QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF P CASEY (ENVIRO) LIMITED||Claimant|
|BRADFORD METROPOLITAN BOROUGH COUNCIL||Defendant|
|DENHOLME RESIDENTS ACTION GROUP||(Interested Party)|
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Mr S Pickles (instructed by Bradford Metropolitan Borough Council) appeared on behalf of the Defendant
Mr P Brown (instructed by Richard Buxton Solicitors, Cambridge CB1 1JP)appeared on behalf of the Interested Party
Crown Copyright ©
MR JUSTICE UNDERHILL:
"1. The development to which this permission relates shall be begun no later than the expiration of five years from the date of this permission.
2. The winning and working of minerals and the removal of any mineral from the site shall cease no later than 26 March 2006 and the site restored by landfilling through the disposal of waste as defined in condition 30 below. The disposal of waste is for a temporary period of 10 years from the notified date of commencement by which time the disposal of waste shall have ceased and the site restoration completed within 12 months of such cessation in accordance with a scheme approved under condition 19 below. The site shall be the subject of aftercare for a period of 5 years from the completion of final restoration as detailed by condition 39 below.
5. No development shall take place until a detailed scheme for the landscaping of the site has been submitted to and approved in writing by the Local Planning Authority. Such scheme shall include details of:
a) The positions, species and sizes of all existing trees, shrubs and hedgerows on the site which are to be retained and the proposals for their protection throughout all operations on site;
b) The position, species, density and initial sizes of all new trees and shrubs;
c) the method of planting to be used including any protection measures;
d) any hard landscaping proposed including dry stone walls;
e) the programme for implementation and carrying out of the scheme.
The scheme as approved shall be carried out in full in accordance with the agreed programme of implementation following the date of such approval in writing.
6. A landscape management plan including management responsibilities and maintenance schedules for all landscaped areas shall be submitted to the Local Planning Authority for approval in writing concurrent with the landscaping scheme required by condition 5 above. The landscape management plan shall be carried out as approved by the Local Planning Authority for the duration of the landfilling and site restoration works."
Two points from those conditions should be noted in particular because they are central to the issues in this application. First, by condition 1 the development had to be begun - or, as it is often expressed, "implemented" - by 14 March 2006. Secondly, the matters to be covered by the landscaping scheme required by condition 5 included at (a) "details of all trees, shrubs and hedgerows on the site which are to be retained". As to that, the Inspector had in his decision letter made it plain, as one would expect with a site in Green Belt land, that the maintenance of high environmental standards, with a view to the ultimate restoration of the site to fit in with the local landscape, was a matter to which he attached special importance. Condition 5 in general, and condition 5 (a) in particular, were of course significant in that context.
"I have discussed the matter with my officers and can confirm that I consider that the above application has been lawfully implemented.
Please be aware that this is my informal officer opinion and as such is not a binding, nor formal decision of the Council."
"tree and shrub cover within the site is limited to a small area of woody, natural colonisation, adjacent to the northern boundary and the trees that line the existing quarry access road (see drawing number P182-004)".
It is self-evident that, as Crane J held, a description of that generality did not comply with the requirements of condition 5(a).
"... because the time limit for seeking approval has passed, success on that one ground prevents the interested party [that is, the claimant in these proceedings] from taking advantage of the permission."
It is right, however, that I should make clear that there had been no argument before him on that point.
"The Council considers that it must carefully consider and construe the wording of the relevant planning condition (Condition 5) in order to decide whether the Permission as a whole is now extant or otherwise capable of being implemented.
Condition 5, contained in the 2001 Planning Inspector's Decision Letter, is clear about what is required to be submitted to and approved by the local Planning Authority as a precondition of development. Justice Crane found as a matter of fact, that the landscaping scheme fell short of what was expressly required by Condition 5. The Council's purported decision to approve the scheme was therefore flawed in that regard and Justice Crane quashed the related decision.
Condition 5 makes it expressly clear that a fully detailed and compliant scheme should be submitted for approval prior to any development commencing. The scheme supplied by your clients was not compliant or sufficient in all respects with the express requirements on the condition.
The 'life' of the relevant planning permission expired on the 14th March 2006. It therefore follows, due to the passage of the time limit on implementation that it is no longer possible to comply with the requirement of Condition 5 relating to submission of a scheme.
The Council recognises, inter alia, that the 2001 Inspector's decision letter places emphasis on the importance of the landscaping scheme. Condition 5 is clearly a condition precedent as defined in Whitley v Secretary of State for Wales  P&CR 296 and it can be considered to go to the heart of the Planning Permission such that failure to comply renders operations carried out in reliance on the Planning Permission unlawful.
In conclusion there is currently no extant planning permission permitting development of the form contained in the planning permission granted by the Inspector in 2001.
In the light of the above explanation of the position of the local planning authority, the Council would request your confirmation that your client accepts the Council's view on the legal position.
Clearly your client does not have the option of submitting a fresh (retrospective) planning application for the development. This would of course, require submission of a fresh Environmental Impacy Assessment and it would also be advisable to arrange early submission of a satisfactory landscaping scheme at the same time, if that is your client's desired course of action. Any application submitted would be considered strictly on its planning merits.
Your urgent response would be appreciated by close of business on Monday 5th March 2007 so that the Council can decide what further steps it is expedient to take in order to resolve the outstanding planning issues on this site."
"(1) refusal to determine an application made on 10 November 2005, and amended on 19 January 2006, to approve a landscaping scheme required by condition 5 of a planning permission granted on 14 March 2001, and
(2) refusal to determine a planning application O5/07572 MVC made on 7 October 2005."
So far (2) is concerned, the relevance of the decision in question has not been explained to me, but I can ignore it for present purposes. The reference at (1) to an application dated 10 November 2005 is in fact to the application of 8 November; but the discrepancy in dates is also not significant.
"I consider that the principle discernible in Woolf LJ's reasoning is that where it would be unlawful, in accordance with public law principles, notably irrationality or abuse of power, for a local planning authority to take enforcement action to prevent development proceeding, the development albeit in breach of planning control is nevertheless effective to commence development. Three of the passages from his judgment, to which I have referred in paragraph 104, related his approach to the rational availability of enforcement proceedings. Enforcement action may still be taken to remedy the breach by requiring compliance with the condition. But the development cannot be stopped from proceeding."
That passage was subsequently expressly approved by Buxton LJ in R (on the application of Prokopp) v London Underground Limited  EWCA Civ 961,  1 P&CR 31 at paragraph 85. It is clear that the references to irrationality and abuse of power mean what they say. The cases give no warrant for an argument that there should be any general discretion in the court to set aside the consequences of breaches of planning control simply on the basis that they might be unfortunate or harsh. For that reason, as Ouseley J observes, cases where the exception fall to be applied will be likely to be rare.
"I recall than on the 26th August 2005, I had a telephone conversation with Carol Howarth the Senior Planning Officer for the Defendant about the proposed scheme. We discussed what would be required in order to comply with the appropriate condition and in particular, Condition 5. Following this discussion, I prepared the landscape scheme ("the Original Scheme"). I should point out that during my telephone conversation with Ms Howarth in August, it was agreed that we would simply go out on the site and mark the trees to be retained and that these would be protected by fencing. We agreed that from a practical point of view, it would not be necessary to conduct a survey of the trees. As a result, the trees were not surveyed in the Original Scheme."
He also refers, at paragraph 6, to a conversation which he says that he had with a Ms Healey, the Senior Countryside Officer for the defendant, though by a slip he refers to the conversation as having been between Ms Healey and Ms Howarth. However, he does not allege that anything material was said in those discussions. If Mr Rowland's evidence is to be accepted, it would appear that the deficiency in the scheme which led to the approval being quashed was in fact one to which the defendant had, through Ms Howarth, expressly agreed.
"The position, species and sizes of existing trees, shrubs and hedgerows on the site to be retained will be identified, marked on-site and protected by fencing with 1.2 metre chestnut pale fence. Existing planting is shown on drawing number P182/001 and is detailed in the landscape management plan."
That, she observes, is hardly consistent with an agreement having been made to the effect alleged: although of course it does refer to marking the trees on site, it does not suggest that that was being done in lieu of their identification as part of the scheme as submitted. Indeed the final sentence shows Mr Rowland, albeit wrongly, suggesting that sufficient details were shown in the documents submitted.