QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF MICHAEL HILL||(CLAIMANT)|
|FIRST SECRETARY OF STATE||(FIRST DEFENDANT)|
|EXMOOR NATIONAL PARK AUTHORITY||(SECOND DEFENDANT)|
Smith Bernal Wordwave Limited
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(Official Shorthand Writers to the Court)
MR JAMES STRACHAN (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANTS
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"1 Approval of the details of the siting, design and external appearance of the building(s), the means of access thereto and the landscaping of the site (hereinafter called 'the reserved matters') shall be obtained from the local planning authority in writing before any development is commenced.
2 Plans and particulars of the reserved matters referred to in condition 1 above, relating to the siting, design and external appearance of any buildings to be erected, the means of access to the site and the landscaping of the site, shall be submitted in writing to the local planning authority and shall be carried out as approved.
3 Application for approval of the reserved matters shall be made to the local planning authority before the expiration of (three) years from the date of this permission.
4 The development hereby permitted shall be begun either before the expiration of (five) years from the date of this permission, or before the expiration of (two) years from the date of approval of the last of the reserved matters to be approved, whichever is the later.
5 Not more than three dwellings shall be erected on the site hereby approved for residential development.
8 The details required by Condition No 1 above shall make provision for the construction of dwellings of a high standard of design, sympathetic to the more traditional buildings found in the locality, and with regard to the topography of the site with the proposed dwellings to be on the lower part of the site and the roof ridges no higher than 1.5 metres above the ridge level of the adjacent Bakers Court housing.
14 The existing access of the south-east corner of the application site shall be permanently closed to the satisfaction of the Local Planning Authority as the first stage of any development works."
"20 In the circumstances, I consider that, whilst it is clear that more than 3 dwellings could be accommodated on the appeal site, it would not be appropriate now to remove condition 5 due to the changes in planning policy which have occurred since 1997. I consider that neither the education requirement nor the restriction of the occupation of the dwellings to persons with local housing needs could be secured satisfactorily by the imposition of other conditions. I am also mindful that the removal of condition 5 would be little more than an academic exercise (as acknowledged by the appellant at the hearing), having regard to condition 3 of the same outline planning permission which required the submission of an application for the approval of reserved matters before the expiry of 3 years (i.e. before 4 November 2000). I have considered whether that condition should be varied to allow more time, which would in effect renew the permission, but in view of the changes in planning policy I have identified above I am strongly of the view that would be inappropriate as well." (Emphasis added)
The inspector considered condition 8 in paragraph 21 of the decision letter:
"21 With regard to condition 8, in my view this is little more than an informative. As a condition it lacks precision, other than the 1.5m height restriction (which itself appears to be an arbitrary figure). As the siting, design and external appearance of the buildings are all reserved matters I consider that the condition is unnecessary as any proposal that would cause unacceptable harm to the landscape or the living conditions of adjoining occupiers could be refused."
In paragraphs 22 and 23 the inspector explained why he did not consider that it would be appropriate to remove condition 14. The inspector drew the threads together in respect of appeal A in paragraph 24 of the decision letter:
"24 On the main issue in respect of Appeal A, having regard to the natural beauty of this part of the Exmoor National Park, the provision of housing in Lynton, highway safety and the living conditions of adjoining occupiers, I conclude that condition 8 is unnecessary and should be removed but that conditions 5 and 14 should be retained. The removal of condition 5 would conflict with Policies H1 and H2 (as recommended to be changed) of the emerging Local Plan First Alteration and the requirement to provide an education contribution. The removal of condition 14 would conflict with Policy 49 of the Structure Plan and Policy TR3 of both the Local Plan and the emerging Local Plan First Alteration. I have also considered the other conditions attached to the 1997 outline planning permission but see no reason to remove or vary any of them." (Emphasis added)
31 For the reasons given above and having regard to all other matters raised, I conclude that the appeal should partly succeed. I will grant a new outline planning permission without the disputed condition 8 but retaining the disputed conditions 5 and 14 and the relevant non-disputed conditions from the previous permission." (Emphasis added)
Pausing there, it will be recalled that condition 3 was one of the non-disputed conditions.
For the reasons given above and having regard to all other matters raised, I conclude that the appeal should not succeed."
"I allow the appeal in part and grant outline planning permission for residential development at [the site] in accordance with [the application] without compliance with condition number 8 previously imposed on [the 1997 condition] but subject to the other conditions imposed therein (for the avoidance of doubt including condition 3 which required application for the approval of reserved matters to be made before 4 November 2000) so far as the same are still subsisting and capable of taking effect."
In paragraph 34 the inspector dismissed appeal B. There is no challenge to the latter decision.
"consider only the question of the condition subject to which planning permission should be granted, and -
(a) if [he] decided that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, [he] shall grant planning permission accordingly, and
(b) if [he] decide[d] that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, [he] shall refuse the application."
"34 He pointed out that section 73 (2) (a) contemplated the grant of unconditional planning permission, submitted that this would conflict with the requirements of sections 91 and 92 of the Act as to time limits and submitted that therefore the permission granted pursuant to section 73 must in some way relate to the earlier permission.
35 He submitted that to construe section 73 as envisaging the grant of an independently viable permission would produce absurd results in situations where details had already been approved under the earlier outline permission. They would need to be submitted and approved afresh under the later permission. In such circumstances there would be no advantage in making a section 73 application rather than starting afresh.
36 He argued that if each permission pursuant to a section 73 application were to be regarded as an independently viable permission then the time limits for submission of reserved matters and commencement of development would start afresh."
Lord Justice Schiemann responded to these submissions in paragraph 38:
"These are powerful arguments and they were skilfully put. Nonetheless, I am not persuaded by them. The purpose behind the imposition of time limits in sections 91 and 92 is to enable the Planning Authority and others to know what outstanding permissions are capable of implementation and which, if I may borrow a term from food retailing, have reached their expiry date."
The learned editor's comment upon the Court of Appeal's decision included the following:
"Mr Taylor [leading counsel for the appellant] said that if the permissions were separate then the time limits for submission of reserved matters and commencement of development would start afresh. Their Lordships did not address the point, which is correct. Local planning authorities should be alert when granting section 73 applications and adjust the time periods to match the original consent unless the intention is to exten[d] the life of the first permission. Conditions unaltered from the original consent should be included in the section 73 decision notice."