QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R (On the application of)
THE PRUDENTIAL ASSURANCE COMPANY LTD
|- and -
|SUNDERLAND CITY COUNCIL
PEEL INVESTMENTS (UK) LTD
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Mr Martin Carter (instructed by the Chief Solicitor Sunderland City Council) for the Defendant
Mr Christopher Katkowski QC & Mr Simon Pickles (instructed by Thomas Eggar LLP) for the Interested Party
Hearing date: 9 June 2010
Crown Copyright ©
Mr Justice Wyn Williams:
"….for the sale by retail or otherwise or the provision direct to the public of any of the following goods or services:-
a. consumable food stuffs whether fresh, frozen or packaged
b. stationery, newspapers, periodicals and books.
c. pharmaceutical goods
d. jewellery and watches
e. sports goods.
g. travel agency.
h. wines, spirits, beers and tobacco."
The covenant was expressed to be a covenant which would subsist permanently and it was also expressed to be enforceable against persons deriving title from the Interested Party.
"3. With the exception of the restriction contained in clause 2(a) above nothing in this agreement shall be construed as prohibiting or limiting any right to develop the said land or any part of the said land in accordance with a planning permission granted by the Council or by the Secretary of State after the date of this Agreement."
"In pursuance of its powers under the above mentioned Acts and Orders, the City of Sunderland, as local authority has APPROVED the following namely:
Proposal External alterations to existing retail unit and erection of freestanding entrance canopy feature.
At Former Conroys Unit The Peel Centre Glover, Washington
Subject to compliance with the following conditions:"
Three conditions are then specified.
"In pursuance of its powers under the above mentioned Acts and Orders, the City of Sunderland, as local planning authority, has APPROVED the following namely:
Application ref 06/04039/FUL
Proposal Conversion of one retail unit into two units, construction of new free-standing entrance canopies and formation of a goods access road.
At 1 Peel Centre The Glover Washington.
Subject to compliance with the following conditions:"
"In pursuance of its powers under the above mentioned Acts and Orders, the City of Sunderland, as local planning authority, has APPROVED the following namely
Application ref 08/02901/FUL
Proposal Conversion into two units and external alterations including construction of entrance canopy
At 2 The Peel Centre Washington
Subject to compliance with the following conditions:"
"open A1 retail and a planning permission dated 11.12.2006 (06/04039/FUL) unfettered by the requirements of the section 52 agreement of 08.08.1988 as amended by the deed of revocation of 14.07.2006."
On the same date the Interested Party applied for such a certificate in respect of Unit 2. On 11 March 2009 the Defendant granted both certificates.
"1. The general rule is that in construing a planning permission which is clear, unambiguous and valid on its face, regard may only be had to the planning permission itself, including the conditions (if any) on it and the express reasons for those conditions….
2. This rule excludes reference to the planning application as well as to other extrinsic evidence, unless the planning permission incorporates the application by reference. In that situation the application is treated as having become part of the permission. The reason for normally not having regard to the application is that the public should be able to rely on a document which is plain on its face without having to consider whether there is any discrepancy between the permission and the application….
3. If incorporation of the application in the permission is to be achieved, more is required than a mere reference to the application on the face of the permission. While there is no magic formula, some words sufficient to inform a reasonable reader that the application forms part of the permission are needed, such as "…in accordance with the plans and application…" or "…on the terms of the application…", and in either case those words appearing in the operative part of the permission dealing with the development and the terms in which permission is granted. These words need to govern the description of the development permitted…
4. If there is an ambiguity in the wording of the permission, it is permissible to look at extrinsic material, including the application, to resolve the ambiguity….."
In Barnett the Court of Appeal approved the following passages from the judgment of Sullivan J (as he then was) which was the judgment under appeal.
"where a full planning permission for the erection, alteration or extension of a building is granted, it is unnecessary for that permission to expressly incorporate the application plans and drawings. Precisely because the permission is a 'full', and not an outline permission, any member of the public will know there will be plans and drawings which will describe the development that has been permitted….
….In the Ashford case Keene J was considering the proper interpretation of an outline planning permission. The issue was whether, in construing that planning permission, regard could be had to a letter which had been included in an environmental statement that had accompanied the application for planning permission….
If it is plain on the face of the permission that it is a full permission for the construction, erection or alteration of a building, the public will know that, in addition to the plan which identifies the site, there will be plans and alterations which will describe the building works which have been permitted precisely because the permission, is not, on its face, an outline planning permission. In such a case those plans and drawings describing the building works are as much a part of the description of what has been permitted as the permission notice itself. It is not a question of resolving an 'ambiguity'. On its face, a grant of full planning permission for building operations is incomplete without the approved plans and drawings showing the detail of what has been permitted. In the absence of any indication to the contrary, those plans and drawings will be the plans listed in the application for permission. If a local planning authority does not wish to approve the plans submitted with the application and wishes to approve amended plans, then it can include a statement to that effect in the decision notice. Absent any such statement, the reasonable inference,…..is that a grant of full planning permission approves the application drawings."
"(1) Subject to the following provisions of this section, in this Act, except where the context otherwise requires, "development", means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.
Subsection (2) provides:-
The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land –
a) the carrying out for the maintenance, improvement or other alteration of any building of works which –
i) affect only the interior of the building, or
ii) do not materially affect the external appearance of the building,
and are not works for making good war damage or works begun after 5 December 1968 for the alteration of a building by providing additional space in it underground;
f) in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section, the use of the buildings or other land or, subject to the provisions of the order, of any part of the buildings or the other land, for any other purpose of the same class.
Section 57 of the 1990 Act specifies that planning permission is required for the carrying out of any development of land.
"3…..the consent which this permission grants, in so far as it relates to retail floor space shall, unless otherwise agreed in writing by the Local Authority be confined to retail warehousing of comparison goods to exclude expressly the sale of all food stuffs for consumption off the premises, clothes and footwear (other than specifically for the playing of sport) or other fashion goods retailing;"
Condition 4 provided:-
"4. The retail warehouse floor space referred to in condition three of this permission shall not, at any one time, exceed a total of 200,000 square feet (18,580 metres) and in the case of each individual retail warehouse shall, unless otherwise agreed in writing by the Local Authority be not less than a minimum of 15,000 square feet (1395 square metres)"
"It should further be noted that the Council accepts that if the Inspector was correct to determine that the 2006 permission did indeed encompass the internal sub-division works, the resultant building was a new chapter in the planning history and/or section 75(3) of the Act applied, thereby having the effect of removing condition three and justifying the LDC granted."
The learned judge went on to consider what he designated "the true nature of the 2006 permission". Essentially he reached the conclusion that the internal sub-division objectively formed part of the proposed works which were authorised by the planning permission. He reached that conclusion by a process of reasoning which is similar to that expressed by me above.
"1. Without prejudice to the provisions of this Part as to the duration, revocation or modification of planning permission, a grant of planning permission to develop land shall (except in so far as the permission otherwise provides) enure for the benefit of the land and of all persons for the time being interested in it.
2. Where planning permission is granted for the erection of a building, the grant of permission may specify the purposes for which the building may be used.
3. If no purpose is so specified, the permission shall be construed as including permission to use the building for the purpose for which it is designed."
"The lawfulness of any use or operations for which a certificate is in force under this section shall be conclusively presumed unless there is a material change, before the use is instituted or the operations are begun, in any of the matters relevant to determining such lawfulness"
Mr. Katkowski QC submits that the effect of the second certificate must be that the lawfulness of the use which is the subject of the second certificate "shall be conclusively presumed…" since the second certificate is in force. That, he submits, precludes a successful challenge on ground 3 to the first certificate.