England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		7 December 2010

1. MR JUSTICE MITTING: Anyone unfamiliar with planning law would find this an odd case. The claimant seeks to keep alive a planning permission granted in 1974 for the development of nineteen flats in Torquay. The claimant contends that by virtue of operations carried out on site in January 1978 that planning permission subsists to this day and permits it, without more, to erect the flats. The flats are of a 1970s design by an architect now deceased. Mr Kingston QC, for the claimants, frankly concedes that the claimant has no wish to put up those flats of that design. This claim is designed to improve the claimant's bargaining position in negotiations with the planning authority with a view to securing a new permission to put up I know not how many dwellings of whatever design on the site.
2. The case raises a question of law of some significance. The planning permission granted on 25 March 1974 is, to the modern eye, in simple terms. It is a full planning permission, not merely an outline permission with detailed permission to follow. Its terms are as follows:

"The Torbay County Borough Council hereby grant permission to carry out development described in the application dated 10 September 1973 and the plans and drawings attached thereto ...... brief particulars of which are as follows: 19 flats, curtilage of Park Hall, Park Hill Road, Torquay, subject to the following conditions:

(1) that the development hereby permitted shall be begun not later than the expiration of the period of five years commencing on 25 March 1974;

(2) trees and shrubs shall be planted in accordance with the scheme to be submitted to and approved by the Local Planning Authority before any part of the development is commenced .....

(3) before any work is commenced on the flats hereby permitted the access, including visibility displays, shall be formed and no doubt to the satisfaction of the Local Planning Authority;

(4) before any work is commenced on the site the ground floor levels of the building hereby permitted shall be agreed with the Local Planning Authority in writing."

3. Preparatory operations were carried out on the site in January 1978. In due course a planning inspector was to determine in an unappealed aspect of his decision letter that they were capable of amounting to operations sufficient to mean that the planning permission thereby remained in existence under Section 41 of the Town & County Planning Act 1971.
4. On 12 September 2005 the claimant applied to the Local Planning Authority for a certificate of lawful use for development pursuant to Section 191 (1) (a) of the Town & County Planning Act 1990 for the residential development of the block of nineteen flats. By notice date 19 April 2007, the Local Planning Authority refused to issue the certificate. The notice stated:

"The certificate is refused on the grounds that the applicant has failed to prove that permission 10871, dated 25 March 1974, or any other permission granted with respect to the land which is the subject of the application, has been lawfully implemented and is currently extant."

5. On 3 July 2007 the claimant appealed to the Secretary of State pursuant to Section 195 of the 1990 Act. An inspector was appointed. He held a public inquiry over five days. By a decision letter dated 1 September 2008, the inspector dismissed the appeal. The claimant's challenge is brought under Section 288 of the 1990 Act. In effect, it turns upon the question whether or not in reaching that decision the inspector founded it upon an error of law.
6. The inspector had a large number of issues to determine. He determined all but one of them in a way which is not challenged by either side in a notably careful and well-reasoned decision. He identified the main issue in the case:

"The main issue before me in this appeal is whether the 1974 permission was lawfully implemented prior to the material date. There are two aspects:

(1) whether any works were carried out by the developer sufficient to amount to a commencement of development within the meaning of Section 43 of the 1971 Act; and

(2) whether there was compliance with the pre-conditions of the 74 permission."

He determined that the first question was to be answered in favour of the developer but the second question was not:

"I am satisfied that any work that took place on the site in advance of this condition having been discharged would not comprise a lawful implementation of the 1974 permission."

7. The reason for that decision was that the claimant had not satisfied him, on the balance of probabilities, that ground floor levels for the flats were expressly approved in discharge of condition (4). He was addressed, evidently at some length by reference to a number of authorities, upon the case law. (I must in due course refer to some of it.) He applied the test which has come to be known as the "condition precedent" test, asking himself whether condition (4) was a condition precedent to the lawful development of the site. His answer was:

"I have found that condition (4) of the 1974 permission was not discharged. It is, in my view, a condition precedent that does go to the heart of the 1974 permission which is described as 'nineteen flats' on the face of the decision notice rather than anything to do with the access parking or other elements of what is shown on the approved plan. I consider that the ground floor levels are fundamental to the development thus permitted rather than merely being a minor component such as restoration after extraction or, for example, a detail of the external finish of the flats such as facing materials. On the basis of Whitley, specified operations contravene condition (4) and so cannot commence the development authorised by the 1974 permission .....

At Park Hall the council has set out reasons why the condition is significant in planning terms and I agree with the thrust of that analysis. The site is in a conservation area which provides a backdrop to the 'jewel in the crown of the English riviera' adjacent to a Grade II star listed building. The trees on the site are the subject of a tree preservation order and the gradient across the site is 2:1 ..... Whilst I accept that such considerations are not relevant to my determination of this appeal, they do underline that the levels condition goes to the heart of the permission because of the sensitive context of the site and its extreme topography.

The comparison between drawing 14, approved pursuant to the 1974 condition, and drawing no. 14 (e), approved as part of a later permission no. 82/2376, shows existing ground levels were inaccurate and, in effect, unknown in 1974. They were not resolved before 1982. Ground levels giving rise to the height of the building were cited as a reason for refusal of earlier applications on the site .....

In my view this underlines why the levels condition no. (4) was so crucial on the 1974 permission."

8. In the light of those findings he determined that condition (4) was "a condition precedent that goes to the heart of the permitted scheme for nineteen flats" which had not been discharged because the Local Planning Authority had not, prior to commencement of operations, approved ground levels for the flats.
9. The law relating to compliance with conditions for the purpose of determining whether or not operations had lawfully commenced is still in a state of flux. It was apparently established with certainty in Whitley & Sons v Secretary of State for Wales and Clywd County Council [1992] 64 P & CR 296. Lord Justice Woolf, giving the first judgment of the Court of Appeal, laid down a test that has come to be known as the Whitley test (page 302):

"As I understand the effect of the authorities to which I am about to refer, it is only necessary to ask the simple question: are the operations - in other situations the question would be further developed - permitted by the planning permission together with its conditions? The permission is controlled by and subject to the conditions. If the operations contravene the conditions they cannot be properly described as commencing the development authorised by the permission. If they do not comply with the permission they constitute a breach of planning control and for planning purposes will be unauthorised and thus unlawful. This is the principle which has now been clearly established by the authorities."

10. The principle however admitted of exceptions; one of them indeed is set out in Whitley. They were reviewed by Mr Justice Keene in Leisure Great Britain Plc v Isle of Wight County Council [1999] 80 P & CR 370. He began by eschewing any general equitable jurisdiction invested in the court, a discretion to dispense with compliance with conditions upon some general basis such as fairness (see page 378). He identified the three circumstances in which exceptions to the Whitley principle had been acknowledged.
11. First, that set out in Whitley that if a condition requires an approval before a given date - and the developer has applied by then for the approval which is subsequently given so that no enforcement action could be taken - work done before the deadline and in accordance with the scheme ultimately approved can amount to a start of development.
12. Secondly, a now controversial exception established in Age Crest v Wyvern (?) County Council (?) [1998] JPL 325 in which the Local Planning Authority had agreed that development could start without full compliance with conditions that required the submission and approval before development could commence of a number of schemes.
13. Thirdly, in R v Flintshire County Council ex p Somerfield Stores Ltd [1998] P & CR 336 it was held that a condition had in substance been complied with where a traffic report required by a planning condition had been submitted - and orally - by the planning authority but formalities which required the written submission of the report and written notice of approval to be given had not been achieved before work began on the site.
14. Mr Justice Keene described those cases as "narrow exceptions to the general principle".
15. That strict rule, with those limited exceptions, can create problems. They were forcefully identified by Mr Justice Sullivan in R (On Application of Hart Aggregates Ltd) v Hartlepool Borough Council [2005] EWHC 840 Admin He asked the unanswerable question: what would happen if a major development were completed but a condition such as one which required aspects of the development to be the subject of approved plans before the development could start, would that mean that the development had been carried out without permission such that after the period for taking enforcement action - four years - had elapsed the completed development would be free of any of the conditions imposed upon it? The only sensible answer is no. That led Mr Justice Sullivan to observe (paragraph 43):

"The court should be wary of applying the principle in an unduly rigid fashion and thereby pushing it to such an extreme that far from giving effect to the underlying purpose of legislation ..... actually frustrates it by leading to absurd and wholly unforeseen results."

16. Mr Justice Sullivan went on to formulate the test which was applied by the inspector in this case (paragraph 61):

"Condition 10" -

(the condition he was construing which, in the event, he held had not been finished (?)) -

"is a 'condition precedent' in the sense that it requires something to be done before an extraction is commenced but it is not a 'condition precedent' in the sense that it goes to the heart of the planning permission so that failure to comply with it will mean that the entire development, even if completed and in existence for many years, or in the case of a minerals extraction having continued for thirty years, must be regarded as unlawful."

The judge went on to refine the test in paragraph 67:

"For the reasons set out above, I believe that the statutory purpose is better served by drawing a distinction between those cases where there is only a permission in principle because no details whatsoever have been submitted in those cases where the failure has been limited to a failure to obtain approval for one particular aspect of the development. In the former case common sense suggests that the planning permission has not been implemented at all. In the latter case common sense suggests that the planning permission has been implemented but there has been a breach of condition which can be enforced against."

17. Those cases show that a different answer might be given to the question whether or not failure to comply with the condition is merely a breach of condition or means that the whole development has been completed unlawfully. It may depend upon the date at which it is asked and the stage of the development by reference to which it is asked. Neither Mr Kingston nor Mr Brown however suggest that the inspector was wrong to apply the test extracted from Mr Justice Sullivan's judgment, and I am content accept they are right to do so.
18. The argument advanced by Mr Kingston before me is not that which, on this issue, was advanced by him to the inspector. In his written closing submissions he said this about condition (4):

"The only impediment raised by the authority is now the single condition (4), a condition whose effect is not absolute in terms of the commencement of any work permitted by the planning permission and which the evidence demonstrates was never intended to apply more widely than in the works of construction involved in the building. In addition, the evidence has shown that it is more likely than not that the levels were in fact approved, something which cannot possibly be gainsaid by an anomalous, deficient and inconsistent minute recording of the kind produced by the council. Beyond that, the evidence has demonstrated that the levels were in fact approved as part of the building regulations process, a process which was left in the hands of the Borough Planning Officer to discharge, and those same levels were, in any event, approved as part of a detailed application subsequently granted by the council, which application was not regarded as being materially different with regards to the position of the building or the level of it until the council began its post-op (?) review of the circumstances in order to try and distinguish that consent from the 1974 consent."

Each of those propositions was analysed and determined adversely to the claimant by the inspector in passages of his decision to which no objection is taken.

19. Mr Kingston's basic submission before me is as follows. Construed as a whole, it is clear that the planning permission either set the ground levels of the flats or so closely circumscribed their setting that the fulfilment of condition (4) cannot be described as a condition precedent to the commencement of operations or work on the site. He has taken me through the plans that were, as the terms of the permission demonstrate and as the inspector found, part of the permission. They demonstrate the following.
20. First, access to the site on which the flats were be built was set out in a scaled plan capable of being used by contractors to produce a finished access-way. That plan terminated at a point close to the north-west gable wall of the proposed flats on a small part of the car parking area. Another plan set out the falls of the surface water and foul drainage. Other plans showed the precise elevation of the flats and did so by comparison with the precise elevation of an existing adjacent building, Park Hall, and the flats built on to it. So that one can, by looking, for example, at plan 16A discern that the flat at the top of the proposed flats was almost exactly at the level of the ridge of the pitched roof of the existing flats attached to Park Hall. From that he submits it is possible to discern with fair accuracy what the ground levels of the flats would have to be.
21. Mr Brown's answer to those submissions is that that was not how the case was put before the planning inspector. He dealt with the question of ground levels in the way that I have recited by treating them as important, by accepting the view of a Local Planning Authority witness that they were important and, by having analysed a series of plans, concluding that they had not been established before 1982. Those were matters of fact for the inspector to determine. The importance which he gave to them was a matter of planning judgment. I am bound by his determination of fact and I am not at liberty to disturb his planning judgment.
22. Accordingly, even though, as Mr Kingston submits, it is possible by a close analysis of the plans incorporated within the planning permission to discern approximately where the ground levels of the flats were to be. They had not been finally determined, still less approved by the local planning authority.
23. As regards the importance of the condition, two points can be made. First, the planning inspector was entitled to conclude that ground levels went to the heart of this permission for the reasons which he gave. Secondly, this is a brief permission document. It contains only four conditions: (1) a standard time (?) condition, (2) a condition fulfilled about the approval of a scheme for trees and shrubs, (3) a requirement of a common kind that access works be completed before any work could be undertaken on the flats, and (4) the condition in issue.
24. Plainly, having possession of the plans, the local authority must be taken to have regarded the setting of and agreement of ground floor levels of the flats as a matter of considerable importance. Accordingly, unless, as a matter of language, the condition can be relegated to the category in respect of which breach does not prevent the commencement of lawful operations, it plainly does.
25. Mr Kingston submits - I believe somewhat faintly - that on the basis of what Mr Justice Sullivan observed in Hart Aggregates, this condition does not prohibit the commencement of operations until ground levels had been approved. Mr Justice Sullivan observed in paragraph 58 of his judgment:

"The need for a Local Planning Authority to spell out any requirement or prohibition in clear terms applies with particular force where the condition is said to prevent not merely some detail of the development but the commencement of any development pursuant to a planning permission."

He went on to identify all sorts of wording that might have that effect:

"If Durham County Council had wished to prohibit any extraction before a restoration scheme before the worked out areas was agreed it could have said so by imposing a condition expressly to that effect similar in form to condition (2) in Whitley:

'No extraction shall take place except in accordance with a restoration scheme to be agreed ..... '

or it could have imposed the standard form of conditions that are imposed on grants throughout planning permission:

'details of a restoration scheme shall be submitted to and approved by the Local Planning Authority before any development takes place.'"

26. Condition (4) was, in substance, exactly that which Mr Justice Sullivan set out as his second example.
27. There is in any event, in my judgment, no material difference between a condition which expressly prohibits development before a particular matter is approved and one which requires a particular matter to be approved before development commences. The effect is the same.
28. For those reasons I reject this challenged to the inspector's decision and dismiss this claim.
29. MR BROWN: I am grateful, not least for your Lordship sitting late to deliver judgment.
30. MR JUSTICE MITTING: I have another matter to which I must attend immediately, actually five minutes ago. I am not therefore available to determine costs other than in principle.
31. MR BROWN: I have an application for our costs to be summarily assessed. I do not believe it is in dispute.
32. MR KINGSTON: It is not.
33. MR BROWN: I would ask your Lordship to order costs in our favour in the sum of £12,166.
34. MR KINGSTON: Agreed.
35. MR JUSTICE MITTING: I so order.
36. MR KINGSTON: I concede that your Lordship needs to go, but I would like you to consider giving me leave to appeal for reasons which would be perfectly obvious.
37. MR JUSTICE MITTING: I appreciate the issue is of some interest outside the four walls of this court, but I do not believe that my judgment is likely to be upset on appeal. I do not think there is any greater reason for giving permission, elegantly though the argument has been advanced.
38. Thank you both for very well presented arguments.