England and Wales High Court (Administrative Court) Decisions

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

		Cardiff Civil Justice Centre 2 Park Street, Cardiff, CF10 1ET
		10/12/2013

His Honour Judge Jarman QC:

1. The claimant (Glenholme) on 23 May 2012 applied for a certificate of lawful use or development (LDC) for the proposed building of 17 dwellings at Llandissilio Clynderwen Pembrokeshire, which was refused by the local planning authority (the council) on 23 May 2012. Glenholme then appealed to the Welsh Ministers who appointed an inspector (the inspector) to decide the appeal. In a decision letter (the decision letter) dated 25 April 2013 that appeal was dismissed. Glenholme now appeals to this court under section 288 of the Town and Country Planning Act 1990 (the 1990 act).
2. It does so in essence on two bases. First, that outline planning permission for the development which the council granted on 15 November 1989 (the 1989 permission) has been implemented and then varied in 2005 so as to allow further details to be submitted against a new time frame which was complied with. Second, that if, as the inspector found, there was a new full permission granted for the development in 2005 (the 2005 permission), then it was partially retrospective and did not require a time limit condition.
3. The background can be stated quite briefly. The 1989 permission was outline permission for the development of up to 20 dwellings, subject to a number of conditions. Condition 1 provided that application for approval of reserved matters must be made by 15 November 1992 and the development must be completed by whichever was the later of 15 November 1994 or within 2 years from the final approval of the last reserved matters.
4. Condition 2 provided that detailed drawings showing the reserved matters, namely the plans and elevations of the buildings, the layout of the site, an overall landscaping and planting scheme, full details of the surface water drainage scheme, the means of vehicular access and adequate vehicular turning facilities, should be submitted to and approved by the council before any development is commenced on site.
5. On 23 October 1992 an application was made for approval in respect of only the road and plot layout and that was approved on 12 February 1993. The works thus approved were carried out by 12 February 1995, but no further application was made for approval of the remaining matters set out in Condition 2, for some 9 years.
6. On 29 June 2004, a further application was made by Glenholme for planning permission for 17 dwellings on the site, in which the particulars of the application were given as the grant of full permission. However, at the suggestion of council officers and with the agreement of Glenholme, the latter amended the particulars of the application to approval of reserved matters following the grant of outline permission, and this was sent to the council in January 2005.
7. On 7 October 2004 a further application for planning permission for the erection of new dwellings on the site was made but the particulars of the proposed development was expressed to be "Section 73 application to extend condition 1" of the 1989 permission to 15 November 2005. That refers to section 73 of the 1990 act which applies, subject to subsection (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted.
8. Subsection (4) provides:

"This section does not apply if the previous planning permission was granted subject to a condition as to the time within which the development to which it related was to be begun and that time has expired without the development having been begun."

9. On 11 January 2005 the council's director of planning reported to the planning committee on the June 2004 application. It was said that the application was originally submitted as a full application but had since been amended to a reserved matters submission under the 1989 permission, and that the layout was based upon an estate road partially constructed under that permission. It was further stated that the application was for the siting, design and external appearance of the dwellings and was generally acceptable. It was said that concerns expressed about privacy could be satisfied by good landscaping which would be the subject of a further reserved matters application and work could not commence until that final approval had been given.
10. On the same day the director made another report on the October 2004 application. It was said that only the first reserved matter was the subject of an application within the time limits and that the effect of failing to meet the deadline was that submission of reserved matters was deemed not to be in accordance with condition 1 and the permission was regarded as lapsed. It was further said that it was possible under section 73 of the 1990 act to impose a condition extending the time for the permission of reserved matters and recommended that such a condition be approved.
11. In accordance with that recommendation the head of planning on behalf of the council on 4 March 2005 granted an amendment of conditions (the 2005 amendment) attached to the 1989 permission varying condition 1 so that an application for all reserved matters must be made before 15 November 2005 and development commenced within six months of the approval of the last reserved matter.
12. The June 2004 application was considered and approved on the 9 March 2005. Although the application had been amended from an application for full permission to one for approval of reserved matters, the permission granted was on the face of it a full permission (the 2005 permission) for the development set out in the June 2004 application. It was made subject to a number of conditions, one of which was that no development should take place until full details of landscape works had been submitted to and approved by the council and those works should be carried out as approved.
13. On 7 November 2005 a letter was sent to the council by Glenholme's agent enclosing a site plan with a landscaping proposal marked on it and a revised access with a request for confirmation that the implementation of that would discharge the relevant conditions on the 2005 permission. No such confirmation was forthcoming.
14. In the decision letter, the inspector referred to condition 2 of the 1989 permission and to the fact that details of the plans and elevations of the buildings, overall landscaping and planting scheme, and the surface water drainage scheme had not been approved before the development of the approved road and access was commenced. He concluded that the development which had taken place "was therefore unauthorised, as it was in breach of the condition."
15. He expressly referred to case law namely FG Whitley and Sons v Secretary of State for Wales and Clwyd County Council [1992] 3 PLR 72 and R(Hart Aggregates Ltd) v Hartlepool Borough Council [2005] EWCA 840 Admin. He said in the latter case a distinction was drawn between those cases where there is only a permission in principle because no detail whatsoever have been submitted, and those cases where the failure has been limited to a failure to obtain approval for one particular aspect of the development. He categorised the 1989 permission as one in principle only as no details were submitted with the application. He concluded on this point that it was not a case where the failure was limited to a failure to obtain approval for one particular aspect of a development for which full planning permission existed. He further concluded that the development of the approved road and access was unlawful and that the 1989 permission has not been implemented.
16. In respect of the 2005 permission, although the June 2004 application was reported to the committee as an application for the approval of reserved matters, on the face of the permission it was a new full planning permission, and the inspector considered that it could be relied upon as such.
17. He went on to say that the conditions attached to the 2005 permission did not include the standard condition relating to time limits for commencement. He referred to section 91 of the 1990 act which provides in essence, so far as material, that every planning permission shall be deemed to be granted subject to a condition that the development must be begun no later than the expiration of five years beginning with the date of grant. Sub-section (4) however provides that the section does not apply to any planning permission granted for development carried out before the grant of that permission.
18. The inspector considered the letter sent in November 2005 to be an application for the approval of landscape details as required by the conditions to the 2005 permission, but the council did not respond and it did not appear to have been pursued by Glenholme. No appeal was made against the failure to determine the application and the deadline for doing so had passed. The inspector concluded that the approval of landscaping matters remained unresolved, and that the 2005 permission had lapsed and is no longer capable of implementation.
19. The inspector then went on to consider the 2005 amendment, and referred expressly to section 73(4) of the 1990 act. He concluded that the October 2004 application was not properly made, nor could it be properly considered in relation to the 1989 permission. However, he observed, the council's decision to grant the 2005 amendment was not challenged at the time. It was not clear whether the 2005 amendment was in effect a new permission, but the inspector was of the view that he did not have to decide that question, because even if it were, the approval of reserved matters including landscape details would, as with the 1989 permission, go to the heart of the permission. As landscape details had not at any time been approved, the commencement of development would conflict with the conditions and would therefore be unlawful.
20. Accordingly, in his summary of his conclusions, he stated that at the date of the application for the LDC, the proposed development of the site for 17 dwellings could not have been lawfully carried out pursuant to the 1989 permission, the 2005 permission, or the 2005 amendment and that the appeal should be dismissed.
21. In the appeal before me, the parties have helpfully indicated that, with one exception, there is no dispute about the principles to be applied. The dispute is as to how the inspector should have applied the principles to the facts of this case. Accordingly the principles can be stated fairly shortly.
22. This court should only interfere with the inspector's decision if he has erred in point of law, see Ashbridge Investments Ltd v MHLG [1965] WLR 1320 at 1326 G-H. The essence of the challenge to his decision is that it was perverse, involved an over-rigid application of the principle in Whitley, and dealt with the application for the LDC as involving 3 separate issues rather than looking at the matter in the round.
23. The general rule in construing a planning permission which is clear, unambiguous and valid on its face is that regard may only be had to the planning permission itself, including any conditions and the express reasons for those conditions. This excludes reference to the planning application, unless the permission incorporates the application by reference or if there is an ambiguity in the wording of the permission, see R v Ashford Borough Council ex parte Shepway Borough Council [1998] PCLR 8, per Keene J, as he then was.
24. The principle in Whitley is that, as planning permission is controlled by and subject to its conditions, operations which contravene conditions cannot properly be described as commencing the development authorised by the permission. The one exception stated in that case was where a condition required an approval before a given date and the developer had applied before then for approval, which is subsequently given, work done before the deadline and in accordance with the scheme then approved can be described as commencing the development.
25. A number of other exceptions have been established in case law subsequent to Whitley. The court does not have a broad discretion where fairness is the only or main criterion, but the categories of exceptions are not closed (Leisure Great Britain plc v Isle of Wight Council (1999) 80 P&CR 370, per Keene J). The exceptions which have been already established were summarised by Richards LJ in Greyfort Properties Ltd v Secretary of State for Communities and Local Government [2011] EWCA Civ 908 in paragraphs 6 to 30 of his judgment.
26. They include: where conditions required a number of schemes to be submitted and approved before any development could commence, but the planning authority subsequently agreed that development could start without full compliance with all the conditions (Agecrest v Gwynedd County Council [1996] JPL 325); where details are submitted and approved but formalities such as a written notice of approval had not been carried out by the time work began on site (R v Flintshire County Council (1998) 77 P&CR 475); and where enforcement action would be irrational or an abuse of power (R (Hammerton) v London Underground Ltd [2002] EWHC 2307 Admin and R (Prokopp v London Underground Ltd [2003] EWCA Civ 961).
27. In the other case referred to by the inspector, Hart Aggregates, Sullivan J, as he then was, found on the facts that there was no breach of condition but then went on to examine the position if there had been, so his subsequent remarks are not binding on this court. He said at paragraphs 42-3 that the Whitley principle is a judicial creation devised to fill a gap in the otherwise comprehensive planning code and so as to give effect to the underlying purpose of the legislation; that the court should be wary of applying the principle in an unduly rigid fashion to the extent that it leads to absurd and unforeseen results. An example he gave at paragraph 55 was of a planning permission for a large industrial building subject to conditions on such matters as hours of operation, noise emissions, and car parking. No landscaping scheme is submitted and approved before development commenced, as was also required by condition, but the development goes ahead and after four years is immune from enforcement action. An unduly rigid application of the Whitley principle would mean that the permission would lapse and with it the obligation to comply with conditions such as hours of operation and noise emissions.
28. At paragraphs 58-62, he said that the obligation on local planning authorities 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 the planning permission. Had the local planning authority wished to prohibit any extraction of minerals in that case before a restoration scheme for the worked area was agreed, it could have imposed the standard form of condition that is imposed on grants of outline permission. The condition that he had in mind was similar to condition 2 of the 1989 permission in the present case.
29. At paragraph 67, for the reasons he had set out, he expressed the view 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, and those case where the failure has been limited to a failure to obtain approval for one particular aspect of the development. He continued:

"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. I appreciate that these are two opposite ends of a spectrum. Each case will have to be considered upon its own particular facts, and the outcome may well depend upon the number and significance of the conditions that have not been complied with. Provided that the Court applies Wednesbury principles when considering these issues, there is no reason why it should usurp the responsibilities of the local planning authority."

30. In Greyfort, Richards LJ saw a good deal of sense in those observations, especially as to the need to avoid an unduly rigid application of the Whitley principle where it would produce absurd results. Whilst he regarded some of the observations as more important than others, Richards LJ, with whom the other members of the court agreed, could see no reason not to accept the correctness of the observations so far as relevant to the submissions made in that case, whilst commenting that the facts in Hart Aggregates were in many ways at the opposite end of the spectrum from those in Greyfort.
31. The difference between the parties in this case arises in respect of an authority which was not cited in skeleton arguments, namely Percy Bilton Industrial Properties Ltd v Secretary of State for the Environment [1976] 1 EGLR 141. Mr Blackie on behalf of Glenholme notified the court and Mr Lewis for the first defendant, the Welsh Ministers, shortly before the hearing that he would be relying upon passages in the judgment of Lord Widgery CJ in that case. When it emerged at the hearing that there was disagreement between counsel as to the meaning of those passages and whether they formed part of the reasoning for the decision and therefore binding on this court, I gave counsel time during the hearing to further consider the authority. They then continued with their submissions, but upon my reserving judgment each has also submitted short written submissions upon it.
32. The case concerned the grant of outline permission for the development of an industrial site, with construction of various buildings contemplated at various stages. Separate buildings were thereafter constructed by a number of different owners over an 18 year period. The permission was subject to a condition that the approval of the local planning was required "before any development is commenced to its (a) siting; (b) design; (c) external appearance; (d) means of access." Applications were then submitted for approval of details upon part of the site which had not yet been built on, which because of lack of response by the local planning authority were deemed to be refused. On appeal, the Secretary of State did not deal with the applications on the basis they were out of time. Upon an application to the Queen's Bench Divisional Court for an order that the Secretary of State should hear and determine the applications, the question was whether development had commenced for the purpose of preserving the permission, and that involved whether the original permission should be seen as a collection of separate permissions for various parts of the site or one single dissoluble permission.
33. The court held that if the work done was that which would normally be done pursuant to the outline application, then just because the work is done did not justify the severing of the site into individual and separate parcels. The Lord Chief Justice said, and the other members of the court agreed, that that was the end of the case. He then went on to deal with an argument of the Secretary of State that the work which had taken place could not have been lawful because it was in breach of the condition set out above. He did so expressly to show that the argument had not been overlooked. He rejected the argument that since no development of any kind could take place until agreement in regard to the siting of the building has been obtained, the entire development was unlawful, on the basis that it was open to the parties to agree upon the approval of details in stages. He continued:

"If one stage is approved, and it is within the consent of the local authority that the building relevant to that one stage should take place, then it can take place, and to suggest after what has happened that there is anything unlawful in the planning sense about the buildings seems to me to be entirely incorrect."

34. On behalf of the Welsh Ministers, it was submitted that this passage was not part of the reasoning for the decision because it followed the finding which was said to be determinative of the case. On behalf of Glenholme, it was submitted that it did form part of the reasoning, because if the entire development were unlawful then that too would be an end of the case. Some support for that is given by words used by Lord Widgery following the passage cited above when he said that "for all those reasons" the Secretary of State should have dealt with the applications. In my judgment the latter submission is to be preferred.
35. Percy Bilton was not referred to in Greyfort or in the majority of the authorities cited by Richards LJ. Exceptions were Agecrest and Henry Boot Homes Ltd v Bassetlaw District Council [2002] EWCA Civ 983. In the former Collins J, and in the latter Keene LJ, each said that the condition in Percy Bilton could be construed to permit staged approvals. As Mr Blackie emphasised, neither Whitley nor Hart Aggregates involved outline permission, but Percy Bilton and Agecrest did, as did Henry Boot Homes.
36. There was further reference to Percy Bilton in Etheridge v Secretary of State for the Environment and Torbay Borough Council [1984] P&CR 35 where the essential question for Woolf J, as he then was, was whether development which had undoubtedly been commenced related to one of three permissions. Wolf J held that two later approvals of full applications also acted as approval of part of matters reserved by earlier outline permission. After referring to passages from the judgment of Lord Widgery in Percy Bilton, Wolf J accepted the later permissions with which he was dealing clearly represented, on their face, full planning permission and not a mere approval of details but went on to say that their effect was to approve exactly those matters which, in respect of the sites to which they related, would have had to have been approved on an application for approval of details. He added that that "may not always be the case, but it was the situation in this case."
37. Mr Blackie emphasised that his citation of Percy Bilton in oral submissions, was to deal with the interpretation of condition 2 of the 1989 permission.
38. There are five grounds of appeal which I now set out in greater detail. The first is that inspector was wrong in law to conclude that the implementation of the 1989 was not lawful, either because the form of the approval of the access and plot layout in 1993 expressly enabled a commencement, or because such approval was capable retrospectively of validating the implementation and did so. It was submitted on behalf of Glenholme that the road access works are now immune from enforcement and lawful, and that the inspector misunderstood the Hart Aggregates judgment. In this case, there was an approval in respect of all matters relevant to the construction of the road, and in relation to those works, the remainder of the reserved matters were irrelevant. The inspector ought not to have applied the Whitely principle too rigidly, and ought to have looked at the situation in the round. Because the commencement date of that approval was expressed to be two years after approval, any subsequent approval would have brought into effect that provision of condition 1, and by that point the 1989 permission was already three years old. Moreover the remaining reserved matter approval was given consequent upon the June 2004 application. That made implementation valid, even if the road access works were unlawful when carried out.
39. Against that, it is submitted by the Welsh Ministers that the immunity in respect of the road access works has been acquired through the passage of time, pursuant to section 171B of the 1990 act, and it does not follow that they were lawful when carried out. Any immunity acquired by a small component of the overall scheme does not make it irrational to take enforcement action to prevent the substantial housing development from proceeding. The fact that the approval of the reserved matters on 12 February 1993 required those matters to be commenced before 12 February 1995 did not override the obligation to comply with condition 2 in respect of all the matters listed there. Finally, on this ground, it was submitted that the inspector was entitled to decide that as the time limit for approval of reserved matters had expired at the time of the June 2004 application, the application could not properly have been considered as such an application and on the face of the 2005 permission a new full permission was granted.
40. In my judgment, the inspector properly considered Hart Aggregates and was entitled to conclude that the 1989 permission was a permission in principle and that the failure to obtain approval of all the matters in condition 2 went beyond a failure to obtain permission for one particular aspect of a development for which full planning permission existed. Although he did not expressly use the word spectrum, as Sullivan J did, he clearly had regard to the distinction identified by Sullivan J. In my judgment, as has already been observed, the condition in Percy Bilton could be construed as to permit staged approvals, but the wording of condition 2 in the present case is different and is clear on its face. In my judgment, the inspector was entitled to conclude that as the time limit for submission of applications for approval of reserved matters had expired by the time of the June 2004 application, an application for approval of reserved matters could not properly have been considered then. His decision in this regard is not one with which the court should interfere.
41. The second ground, which relates to the applications made in 2004, is founded upon the proposition that the council could extend the time for submitting further applications. There is now a statutory restriction on the grant of permission which has such an effect by section 73(5), which Mr Blackie emphasised, was not brought into force until 24 August 2005. That however applies in England (see SI 2205/2081). It has yet to be brought into force in Wales. He further submitted that the inspector was wrong to refer to a concept of implementation of permission "as a whole," and to regard the required landscaping condition as not approved. Implementation of the 1989 permission, as amended, can still take place. Alternatively, the inspector should have concluded that the March 2005 permission was a new permission, rather then varying the 1989 permissions, but that new permission should not be regarded as existing in isolation. Reliance was placed upon R (Reid) v Secretary of State for Transport Local Government and the Regions [2002] EWHC 2174.
42. The Welsh Ministers submitted that if works were now commenced to build the houses under the 2005 amendment, there would be a breach of the landscaping condition because no scheme has been approved. Glenholme could have appealed the council's failure to approve its submitted scheme. There is nothing in the 2005 amendment which gave retrospective permission for works carried out. Even if it did, it would amount simply to a grant of permission for the previously unlawful road and access works. The principle in Reid is that planning permission under section 73 may take effect subject to conditions imposed by the earlier permission, as varied, and applied here simply means that the 2005 amendment is subject to the conditions of the 1989 permission as varied, including condition 2.
43. I do not accept Glenholme's submissions on this ground. There is no justification for saying that the 2005 amendment rendered lawful the works carried out at the time they were carried out. It is clear that the inspector considered that approval of landscaping under the 2005 amendment would, as with the 1989 permission, go to the heart of the permission. In respect of each, the permission was in outline only. His earlier reference was to the 2005 permission, in respect of which all matters apart from landscaping had been approved. That was more akin to permission in principle. In my judgment the inspector was entitled to find in relation to this later permission that landscaping was just one particular aspect of a development for which full permission existed. He was also entitled to find that in respect of the 2005 amendment, landscaping went to the heart of the permission, and as landscape details had not been approved, the commencement of development would conflict with the conditions and so unlawful. There is no inconsistency.
44. The third ground was put in the skeleton argument of Glenholme in terms that an estoppel by convention or legitimate expectation had arisen in relation to the 2005 permission amounting to a new permission. Mr Blackie in his oral submissions made clear that he did not pursue this as a stand alone ground, and was content to rely upon it as support for his fourth ground, to which I now turn.
45. That is that the 2005 permission should have been construed as approval of reserved matters rather than as a new permission. Glenholme submitted that by the time the decision was made it was clear that what was being considered was an application for approval and not a planning application. The decision notice was issued on the wrong template, but should be interpreted for what it should have been. The application was not improper and the reasons for the non-inclusion of a time limit condition were that it was implemented already or partially retrospective. Reliance was placed upon Etheridge.
46. The Welsh Ministers again point to the lack of any challenge at the time by Glenholme as to the status of the 2005 permission once granted, the absence of evidence that the council treated it as anything other then a full permission once granted, and the fact that Glenholme's agent in the November 2005 letter referred expressly "to discharge conditions" of the 2005 "permission.
47. In my judgment the inspector was entitled to regard the 2005 permission, which on the face of the grant it was, as just that. There is no sufficient evidence of dealings between the parties to justify a conclusion that the inspector ought to have treated it as approval of reserved matters. In Etheridge, the effect of the permission was to approve exactly the matters which, in respect of the site to which they related, would have had to have been approved on an application for approval of details. Here there is only one site, and as the inspector observed, landscape details have not at any time been approved.
48. That leads on to the fifth ground, which is based on the proposition that landscaping issues were peripheral and not reserved matters. I have already made observation in respect of landscaping issues. In my judgment the inspector was entitled to approach such issues in the way in which he did.
49. In my judgment the appeal fails. Looking at the matter in the round, the situation is far removed from the exceptions to the Whitley principle or the sort of example given in Hart Aggregates. Permission in outline only was granted some 23 years ago to build up to 20 houses, with standard time limits for approval of reserved matters. The only works which have been carried out are the construction of the access and the partial construction of the estate road, and those works were carried out some 17 years ago. As the inspector said, it is unfortunate that the council did not approve the landscaping scheme submitted in 2005, but Glenholme could have appealed its failure to do so but did not, and took no further steps. These works are now immune from enforcement action. Further applications for permission to develop may be submitted. There is nothing absurd or unforeseen in the inspector deciding that the building of 17 houses could not as at 2012 be carried out lawfully pursuant to the 1989 permission, the 2005 amendment, or the 2005 permission. The decision gives effect to, rather than frustrates, the underlying statutory scheme that permissions should be implemented within a certain time of the grant.