England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		28th May 2004

The Hon. Mr. Justice Evans-Lombe :

1. This is an application pursuant to section 288 of the Town and Country Planning Act 1990 by the trustees of the Stock Family trust ("The Claimants") to quash the decision of the Inspector appointed by the First Secretary of State ("the First Defendant") given by letter dated the 15^th December 2003 refusing to grant lawful development certificates in respect of certain land at Bosham Hoe near Chichester. The second defendants are the Chichester District Council ("the District Council") who did not appear at the hearing.

2. The claim arises from two appeals made under section 195 of the 1990 Act, heard by the First Defendant's inspector at an inquiry held on the 4^th September 2003. The first appeal was against the decision of the District Council dated 29^th August 2002 refusing a Certificate of Lawfulness in respect of "the construction on the site of a single detached dwelling house". The second appeal, concerning the same subject matter, was against the failure of the District Council to determine an application for a Certificate of Lawfulness in respect of "the erection of a dwelling house in accordance with details of its siting, design, external appearance, means of access, landscaping and means of foul and surface water disposal, such details to be approved in writing by the District Planning Authority". This was simply an alternative way, and, I was informed, the Claimants' preferred way, of defining the failure by the Inspector at which this application is directed.

3. This application concerns the desire of the Claimants to construct a single dwelling on the land at the south western corner, fronting on the shoreline, of the Bosham Hoe Estate formerly the property of a Lady Allen, to whom the estate itself belonged but which has increasingly been sold off since the war to be developed for housing. In advance of the hearing the Claimants and the District Council agreed a formal Statement of Common Ground together with files of core documents relevant to the questions of law raised by the appeals. In the event, no evidence needed to be called and the Inquiry proceeded on the basis of an exchange of legal submissions. However the background facts of the issues which I have to decide are conveniently set out in section 3 of the Statement under the heading "the planning history of the Bosham Hoe estate". I will quote from it at length:-

   "3.1 The Bosham Hoe Estate was developed following the grant of planning permission in 1949. The planning history of the Estate which is relevant to the appeal is set out below.

   3.2 By notice dated 15^th March 1949, Chichester Rural District Council granted permission for development subject to conditions for "the development proposed by Lady Allen in her application dated the 29^th day of September 1948, of the land, situated at Bosham Hoe Estate, Bosham, for layout, and shown on the accompanying plan(s)" "(the 1949 Consent)". The application form (ref BO/25/48) relates to 120 acres and describes the proposed development as "domestic dwellings, agricultural land, open spaces."

   3.3 The plan referred to by the 1949 Consent has been inspected in the records held by the District Council. The plan identifies the Appeal Site as follows:-

   (1) part Green – signifying undeveloped land;

   (2) part Yellow – signifying an access road to a jetty and boat pull-up; and

   (3) part Blue – defined as "sites to be sold for future building or houses or cottages".

   3.4 In a letter dated the 23^rd November 2000, the District Council have confirmed that the 1949 Consent was implemented.

   3.5 By notice dated 4^th April 1951 Chichester Rural District Council granted permission for development of land subject to conditions for development described as "A Dwelling House" on land shown on the plan forming part of the application abutting the eastern boundary of Furzefield. Condition (b) states:

   "not more than 3 hoses to be built on the whole land of the edged red and blue on the deposited plan"

   The application was given the reference BO/4/51 (the 1951 Consent). The red edged land is slightly smaller than the Appeal Site. The blue land corresponds with the land now occupied by the dwellings known as "Brackendene" and "Lamorna"…and part of the application site. The permission was not implemented.

   3.6 Two months after the granting of this planning permission on the 18^th June 1951 Lady Allen sold the Appeal Site land, the majority of which had the benefit of planning permission under the 1951 Consent to Joseph Thomas-Davies who later on the 23^rd December 1954 sold the Appeal Site land to Mr Allen Lievesley Stock. The appellants [the Claimants] administer Mr A. L. Stocks estate.

   3.7 Also on the 18^t June 1951 Lady Allen sold the plot now occupied by "Brackendene", part of the blue edged land referred to in condition b of planning permission BO/4/51 to Josephine Ann Thomas Davies.

   3.8 By notice dated 22nd July .1953 Chichester Rural District Council granted conditional planning permission for "Revised Estate Layout Bosham Hoe Estate, Bosham" ("the 1953 Consent"). The application was given the reference BO/25/48A and referred to the previous application (BO/25/48) for the purposes of identifying, inter alia, the area of land to which the application related. The plan referred to by the 1953 Consent identified the site as follows:-

   1. part yellow -signifying an access road to a jetty and boat pull-up

   2. part red -defined as "plots already sold as sites for houses or where houses have already been built."

   3.9 In the letter dated 23^rd November 2000, the District Council confirmed that the 1953 Consent had been implemented.

   3.10 By notice dated 19^th August 1953 Chichester Rural District Council granted conditional outline consent for a proposal described as outline application for "two houses and garages", on land described as "Tuffs Hard" and shown on the plans forming part of the application lying to the east of Furzefield. The application was given the reference BO/27/53. Although this consent was not implemented the land was later developed for the single detached house known as "Lamorna".

   3.11 By notice dated 11^th November 1953 Chichester Rural District Council granted conditional planning permission for development described as "house and garage" on land described at "Tuffs Hard" and shown on the plans forming part of the application. This land corresponds with the eastern most of the two plots shown on the plan attached to the consent BO/27/53 above. The application was given the reference BO/27/53A. This permission has not been implemented.

   3.12 By notice dated 25^th May 1954 Chichester Rural District Council granted planning permission for development described as "house and garage" on land described as "Bosham Hoe Estate" and shown on the plan forming part of the application. This land corresponds with the plot later developed for the house known as "Lamorna" The application was given the reference BO/27/53B and appears to have been implemented."

4. The statement then continues describing the refusal of outline planning consent for the construction of three dwellings, dated the 28^th December 1966, and two dwellings, dated the 8^th March 1967 on the Application Site. On the 11^th March 1988 the District Council granted conditional planning permission for a single dwelling house on the Application Site ("the March 1998 Consent"). The permission was implemented by the construction of the house which became known as Brackendene. The planning consent was accompanied by an "informative" of the District Council which read as follows:-

   "This planning permission is granted in fulfilment of the land use permission granted by planning permissions BO/25/48 and BO/25/48A in respect of that part of the land lying between the eastern boundary of Furzefield and the western boundary of Waterbeach [a house constructed to the immediate east of the Application Site] not already taken for the development of Lamorna… this permission is granted in consequence only of an outstanding Land Use Permission for a single dwelling under planning permissions BO/25/48 and BO/25/48A and planning permission for the erection of any further dwelling on the land…referred to would not be granted because of the conflict with planning policies. In the opinion of the Council, as Local Planning Authority there is no entitlement under BO/25/48 or BO/25/48A to use land for the construction of any further dwelling within the area… ."

5. The statement describes further facts which I have not set out above but appear irrelevant to the issues with which I have to decide and were not referred to by either counsel. Appended to this judgment is a plan. This is a reproduction of part of the application plan appended to the 1949 Consent showing its western end. I have marked the plan with letters A to E. I refer to all those areas together as "the Application site". B identifies a proposed estate road leading to a boat jetty and on the original plan is coloured yellow. This road has never been constructed and access to the jetty is along a track running along the western boundary with Furzefield. The plot marked A, to the west of the intended road and to the east of the track is, on the original plan, marked green to indicate an area not to be developed. The Application Site is bounded to its north by the estate road running east to west on the plan. The strip of land running from that road down to the southern boundary and marked E is the plot on which the house "Lamorna" was constructed. A similar strip to its immediate west marks the plot on which the house "Brackendene" was constructed. The remaining strip marked C when taken with areas marked A and B mark the Appeal Site on which the Claimants wish to build the house in question. On the original plan the area C, D, E is coloured blue which as the key to the plan describes indicates "sites to be sold for future building of houses or cottages."

6. The issue on the appeal was whether the Appeal Site on a proper construction of the 1949 Consent and the 1953 Consent or either of them has the benefit of planning permission for the construction of a further house. Before the inspector and before me there was no issue as to the law applicable to the construction of planning consents. This is helpfully summarised in section 2 of the Statement of Common Ground under the heading of "the interpretation of planning permission". It reads as follows:-

   "2.1 The law on the interpretation of a planning permission is well settled, and was summarised by the Court of Appeal in Slough Borough Council v Secretary of State for the Environment [1995] JPL 1128.

   2.2 The general rule in construing planning permission is that regard may be had only to the permission itself, including the conditions (if any) on it and the express reasons for those conditions. In Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196, the Court of Appeal rejected the submission that the permission should be construed by reference to the application made (see Lord Denning MR at p 215 and Upjohn LJ at pp 223-234) The rule was affirmed by the House of Lords in Slough Estates v Slough Borough Council (No 2) [1971] AC 958.

   2.3 There are three recognised exceptions to the general rule (see the summary set out by Keene J in R v Ashford Borough Council ex parte Shepway District Council [1999] PLCR 12. The first exception is where the planning permission incorporates by reference the application and accompanying plans, thus enabling those documents to be referred to (Wilson v West Sussex County Council [1963] 2 QB 764 and the Slough Estates case). However, the mere inclusion of the reference number of the application on the permission is not sufficient incorporation: some such words as "in accordance with the plans and application" would be necessary (the Slough Borough Council case at p 1134).

   2.4 The second exception is where the permission is ambiguous on its face. For example, in Staffordshire Moorlands District Council v Cartwright [1992] JPL 138 one of the ambiguities was that the planning permission required the development to be carried out in accordance with the accompanying plans when there were no plans accompanying the permission. It was stressed by Keene J in R v Ashford Borough Council ex parte Shepway District Council (at p24) that where resort is made to extraneous material to resolve a particular inconsistency or ambiguity, it is not proper to regard other parts of the permission free from ambiguity as open to re-interpretation in the light of the application or other extrinsic material."

7. The statement sets out a third exception to the general rule at paragraph 2.5 which is not relevant to this judgment.

8. I would add that the decision of Mr George Bartlett QC, sitting as a Deputy Judge of the Queens Bench Division, in Braintree District Council v Secretary of State for the Environment [1995] 71 P&CR, 323 reviewing earlier authority, is itself authority for the proposition that the task of interpreting planning permissions is a matter of law on which the conclusion of an inspector can be challenged on an application under section 288.

9. The Inspector summarised his conclusions between paragraphs 22 and 25 of the decision letter in the following terms:-

   "22 My conclusions on the evidence and submissions are;

   The 1949 permission grants permission for residential development in principal on identified plots. A single large plot is identified in the area A –E. The layout suggests that each plot was to be the site of a single dwelling. There have been two dwellings on that large plot following the grant of permission in 1954 (Lamorna) and 1988 (Brackendene). On the basis of that permission there is no justification for any further dwellings.

   23 The 1953 permission shows the Appeal Site as developed land or land sold for development. I find on the balance of probability that the areas identified in red are outside the scope of that planning permission which grants permission for the principal of development on the plots coloured blue.

   24 Should that permission include the Appeal Site and adjacent land, two building plots can be identified. The entitlement to development on these plots has been exhausted in the 1954 and 1988 permissions.

   25 I find the appellant's case to be without substance and the Council's decision to refuse the applications for Lawful Development Certificates to be well founded."

10. The Claimants' attack on the Inspectors conclusions is summarised at paragraph 3.1 of their written submissions as follows:-

    "3.1 In dismissing the appeals the Inspector reached two critical conclusions on the ambit and interpretation of the 1949 and 1953 Consents:

    (1) The planning permissions did not cover those sites identified in red on the application plans; and

    (2) Any entitlement under the permissions was for a single dwelling on each plot.

    In so concluding the Inspector has erred in law."

11. In agreement with the Inspector's conclusion at paragraph 23, and with the submissions of Miss Haynes who appeared for the First Defendant, it seems to me that the 1953 Consent cannot be construed as affecting the planning status of any part of the Appeal Site. Planning permission is given by that Consent by reference to the application plan which is therefore to be incorporated with the Consent and so may be relied on in construing that Consent. The plan shows the whole of the Appeal Site coloured red with the exception of area B the proposed roadway. The key to that plan shows that areas coloured red are "plots already sold as sites for houses or where houses have already been built." This is to be contrasted with areas coloured blue described on the key as "sites to be sold for future building of houses or cottages." It is apparent, therefore, that the applicant for permission was not seeking such permission over land coloured red and, accordingly, the 1953 Consent given by reference to the application plan, which was seeking consent only over land coloured blue on that plan cannot be construed as granting permission to any land other than that which is coloured blue on that plan.

12. Contrary to the submissions of Mr Druce for the Claimants it does not seem to me that the Inspector was doing other than construing the effect of the 1953 Consent and attached plan. He was not establishing any sort of illegitimate "convention" by which that plan was to be construed. He was simply drawing attention to the evident intention of the drawer of the plan to distinguish between land in respect of which planning permission was being sought and land in respect of which no such permission was being sought. It is not in issue that by the time of the 1951 Consent Lady Allen had divided the areas C, D and E into three plots of which D and E ultimately became the plots on which Brackendene and Lamorna were respectively built. She had sold two of the plots by that time. By the time of the 1953 Consent she had sold the remaining plot.

13. It follows, therefore, that if the Claimants are to succeed in establishing entitlement to planning permission for the construction of a house on the remaining undeveloped land of the Application Site they must do so by reference to the 1949 Consent only. That Consent applied only to areas C, D and E. The 1949 Consent excluded areas A and B from any consent, area A being coloured green on the plan and area B being coloured yellow and being reserved for the construction of a road.

14. It is common ground that the 1949 Consent (and also the 1953 Consent) is not to be treated as one which would permit the construction of a house or houses without the obtaining of further planning permission. It is accepted that the District Council as planning authority retained control over the density of any housing and over the design materials etc of any individual houses to be built. The effect of the 1949 Consent, however, required the District Council to permit some residential development of the areas coloured blue. The 1949 Consent was given at a time when the planning system was in its infancy and before the arrival of the concept of "outline" planning permission. It is, however, common ground that this Consent is to be treated as if it was an outline consent. This was also the approach of the Inspector.

15. Areas C, D and E were marked blue on the plan accompanying the 1949 Consent. It was the Inspector's conclusion at paragraph 22 that "the layout plan suggests that each plot was to be the site of a single dwelling" and accordingly, since the plan attached to the 1949 Consent showed area C, D and E as one large plot, that Consent is to be construed as conferring on that plot outline permission for the construction of one house only. The construction of Lamorna exhausted that Consent. The subsequent planning permission for the construction of Brackendene, though inconsistent with the Inspector's construction of the 1949 Consent and his "one house per plot" view, cannot affect how the 1949 Consent is to be construed today. It was Miss Haynes submission that the Inspector's "one house per plot" construction was correct and emerged "unambiguously" from an inspection of the plan accompanying the 1949 Consent.

16. Miss Haynes concedes that the 1949 Consent applied to the Appeal Site excluding areas A and B. Supporting the conclusions of the Inspector, she contended that permission can only have been for the construction of one house on the plot C, D, E. She submitted that the Inspector was right to arrive at this conclusion as a result of the pattern of development shown by the 1949 Consent plan.

17. True it is that the bulk of the buildings shown on the plan are shown contained in their own, sometimes substantial, plots. However this is not universally so. The plan shows two units on a plot fronting on the foreshore to the east of the Appeal Site. When the 1953 Consent plan is examined it seems that the oblong shape roughly drawn on the 1949 plan actually represents five separate houses and that a further house had been constructed on this plot by 1953. The 1949 plan shows two areas, one marked "site for shops and cottages" the other marked "site reserved for farm cottages".

18. The "one house per plot" view of the Inspector requires the conclusion that the fact that the majority, but not all, of the houses shown as having been built on the Bosham estate are shown by the 1949 Consent plan to be enclosed in their own plots, which plan was incorporated in the planning consent, demonstrates that the District Council, in giving consent by reference to that plan, intended only to give permission for the construction of one house per plot of land marked blue on the plan. I am unable to accept that this conclusion necessarily follows from an inspection of the plan.

19. However I take the view, for different reasons, that the Inspector's answer was correct. The 1949 Consent gave, what must be treated, as the equivalent of outline consent for the construction of houses on area C, D and E. The Inspector found that that Consent has been implemented by the construction of Lamorna and Brackendene and thus has not lapsed. The 1949 Consent is to be treated as if an outline consent and so, at the time that the 1949 Consent was given, the District Council must be taken to have retained control over the density of housing to be permitted on that site. However they could not use that control to prevent any residential development. It follows that as a result of the 1949 Consent Lady Allen would have had to return to the District Council for the equivalent of detailed permission. It would have been within the District Council's power to restrict her to one house on the site but they had to give her detailed permission for the construction of that single house. Accordingly as a result of the 1949 Consent the area C, D and E carried planning permission subject to the equivalent of detailed consent, for one house. As a result of the consent for the construction of Lamorna and Brackendene two houses have been built on the site thereby exhausting the 1949 Consent.

20. When I raised this rationale for the "one house per plot" view I was told that the point had not been raised before the Inspector. It was, however, accepted by Mr Druce to be arguable. On further consideration it seems to me to be the only way to give rational effect to the 1949 Consent.

21. It follows that this application must be dismissed.
    - - - - - - - - - - - - - - - - - - - - -

    MR JUSTICE EVANS-LOMBE: In this case I was considering an application pursuant to section 288 of the Town and Country Planning Act 1990 by the trustees of the Stock Family trust to quash the decision of an inspector appointed by the First Secretary of State, given by letter of 15th December 2003, refusing to grant lawful development certificates in respect of certain land at Bosham Hoe near Chichester.

    The case concerned the construction today of a planning consent given in 1949. In the result the inspector dismissed the application for the construction of a further house on the appeal site and in the result I have dismissed the application to quash that decision. Yes.

    MR LASK (COUNSEL FOR FIRST SECRETARY): My Lord, in the light of the judgment, the defendants apply for their costs.

    MR JUSTICE EVANS-LOMBE: Yes. Do you have a costs schedule?

    MR LASK: We have a statement of costs slightly amended from the version which I understand was provided last week at the hearing just to take account of today's costs. May I hand it up?

    MR JUSTICE EVANS-LOMBE: Have you seen that?

    MR DRUCE: My Lord, I have seen that, and there is no challenge to it.

    MR JUSTICE EVANS-LOMBE: Right. (Same handed.) Yes, very well, I will order costs in that amount, to be paid by the applicant.

    MR DRUCE: My Lord, I have an application for leave, which obviously I must make with some not inconsiderable diffidence because I must seek to persuade your Lordship at this late stage that there may have been an error of law in your Lordship's judgment.

    MR JUSTICE EVANS-LOMBE: Yes.

    MR DRUCE: My Lord, in summary, I say that errors have been committed in two important and material respects. In paragraph 11 of the approved judgment your Lordship has found, following the inspector's conclusion at paragraph 23 of the decision-letter, that the ambit of the 1953 consent excluded land shaded red on the application plan.

    MR JUSTICE EVANS-LOMBE: Yes.

    MR DRUCE: Your Lordship will recall that matter. But your Lordship will recall in argument my submission that the condition imposed in the 1953 consent, excluding, by reference to an OS parcel, one of the areas shaded red on that plan, showed that the applicant did not intend, and the decision-maker did not understand, that the permission being sought excluded the red land. Otherwise a condition excluding that red parcel would have been otiose.

    My Lord, the second argument I raise must be in relation to the conclusion in relation to the ambit of the 1949 consent, which your Lordship at paragraph 18 finds does not follow the single plot theory. But in paragraph 19 of your Lordship's judgment it is found that the consents on Lamorna and Brackendene, within the area shown C, D, E on the plan attached to the judgment, exhausted any entitlement under the 1949 consent.

    MR JUSTICE EVANS-LOMBE: Yes.

    MR DRUCE: Your Lordship will recall that in argument that matter was discussed between us.

    MR JUSTICE EVANS-LOMBE: Yes.

    MR DRUCE: I did accept that in principle a decision-maker could come to the view on the merits that those two decisions were as much as the planning authority thought was appropriate by reference to matters of density, character and appearance of the estate and so on, but that, of course, was not the basis for the council's decision, and it does, in my submission, not inevitably follow that those two consents have exhausted any entitlement under the 1949 consent. That is a matter that needs to be taken on the facts of an application; and your Lordship will recall that I mentioned an application for permission could be made, if the council thought that further applications could be made, and if the council came to the view that as a matter of density, character and appearance of the estate and so on, permission should be refused for a third unit in that area, then my clients could appeal through a section 78 appeal and have those merits analysed by the inspector at an enquiry. My Lord, those were matters we discussed in argument and it seems to me those have not been taken into account in your Lordship's judgment. In my submission, with diffidence, that is an error.

    MR JUSTICE EVANS-LOMBE: Yes. Mr Druce, I am going to decline permission. Is there anything else?

    MR DRUCE: No, my Lord.

    Annex 1