QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF REDROW HOMES LIMITED||(CLAIMANT)|
|(1)FIRST SECRETARY OF STATE|
|(2)SOUTH GLOUCESTERSHIRE COUNCIL||(DEFENDANTS)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MS N LIEVEN AND MR D KOLINSKY (instructed by THE TREASURY SOLICITORS) appeared on behalf of the FIRST DEFENDANT
MR T STRAKER QC AND MR R HUMPHREYS (instructed by LEGAL SERVICES, SOUTH GLOUCESTERSHIRE COUNCIL)
Crown Copyright ©
Wednesday, 3rd December 2003
"An area lying roughly between Severn Beach and Chittening Trading Estate, in the parishes of Redwick and Northwick and Almondsbury in Thornbury Rural District, as shown upon the amended application plan. The total area comprising: Area No 1. Approx. 1000 acres, Area No. 2. approx. 545 acres and Area No. 3. approx. 1,100 acres."
"This outline application for planning permission is for:
(i) the development of an area of 1,000 acres (outlined in dark purple on the attached plan "B" and thereon marked "1") -
(a) for the construction and operation of factories for the production of chemical and allied products (including non-ferrous metals) and
(b) for the development mentioned in sub-paragraphs (ii) and (iii) hereof
(ii) the development within an area of 545 acres (outlined in green on the attached plan "B" and thereon marked "2") consisting of
(a) the construction and operation of offices, warehouses, stores, reservoirs, pumphouses, canteens, clubs, hostels, training establishments, amenity and welfare buildings, sports pavilion and sports and playing fields, and
(b) the development mentioned in sub-paragraph (iii) hereof
(iii) the development within an area of 1,100 acres (outlined in light purple on the attached plan "B" and thereon marked "3") consisting of the construction and operation of any buildings, structures, erections or engineering works expedient for and ancillary to the construction and operation of the factories mentioned in paragraph (i) above, other than buildings, structures or erections in which actual processes of manufacture are carried on.
"(iv) the change of use of Hook Farm and Severn Farm (coloured in yellow on the attached plan "B" and thereon marked "5") to office and/or residential hostel and club purposes.
(v) permission to construct accesses to existing public highways (such accesses being outlined in brown on the attached plan "B" and thereon marked respectively 6A, 6B and 6C".
"5. The proposed accesses shown on the application plan shall not be constructed until their precise location has been agreed with the local planning authority or in default of agreement determined by the Minister of Housing and Local Government and until detailed plans therefore have been approved by the local planning authority or by the Minister of Housing and Local Government on appeal.
"6. The access proposed to be constructed at point 6B shall not be used as a principal access for the reception and dispatch of goods".
"5. In order to ensure safe and satisfactory means of access to existing highways and to ensure that these means of access shall conform to any improvements to the existing highways which may be proposed.
"6. This access opens out on to a very narrow country highway and its use as a principal access for the reception and despatch of goods would involve heavy traffic using roads which are unsuitable for that purpose and would necessitate such traffic travelling through Compton Greenfield which would be undesirable."
"The 1957 planning permission remains operable and capable of further implementation."
"The Secretary of State considers that clause (v) of the 1957 planning permission and condition 5 are not ambiguous and therefore do not allow the admission of extrinsic evidence. In his view, they clearly grant planning permission for an access at Point 6C."
"Paragraph (v) of the 1957 permission has already granted planning permission for an access in the location indicated by Point 6C on the attached plan B. In the Secretary of State's view, to adopt an approach whereby the proposed access is rejected in favour of a more satisfactory alternative access elsewhere within the whole site, for which no planning permission has been granted, would be to derogate from the 1957 outline permission... In considering whether the proposed access meets the requirements of Condition 5 and the reasons for its imposition, the Secretary of State has accordingly proceeded on the basis that the access must be at Point C as shown on plan B".
"In assessing whether the proposed access provides a safe and satisfactory connection to the existing highway network, the Secretary of State has had regard to the differing views of the parties as to whether he may lawfully take into account the effect on highways beyond the boundary of the 1957 site. The Secretary of State does not accept that Proberun Limited v the Secretary of State for the Environment  3 PLR 79 restricts the matters that he may take into account in relation to the impact at either Point 6C alone or on the application site as a whole. He is supported in this view by R v Newbury District Council, ex parte Chieveley Parish Council  JPL 1137. It is not disputed that the surrounding highway network is very different today from that in 1957, when the B4055 was the principal highway serving the site. The WAP 1 development has introduced a new spine road designed for heavy traffic through the site with access onto the A403 and to comprehensively serve the land in the vicinity of Access 6C via the M49 overbridges, which are in place. It is therefore difficult to conclude otherwise than it has had an impact on the 1957 site in respect of its highway infrastructure and access pattern. Taking all these factors into account and the need to ensure that the proposed connection to the B4055 will have no materially adverse effects, the Secretary of State considers that he is entitled to have regard to the safety of the surrounding highway network, as it currently exists, including Junction 17 of the M5 Motorway. He has accordingly taken into account the evidence of the Highways Agency which is highly relevant to this issue".
"In considering the design of the junction in isolation, he [the Secretary of State] accepts the Inspector's assessment and conclusions that the final junction design SK/01E, although of significantly greater capacity (17%) than the originally submitted drawing SK/01A, would be adequately safe and would not itself give rise to a material increase in accidents. However, he agrees with the Inspector that the lack of provision of bus priority lanes, especially in view of the likely congestion on the B4055, conflicts with national and development plan policy objectives and is therefore less than satisfactory in this respect."
"That the use of the proposed access would adversely affect safety on the M5, causing harmful impact at junction 17 and along the B4055 through excessive traffic flows, contrary to Structure Plan Policy TR19 and to the objectives of national policy guidance".
"The proposed location of access 6C is the least obtrusive, given the very limited options available within the constraints of the 1957 permission".
"Taking all of the foregoing into account, the Secretary of State does not consider that the proposal provides safe and satisfactory means of access to the existing highways, as set out in the reasons for Condition 5. In paragraph 23 above, the Secretary of State rejected the Inspector's conclusion that if not found to be safe and satisfactory, the access should be the best that can be achieved within the whole of the site. He has found that by virtue of the express permission granted for access 6C in paragraph (v) of the 1957 permission, the access location is necessarily confined to Point 6C. On this basis, he shares the Inspector's view... that if limited to the B4055, then the proposed location would be the best achievable. Since this represents the most satisfactory access that can be achieved within the limits of that permitted by the still extant and operable outline permission, the Secretary of State is reluctantly drawn to conclude that refusal of approval of this reserved matters application cannot be justified, as to do so would remove the benefit of the planning permission already granted. However, in view of the adverse effects and particularly the harm to highway safety that would result from unrestricted traffic use of the proposed access, the Secretary of State has carefully considered whether there is any scope to mitigate the harm either through the imposition of planning conditions or by means of a s.106 planning obligation".
"In his consideration of this matter, the Secretary of State has had regard to R v Newbury DC ex parte Stevens and Partridge  65 P&CR 438, which holds that conditional approval of a reserved matter was a creature known to law and that conditions could be imposed provided that they did not materially derogate from the permission that had been granted".
"The Secretary of State has therefore carefully considered the alternative condition proposed by the Pilning and Severn Beach Parish Council that use of access 6C should be restricted to public transport vehicles only. Redrow and South Gloucestershire Council consider that the 1957 permission did not restrict access 6C to certain types of traffic and therefore the imposition of this condition would materially derogate from the permission that had been granted. The Inspector acknowledges that such a condition would reflect the WAP strategy embodied in the s.106 agreement and would successfully ameliorate the significant adverse impacts of the proposed access if it can be lawfully imposed. The Secretary of State takes the view that restricting the use of access 6C to public transport only would not remove the benefit of the planning permission, as other accesses onto existing highways can be used, nor would it frustrate condition 5 of the permission, because an access would be provided. He agrees with the Inspector that the imposition of a public transport only condition would ameliorate the adverse traffic impacts of the proposed access on the surrounding highway network, thereby meeting the requirements of condition 5 and complying with development plan policies SP TR 19... as well as with relevant national policy. The Secretary of State is therefore minded to impose a condition restricting use of the proposed access 6C to public transport vehicles."
"For all the reasons set out above, the Secretary of State is disposed to reject the Inspector's recommendation to dismiss your client's appeal and is minded to grant approval for this reserved matters application subject to the satisfactory resolution of the harmful impacts he has identified in paragraph 27 above. The Secretary of State accordingly invites further representations on the condition proposed in paragraph 32 above, restricting the access solely to public transport use and on whether the parties wish to suggest any alternative mechanism to achieve the same result."
"9. The wording of condition 5 of the 1957 permission states... 'the proposed accesses shown on the application plan shall not be constructed until their precise location has been agreed with the local planning authority or in default of agreement determined by the Minister of Housing and Local Government and until detailed plans therefore have been approved by the Local Planning Authority or by the Minister of Housing and Local Government on appeal.' The Secretary of State takes the view that the design of the access must be a material consideration and that the wording of the condition and the reason given for its imposition shows that the design of the access was a consideration for the local authority even in 1957. He considers that the design of the proposed junction is a material consideration in his determination of this reserved matters appeal and agrees with Burford that as currently designed the proposed junction is inappropriate for a PSV only access and furthermore would result in unnecessary land take and the loss of existing landscape contrary to policy RP1 of the adopted local plan. He further considers that if the junction were built to its current design there is real risk that there would be pressure for it to revert to unrestricted use because of its size and current design.
"10. The Secretary of State maintains the conclusions set out in paragraph 27 of his interim decision letter as to the harmful impacts that would flow from unrestricted use of the access on the surrounding highway network. He further maintains the view set out in paragraph 29 of his letter of 26th June 2002, that the proposed location of the access at point 6C is the best achievable and the most satisfactory within the limits of that permitted by the still extant and operable outline permission. In these circumstances he remains of the opinion that refusal of this reserved matters application cannot be justified, as to do so would remove the benefit of the planning permission already granted. In the absence of any indication of willingness by the principal parties to enter into a Section 106 planning obligation as an alternative mechanism for mitigating the identified harm, the Secretary of State remains of the view that he should grant approval subject to the PSV restriction on the use of access but that the detailed design needs to be the subject of further consideration to achieve a layout more appropriate to PSV use.
"11. The Secretary of State has already indicated in paragraph 30 of his letter of 26th June 2002 his view that, having regard to the judgment in R v Newbury DC ex parte Stevens and Partridge  65 P&CR 438, further conditions may be attached to an approval of reserved matters provided that they do not materially derogate from the permission that had been granted. He has accordingly decided to impose a further condition requiring approval of the re-design including measures to ensure compliance with the PSV restriction".
"(i) The access shall be used by public service vehicles only.
(ii) Prior to the commencement of the construction of the access further details of the design shall be submitted to and approved in writing by the local planning authority in accordance with a timescale to be agreed; such details to include methods to ensure compliance with condition (i). The access shall be constructed in accordance with the approved details and the approved method of enforcement shall be maintained thereafter."
"So if permission is granted after an outline application the applicant clearly knows that that permission is conditional and that it will not be of use to him until he is able to submit details as to siting and design and the like which are acceptable. It must, of course, be assumed that the authority will act in good faith. They must not misuse their functions so as indirectly and without paying compensation to achieve what would amount to a revocation or modification of a permission already given."
That statement of principle has been applied in many subsequent cases, including those referred to by the Secretary of State, Proberun, Partridge and Chieveley, in the Court of Appeal (see  PLCR 51 per Pill LJ at page 64).
(a) that there was a breach of Article 6 of the European Convention on Human Rights because the Inspector had allowed evidence to be given by the Highways Agency, notwithstanding the fact that both the inspectorate and the Highways Agency were agencies of the first defendant. Both the Inspector and the first defendant had relied upon that evidence in concluding that there would be an adverse effect on the B4055 and on junction 17 on the M5, and
(b) that depriving the claimant of its rights under the 1957 permission, without compensation, would be in breach of Article 1 of the First Protocol to the Convention.