QUEENS BENCH DIVISION
B e f o r e :
(sitting as a Judge of the High Court)
| R (on the application of PEEL LAND AND PROPERTY INVESTMENTS PLC)
|HYNDBURN BOROUGH COUNCIL
|(1) BLACKBURN WITH DARWEN BOROUGH COUNCIL
(2) BURNLEY BOROUGH COUNCIL
(3) CAPITAL AND REGIONAL PROPERTY MANAGEMENT LIMITED
(4) THE MALL LIMITED PARTNERSHIP, MALL NOMINEE ONE LIMITED AND MALLNOMINEE TWO LIMITED
Vincent Fraser QC (instructed by Hyndbum Borough Council Legal Department) for the Defendant
Neil Cameron QC and Richard Moules (instructed by DAC Beachcroft Solicitors) for the First
Robin Purchas QC and Saira Kabir Sheikh (instructed by Berwin Leighton Paisner Solicitors) for the
Third and Fourth Interested Parties
Hearing dates: 3, 4 and 5 October 2012
Crown Copyright ©
"Nothing in this Agreement shall prohibit or limit the right to develop any part of the Site in accordance with any planning permission... granted (whether or not on appeal) after the date of this Agreement."
THE STATUTORY SCHEME FOR APPLYING FOR PLANNING PERMISSION
"Meaning of "development" and "new development"
(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.
(1 A) For the purposes of this Act "building operations" includes -
(a) demolition of buildings;
(c) structural alterations of or additions to buildings; and
(d) other operations normally undertaken by a person carrying on business as a builder.
(2) 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 or The maintenance, improvement or other alteration of any building works which
(i) affect only the interior of the building
(ii) do not materially affect the external appearance of the building...
(d) the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such;..
(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;..."
"..(i) a plan which identifies the land to which the application relates;
(ii) any other plans, drawings and information necessary to describe the development which is the subject of the application..." 
"(1) Without prejudice to the provisions of this Part as to the duration, revocation or modification of planning permission, any 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 BASIC ISSUES
(1) Each such permission on a true construction permitted both internal and external works which led to the creation of one or more new retail units (Step 1)
(2) By reason of the operation of s75(3) (and, in the case of Unit 6, s75(2)), those units could be used for unrestricted A1 retail purposes being the use for which they were designed or, in the case of Unit 6, specified (Step 2);
(3) This meant that Peel had obtained a "right to develop" the units in accordance with the Later Permissions and since, by the Provisos, nothing in the s106 agreements was to prohibit or limit any such right (which the s106 obligations would otherwise do) those obligations would not now apply to the Units once the relevant work was done; accordingly certificates of lawful development (for unrestricted A1 use) should be granted (Step 3);
(4) If for some reason s75 did not apply so as to entail Step 2, Peel argued that on any view the development permitted by the recent permissions amounted to a new chapter in the planning history of the units ("new chapter") and this in and of itself would amount to a right to develop which, again, would engage the Provisos and/or in any event simply remove the s106 restrictions (Step 2A). The new chapter argument was originally at the forefront of Peel's claim but is now put very much as a fallback position to Step 2.
(1) Some or perhaps all of the Later Permissions in truth granted no more than a permission to carry out external works (a point advanced in particular by the Council and Capital). If that is right for any particular permission Peel would accept that its claim in respect of that Unit must fail since s75 could not possibly be engaged nor could there conceivably be a new chapter;
(2) Further, even if the Later Permissions encompassed works of internal sub-division as well as other works, that still would not lead to the creation of a new retail unit;
(3) But even if one or more of the Later Permissions did create a new retail unit, s75 did not apply for one or more of the following reasons:
(a) S75 is only engaged at all if the permission necessarily involved a material change of use, which none of these did; the permissions at issue authorised development by reason of building operations not because of change of use;
(b) Even if s75 was prima facie applicable, it did not apply to any of these developments because none involved the "erection of a building";
(c) Even if they did, and leaving Unit 6 to one side, the purposes for which the units were designed did not include unrestricted A1 retail use because
(i) The building operations permitted did not meaningfully admit of any retail purpose and/or
(ii) If they did it certainly could not be said that the purpose for which they were designed was unrestricted A1 use;
(4) If s75 did not apply, Peel's case could not be saved by applying the concept of new chapter to any given unit because no new chapter arose;
(5) Further or alternatively, on a proper construction of the Provisos they could never operate so as to disengage the s106 obligations unless the permissions granted a material change of use which they did not;
(6) Accordingly, Peel's claim fails at every Step.
The Stevenage and Sunderland Cases
Materials admissible when construing the planning permissions
"(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) For incorporation of the application in the permission 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 that ambiguity: ...."
"24 If it is plain on the face of a permission that it is a full permission for the construction, erection or alteration of the building, the public will know that, in addition to the plan which identifies the site, there will be plans and drawings 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 were 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 fall 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 the 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, against the statutory background provided by Section 62 of the Act and the 1988 Regulations, is that a grant of full planning permission approves the application drawings...."
"Pennission to construct a new dwelling on non-residential land will carry with it permission to use the new building for residential purposes: see section 75(3) of the 1990 Act. Thus there is in a sense a built-in application for a change of use of land in such cases, and the extent of the land covered by the implicit permission for a change of use will normally be ascertained by reference to the site as defined on the site plan. Thus that part of the site not built on can be used for purposes ancillary to the dwelling unless there is some obvious restriction shown on the permission itself The site boundary shown on the plans defines the area of the new use."
"But that is not the situation where there is an existing dwelling and the proposal is merely to alter or to extend it. The curtilage already exists. There is not necessarily any new use of land involved nor any extension to the existing curtilage...Whether there is an extension to the existing curtilage in any given case will depend upon the documents in question. Whether any resulting planning permission grants consent for a larger area than before to be used for purposes ancillary to the dwelling house depends on looking at the application form and the drawings.... Sometimes it will be obvious that the extension to an existing house involves a change of use of land beyond the original residential site. This will be the case where an extension itself involves building on land beyond that original site or where permission is expressly sought and granted for a change of use of additional land."
The Scope and Effect of s55(2)(a)
"There can be no doubt that the carrying out of an alteration which affects only the interior of the building does not constitute development. The statute says so in terms. In my judgment, however, whether or not a proposal constitutes development within section 55 of the 1990 Act cannot be determined by looking at the individual component parts of the proposal in order to decide whether each, looked at in isolation, fells within or without section 55(1) and 55(1A) or whether they fall within the exceptions specified in section 55(2). It seems to me to be wholly artificial to consider whether individual aspects of a development scheme, if standing alone, would or would not constitute development. I take the view that the issue of whether or not a proposal constitutes development must be considered by reference to the proposal looked as a whole and then answered either yes or no."
THE INDIVIDUAL PERMISSIONS - STEP 1
"Full: Alterations to elevations including installation of new entrance doors and alterations to service door openings."
Unit 1 as amended ("1A")
"Full Major: Reconfiguration and refurbishment of unit 1 including partial re-cladding and creation of mezzanine floor."
"as requested, I can confirm that (again as per application 11/09/0447 [ie the application in respect of Units 6a and 6b - see paragraphs 66-71 below]) this application is for building works only. Updating of user restrictions was dealt with by the s106 agreement entered into in June 2009. This effectively replaced the original s52 Agreement all in accordance with the planning committee's resolution in March 2009."
"Major Ml: Reconfiguration of existing unit 2 to convert 2 No. units into 2 No units including partial demolition. Construction with additional retail unit substation and switch room and relocation of surface water drainage ditch with provision of column mounted external lighting and CCTV cameras."
"Full: Alterations to elevations involving installation of 1 no. entrance door to front, and installation of 1 no. goods door with ramp, 2 no. double doors and 2 no. personnel doors to rear."
"Major: Reconfiguration and refurbishment of units 6a and 6b to be used for A1 retailing purposes including the creation of new partial cover mezzanine floors and demolition of rear parts of existing units to create servicing area."
"With regard to the description if you feel that there is a need to refer to the use, can I suggest we simply use the word "retail"? The retail uses on the site are already regulated in the original Section 52 Agreement (which was of course recently amended (as a Section 106 Agreement).
"External alterations and ancillary work to create 2 No retail units."
Conclusions on the individual planning permissions
(1) First, apart from Unit 6, the development sought in each case was limited to. building operations of one kind or another; there was no application for development in the sense of material change of use and none was granted;
(2) Second, in the case of Unit 6, while the purpose of the development was stated, the A1 use granted was no wider than that presently permitted on the site ie as restricted by the existing s106. Both parties proceeded on the basis that the application was on that basis and it would be absurd to suggest that the use granted by the permission was wider than either intended. Of course, a planning permission seeking to restrict the A1 use would not normally seek to achieve this by using qualified language in the permission itself. This is because of the ability of the landowner to move uses within Class A1 without that constituting development. Hence the use of a planning condition or s106 to achieve the same end. But in this case, construing the permission as qualified is important because that may then have an impact on the engagement or otherwise of s75 and/or the Provisos (see below);
(3) Third, the Later Permissions were for particular building works as follows:
(a) Unit 1: the works consisted exclusively of external alterations.
(b) Unit 1A: the works were refurbishment by external alterations and reconfiguration.
(c) Unit 2: works to reconfigure Unit 2 by the demolition of part and internal sub-division;
(d) Unit 4: external alterations only;
(e) Unit 6: refurbishment by external works and reconfiguration.
(f) Unit 8: external works and sub-division.
(4) On that basis the planning permissions for Units 1 and 4 cannot on any view provide support for Peel's claim to engage the Provisos whether by means of s75 or new chapter. In the case of Unit 1 of course this is of less significance given the subsequent permission for 1A.
(5) As for Units 1A, 2, 6 and 8 ("the Remaining Units"), the extent to which the nature of the permissions granted assists Peel is examined in context below. I would only add this. The phrase "creation of new retail units" is not a term of art nor does it really describe what any of these permissions was for - that can only be seen in the plans which show the detail and nature of the permitted works. Whether for the purposes of s75 or new chapter it is apposite to characterise the permissions as being for new retail units will be examined below.
THE APPLICATION OF SECTION 75- STEP 2
The ambit and effect of s75(3)
Application of s75(3)
No material change of purpose
No relevant s75(3) purpose
Application of s75(2)
A NEW CHAPTER? - STEP 2A
"In our opinion if land forming part of a larger area in one occupation has an established use, and if planning permission for the erection or enlargement of a building on another part of the same area is granted and the development takes place, this does not necessarily terminate or remove the established use. It only does so if in some way the development which takes place is inconsistent with the established use."
Application of the principle to the planning permissions in this case
THE PROPER CONSTRUCTION OF THE PROVISOS - STEP 3
CONCLUSION ON MATTERS OF SUBSTANCE
JURISDICTION AND DISCRETION
''166. Mr Lowe, however, felt obliged to raise the issue of jurisdiction, in view of the observations of Lord Hoffman in paragraphs 37 and 38 of Reprotech. Many of the cases where the courts have been prepared to consider applications for declarations as to the status of planning permissions date from a time when the statutory code was much less developed and did not afford adequate procedures for resolving such questions.
167. In the context of the present case, it is sufficient to indicate that, in my view, the courts should be slow to consider applications for declaratory relief, bearing in mind the comprehensive coverage that is now afforded by sections 191 and 192 of the Act. The statutory code is not fully comprehensive, some cases may still "fall between the gaps" in the code, but they should be few in number. Very often there are disputes of fact in proceedings for declaratory relief (the parties were able to agree the relevant facts in the present case thus obviating the need for extensive oral evidence). It is much better that such disputes should be resolved through the statutory appeal machinery which enables all parties, including interested parties, to have their say. That said, I am satisfied that on the facts of this case, the court does have jurisdiction to consider the claimant's contention that it had a legitimate expectation as set out above."