UPPER TRIBUNAL (LANDS CHAMBER)

UT Neutral citation number: [2012] UKUT 153 (LC)

UTLC Case Number: LCA/425/2010

 

 

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

 

COMPENSATION – injurious affection – water pipeline across land – preliminary issue – planning permission – time limit – whether houses could be constructed on the land pursuant to planning permission granted 20 years previously where minimum works of implementation carried out – whether permission full or outline – held that it was full but did not permit erection of houses on part of the land – Town and Country Planning Act 1971 s42, Town and Country Planning General Development Order 1977 Arts 2 & 5

 

 

 

IN THE MATTER OF A NOTICE OF REFERENCE

 

 

BETWEEN

EADEN HOMES LIMITED Claimant

 

and

DWR CYMRU CYFYNGEDIG (WELSH WATER) Compensating

Authority

 

Re:   Land known as “Morfa”,

Trearddur Bay,

Anglesey

 

Before: The President

 

Sitting at: Manchester Crown Court,

on 11 May 2012

Vincent Fraser QC instructed by Brabners Chaffe Street LLP of Liverpool for the claimant

Roger Lancaster instructed by Aaron and Partners LLP of Chester for the compensating authority.

 

The following cases are referred to in this decision:

 

R v Flintshire County Council ex p Somerfield Stores Ltd [1998] PLCR 336

R v Newbury District Council ex p Chieveley Parish Council  [1997] JPL 1137

 

The following further case was referred to in argument:

 

R (Murray) v Hampshire County Council [2003] EWCA Civ 760

DECISION ON A PRELIMINARY ISSUE

1.       This is a claim for compensation under the provisions of the Water Industry Act 1991 arising out of pipe-laying works carried out by the compensating authority between July and September 2004 on the claimant’s land, known as “Morfa”, Trearddur Bay, Anglesey.  The effect of the works, it is claimed, prevented the full implementation of a planning permission for residential development on the land, and the claim is for depreciation in the value of the land in the sum of £3.37m plus consequential losses.  The compensating authority say that no development could have been carried out under the planning permission at the time of the works, so that there has been no depreciation in the value of the land due to the works.  The preliminary issue that is the subject of this decision relates to this assertion of the authority.

2.       The land was bought by the claimants on 17 February 2004.  Shortly afterwards the authority gave notice that after the expiration of three months they intended to enter on the land pursuant to their powers under sections 159 and 168 of the 1991 Act for the purpose of laying a sewer pipeline.  They entered the site for this purpose in July 2004, and the works were completed in about September 2004.

3.       The planning permission in issue was granted by Ynys Mon Borough Council as long ago as 29 April 1983 under reference 1/20/V/131N.  It stated that permission was granted subject to conditions for

“Layout and detailed plans for the erection of 45 dwellings and layout for a further 38 plots on land at Morfa, Trearddur Bay, making a total of 83 units in all, in accordance with the plan(s) and application submitted to the Council on 6^th January 1983.”

4.       The permission was subject to a condition that the development must be begun within 5 years.  The contention of the compensating authority was that no development had been carried out within that period.  They also asserted, in relation to that part of the land that was principally affected by the pipeline works, that the permission was an outline permission, and thus subject to a condition deemed by statute that application for the approval for reserved matters within 3 years and that no such application had been made.  On 24 March 2011 I ordered that the following issues should be determined as preliminary issues:

“(a) Whether planning permission 1/20/V/131N was in force at the date when the pipe-laying works were carried out on the subject land.

(b) Whether, if the planning permission was in force, it was a full planning permission in relation to the 38 plots for which the layout was approved or an outline permission.”

5.       Evidence filed on behalf of the claimant in October 2011 stated that works consisting of the stripping of topsoil, levelling and laying the hardcore sub-base of a roadway and four of the permitted buildings was carried out in 1984 or 1985.  On 3 May 2012, a week before the date fixed for the hearing, the compensating authority, in the light of this evidence, conceded the first preliminary issue.  They accepted that the development had been commenced within 5 years of the grant of permission, so that the permission remained extant.  The second issue remains in dispute, and its resolution requires a consideration of the relevant statutory provisions and the permission itself.

6.       The statutory provisions that are relevant to the submissions of counsel were those in the Town and Country Planning Act 1971 and the Town and Country General Development Order 1977, the relevant Act and Order that were in force at the time of the application and grant of permission.  Section 41(1) provided, except where section 42 (or certain other provisions) applied, that every planning permission was deemed to be granted subject to a condition that the development to which it related must be begun within 5 years of the grant of the permission or such other period as the planning authority might direct.  Section 42, so far as material, provided as follows:

“42 Outline planning permission

(1)  In this section and section 41 of this Act “outline planning permission” means planning permission granted, in accordance with the provisions of a development order, with the reservation for subsequent approval by the local planning authority or the Secretary of State of matters (referred to in this section as ‘reserved matters’) not particularised in the application.

(2)  Subject to the provisions of this section, where outline planning permission is granted for development consisting in or including the carrying out of building or other operations, it shall be granted subject to conditions to the following effect-

(a) that, in the case of any reserved matter, application for approval must be made not later than the expiration of three years beginning with the date of the grant of outline planning permission; and

(b) that the development to which the permission relates must be begun not later than whichever is the later of the following dates –

(i) the expiration of five years from the date of the grant of outline planning permission; or

(ii) the expiration of two years from the final approval of the reserved matters or, in the case of approval on different dates, the final approval of the last such matter to be approved.

(3)  If outline planning permission is granted without the conditions required by subsection (2) of this section, it shall be deemed to have been granted subject to those conditions.”

7.       The GDO made the following provision for the making of planning applications:

“Applications for planning permission

5.-(1) Subject to the following paragraphs of this article, an application to a local planning authority for planning permission shall be made on a form issued by the local planning authority and obtainable from that authority or from the council with whom the application is to be lodged and shall include the particulars required by such form to be supplied and be accompanied by a plan sufficient to identify the land to which it relates and such other plans and drawings as are necessary to describe the development which is the subject of the application, …; and a local planning authority may by a direction in writing addressed to the applicant require such further information as may be specified in the direction to be given to them in respect of an application for permission made to them under this paragraph, to enable them to determine that application.

(2) Where an applicant so desires, an application may be made for outline planning permission for the erection of a building and, where such permission is granted, the subsequent approval of the local planning authority shall be required to such matters (being reserved matters as defined) as may be reserved by condition.  The application shall be made on a form, as required by the preceding paragraph, shall describe the development to which it relates, shall be accompanied by a plan sufficient to identify the land to which it relates … and may contain such further information (if any) as to the proposal as the applicant desires …”

8.       Article 2(1) of the GDO contained the following definitions:

“‘outline planning permission’ means a planning permission for the erection of a building which is granted subject to a condition (in addition to any other conditions) which may be imposed requiring subsequent approval to be obtained from the local planning authority with respect to one or more reserved matters;…

‘reserved matters’ in relation to an outline permission, or an application for such permission, means any of the following matters relating to the building to which the planning permission or the application relates which are relevant to the proposal and in respect of which details have not been given in the application namely:

(a) siting, (b) design, (c) external appearance, (d) means of access, (e) the landscaping of the site.”

9.       The permission, as set out above, incorporated the application and the plans submitted with it.  The parties were in agreement that there were seven plans that formed part of the application and were included in the permission, and copies of these were produced. 

10.    The permission was subject to some 18 conditions.  Condition 1, as I have noted, provided that the development must be begun not later than the expiration of five years beginning with the date of the permission.  The reason given for this condition was that it was “imposed pursuant to the requirements of Section 41 of the Town and Country Planning Act”.  The remaining conditions were stated to have been imposed “to ensure that the development will be satisfactory from an amenity and architectural point of view and to comply with the requirements of the Highway Authority in the interests of road safety”.

 

11.    Condition 2 was in these terms:

“2. The submission to and approval by the local planning authority of a detailed layout plan (of that part of the overall development not forming part of the detailed layout of 45 dwellings) of the remaining approved area to a scale of 1/500^th indicating thereon the position and width of all proposed new streets, roads and carriageways, their relationship to existing roadways and the division of the land into plots; the layout shall indicate the proposed use of each such plot and the siting of any buildings proposed to be erected thereon and shall indicate the levels of the land before and after development and the height of each such building on the land; the layout plan shall also indicate the proposed lines of water supply, drains and sewers and all shall be approved by the local planning authority before any detailed plans for the development of individual plots are submitted.”

12.    Other conditions to be noted are 4, requiring that the buildings must be sited in the positions indicated on the approved plan; 5, requiring the approval of the type and colour of the roofing tiles and facing bricks; and 8, “That buildings permitted by this consent shall be erected strictly in accordance with the plans attached to this permission.”  Conditions 3 and 18 dealt with phasing, requiring that the development should be carried out in stages as indicated on the plan, with one stage being completed before the commencement of any development in the next stage.  Further conditions included ones relating to landscaping and the construction of the roads and footways.

13.    The application had been made on the council’s standard form.  It stated, as the requested brief particulars of the proposed development: “Proposed 45 dwellings, 12 no flats and 37 individual plots.”  In answer to the question whether the proposal involved new buildings it said: “Yes.”  The requirement to state if the permission was for outline planning permission or full planning permission was met by the entry “No” against outline and “Yes” against full planning permission.  Opposite the spaces for these responses, but with an arrow to it from the outline response space, was a box which contained the instruction: “If yes, delete any of the following which are not reserved for subsequent approval: siting, design, external appearance, means of access and landscaping the site.”  The first four of these were deleted, but “landscaping the site” was left undeleted.  The application confirmed that it was for “planning permission to carry out the development described in this application and the accompanying plans”.  The layout plans that accompanied the application showed full details of the location, house type and plan form of each of the 45 houses.  They showed the roads and sewers serving these houses and some landscaping details.  The designs of each of the house types, A to F, were shown on further plans.  For those parts of the land outside the area of the 45 houses the layout plans showed only the boundaries of each plot and the roads and sewers.  Phasing was shown across the whole site.

14.    The contention of the claimant is that the planning permission was a full permission, the effect of which is to permit the erection not only of the 45 houses in respect of which details were submitted with the application but also the 38 houses in respect of which no details were submitted.  Mr Vincent Fraser QC submitted that these 38 houses can be erected, subject to compliance with condition 2.  The closing words of the condition – “all shall be approved by the local planning authority before any detailed plans for the development of individual plots are submitted” – contained, he said, an implied condition that before development of the 38 houses was carried out such details as the planning authority might require must have been submitted to and approved by them.  He said that the permission is in form and substance a full planning permission and that, since it was accepted that condition 1 had been satisfied, it remained capable of implementation.  For the compensating authority Mr Roger Lancaster submitted that the permission was a hybrid permission: it was a full permission in relation to the 45 houses and an outline permission in relation to the 38 houses.  Before the 38 houses could be built details would have to be submitted and approved; but, under the condition subject to which the permission was deemed under section 42 to have been granted, application for the approval of any reserved matter had to be made within three years of the grant of permission, and, since no such application had been made, the permission for the 38 houses was no longer capable of implementation.

15.    The issue as addressed by the parties is whether the permission, so far as it related to the 38 houses, was a full or an outline permission.  The question, formally, is whether it was an outline permission in relation to the 38 houses, thus making the permission as a whole what has come to be called a “hybrid” permission, outline as to part of the site and full as to the rest of it.  The concept of such a permission is not to be found in the wording of the Act and the GDO, but it has certainly been recognised in practice, and Circular 04/2008 “Planning Related Fees” gives express recognition at paragraph 24 to the concept of a hybrid application.  The parties proceeded on the basis that it was possible to make a hybrid application under the statutory provisions that applied in January 1983 and on the application form provided by Ynys Mon Borough Council at that time, and I see no reason to disagree with this.  My conclusion, however, is that this was not a hybrid permission which granted permission in outline for the 38 houses.

16.    An outline planning permission can only be granted on an outline application.  Authority for this is to be found in R v Flintshire County Council ex p Somerfield Stores Ltd [1998] PLCR 336 (per Carnwath J at 347) and R v Newbury District Council ex p Chieveley Parish Council  [1997] JPL 1137 (per Carnwath J at 1153).  The reason for this (in terms of the legislation as it was in 1983) is because an outline planning permission was defined in section 42(1) as one granted in accordance with the provisions of a development order with the reservation for subsequent approval of reserved matters; Article 5(2) of the GDO permitted the making of an application for outline planning permission; and outline planning permission was defined in Article 2(1) as permission reserving for subsequent approval one or more of the five reserved matters.  That is why the application form asked if the application was for outline permission and, if it was, which if any of the five reserved matters was not to be reserved for subsequent approval.  The application stated that it was not an application for outline planning permission but was an application for full planning permission.  Although the “If yes…” box opposite the outline question was completed, the deletions – siting, design, external appearance and means of access – clearly related to the 45 houses and not to the 38 plots.  Thus it did not purport to be, and was not, an application for outline planning permission in relation to the 38 houses.  Since the permission was not granted on an outline application, therefore, it was not an outline permission.

17.    There is moreover a fundamental point to be noted: outline planning permission can only be granted for the erection of a building.  The description of the development in the application was “Proposed 45 dwellings, 12 no flats and 37 individual plots”, appearing, therefore, to draw a distinction between the 45 dwellings (and the 12 flats) on the one hand and the 37 “individual plots” on the other.  The 45 dwellings were shown as buildings on the plans and drawings gave details of their design.  The 38 (as they became) individual plots were shown as plots with the roads and sewers serving them.  In terms, therefore, the application did not seek permission for the houses to be erected on the 38 plots, nor did it state that outline permission for these was sought, nor did it identify the matters which were not reserved for subsequent approval.  It was manifestly not an outline application either in the terms in which the development was expressed or in the way that the form was filled out in relation to the outline questions. 

18.    In granting permission the council did not simply repeat the description of the development in the application.  The permission referred to “Layout and detailed plans for the erection of 45 dwellings and layout for a further 38 plots…making a total of 83 units in all”.  Thus it maintained the distinction between the 45 dwellings and the 38 (previously 37) individual plots in the application but it expressed this in terms that accorded with the language of the GDO, under which, as I have noted, outline planning permission can only be given for the erection of a building.  Permission was not being granted for the erection of the 38 houses, only their layout.

19.    It is clear in any event from other indications also that the council were not purporting to grant a hybrid permission.  They imposed as condition 1 the requirement that development must commence within 5 years, and they gave as the reason for this the requirements of section 41.  They did not make part of the permission subject to conditions required by section 42.  They imposed no standard outline conditions relating to reserved matters and the reasons given for the conditions that were imposed were not the reasons that would normally be given if part of the permission was outline.

20.    Mr Fraser suggested, as I have noted, that the closing words of condition 2 should be read as containing an implied condition that before development of the 38 houses was carried out such details as the planning authority might require must have been submitted to and approved by them.  I cannot accept this.  It seems inconceivable that if the council had intended to impose conditions relating to the erection of the 38 houses, in terms of their siting, design, external appearance and landscaping, this would not have been done expressly.  They would not have left such a condition to be implied, a condition which, in respect of the terms that Mr Fraser suggested it would contain, would be wholly imprecise, leaving it to the council to decide the details that they might require.  The absence of any express condition on the submission of details is, however, consistent with the terms in which the council granted permission – for the layout, and not the erection, of the houses.

21.    Mr Fraser asked rhetorically what would be the purpose of seeking permission for the layout of the 38 houses and not their erection.  The answer, it seems to me, is reasonably clear.  The purpose was to show the layout of the entire development, so that the 45 houses could be judged to be acceptable in the context of the further development that the applicant hoped eventually to carry out and to enable the roads and sewers to be laid.  Counsel also drew attention to the approved phasing plan, which included within phase 1 four of the 38 plots.  It was suggested that this was inconsistent with a construction of the permission that limited it to the layout of those plots, since conditions 3 and 18 required the completion of a phase before the next phase was begun.  Those two conditions provided as follows:

“3. The development shall be carried out in stages as indicated on approved plan A, the development of one stage to be completed before any development is commenced on the next stage, unless the prior agreement of the local planning authority is obtained…

18. Where development is proposed in phases or stages the previous phase shall be completed to the entire satisfaction of the Local Planning Authority before the development of a subsequent phase or stage is completed.”

These conditions clearly duplicate each other, except that condition 3 contains the proviso relating to the agreement of the local planning authority to depart from the requirement of the condition.  In view of this proviso, it seems to me likely that if the council refused permission on a fresh application for the four houses they could not reasonably refuse a departure from the phasing requirement so as to enable the 45 houses to be completed.  Even if this were not so, I would not in any event consider that the phasing requirement by itself was sufficient to suggest that the permission was to be read as one for the erection of the 38 houses in view of the other indications to the contrary.

22.    My conclusion, therefore, is that the permission was a full planning permission and was not an outline permission in relation to the 38 houses.  The preliminary issue must consequently be determined in the claimant’s favour.  Part of my reasoning for this conclusion, however, is that the permission was for the layout of the 38 houses only and not their erection.  I raised this point with Mr Fraser; and Mr Lancaster adopted it.  Mr Fraser was content to deal with the point without an adjournment other than that at midday.  Since, however, it is a point that is adverse to the claimant’s case, and the claimant will not be able to appeal against the decision on the preliminary issue, which is in its favour, it seems to me that I should express the point as an issue in the appeal that has been determined.  The claimant will then be able to consider whether to seek permission to appeal against this part of the decision.

23.    Accordingly I make the following determinations:

(i) The planning permission was a full permission and was not, in relation to any part of the development permitted, an outline permission.

(ii) In relation to the 38 plots the permission was for their layout and not for the erection of houses upon them.

24.    The parties are now invited to make submissions on costs, and a letter about this accompanies this decision, which will become final when the question of costs has been determined.  Following the decision on costs directions for the further conduct of the proceedings will be given.

Dated 15 May 2012

 

 

 

George Bartlett QC, President

Addendum on costs

25.    I have received submissions on costs.  The claimant asks for its costs.  It says that it has succeeded on both preliminary issues, the first being conceded by the council and the second being determined in its favour.  The council say that there should be no order as to costs.  They point out that the first issue was one that required evidence from the claimant before it could be determined in its favour; and that as soon as such evidence was produced the council conceded the point.  As regards the second issue they say that this was determined in the claimant’s favour on a basis that did not in substance accord with the way in which its case had been presented; while the conclusion that the permission allowed only the laying out of the 38 houses meant that the claimant had failed to derive any positive benefit from the determination.

26.    It is not appropriate, in my view, to make an award of costs at this stage.  As regards the first issue I accept the council’s contention that it was reasonable for them to wait to be satisfied by evidence produced by the claimant that development under the permission had been carried out.  It may also be the case that the claimant’s success on that and the second issue may not result in an award of significant compensation.  In these circumstances it is appropriate to leave the question of the costs of the preliminary issues until after the final decision, when these considerations can be taken into account in the context of the case as a whole.  The order, therefore, is that costs are reserved.  

Dated 6 June 2012

 

 

 

 

George Bartlett QC, Presiden