England and Wales High Court (Administrative Court) Decisions

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

		Sitting at: Birmingham Civil Justice Centre Priory Courts 33 Bull Street Birmingham B4 6DS
		12th February 2010

MR JUSTICE HICKINBOTTOM:

Introduction

1. This is an application under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") in which the Claimant, Melap Singh, seeks to quash a decision dated 5 June 2009 of an inspector (Mr D A Hainsworth, "the Inspector"), appointed by the First Defendant Secretary of State, in which he dismissed an appeal by the Claimant against the refusal by the Second Defendant planning authority of a Certificate of Lawful Use or Development for which he had applied under section 191(1) of the 1990 Act.

Background

2. A landowner is entitled to make any number of applications for planning permission for development of the same land. The owners of 128 Harborne Road, Oldbury (which occupies a site at the corner of Harborne Road and Lenwade Road) have taken full advantage of that right.
3. In 2003 the then-owner submitted an application for the construction of a two-storey extension at the back of the existing house, with a family room on house level and a double garage below. The development also involved a proposed driveway opening onto Lenwade Road. The development was shown on a number of plans lodged with the application. Full planning permission was granted on 16 April 2003, with reference number DC/02/39783 ("the 2003 Permission"). The grant was subject to a number of conditions, including:

"1. The development must conform with the terms of, and the plans accompanying the application for permission and must remain in conformity with such terms and plans, save as may be otherwise required by… approved amendments….

2. …

3. The landscaping and planting scheme shown on the approved plan shall be implemented within three months of the development being brought into use."

4. The Claimant obtained an interest in the property in July 2004, with the 2003 Permission in place - although no works under it had by then commenced.
5. On 6 December 2004 he applied for planning permission for demolition of the existing double garage and single-storey extension, and the construction of a new house (to be 126 Harborne Road, "the new dwelling") alongside the existing house (which was to remain as 128 Harborne Road, "the existing dwelling"). A driveway was shown on the plans leading off Lenwade Road, to a detached double garage that would have a garage for each of the dwellings, and three parking places. Although the driveway was to emerge into Lenwade Road at the same point as the proposed driveway under the 2003 Permission, it was proposed that the new dwelling would be built on part of the driveway and turning circle shown in the plans of that earlier permission. Under the proposed new development, part of the garden area to the existing dwelling would also fall within the garden area of the new dwelling.
6. On 3 March 2005 planning permission was granted for that development with reference number DC/04/43719 (later amended retrospectively but, for the purposes of this application, immaterially by DC/06/47185) ("the 2005 Permission"). That permission was subject to the same Condition 1 as the 2003 Permission.
7. In 2006 the Claimant submitted a further planning application involving the construction of a domestic store behind the existing dwelling, removal of trees, raising ground levels, construction of a retaining wall, and rationalization of amenity space; all substantively relating to the existing (rather than the new) dwelling. Planning permission was granted in relation to that in August 2009, following an appeal ("the 2009 Permission") - but, save possibly for one aspect to which I shall come, that permission is not relevant to this application.
8. The Claimant commenced the works in respect of the development permitted under both the 2003 and 2005 Permissions. In relation to the 2003 Permission, retaining walls were built and trenches excavated. It is rightly not in issue that that amounts to a material operation comprised in the development - and therefore the development has commenced. In relation to the 2005 Permission, the new dwelling was completed, and the Claimant and his family are living in it as a family home.
9. The new dwelling have been completed, the Claimant then wished to build the extension the subject of the 2003 Permission, and, on 26 November 2008, he applied for a Certificate of Lawful Use or Development, the application being for "completion of part-constructed family room and garage extension as [the 2003 Permission]". Again, a plan accompanied the application, which proposed that a single-storey extension behind the existing dwelling be knocked down, and one of the double garages behind the new dwelling be converted into a car port that would enable a car to drive through that building to access the new garage building behind the existing dwelling.
10. That application was refused by the local planning authority on 31 December 2008, for reasons which included that the 2003 Permission was incompatible with, and was superseded by, the implementation of the 2005 Permission.
11. On 5 June 2009 the Claimant's appeal to the Secretary of State against that refusal was dismissed by the Inspector. The Inspector was satisfied that the planning authority's refusal of the application was well-founded and a certificate should not be granted because, he found, it was impossible to complete the 2003 development. His findings and reasons that led him to that conclusion are effectively set out in paragraph 11 of his decision, as follows:

"… [I]t would not be possible to complete the development in accordance with the terms of [the 2003 Permission]. Firstly, the driveway could not be constructed as approved, because of the double garage that belongs to the new [dwelling] has been built on some of the area needed for the driveway. Secondly, the turning area could not be constructed as approved, because part of this area is now in the garden area of the new [dwelling]. Thirdly, the garden could not be laid out as approved, because some of it is now in the garden area of the new [dwelling]."

12. It is against that decision that the Claimant now appeals, on the ground that the Inspector erred by misinterpreting and misapplying the law on "impossibility", and hence erred in his conclusion that the 2003 Permission was, at the date of his decision, not capable of implementation and completion.

The Law

13. I was referred to a number of authorities, including Lucas & Sons v Dorking and Horley Rural District Council [1964] 17 P & CR 111, Pilkington v Secretary of State for the Environment [1973] 1 WLR 1527, Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] 1 AC 132 and Sage v Secretary of State for the Environment, Transport and the Regions [2003] 1 WLR 983, as well as provisions under the planning regulatory Scheme, from which I derive the following.
14. Under the planning regime, a landowner is entitled to make any number of applications for planning permission for the development of the same land "which his fancy dictates", even though they may be mutually inconsistent: and the planning authority must deal with any such applications made (Pilkington, per Lord Widgery LCJ at page 1531E-F, and Pioneer Aggregates per Lord Scarman at page 144C).
15. Although the planning regime was intended to be a comprehensive code, it may have lacunae - in the form of circumstances not envisaged or catered for at all by the regime - that require to be filled by the common law (Pioneer Aggregates per Lord Scarman at page 141A-B). One such lacuna was identified in Pilkington. Where there are different developments for which separate permissions have been granted, and one has been completed or at least implemented, can the development permitted by the second permission proceed, and if so in what circumstances? The regulatory scheme did not cover that eventuality. Lord Widgery in Pilkington said at page 1532A-B:

"For this purpose I think one looks to see what is the development authorised in the permission which has to be implemented. One looks first to see that full scope of that which has been done or can be done pursuant to the permission which has been implemented. One then looks at the development which was permitted in the second permission, now sought to be implemented, and one asks oneself whether it is possible to carry out the development proposed in that second permission, having regard to that which was done or authorised to be done under the permission which has been implemented."

16. Pilkington was approved by the Court of Appeal in Hoveringham Gravels v Chiltern District Council [1977] 76 LGR 533: and the theme of the passage I have quoted was taken up in Pioneer Aggregates, particularly in the speech of Lord Scarman (with whom the entire Judicial Committee agreed), who confirmed that by proceeding with one development, that may make "the development authorised in [another] permission incapable of being implemented" (page 145A). He did not consider that there would be any uncertainty or, it seems, difficulty in the application of this principle. He said (at page 145C):

"There is, or need be, no uncertainty arising from the application of the rule. Both planning permissions will be in the public register: examination of their terms combined with an inspection of the land will suffice to reveal whether development has been carried out which renders one or other of the planning permissions incapable of implementation."

17. May I make four observations in relation to that principle.
18. First, the principle derives from the general law. Of course, in a specific case, the terms of the planning permissions granted may be particular. They may be crucial.
19. Second, of the subsequent development, Lord Scarman used the term "incapable of implementation" (emphasis added). "Implementation" is a term of art in planning. A development does not have to be completed for the permission under which it is done to have been "implemented". There is no dispute before me that the 2003 Permission had been both "commenced" and "implemented" by the operations under it which had been performed. The Inspector found it so. The issue in this case is not whether the 2003 Permission can be lawfully implemented, but rather whether or not the development or building operation permitted by it can be lawfully completed, having regard to the circumstances as they appeared to the Inspector at the time of his decision, including of course the operations which had already been done in pursuance of development permitted by the 2005 Permission.
20. Third, reflecting the holistic structure of the planning regime, for a development to be lawful it must be carried out fully in accordance with any final permission under which it is done, failing which the whole development is unlawful (Sage per Lord Hobhouse, giving the only substantive speech, at [23]-[25]) Taken with my second observation, that means that if a development for which permission has been granted cannot be completed because of the impact of other operations under another permission, that subsequent development as a whole will be unlawful.
21. Fourth, Miss Clover for the Claimant expressly relies upon the de minimis principle. Whilst there is no doubt room for that principle in relation to changes to a development for which planning permission has been granted (see for example Lucas at page 114), Miss Clover conceded that a change to a development for which permission has been granted is not allowed under that permission merely because it is minor or immaterial. That concession was well made. On application by a person with an interest in the relevant land, section 96A of the 1990 Act (enacted in the light of the decision in Sage) gives a planning authority express power to change a planning permission if they are satisfied that that change is not material. Such a provision would be otiose if they could make such (immaterial) changes in any event. Whether a change is material or not is a matter of fact and degree for the authority, which must have regard to the effect of the change in making that decision. If the change is material, then it requires the consent of the planning authority following an application under section 73, which, for self-evident reasons, requires a more sophisticated procedure. However, any change - material or not - requires the consent of the planning authority under section 73 or section 96A.

Discussion

22. In this appeal, Miss Clover accepted, frankly and rightly, that the 2003 Permission development and the 2005 Permission development could not both be done in full accordance with the permissions granted. However, she submitted that changes to the 2003 Permission development, necessitated by the development that has been done under the 2005 Permission, were de minimis, and could be done under the 2003 Permission without any further consent of the planning authority. Her core contentions are set out in her written submissions at paragraphs 26-28. She submits that it is not necessary to implement the 2003 Planning Permission:

"… in its entirety, exactly as it appears in the application and plans as granted. There is a sliding scale based on fact and degree, and common sense, as to whether what is proposed to be implemented is substantially the same as the originally permission envisaged, or whether it is so different that it cannot really be said that the original permission is being implemented at all." (paragraph 27).

"The present case falls on the right side of that line. [The 2003 Permission] is being implemented as it was originally envisaged, by implementing the garage and the family room, notwithstanding the necessary changes to the drive and garden layout." (paragraph 28).

"The development is precisely the same garage and family room, but with a different drive and garden layout. The [planning authority] in this case would not be able to say that they were being presented with an entirely different proposal. It would be exactly the same proposal, with minor amendments." (paragraph 26).

23. Although she concedes that, "The driveway and garden layout are no longer physically capable of being implemented as shown on the plan and application of [the 2003 Permission]", it is sufficient, she submits, that the development can be "substantially implemented as originally envisaged" (written submissions, conclusions (iv) and (v)): and the Inspector erred in law finding otherwise.
24. I do not find this submission compelling. It is based upon the false premise that, where a final planning permission has been granted (as it has been under the 2003 Permission), it is not necessary to implement that permission "… in its entirety, exactly as it appears in the application and plans as granted". But that is precisely what is necessary.
25. As I have indicated, as a matter of law, a development generally must be regarded holistically and, where some parts of it are physically incapable of being implemented (or completed), then the whole development becomes unlawful. Of course, on its proper construction, a particular planning permission may authorise the carrying out of a number of independent acts of development. That was found by Winn J to be the case in Lucas (see Pilkington per Lord Widgery at page 1533H). But Lucas was an exceptional case (Pilkington at page 1533F), and in this case it was not suggested (nor could it be properly suggested) by Miss Clover that the development permitted by the 2003 Permission was severable in that way. Miss Clover submitted that the driveway and landscaping elements of that permission were severable, only in the sense that they were such unimportant elements of the development as to be de minimis.
26. However, in this case, the driveway and landscape cannot simply be disregarded from a planning stance. The fact that the "particular development" in the 2003 Permission is described simply in terms of "family room and garage extension" is, of course, not determinative or even, in my view, illuminating on this issue. As well as both driveway and landscaping being the subject of the plans which were approved (cf Condition 1), landscape was the subject of an express condition of the 2003 Permission. That is one further mark of its importance in planning terms.
27. Indeed, in relation to those conditions, in this case, the Defendant does not have to rely upon only the general law alone, because that law is supplemented or supported by Condition 1 of the 2003 Permission, which required the development to be done in accordance with the plans submitted: and Condition 3, which requires the landscape etc to be done in accordance with the plans submitted. Following the development under the 2005 Permission - the construction of the new dwelling and other operations under that permission - the Inspector found that those conditions are impossible of compliance. They were conditions of the permission, and the fact that the driveway and landscaping may not now generally require planning permission is not to the cause.
28. Given the nature of the section 191(1) application, it is difficult to see how the degree to which the Claimant is unable to comply with the 2003 Permission, as a result of the 2005 Permission development now done, could be regarded as immaterial, yet alone de minimis - but, in any event, that is a matter of fact incorporating planning judgment, not for this court.
29. Miss Clover took me to the first instance decisions of Prestige Homes (Southern) Ltd v Secretary of State for the Environment [1992] 3 PLR 125 and R v Arfon Borough Council ex parte Walton Commercial Group Ltd [1997] JPL 237 in support of her submissions, both cases heard by judges particularly experienced in planning. However, both of those cases clearly and expressly applied Pilkington, including the principle drawn from that House of Lords' case that whether two developments are compatible is a matter of fact and degree dependent upon the specific facts of the case. Neither supports the suggestion that the court should embark upon a merits review, as suggested by Miss Clover's submissions. That is not the court's function.
30. The Inspector found that it would not be possible to complete the development the subject of the 2003 Permission, because the driveway and turning area as approved in that permission had been built over - by the new dwelling - and the garden area of the existing dwelling could not be laid out as approved because it now fell within the garden area of the new dwelling. Those are matters of planning judgment quintessentially for the planning authority and, in its shoes on appeal, the Inspector. It is not arguable that the Inspector erred in law in making the primary findings of fact that he did, which Miss Clover does not challenge; or in making his factual conclusion with regard to the impossibility of completing the 2003 Permission development.
31. Miss Clover submitted that the changes to the 2003 Permission, necessary to make it compatible with the 2005 Permission development "have been approved by virtue of the grant of [the 2005 Permission]… and also the grant of [the 2009 Permission]": because it was perfectly clear from the applications that led to those permissions that the driveway and garden area to the existing dwelling with the 2003 Permission development would be lost - and the planning authority, in granting those permissions, clearly marked that they did not consider it important to retain them. That was, she submitted, another mark that they were not "fundamental elements" of the 2003 Permission, and can readily be regarded as de minimis.
32. However, again, with respect, that is based upon a false premise, namely that, when a planning authority is asked to consider an application for permission for a development, it must take into account other permissions already granted. It is not the duty of a planning authority to relate one planning application or permission to another, to assess whether they are contradictory. They must regard each application as a proposal for a separate and independent development, and consider the merits of each application on that basis (Pilkington, per Lord Widgery at page 1531H).
33. As I have indicated, the planning scheme centred on the 1990 Act is intended to be a comprehensive scheme. Where a person wishes to change a development for which he has a final planning permission, the scheme does not allow such a change without the consent of the planning authority, under (for example) section 73 or section 96A. By applying for a section 191 Certificate, the Claimant sought to short-circuit or bypass those provisions. He is not entitled to do so. As Mr Kimblin for the Defendant submitted, that has the unsurprising result that the claimant cannot benefit from two inconsistent permissions in respect of the same land.
34. If the claimant wishes to pursue his project for developing the back of the existing dwelling, 128 Harborne Road, then his proper course is to apply to the planning authority for the appropriate consent, for example, by way of section 73 or section 96A. The matter can then, in the appropriate forum and after any appropriate consultation, be considered on its merits.

Conclusion

35. For those reasons, I do not consider that the Inspector erred, and I refuse the application.

MR KIMBLIN: My Lord, there is just the question of costs. I ask for the Secretary of State's costs, if I might, and a statement of costs with a view to summary assessment. The sum is £8,354. I have trimmed that down, because the hearing has been somewhat shorter than the schedule anticipates.

MR JUSTICE HICKINBOTTOM: Yes.

MR KIMBLIN: If I could invite my Lord to turn to the second, attendance at hearings marked as five hours, just to make it easy we trimmed £300 of that, and it would make the claim £8,050, and that is what I would ask for.

MR JUSTICE HICKINBOTTOM: Yes, just give me one moment.

(Pause)

MR JUSTICE HICKINBOTTOM: Could you help me with this? Four hours travel and waiting time: that would be for those instructing you, because your brief fee covers all of that. Your brief fee covers all of that for you, is that right?

MR KIMBLIN: My Lord, that is right. The four hours of travel is for my instructing solicitor.

MR JUSTICE HICKINBOTTOM: Yes, thank you.

MISS CLOVER: My Lord, I have no submissions upon it, thank you.

MR JUSTICE HICKINBOTTOM: The Claimant, having been unsuccessful in the application, is liable for the First Defendant's costs. There will be no order for costs in relation to the Second Defendant, the planning authority. In relation to the Secretary of State's costs and the schedule, I am satisfied that the aggregate amount is both reasonable and proportionate to the issues. The rates claimed in respect of the personnel involved are patently reasonable; and, having looked at each of the elements, it seems to me that each is both reasonable and proportionate.

I will make an order that the Claimant pays the First Defendant's costs of the application, summarily assessed in the sum of £8,054.66.

Anything else?

MISS CLOVER: My Lord, I do not think there is.

MR JUSTICE HICKINBOTTOM: Thank you both.