the main road, and should therefore be kept in its entirety.
• The houses will block visibility at the road junction.
• The Council should listen to the concerns of the villagers, not comply with what the developers want.
• The agreement was freely entered into by the developers and should therefore remain.
• The open area is required by the village for people to exercise their dogs."
"The objections are therefore essentially twofold. First, the reduction in size of the open space, and, secondly, on grounds of highway safety. Both issues were addressed by the inspector in his report to the Secretary of State, who did not detract from his recommendations in allowing the appeal. Both issues have been extensively scrutinised at appeal. Your officers do not consider the Secretary of State's conclusions to be wrong or ill founded."
"Government guidance in relation to the Discharge or Modification of Planning Obligations is given in Circular 1/97 Annex C. Relevant parts of paragraph C4 read:
"'It would not be reasonable to allow an obligation to be reviewed very soon after it had been entered into. This would give no certainty to a local planning authority, which had granted planning permission on the understanding that a developer would meet certain requirements. Other affected parties might also be disadvantaged by allowing obligations to be swiftly brought to an end. On the other hand, where over a period of time the overall planning circumstances of an area have altered, it may not be reasonable for a landowner to be bound indefinitely. Allowing the five-year period to stand appropriately reconciles these various considerations ... '
"In deciding whether or not to exercise its power under section 106A(1)(a) to agree to vary the terms of the agreement the Council has a discretion, which is unfettered by any specific statutory provisions. The exercise of this discretion can only be challenged on the normal public law grounds and subject to the normal restrictions on bringing a challenge by way of judicial review.
"3. Factors to be considered.
The factors that the Council may consider in reaching a decision are:
(i) Whether it is considered to be in the public interest and in the interest of the proper planning of the area for the land to remain open and undeveloped as originally agreed by Batchelor Enterprises Ltd.
(ii) Whether it is considered that the obligation in respect of the open land still serves a useful planning purpose. Does the grassed area make a significant contribution to the character and appearance of the area and the amenities and outlook of the local residents?
(iii) Whether if five houses were to be built with a corresponding reduction in the amount of land to be kept open and unbuilt upon, then whether the balance of the remaining land protected by the agreement would have been altered to the detriment of the proper planning of the area.
(iv) The fact that the government has made it clear that it was envisaged that once entered into section 106 obligations should not normally be varied quickly or lightly hence the five year period before which an application to vary the terms of an agreement could be appealed to the Secretary of State.
(v) The fact that unforseen difficulties mean that the developers could not now build five houses on the land without encroaching on the protected open space.
(vi) The fact that the Council has resolved to grant the developer's own application for planning permission (20001/0805) for four houses on approximately the same site. These four houses could be developed with a satisfactory access but without encroaching on the protected piece of land. It is only the developer's own refusal to enter into a section 106 agreement which has prevented the permission for four houses being granted pursuant to the resolution.
(vii) The report of the Development Control Manager, which recommended and continues to recommend that the Council agree to vary the terms of the section 106 agreement.
(viii) As recorded in the Development Control Manager's report that the Secretary of State's decision letter dated 17 September 2002 has granted planning permission for the development of five houses which if implemented would require a new access to be built over the protected land in breach of the Section 106 agreement.
(ix) That in the decision letter it should be noted that both the Secretary of State and the inspector were aware that if this planning permission was to be implemented it would be in breach of the section 106 agreement and that therefore it would be necessary for the Council to agree to the variation or replacement of the agreement before the permission could be implemented. Nevertheless it should also be noted that the Secretary of State and the inspector both made clear that their decision did not bind the Council to vary the section 106 agreement. The inspector in paragraph 80 specifically noted and contemplated that the Council may not agree to vary the agreement and that an application may have to be made after 29 June 2004. The inspector noted that this would still only be two years into the five-year life of the permission.
(x) The Secretary of State in paragraphs 7 and 12 of his decision letter did not indicate that his decision was binding on the Council in relation to the pre-existing section 106 agreement (nor could he lawfully have done so).
(xi) The fact that the planning permission, which has been granted by the Secretary of State, is inconsistent with the provisions of an existing section 106 agreement does not mean that the terms of the section 106 agreement should automatically be varied in order to accommodate that permission.
(xii) That the developers will have a further opportunity to seek to have the agreement discharged after 29 July 2004 when they will be entitled to make an application to the Council under section 106A(1)(b), and if appropriate, an appeal to the Secretary of State as an independent party.
(xiii) The current state of the part built site and its affect on the character and appearance of the area up to 29 July 2004 and beyond if the developer does not choose to build the four-house scheme instead."
"The Committee considered the planning report and the legal report. Each of the factors set out in paragraph 3 of the legal report were considered and it was noted that the developer could not build the five house scheme that had been approved on appeal without variation of the agreement to allow the construction of the access over the protected land. The effect of the part-built state to the site on the character and appearance of the area and the fact that the developer could apply to have the agreement discharged after 29 July 2004 were considered. It was noted that the Secretary of State and the inspector both made it clear that the decision did not bind the Council to vary the Section 106 agreement. It was decided not to vary the agreement for the following reasons:
1. Batchelor Enterprises voluntarily agreed that the land should remain open and undeveloped when they entered into the agreement. Notwithstanding the recommendation of the Development Control Manager it is considered to be in the public interest that the land continues to remain open and undeveloped. The grassed area continues to make a significant contribution to the character and appearance of the area. The value of this area to local residents continues to be demonstrated by their opposition of this scheme and the loss of this part of the open space. It therefore contributes to the amenities and outlook of the local residents. The area that will remain after the access has been constructed will not be of equivalent benefit and will be to the detriment of the proper planning of the area.
2. The developer knew that there was no right of appeal in respect of such an agreement until the expiry of the five-year period. The local residents will be disadvantaged by allowing the agreement to be varied in the manner suggested for the reasons set out in 1 and therefore it should not be varied.
3. The developers could enter into the agreement which would allow planning permission for the four house scheme to be issued. This would permit the redevelopment of the site with a satisfactory access without the loss of the grassed area, thereby preserving the character and appearance of the area in the long term. As there is no obligation to vary the agreement the residents should continue to enjoy the benefit of the agreement as entered into."
"(1) A Planning obligation may not be modified or discharged except-
(a) by agreement between the authority by whom the obligation is enforceable and the person or persons against whom the obligation is enforceable; or
(b) in accordance with this section and section 106B...
(3) A person against whom a planning obligation is enforceable may at any time after the expiry of the relevant period, apply to the local planning authority by whom the obligation is enforceable for the obligation-
(a) to have effect subject to such modifications as may be specified in the application; or
(b) to be discharged.
(4) In subsection (3) 'the relevant period' means-
(a) such period as may be prescribed; or
(b) if no period is prescribed, the period of five years beginning with the date on which the obligation is entered into ...
(6) Where an application is made to an authority under subsection (3), the authority may determine-
(a) that the planning obligation shall continue to have effect without modification;
(b) if the obligation no longer serves a useful purpose, that it shall be discharged; or
(c) if the obligation continues to serve a useful purpose but would serve that purpose equally well if it had effect subject to the modification specified in the application, that it shall have effect subject to those modifications.
(7) the authority shall give notice of their determination to the applicant within such period as may be prescribed ...
(10) Section 84 of the Law of Property Act 1925 (power to discharge or modify restrictive covenants affecting land) does not apply to a planning obligation."
No period has been prescribed for the purposes of paragraph (a) in sub-section (4).
"(1) Where a local planning authority-
(a) fail to give notice as mentioned in section 106A(7); or
(b) determine that a planning obligation shall continue to have effect without modification
the applicant may appeal to the Secretary of State ...
(4) Sub-sections (6) to (9) of section 106A apply in relation to appeals to the Secretary of State under this section as they apply in relation to applications to authorities under that section ...
(6) The determination of an appeal by the Secretary of State under this section shall be final."
The defendant's response to the application for judicial review.
"Where the Council is dealing with a request within the 5-year period, it is exercising its discretion as custodian of the public interest and not simply on planning grounds. The Act does not fetter the discretion of the District Council to consider the request for its agreement to discharge the covenant ...
"The Council submit that when considering a request under section 106A(1)(a) it is not bound by the Secretary of State's decision to grant planning permission."
"Although there is no obligation in law to accept such an application (until after 30 July 2004), it could be unreasonable in the circumstances not to accept it and to agree to the requested variation to the 106 agreement."
"There are no planning reasons to refuse this request to vary the obligation".
Submissions and conclusions
"The department considers that the expression 'no longer serves any useful purpose' should be understood, in land-use planning terms. Thus, if an obligations only remaining purpose is to meet some non-planning objective it will generally be reasonable to discharge it."
The relevant part of paragraph C4 dealing with the significance of the five-year period is set out in the legal report to the Committee: see above.
"It is common ground that the new Section 278 was intended to fit into and play its part in the overall legislative system for the controlled development of land through the planning process and I accept that Section 278 must be interpreted accordingly."
"There was some debate before us whether that conclusion of Wednesbury irrationality was free-standing of the judge's earlier view based on the scheme of the planning legislation as a whole. To my mind it was not: in truth there is here but one issue: who, as between the Secretary of State (or inspector) on appeal and the highway authority, is to have the last word in deciding a road safety issue of this nature ...
"I for my part prefer the broader Wednesbury analysis of the case. Indeed, so far from this appeal raising, as Mr Supperstone submitted, 'a short point of statutory construction', I see it rather as raising this simple question: is it reasonable for a highway authority, whose road safety objections have been fully heard and rejected on appeal, then, quite inconsistently with the inspector's independent factual judgment on the issue, nevertheless to maintain its own original view? To my mind there can be but one answer to that question: a categoric 'No'."
"Who as between the Secretary of State (or inspector on appeal) and (the local planning authority) is to have the last word in deciding (an amenity) issue of this nature ...
"Is it reasonable for a (local planning authority) whose (amenity objection) has been fully heard and rejected on appeal then quite inconsistently with (the Secretary of State's) independent factual judgment on the issue nevertheless to maintain their own original view?"