England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		4th August 2004

Mr Justice Blackburne:

1. This is an appeal made pursuant to section 289 of the Town and Country Planning Act 1990 ("the 1990 Act") by Markets South West (Holdings) Ltd ("MSW"). The appeal, which is brought with the permission of Sullivan J, is against the dismissal contained in a decision letter dated 24 October 2003 by an inspector appointed by the First Secretary of State of an appeal against an enforcement notice issued by Restormel Borough Council ("the Council") on 29 January 2003. MSW seeks an order quashing the decision with the substantive planning appeal remitted for rehearing and redetermination.

2. The enforcement notice related to a site called Cornish Market World ("CMW") situated at Par in Cornwall, and in particular the covered indoor market situated on the site. CMW, which is run by MSW, operates as an indoor market as part of a non-food retail park (called Stadium Retail Park) off the A3082 on Par Moor Road, about 2½ miles from St Austell town centre. According to the decision letter the retail park has been developed in two distinct phases. The first (with which this appeal is not concerned) comprises two retail undertakings, one called Fairway Furniture and the other No Frills DIY, and a garden centre. The first phase also includes a car park (the North car park) which provides the primary access to the whole development. The second phase is the CMW indoor market on the appeal site which extends to 2.6 hectares. In addition to the indoor market itself, there are on the site a car park (the West car park), offices (for CMW), an outdoor children's play area called Charlie's Adventureland (with adjoining picnic area), a service area and traders' parking. Members of the public wishing to visit the indoor market enter the site via the North car park.

3. The enforcement notice complained of a breach of condition 6 of a planning permission granted on 6 February 1997 stipulating that "the indoor market shall be held on ten days throughout the year, other than Saturdays and Sundays, and on no other days of the week whatsoever". The breach alleged was that the indoor market had been held on more than ten weekdays during 2002. The notice required that use of the land otherwise than in accordance with that condition should cease. It gave 28 days for compliance.

4. The indoor market on the appeal site was developed in two stages resulting in a structure which is rectangular in shape. Initially there was simply an L-shaped building. It was later added to by the construction of an extension within the angle of the L. The L-shaped building was constructed pursuant to an outline planning permission (numbered 91/24/00447) dated 21 June 1991 ("the 1991 OPP") and a reserved matters approval (numbered 91/24/01123) dated 9 September 1991 ("the 1991 RMA"). The extension was constructed pursuant to a detailed planning permission (numbered 94/24/00582) dated 17 October 1994 ("the 1994 Extension permission").

5. The 1991 OPP, granted on a proposal described as the erection of a non-food retail park, was subject to 23 conditions. Condition 12 was in the following terms:

   "12. The items to be sold by retail at or from the land shall be limited to toys, goods associated with a garden centre, goods associated with an auto centre including the self servicing of vehicles and otherwise limited to non food bulky goods (eg Do-it-Yourself goods, furniture, carpets, garden goods, electrical white goods) and any goods the sale of which is ancillary to the before-mentioned bulky goods and any other range of products that the Council may subsequently approve …"

   Condition 12 was the only condition regulating what goods might be sold at or from the land. There was no condition limiting the days on which the market could operate.

6. The 1991 RMA gave approval to a number of detailed matters reserved by the 1991 OPP. It contained 21 conditions, including the following:

   "2. The building hereby approved shall be used solely for the holding of indoor markets and for no other purposes whatsoever …

   3. The indoor markets shall be held solely on Saturdays and Sundays and on no other day of the week whatsoever …

   4. No use shall be made of the building hereby permitted on Mondays - Fridays inclusive without the prior written agreement of the Local Planning Authority …"

7. The 1994 Extension permission, which was a full and not, despite what it says, an outline planning permission, was in response to a proposal described as being "the erection of extension of building to cover existing open air market and surfacing of existing car park". The open-air market had operated within the angle of the L of the existing L-shaped building. It was subject to 20 conditions, including the following:

   "3. The building extension hereby approved shall be used solely for the holding of indoor markets and for no other purposes whatsoever …

   4. The indoor markets in the building extension hereby approved shall be held solely on Saturdays and Sundays and on no other day of the week whatsoever …

   5. No use shall be made of the building extension hereby permitted on Mondays - Fridays inclusive without the prior written agreement of the Local Planning Authority …"

   It is reasonably apparent that these restrictions on the use of the extension were intended to mirror the restrictions contained in conditions 2 to 4 of the 1991 RMA so that the whole of the building, ie the original L-shaped building and, when constructed, the extension, would be subject to the same regime as regards use. (I mention, for completeness, that a part of the extension was later permitted for use as a play area for children in association, as I understand it, with the outdoor, Charlie's Adventureland, facility immediately nearby.)

8. In fact the indoor market functioned not just on Saturdays and Sundays but on other days as well such that, by 1996, it was operated on Good Friday, the four bank holidays (one in April, two in May and one in August) and on 20, 23 and 24 December. It led to a further planning application, dated 11 October 1996, and, on 6 February 1997, the grant (numbered 96/24/01204) of a further planning permission (erroneously described as outline planning) ("the 1997 Permission"). It was granted pursuant to sections 73, alternatively 73A, of the 1990 Act. The application for it had been invited by the Council in order to regularise what the Council considered to be a breach of planning control, namely the holding of indoor markets on days other than Saturdays and Sundays. By a letter dated 4 April 1996, the Council invited MSW to submit a formal planning application on a without prejudice basis for that purpose. The proposal was for "retention of building for retail purposes and construction of car park without compliance with the conditions 3 and 4 of [the 1991 RMA] regarding restriction of days on which the indoor market may be held". The permission thereby granted purported to be "… a grant of permission in lieu of the development granted by the original permission …" namely the 1991 RMA.

9. The 1997 Permission contained seven conditions of which the first four related to the nature and details of the "proposed building(s)" and "development hereby permitted". Condition 5 stated that all except conditions 3 and 4 and 6 of the first 14 of the conditions of the 1991 RMA should continue to apply. (They were all conditions concerned with the construction of the L-shaped building.) It is common ground that, in so stipulating in relation to a development which had already take place, the 1997 Permission was inappropriate.

10. Conditions 6 and 7 provided as follows:

    "6. The indoor markets shall be held on ten days throughout the year, other than Saturdays and Sundays, and on no other days of the week whatsoever …

    7. The Local Planning Authority shall be notified in advance of those days in the year, other than Saturdays or Sundays, on which it is proposed to operate the indoor markets …"

    It is in respect of breaches of condition 6 that the enforcement notice was issued. Condition 6 is clumsily worded. Its intention was not to prevent the indoor markets taking place on any Saturdays and Sundays but on only up to ten weekdays; it was to stipulate how many days, in addition to Saturdays and Sundays, the market might be held. Moreover, the use of "shall" in the condition is inapt: the condition was not requiring, merely enabling, the indoor market to the held on up to ten days throughout the year over and above Saturdays and Sundays. The condition was so understood in both respects both by the Council and by MSW.

11. It is common ground that, starting on 30 May 2001, MSW began holding indoor markets on Wednesdays so that there came a point later that year when the extra ten days had been exhausted and the terms of condition 6 began to be broken. This continued into 2002 in that indoor markets were held on every Wednesday on and after 3 April of that year. This resulted in the issue on 29 January 2003 of the enforcement notice.

    The decision letter

12. The appeal was on the grounds set out in section 174(2)(a), (b), (c), (d), (f) and (g) of the 1990 Act. An inquiry took place during September 2003. During the inquiry the appeal on ground (d) was abandoned.

13. In his decision letter, the inspector dealt first with the appeal on grounds (b) and (c) with which this further appeal is concerned. Having summarised the cases on each side, the inspector set out his conclusions in paragraphs 16 to 24. He found that the matters alleged in the enforcement notice had occurred (ground (b)), that those matters represented a breach of planning control (ground (c)) and, accordingly, that the appeal failed on those two grounds.

14. The inspector then dealt with the appeal on ground (a) which was a deemed planning application to vary condition 6 of the 1997 Permission to enable the indoor market to trade for 52 Wednesdays in each year in addition to the existing ten weekdays and Saturdays and Sundays and, as such, was an application under section 73(2)(c) of the 1990 Act. The inspector dealt at some length with the appeal on this ground and concluded (at paragraph 76) that year-round Wednesday trading would have an adverse impact on the vitality and viability of St Austell town centre and could prejudice an impending town centre regeneration scheme, while having a detrimental effect on highway safety and the free flow of traffic on the local road network. For these reasons the appeal under paragraph (a) was held to have failed and, accordingly, planning permission was not granted on the deemed planning application.

15. He dismissed the appeal under ground (f) by finding that the steps required by the enforcement notice did not exceed what should reasonably be required. He allowed the appeal under ground (g) to the extent of varying the enforcement notice by increasing the period for compliance to eight weeks from the date of the decision letter. He rejected a Human Rights Act submission by MSW based on article 1.

16. In the result therefore, subject to making a small correction to the enforcement notice and substituting a new plan for the plan attached to the notice, he dismissed the appeal, upheld the enforcement notice and refused planning permission on the deemed planning application.

    This appeal

17. So far as material to this appeal, the relevant passages in the decision letter are as follows:

    "16. The main issues on these grounds are whether Condition 6 on the 1997 permission … was reasonably imposed at the time and whether or not a material breach of that condition has occurred. The starting point is the [1991] OPP … for the erection of a non-food retail park on the Phase 2 site. Apart from the standard reserved matters conditions, this permission imposed a range of specific conditions relating, amongst others, to the range of goods to be sold by retail. There are no conditions restricting the days or hours of opening nor the type of retail unit. The [1991] RMA … should only grant approval on the matters reserved on the OPP and together they constitute the planning permission, even though the development may not have taken up the full potential retail area granted at outline stage. While I accept that conditions may be imposed on The RMA, they can only relate to the matters concerned and must not derogate from the terms, and conditions of the outline permission (Newbury).

    17. The RMA was submitted simply for the erection of a building for retail purposes and construction of a car park with no reference to an indoor or outdoor market. Conditions 2-4 restrict the unfettered retail use granted in outline and are, thereby, more onerous than the conditions on The OPP, so they should have been imposed at that time. On the other hand, Condition 11 is more lenient in allowing 10% of the stalls to sell food. … As an indoor market is a Class A1 retail use, there was no in principle conflict with The OPP, the terms of which were otherwise unaffected, including the range of goods imposed by Condition 12 because that allows the Council to approve any other range of products.

    18. There is no dispute that the planning unit has remained unchanged so, under the Newbury judgement, the appellants could not have lost their existing user rights by implementing a later planning permission. In my opinion, this applies both to rights established over time and those granted by an earlier planning permission, so the unfettered OPP would have allowed 7 day retail use on this site. …

    …

    20. While I recognise the Council's concerns over permitting an unfettered market use on this site, Conditions 2-4 of The RMA do not go to the root of The OPP and are more restrictive. They must therefore fail the tests of necessity and reasonableness in Circular 1/85 and, in my judgement, are thereby invalid and severable from The MA. However, the appellants have been operating a market on the site since 1991 under the terms of those conditions which have clearly suited their retail use of the site.

    21. It is common ground that the [1994] Extension permission … is a separate stand-alone planning permission for an extension to the market beyond what was granted previously and, in my opinion, once implemented it represented a new chapter in the planning history of the whole Phase 2 site. Notwithstanding their doubtful provenance, it seems to me that there was therefore nothing to prevent the Council from imposing restrictive conditions on the market use, so they remain valid. By erecting the extension, the appellants have taken the benefit of this later permission and must accept the conditions that go with it.

    22. Turning to the 1997 permission … I acknowledge that this was submitted at the behest of the Council in an attempt to regularise the situation that was taking lace on site. In paragraph 27 of his proof of evidence (Doc 7) Mr Gorvin states that "since CMW opened in 1991, we have established a number of recognised market days. These are Saturdays, Sundays, Good Friday, all Bank Holidays and extra trading days at Christmas." The purpose of the 1997 application was clearly to bring all the previous permissions into line by recognising that CMW had been trading or more than just Saturdays and Sundays. While I understand Mr Newcombe's submissions that the 1997 permission may not have been implemented because of the invalidity of The RMA restrictive conditions, this would not apply because it relates to the implemented Extension permission rather than The RMA and was, in any event, retrospective. Therefore, once the new 1997 permission was granted, it was implemented because the market had already been trading within the terms of Condition 6 which would have immediately become effective.

    23. Notwithstanding the incorrect description on the 1997 approval notice and the inappropriate imposition of conditions 1-4, in my view, it was in fact a FULL application albeit that it could no longer be regarded as being for continuing the market use without complying with Conditions 3 and 4 on The RMA. A separate planning permission was granted with a new Condition 6 which requires the market to "be held on ten days throughout the year, other than Saturdays and Sundays, and on no other days of the week whatsoever." I therefore conclude that this is a new stand alone permission specific to a market use on the whole Phase 2 site, as shown on the application plan, and it therefore opened a further chapter in the planning history of the site.

    24. At the inquiry, Mr Gorvin explained that the Wednesday market first started trading in May 2001 for a trial period and, due to its popularity, it has continued ever since. While some Wednesdays could have been regarded as the 10 extra days permitted by Condition 6 on the 1997 permission, continuous Wednesday trading for a period of 19 months far exceeded that restriction. Therefore, at the time the notice was issued on 29 January 2003, Condition 6 had been breached and the matters alleged in the notice had occurred as a matter of fact. As the 1997 permission has been found to be free-standing and the terms of Condition 6 have been varied without the necessary planning permission, it follows that the matters alleged in the notice also constitute a breach of planning control. The appeals on grounds (b) and (c) therefore fail."

    References hereafter to paragraphs are to paragraphs in the decision letter.

18. MSW's appeal proceeds on the basis of the inspector's conclusion, contained in paragraphs 16 to 20, that conditions 2 to 4 of the 1991 RMA were (a) invalid and (b) severable. (For the purposes of this appeal only, the Council accepts that conclusion but reserves the right to contend, if the appeal succeeds, that those conditions are not capable of being severed and that the inspector's decision in this regard is flawed.) For MSW, Mr Newcombe who, like Mr Findlay representing the Council, had appeared before the inspector at the inquiry, submitted that it followed from that conclusion that, upon the grant of the 1991 RMA and the construction of the L-shaped building (with which the 1991 OPP and 1991 RMA were alone concerned), it was lawful to hold indoor markets in the L-shaped building without restriction as to the days of the week on which trading could occur. Mr Newcombe referred to this unrestricted right of use as "the L rights", as shall I.

19. On the basis of that position, Mr Newcombe submitted that the following seven issues arose on MSW's appeal:

    i) Did the inspector err in law in his identification of the relevant legal issues?

    ii) Did implementation of the 1994 Extension permission remove the L rights and impose restrictions on the days on which indoor markets could be held in the L-shaped building?

    iii) Did the inspector err in law in concluding that conditions 3 to 5 of the 1994 Extension permission were valid?

    iv) Did the inspector err in law in (1) concluding that the effect of the 1997 Permission, when implemented, was to preclude reliance by MSW on pre-existing rights as regards the L-shaped building and the extension in respect of the holding of indoor markets without restrictions as to days of opening; (2) concluding that the 1997 Permission had been implemented; and (3) failing to consider whether condition 6 was valid?

    v) What is the ambit of the 1997 Permission?

    vi) Did the inspector err in law in his approach to whether planning permission (under ground (a)) should be granted for (a) the L-shaped building and (b) the extension?

    vii) Did the inspector err in law by virtue of the (lack of) reasons he gave?

    Did the inspector err in law in his identification of the relevant legal issues?

20. This is a criticism directed at the first sentence of paragraph 16 identifying as the main issues whether condition 6 of the 1997 Permission had been reasonably imposed and whether or not a material breach of that condition had occurred. Mr Newcombe submitted that that formulation ignored antecedent questions (as identified in some of the other issues as set out above). He submitted that this failure meant that the inspector necessarily erred in law and in a material way with the result that his subsequent consideration of the other issues was tainted and distorted.

21. I consider this to be a criticism without foundation. Either the inspector dealt adequately with the issues that arose or he did not. Whether he did or did not does not depend on whether he correctly identified the "main issues". This is quite unlike the case where an incorrect view of the facts or of a matter of law has inhibited the decision maker's ability properly to evaluate some other related fact or issue.

    Did implementation of the 1994 Extension permission remove the L rights and impose restrictions on the days on which indoor markets could be held in the L-shaped building?

22. Relevant to this issue was the inspector's conclusion at paragraph 21 where, having referred to the 1994 Extension permission as "a separate stand-alone planning permission for an extension to the market beyond what was previously granted", he said that "once implemented it represented a new chapter in the planning history of the whole Phase 2 site". That conclusion, said Mr Newcombe, gave rise to two separate questions: (1) did implementation of the 1994 Extension permission result in a new chapter in the planning history of the whole site? and (2) assuming it did, what was the effect of conditions 3 to 5 of the 1994 Extension permission?

23. On the first question, Mr Newcombe submitted that the inspector was wrong to conclude that implementation of the 1994 Extension permission resulted in a "new chapter" in the planning history of the whole site (including, in particular, the L-shaped building). He referred me to the well-established principle which comes into play where incompatible planning permissions exist for the development of the same area of land. Whether in such a case the development permitted under permission A may lawfully be carried out where permission B has been implemented turns simply on whether it is any longer physically possible to carry out the development in accordance with the terms of permission A. If it cannot, permission A is no longer valid. See Pilkington v Secretary of State for the Environment [1973] 1 WLR 1527 at 1532 and Staffordshire County Council v NGR Land Developments Ltd [2002] EWCA Civ 856 at 88. The principle applies also, he reminded me, where a development takes place which is inconsistent with a pre-existing established use. Where the development is inconsistent with the established use, the established use is terminated or removed. See South Staffordshire DC v Secretary of State for the Environment [1997] JPL 635 at 641.

24. The logic of the cases which establish that principle, said Mr Newcombe, applies equally to conflicting uses. Thus, in a proposal to use part of a larger site for a "new" use, it is only where the "new" use, if exercised, is physically incapable of coexisting with the earlier use that there is a sufficient inconsistency for a new chapter in the planning history to arise in respect of the whole of the site. Applying that principle to the instant case, he pointed out that the L-shaped building had the benefit of planning permission for an indoor market without restriction as to days and hours of opening. (Using his terminology it had the benefit of the L rights.) In contrast, the extension was constructed pursuant to the 1994 Extension permission, which granted consent for the operation of an indoor market on that part of the site. He submitted that, notwithstanding that the 1994 Extension permission was granted subject to conditions as to days and hours of opening, it was not inconsistent with the planning permission granted (under the 1991 OPP and 1991 RMA) in relation to the L-shaped building. This was because (a) both permissions were for the operation of an indoor market, (b) it was not physically impossible to implement the 1994 Extension permission and use the extension for the purposes of an indoor market with restricted hours of opening while at the same time retaining use of the L-shaped building as an indoor market without restricted hours of opening and (c) there was no other inconsistency in any relevant sense. The effect of implementing the 1994 Extension permission was to extend the L-shaped building over the hitherto unbuilt-on area used for outdoor markets. Construction of the extension involved no change of use. The overall area remained in retail use throughout and no question of inconsistency of use arose.

25. Against that background, he submitted that the inspector's conclusion in paragraph 21 that "the extension permission … once implemented … represented a new chapter in the planning history of the whole Phase 2 site" involved a failure to apply the appropriate test of consistency. It was a conclusion which was not available to him on the evidence.

26. Coming to the second of the two questions and even assuming that, by erecting the extension, a new chapter in the planning history had arisen for the whole site, Mr Newcombe submitted that it was necessary to consider the effect of conditions 3 to 5 of the 1994 Extension permission. As to that, the inspector stated at paragraph 21 that "… By erecting the extension, [MSW] have taken the benefit of this later permission [ie the 1994 Extension permission] and must accept the conditions that go with it". Assuming that those conditions were valid (a matter dealt with by the next issue), they were only expressed to relate to "the building extension hereby approved", namely the extension. It follows, said Mr Newcombe, that even if the inspector was correct in law in holding that the L rights had been terminated, the 1994 Extension permission effected no alteration to the use of the L-shaped building and conditions 3 to 5 of that permission imposed no restriction on days of opening as regards that building. Thus, irrespective of any question of a new chapter in the planning history, the L-shaped building remained free of restriction as to the days on which indoor markets might be held.

27. Mr Newcombe's argument assumes that by using the expression "a new chapter" the inspector was intending to say that the effect of implementing the 1994 Extension permission was to sweep away any existing user rights, in particular the L rights affecting the L-shaped building. If that is indeed what the inspector had thought, Mr Findlay accepted that he would have been wrong in law and his decision liable to be quashed. But Mr Findlay submitted, and I agree, that the inspector was not using the phrase in that sense. The whole tenor of the decision letter shows that the inspector assumed that the L rights continued in being. In paragraph 18 he stated that "there is no dispute that the planning unit has remained unchanged so, under the Newbury judgment, [MSW] could not have lost their existing user rights by implementing a later planning permission". The inspector could not have written that if he had not thought that the L rights continued. Nor could he have referred (in his discussion of the appeal under ground (a)) to the possibility that the market building might "revert to a standard retail unit" (see paragraph 72) or to a recognition of MSW's right "to benefit from the retail use granted by the [1991] OPP …"(see paragraph 82) if he had thought otherwise.

28. Mr Findlay submitted that, having concluded in paragraph 20 that conditions 2 to 4 of the 1991 RMA were invalid but severable (and therefore that the L-shaped building enjoyed the right to "unfettered market use"), what the inspector was considering in paragraph 21 (and in the next two paragraphs) was the impact on such unfettered right of the conditions attached to the 1994 Extension permission and to the 1997 Permission. To do that it was necessary to decide whether the permissions in question had been implemented; if they had not, any conditions attached to them would not bite. That the 1994 Extension permission had been implemented (by the construction of the extension) was not in issue. That the 1997 Permission had been implemented was in issue. It was also necessary, he said, for the inspector to determine whether the express conditions restricted existing user rights. It was in that sense, submitted Mr Findlay, that the inspector considered the question of a "new [or further] chapter in the planning history" of the site. I agree.

29. It is important, Mr Findlay submitted, not to treat the expression "a new chapter in the planning history" as if it inevitably implied that previous rights are swept away. The expression, which is judicial in origin and not statutory, carries no such necessary implication. In South Staffordshire DC v Secretary of State for the Environment, Glidewell LJ referred (at 639) to the phrase "the new planning unit" as being what he described as "another piece of shorthand". He explained its meaning as follows:

    "If planning permission was granted for development, the carrying out of the permitted development may be incompatible with the continued use of the land or buildings for the purposes of a previous lawful or established use. It was then said that the carrying out of the permitted development created a 'new planning unit' which had no lawful or established use except the use or uses which the permission itself authorised."

    But, as that very case demonstrated (see page 641), the fact that, as the Court of Appeal found (see page 640), there was a "new chapter in the planning history" when a building was erected pursuant to a planning permission granted subject to a condition which was restrictive of existing user rights affecting certain adjoining open land, did not carry with it the consequence that those rights were thereby lost.

30. In any event, said Mr Findlay, the Council did not quarrel with the principles on which Mr Newcombe relied. The Council, he pointed out, has never suggested that there was an inconsistency between the L rights and those granted by the 1994 Extension permission.

31. As to the effect of the conditions attached to the 1994 Extension permission, the inspector's position, he said, was clear: the matter is dealt with in the last sentence of paragraph 21. There, the inspector was not saying that the conditions affected the whole of the building but merely the extension itself. That was because, as the inspector pointed out, having taken the benefit of the 1994 Extension permission by constructing the extension, MSW was obliged to accept the conditions that went with it.

32. I agree with Mr Findlay's analysis of what the inspector said. In my judgment, the inspector was stating in paragraph 21 no more than that the Council was entitled by the 1994 Extension permission to subject that part of the site to which it related to conditions restrictive of user, that such conditions were valid and that, by erecting the extension, MSW had taken the benefit of the permission and was subject therefore, as regards the extensions, to the conditions that went with it. He did not find - and fairly read the decision letter cannot be properly understood to mean - that the right to unfettered market use of the L-shaped building was lost or otherwise affected by implementation of the 1994 Extension permission. Subject only to the question of the validity of the conditions (with which the next of the seven issues is concerned) the inspector's conclusions in that paragraph, and the process of reasoning by which he reached them, are not open to challenge.

    Did the inspector err in law in concluding that conditions 3 to 5 of the 1994 Extension permission were valid?

33. In paragraph 21 the inspector stated, with reference to conditions 5 to 5 of the Extension permission, that:

    "Notwithstanding their doubtful provenance, it seems to me that there was therefore nothing to prevent the Council from imposing restrictive conditions on the market use, so they remain valid."

34. Mr Newcombe submitted that the correct context for considering the validity of the conditions attached to the 1994 Extension permission was that the existing L-shaped building was free from restrictions as regards days of trading. The Council, however, when imposing conditions 3 to 5 of the 1994 Extension permission, had assumed, wrongly, that it was replicating for the extension the similar conditions already validly binding the L-shaped building, whereas, in fact, the holding of indoor markets within the L-shaped building was not so restricted. The effect of the conditions was, he submitted, to create a fundamental and unjustified hiatus between the two parts of the building ie between the L-shaped building (subject to no restrictions) and the extension (subject, if valid, to the restrictions set out in conditions 3 to 5). That hiatus, he said, invalidated the conditions and the inspector ought so to have concluded.

35. I do not agree. As Mr Findlay submitted, the inspector was not judicially reviewing the process whereby the Council reached its decision to impose conditions 3 to 5 as conditions for the grant of the 1994 Extension permission. The question simply was whether the conditions as actually imposed were valid, ie (1) were imposed for a planning purpose, (2) fairly and reasonably related to the development permitted and (3) were not so unreasonable that no reasonable planning authority would have imposed them. See Newbury DC v Secretary of State for the Environment [1981] AC 578. Measured against those requirements, the inspector was entitled to come to the view that the conditions were validly imposed. The conditions were imposed for a planning (as distinct from some ulterior) purpose: the reasons for imposing them were expressed to be to secure satisfactory development and in the interests of local amenities. Indeed, it has not been suggested that they were not imposed for a planning purpose. The conditions clearly related to the development proposed; it has not been suggested that they were intended to affect any other development. It cannot be said that, in nature and effect, the conditions were so clearly unreasonable that no reasonable planning authority could have imposed them. They were imposed for the same reasons that the equivalent conditions in the 1994 RMA were imposed. The fact that the inspector has found that those equivalent conditions were invalidly imposed and the fact, if fact it be, that when imposing them, the Council assumed that the equivalent conditions affecting the L-shaped building were valid and that it intended to reflect those conditions in the conditions to be attached to the grant of planning permission for the extension does not mean that its decision to impose them should be viewed as perverse and that the inspector should have so concluded.

36. Mr Newcombe also submitted that it was evident from correspondence passing between a representative of MSW and an officer of the Council subsequent to the grant to (and implementation by) MSW of the 1994 Extension permission that the Council recognised that conditions 3 to 5 constituted an unnecessary restriction and did not fairly and reasonably relate to the development permitted by the 1994 Extension permission. Suffice it to say that I do not so view the correspondence but, in any event, it cannot be permissible to consider the validity of a planning condition by reference to the views expressed many months after the event in a letter from a planning officer to a representative of the developer.

37. Nor does the inspector's reference to the "doubtful provenance" of conditions 3 to 5 point to some error of law on his part. That reference is merely an acknowledgement by the inspector that the conditions reflected the equivalent conditions in the 1991 RMA which, as he had just found, were invalid. They were invalid not because they were conditions which could not validly have been imposed but because they were in conflict with the unrestricted terms (in that respect) of the earlier 1991 OPP.

    Did the inspector err in law in (1) concluding that the effect of the 1997 Permission, when implemented, was to preclude reliance by MSW on pre-existing rights as regards the L-shaped building and the extension in respect of the holding of indoor markets without restriction as to days of opening; (2) concluding that the 1997 Permission had been implemented; and (3) failing to consider whether condition 6 was valid?

38. At issue here are the validity and effect of the 1997 Permission and condition 6 in particular. Condition 6 properly construed (see paragraph 10 above of this judgment) confined the use of the L-shaped building and extension (ie the overall building) to use as an indoor market on Saturdays and Sundays and up to ten week days in each year. The questions that arise are (1) whether it was open to the Council, by condition 6, so to confine use of the overall building, (2) even if it was, whether the 1997 Permission had been implemented and (3) whether, in any event, condition 6 was a valid condition.

    What is the ambit of the 1997 Permission?

39. Before turning to those matters, there is an antecedent matter to which I should refer. It is identified as issue 5 in the list of seven issues referred to in paragraph 19 above. That is whether, given its terms, the 1997 Permission was confined to the L-shaped building. This possibility was raised by Sullivan J at the permission hearing.

40. The application which had led to the grant of the 1997 Permission had been invited by the Council. (See paragraph 8 of this judgment.) It is common ground that MSW and the Council intended, at the time the application was made, that it - and any permission granted on it - should apply both to the L-shaped building and to the extension and that they so conducted themselves thereafter. The appeal before the inspector was conducted by the Council on the footing that the 1997 Permission governed both the L-shaped building and the extension. That was also MSW's primary position. The inspector approached the 1997 Permission on the footing that it applied both to the L-shaped building and the extension.

41. The 1997 Permission is undoubtedly clumsily worded: I have already commented on the inapt wording of condition 6. See paragraph 10 of this judgment. The permission recites the relevant proposal as "Retention of building for retail purposes". It is not clear, looking simply at the permission, to what building it relates. Looked at out of context and focusing purely on other references in the permission, it might be thought that it relates simply to the L-shaped building. But, seen in context (not least the basis upon which the application was made), it would be wrong to approach it on that narrow footing. I therefore proceed on the basis that, as everyone assumed, the 1997 Permission affected both the L-shaped building and the extension.

    The inspector's treatment of the 1997 Permission

42. The starting point for the first element of MSW's attack on the inspector's treatment of the 1997 Permission was the proposition, which Mr Newcombe submitted was to be derived from Newbury, that, notwithstanding the acceptance or even implementation of a later planning permission, a developer may continue to rely on a pre-existing right to carry on a given use save where a new planning unit arises. Or as Lord Fraser of Tullybelton put it (see Newbury at 606E): "The only circumstances in which existing user rights are lost by accepting and implementing a later planning permission are, in my opinion, when a new planning unit comes into existence …". The next step in the argument was that, as the inspector had accepted (see paragraph 18), the planning unit in question remained unchanged with the result that (in accordance with Newbury) the L rights (and similar rights in respect of the extension) were not extinguished or terminated by any implementation of a later planning permission (in particular the 1997 Permission) and that that was so whether the existing user rights were rights established over time or (as here) rights granted by an earlier permission. No new planning unit was created by the 1997 Permission; it did not sanction some operational development or use different from that under the 1991 OPP and 1991 RMA or under the 1994 Extension permission; any implementation of the 1997 Permission involved no act of development. Indeed, although the 1997 Permission was a stand-alone permission, its effect was merely to substitute a new condition (condition 6) purportedly to govern the days of opening of the existing overall building. The third step in the argument was to the effect that in any event it was unclear what rights as regards use of the overall building the inspector understood to have existed immediately prior to the grant of the 1997 Permission; he had either (wrongly) ruled out the survival of any relevant rights or if there were any which he regarded as having survived it is not clear precisely what they were. The result, so it was submitted, was that the inspector's consideration of the effect of the 1997 Permission proceeded from a legally flawed basis.

43. The second limb of the attack on the inspector's treatment of the 1997 Permission was concerned with implementation of that permission. It focused on the following sentences in paragraph 22:

    "While I understand Mr Newcombe's submissions that the 1997 permission may not have been implemented because of the invalidity of the RMA restrictive conditions, this would not apply because it relates to the implemented Extension permission rather than the RMA and was, in any event, retrospective. Therefore, once the new 1997 Permission was granted, it was implemented because the market had already been trading within the terms of condition 6 which would have immediately become effective."

44. Mr Newcombe submitted that the first of those two sentences amounted to a recognition by the inspector that a consideration of whether the 1997 Permission had been implemented involved having regard to whether there were any relevant pre-existing rights to hold indoor markets without restrictions as to days of the week. But the second sentence disclosed an error of law by the inspector, namely his assumption that merely because continued trading fell within condition 6 that was, of itself and irrespective of whether it also fell within any pre-existing use rights, sufficient to determine whether the 1997 Permission had been implemented. He submitted that the inspector's consideration of whether there had been implementation was invalidated by the earlier flaws in his analysis of the effects of the 1991 OPP and 1991 RMA and of the 1994 Extension permission in that he had proceeded on the legally flawed basis that no such pre-existing use rights remained by the time of the grant of the 1997 Permission. Whereas, in truth, said Mr Newcombe, it was only if and to the extent that there were no relevant pre-existing use rights it would be possible to justify the conclusion that the 1997 Permission was implemented. Relevant to this was that MSW did not alter its practices as a result of the grant of the 1997 Permission; it had held indoor markets at the appeal site on days other than Saturdays and Sundays prior to the granting of that Permission and continued to do so afterwards.

45. The third limb of the attack on the 1997 Permission focused upon the validity of condition 6. In this regard, Mr Newcombe submitted that, insofar as the 1997 Permission was predicated on the validity of the earlier conditions (ie the conditions attaching to the 1991 RMA and the 1994 Extension permission) and on whether the use of the overall building should be permitted to continue without compliance with those conditions, the Council necessarily proceeded on a legally flawed basis. This was because the Council proceeded on the assumption that there were restrictions on the days of trading which affected the whole of the building. As with the relevant conditions attached to the 1994 Extension permission, condition 6 did not, even to that extent, fairly or reasonably relate to the development permitted and/or was Wednesbury unreasonable. The resulting condition 6, he submitted, was invalid to the extent that there were relevant pre-existing rights but in any event the inspector did not turn his mind to this question.

46. I hope I have accurately summarised Mr Newcombe's argument.

47. Although paragraphs 22 and 23 are not happily worded - and have provided Mr Newcombe with plenty of scope for forensic attack - I am of the view that the inspector's reasons for concluding that the 1997 Permission was (a) valid (in effect that condition 6, which is in substance all that the 1997 Permission achieved, was reasonably imposed) and (b) implemented are adequately stated and not open to justifiable challenge.

48. A fair reading of those two paragraphs discloses that the inspector approached the matter on the following footing: first, that, as a consequence of his earlier finding that conditions 2 to 4 of the 1991 RMA were invalid but severable, the L-shaped part of the market building was subject to no restriction on days of use whereas the extension part was subject to restrictions, namely those set out in conditions 3 to 5 of the 1994 Extension permission; secondly, that by the time that the 1997 Permission was applied for the market was being traded on days additional to those permitted under the terms (to the extent that they were valid) of the relevant restrictive conditions; and, thirdly, that the Council's aims were (a) "to bring all the permissions into line" (so that both parts of the market building would be subject to the same user regime) and (b) "to regularise the situation that was taking place on site" (by relaxing the terms of the existing restrictions to enable trading lawfully to take place on a number of days additional to Saturdays and Sundays).

49. I am quite unable to see why the Council could not lawfully have granted the 1997 Permission, in particular the imposition of condition 6, with a view to achieving those two aims. It is true that the effect of condition 6 was, as regards the existing user rights - unrestricted as to days - enjoyed by the L-shaped part of the market building, to curtail those rights in accordance with the terms of the condition. Mr Findlay submitted that it is trite law that a condition may have such an effect. He submitted that that was assumed to be so, inter alia, in Jennings Motors Ltd v Secretary of State for the Environment [1982] 1QB 541 at 557D (Oliver LJ) and in the South Staffordshire DC decision (see pages 640 to 641) and that there was nothing in Newbury to say that it may not. I agree. I see no reason in principle why a condition may not have that effect. I do not accept Mr Newcombe's submission that such a condition is contrary to anything stated in Newbury.

50. That brings me to whether the 1997 Permission was implemented.

51. The inspector recognised, in the infelicitously worded fifth sentence of paragraph 22, that because the restrictive conditions in the 1991 RMA were invalid (with the result that, as regards the L-shaped part of the market building, there was no restriction on days of trading) it might be said that, as regards that part, the 1997 Permission had not been implemented. But, equally, he was alive to the fact that the position as regards the extension was different. As Mr Findlay submitted, the effect of the 1997 Permission was to relax the controls on days of use as regards the extension but to increase those controls as regards the remainder. The vital point to bear in mind, he submitted, was that the mode of operation recorded by the inspector in paragraph 22 (that is, that the market was opening on days additional to Saturdays and Sundays) was in breach of the conditions attached to the 1997 Extension permission and, hence, with regard to the extension at least, was unlawful. The significant point, he said, was that in a material respect the 1997 Permission allowed a relaxation of the restrictive conditions on days of use so far as they affected a significant part of the overall building. From this it followed, he submitted, that insofar as the mode of use, namely operating the market on days additional to Saturdays and Sundays, continued after the grant of the 1997 Permission, that permission was implemented as regards that part of the building. The inspector's finding in the last sentence of paragraph 22, that the 1997 Permission had been implemented was one therefore which the inspector was entitled to reach. That being so, the 1997 Permission thereafter regulated the terms upon which, as regards days of operation, the whole of the building could thereafter be operated.

52. In my judgment, Mr Findlay's analysis of the position is correct. The inspector was, accordingly, correct to come to the conclusion that the 1997 Permission had been implemented and that it thenceforth governed the terms upon which, as regards days of use, the whole of the phase 2 site could thereafter be operated. In the last sentence of paragraph 23, the inspector observed that the 1997 Permission "opened a further chapter in the planning history of the site". In so stating, the inspector was not implying that, with the implementation of the 1997 Permission, a new planning unit was created (in the sense in which that expression had been explained in the South Staffordshire DC decision); the inspector had earlier (in paragraph 18) recorded that there was no dispute that the planning unit remained unchanged. Rather, as with the similar reference in paragraph 21, he was stating no more than that a new stage in the planning history of the site had been reached, as indeed it had.

53. As to the validity of condition 6, it is true that the inspector does not go into the issue. But that is hardly surprising. At paragraph 12, in a passage summarising the Council's contentions, he recited that MSW's agents had written to the Council on 10 October 1996 (the letter accompanied the application which led to the grant of the 1997 Permission) explaining their (ie MSW's) intention to vary condition 3 and 4 of the 1991 RMA to allow the market to operate on no more than ten extra days per annum. It pointed out that they were happy to accept "a condition on this variation" and that they would inform the Council of the days when they intended to open. The letter was in evidence before me. In these circumstances, it comes ill from MSW to complain that the condition of the permission giving effect to this arrangement was invalid.

54. In any event, I am quite unpersuaded that the imposition of condition 6 to achieve this purpose did not satisfy the three tests for the lawfulness of a condition summarised in Newbury (and referred to above) or that there exist other grounds for questioning its validity.

    Did the inspector err in law in his approach to whether planning permission (under ground (a)) should be granted for (a) the L-shaped building and (b) the extension?

55. This is a reference to the deemed planning application to vary condition 6 of the 1997 Permission to enable the market to trade for 52 Wednesdays in each year in addition to the ten weekdays over and above Saturdays and Sundays allowed by condition 6. The matter was dealt with in paragraphs 25 to 76 and resulted, as I have already mentioned, in the dismissal of the appeal under ground (a) and, accordingly, a refusal to grant planning permission on the deemed planning application.

56. This issue only arises if the inspector was wrong in his conclusions concerning the effect of the earlier permissions, in particular the validity and effect of the 1997 Permission. Since I have found that he was not in error, it follows that this issue does not arise.

    Did the inspector err in law by virtue of the (lack of) reasons he gave?

57. Mr Newcombe submitted that throughout paragraphs 16 to 24 the inspector's analysis of the legal issues is opaque and his reasoning inadequate to the point, in places, of amounting to an absence of reasons.

58. The House of Lords has very recently - indeed since argument on this appeal was concluded - summarised the proper approach to a reasons challenge in the planning context. In South Bucks District Council & anr v Porter (? 2) [2004] UKHL 33 at [36], Lord Brown said this:

    "The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration … Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

59. The only identified respect in which the decision letter is criticised was the inspector's statement, in the first sentence of paragraph 21, that the implementation of the 1994 Extension permission "represented a new chapter in the planning history of the whole Phase 2 site". As it happens, it is solely because of that one sentence, in particular the inspector's failure to explain adequately why he reached that view when at paragraph 18 he had stated, following Newbury, that MSW could not have lost its existing user rights by implementing a later planning permission, that the First Secretary of State, who is the first defendant, was willing to consent to this appeal being allowed and the decision being remitted for re-hearing and a fresh determination.

60. I have dealt with that criticism of the decision letter and explained how, reading the decision letter as a whole, it is clear that the inspector could not have intended by that expression of opinion the meaning which Mr Newcombe sought to attribute to it, even if it is not altogether clear what the inspector did mean other than that, once implemented and given the restrictive conditions as to user which it contained, the 1994 Extension permission did represent a new stage in the planning history of the overall Phase 2 site. I am certainly not persuaded that that one remark justifies my quashing the decision and remitting the matter for re-hearing and a fresh determination.

61. It is possible to criticise other passages in the decision letter, for example the (to my mind) somewhat ill-worded last two sentences of paragraph 22. But, mindful of the correct approach to a reasons challenge so clearly stated by Lord Brown in South Bucks DC (? 2), I am not persuaded that MSW has been substantially prejudiced by any inadequacies, including in particular the first sentence of paragraph 21, of the decision letter.

    Result

62. The appeal fails.
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    MR JUSTICE BLACKBURNE: For the reasons set out in the written judgment the appeal fails. I am sorry there has been such a mix up as to where this hearing was going to take place.

    MR FINDLAY: Much obliged, my Lord. This court is certainly cooler than the first court.

    MR JUSTICE BLACKBURNE: Yes, although you are probably feeling hot having come all the way over from court 10 to here.

    MR FINDLAY: My Lord, I am grateful to your Lordship for your Lordship's judgment. I would simply ask that the appeal be dismissed. My learned friend and I have been able to agree the order as to costs.

    MR JUSTICE BLACKBURNE: Yes.

    MR FINDLAY: Would your Lordship make an order for costs in the second respondent's favour in the sum of £13,145.

    MR JUSTICE BLACKBURNE: That is agreed, is it?

    MR NEWCOMBE: My Lord, yes.

    MR JUSTICE BLACKBURNE: Yes, I will do that.

    MR FINDLAY: Thank you, much obliged.

    MR JUSTICE BLACKBURNE: Anything else?

    MR NEWCOMBE: My Lord, there is one other matter. My Lord, as you will appreciate my client, for obvious reasons, only learnt the substance of the decision a short while ago and will be considering that in the light of such advice as his legal team can offer him.

    MR JUSTICE BLACKBURNE: Yes.

    MR NEWCOMBE: Your Lordship will also be aware that special rules apply to second appeals and the reference is CPR 52.13.

    MR JUSTICE BLACKBURNE: Yes.

    MR NEWCOMBE: I entirely acknowledge that there is a higher burden to be cleared in getting that necessary permission to appeal from the Court of Appeal. The timescales are set out at 52.4 which requires in normal circumstances the appellant to seek permission from the Appeal Court by making that clear in any appeal notice and the time limit is 14 days in normal circumstances.

    MR JUSTICE BLACKBURNE: Yes.

    MR NEWCOMBE: Your Lordship will recall that there is, in the supporting text in the White Book, indications of circumstances where it may be appropriate to consider extending that, which include and I read "another example may be that a national holiday period is about to begin".

    MR JUSTICE BLACKBURNE: A national holiday period?

    MR NEWCOMBE: A national holiday period, whatever that might be.

    MR JUSTICE BLACKBURNE: What page is that?

    MR NEWCOMBE: It is page 1439, volume 1 of the White Book, and the sentence I have just read is at the end of the first paragraph, at the top of page 1439.

    MR JUSTICE BLACKBURNE: I do not know what a national holiday period is.

    MR NEWCOMBE: I would suggest that, in any event, we are in such a period.

    MR JUSTICE BLACKBURNE: Yes.

    MR NEWCOMBE: Without wishing to elicit any sympathy vote, I was due to be away myself today, I am not seeking plaudits, and also my lay client will be away later.

    MR JUSTICE BLACKBURNE: How long do you want?

    MR NEWCOMBE: I have tentatively agreed, subject to your Lordship's view, my Lord, 28 days. I do not understand that to be opposed.

    MR FINDLAY: I do not oppose that.

    MR JUSTICE BLACKBURNE: You want an extension of 14 days beyond the prescribed 14 days?

    MR NEWCOMBE: Exactly, making a total of 28, the prescribed 14 is only in default of direction, so your Lordship's direction----

    MR JUSTICE BLACKBURNE: 28 days you can have.

    MR NEWCOMBE: I am very grateful.

    MR JUSTICE BLACKBURNE: Right. I hope you enjoy your holidays.

    MR NEWCOMBE: Very grateful, and the same to you.