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Permission
Approval of Reserved Matters
Redrow Homes Limited v First Secretary of State
[2004]EWCA Civ 1375
Facts
Redrow owned part of a larger site that had the benefit of a 1957 outline planning permission for commercial development. The original permission allowed for three access roads linking with public highways, subject to a condition that no access road should be constructed until its precise location had been agreed with the local planning authority.
In 2000 Redrow applied for approval from the local planning authority for a specific access road location. The application was not determined within the two-month time limit and Redrow appealed to the Secretary of State. He granted approval subject to a condition that the use of the access road should be restricted to public service vehicles only. Redrow challenged the imposition of the condition under section 278 of the Town and Country Planning Act 1990 on the ground that it amounted to a revocation or modification of an extant planning permission. The judge upheld the challenge, and quashed the condition. He held that unless the original outline planning permission had contained words of limitation, it must be assumed that access was intended to the site by the same traffic that used the public highways. The Secretary of State had accordingly acted unlawfully. The Secretary of State appealed.
Decision
Appeal dismissed. What had been reserved for future approval was the location rather than the use of the access road. There is a power to grant approval of reserved matters subject to conditions, but those conditions must not derogate materially from the original grant of outline planning permission.
Comment
The court pointed out that if the Secretary of State wished to modify the planning permission, he had to do so by way of section 100 of the 1990 Act, so allowing Redrow a claim for compensation under section 107.
Meaning of planning permission in option to purchase agreements
Castlebay Ltd v Asquith Properties Ltd
[2005] EWCA Civ 1734
The Court of Appeal considered what constituted a planning application for the purpose of interpreting an option-to-purchase agreement. The appellant appealed the decision of the High Court on the basis that an application for reserved matters approval was a planning application and accordingly it was still entitled to exercise the option to purchase under the agreement. The option had been exercisable at by notice within a defined period during which there had been opportunity to extend if certain circumstances arose, including where a "decision [was] awaited in respect of a planning application".
Held
The ordinary usage of the term applied:"..this is clearly an agreement which has been drawn with the provisions of the planning legislation fully in mind. In those circumstances, I would expect the parties to have intended, by the phrase 'application for planning permission', the meaning which that phrase has long been recognized to bear in the context of planning legislation. If there were a context which required that meaning to be enlarged, the court would give effect to that requirement, as it did in the Hargreaves case. But, absent any context which requires some larger meaning, I am left with an agreement which is intended to strike a balance between the interests of the owner and the interests of the grantee. And I am left with the firm conclusion that, if these parties had intended some meaning to be given to the phrase, 'any application for planning permission' wider than the meaning which that phrase normally bears, they would have made that clear." Accordingly the Court dismissed the appeal.
Comment
The question of whether reserved matters approval constitutes a grant of planning permission is a matter that is the subject of judicial consideration in the context of environmental impact assessments.
Whether an EIA needs to be undertaken is to be considered where there is a development consent being sought. The ECJ has recently held in R (on the application of Wells) v Secretary of State for Transport, Local Government and the Regions that reserved matters approval can trigger the need to consider whether an EIA should be undertaken in the context of old mineral permissions. In addition, there is a reference to the ECJ in R v London Borough of Bromley (Barker) whether reserved matters approval constitutes development consent. The court in R (on the application of the Noble Organisation) v Thanet District Council [2005] EWCA Civ 782 recently held that the question whether the need for an EIA should be considered at the reserved matters stage remained an open question having regard to the reference in Barker the outcome of which is awaited.
Reasons
R (on the application of Wall) v Brighton and Hove City Council
[2004] EWHC 2582 (Admin)
The council had granted planning permission for a block of flats on land adjoining Mrs Walls house. (She had objected to the application on the ground that it would adversely affect her property.) The decision notice, however, did not include a summary of the specific reasons for granting permission as required by Article 22(1) of the GDPO. Mrs Wall sought judicial review of the councils decision, her principal ground being failure to comply with Article 22(1). In the meantime (i.e. five months after the issue of the original decision notice) the council provided Mrs Wall with a fresh decision notice incorporating reasons that had been obtained from each member of the committee who had voted in favour of granting planning permission.
Decision
Sullivan J quashed the grant of planning permission. He made a distinction between obligations to give reasons that merely informed the public following a decision, and those that imposed requirements for decision-making and were intended to influence the quality of the decision. The Article 22(1) obligations were of the latter kind. A failure to comply with Article 22(1) did not render the decision notice void, but it did give the court the discretion to quash the decision notice subsequently. In this case, the reasons given were based on the flawed recollections of the committee members. Furthermore, reasons given in private correspondence relating to judicial review would not remedy the breach, given the requirement for publicity. Finally, it was not necessary for Mrs Wall to show that she had suffered prejudice from the councils failure.
Comment
Article 22(1) of the GDPO has required, since December 2003, a local planning authority to state clearly, precisely and in full in any decision notice granting planning permission the reasons for doing so and to specify the relevant polices and proposals in the development plan. (Previously, such a requirement applied only in relation to a decision to refuse planning permission or impose conditions on the grant of the same.) While a failure to do so will not invalidate the planning permission, it will render it open to challenge. The extent to which any such challenge is likely to succeed will depend upon the facts of the case in question.
R (On the application of Midcounties Co-Operative Ltd) v Forest Of Dean District Council; Santon Group Developments Ltd and others (Interested Parties)
[2007] EWHC 1714 (Admin)
This is another decision in the line of cases which addresses the requirement of Article 22(1) Town And Country Planning (General Development Procedure) Order 1995 to give reasons for the grant of planning permission.
The Court quashed three planning permissions which were granted in respect of proposed developments where the local planning authority had failed to provide summary reasons for granting the planning permissions as required under the Town and Country Planning (General Development Procedure) Order 1995 art.22(1).
It was held that since local planning authorities were accustomed to suggesting reasons where applications were refused or for the imposition of conditions, there was no reason why they should not routinely do the same in summary form for a grant of planning permission.
The Court considered and applied the decision in R (on the application of Wall) v Brighton and Hove City Council (above) and stated that an objector, wishing to challenge a decision to grant planning permission, might be interested in knowing whether the local authority had proper regard to all material considerations, and an applicant seeking planning permission might be concerned to check that there was no flaw in the grant of permission.
Furthermore, applying the decision in R (on the application of Tratt) v Horsham DC [2007] EWHC 1485 (Admin) the Court held that the purpose of giving reasons was the same whether they were full or summary. The obligation to give summary reasons was based on the same considerations that applied to the obligation to give full reasons and, therefore, the summary reasons should cover the main issues that formed part of the consideration of the application for planning permission.
The Court considered the decision in R (on the application of Ling (Bridlington) Ltd) v East Riding of Yorkshire Council [2006] EWHC 1604 (Admin). The Court stated that where there were no objections to an application for planning permission, that could be stated in the notice of a decision and it would suffice in such circumstances to say no more than that the application accorded with the relevant policies.
However, in this case the Court considered that the reasons given in the permissions were inadequate. Furthermore, there was not only a failure to refer to relevant policies but a failure to do more than list the supposedly relevant policies. The Court held that Article 22(1) of the 1995 Order required a summary of the policies which should be an indication of what the policy dealt with insofar as it was material to the permission it related to
Telecommunications
Airwave MMO2 Ltd v First Secretary Of State
QBD (Admin) 30 June 2005
A planning inspector dismissed the Claimants appeal against refusal of planning permission for a telecommunications mast. The inspector held that the upright booms used in the mast did not amount to antenna but were apparatus. This meant that the mast the Claimant had constructed could not be permitted development as it did not fall within the meaning of the Town and Country Planning (General Permitted Development) Order 1995 Sch.2 Part 24. The exclusion of the upright booms from being part of the antenna meant that the mast breached the exclusion, under the Order, on masts, save for antenna, exceeding 15 metres in height. In addition, the inspector held that as the Claimant had erected the mast without following the procedures set out in the Order the development could not benefit from the permitted development rights in the Order.
The Claimant appealed against both these findings. In relation to the first issue the Court held that the inspectors interpretation of what constituted an antenna was too restrictive. As long as a piece was part of an installation it was a question of fact and degree as to whether it was an antenna.
The Court held in relation to the second issue, that the development could not benefit from permitted development rights as the requirements of the Order had not been complied with. The permitted development rights in the Order were not available to regularise development which had been carried out before an application had been made in accordance with the obligations in Part 24. Accordingly, retrospective planning permission was required.
The application was dismissed.
Temporary permission
Lee v First Secretary of State
[2003] EWHC 3235 (Admin)
Facts
The claimant, a gypsy, had purchased green belt land in Kent and sited a caravan on it, without planning permission, as a home for himself and his family. He applied for planning permission to maintain the caravan on the site permanently or, if such permission were refused, temporarily (a) to enable his children to finish their education, or (b) to allow the family to find an alternative site.
The local planning authority refused to grant planning permission. The Secretary of States inspector then dismissed the claimants appeal. While he determined that a grant of temporary planning permission to cover the period of the childrens education was not justified, the decision letter failed to state his finding generally in relation to the application for temporary planning permission. The claimant applied to the High Court under section 288 of the Town and Country Planning Act to quash the decision.
Decision
Harrison J allowed the application and quashed the decision, remitting it for reconsideration. The inspector had failed to address the request for a delay to enable the claimant to find a new site. The decision letter had not dealt with the application for temporary planning permission, expressly or by implication.
Comment
While the inspector had erred, the ultimate decision may still be to refuse to grant temporary planning permission or more strictly planning permission for a limited period. DOE Circular 11/95 The Use of Conditions in Planning Permissions advises that the material considerations to which regard must be had in granting any planning permission are not limited or made different by a decision to make the planning permission a temporary one. In either case, the proposed use of the land here would constitute inappropriate development in a green belt.
Travelling showpersons and alternative sites
Jones v (1) First Secretary of State (2) North West Leicestershire District Council; Sheldon v (1) First Secretary of State (2) Forest of Dean District Council
31 January 2007
Planning inspectors refused planning permission for permanent quarters for travelling showpeople in the open countryside They concluded that the proposed use of the respective sites was contrary to planning policy, as the development would have a detrimental impact on the countryside and constituted unsustainable development. The inspectors had regard to Planning Circular 22/91: Travelling Showpeople, the identified need for accommodation for travelling showmen and the fact that no suitable sites for use as permanent quarters had been identified. The Appellants contended that the inspectors had acted in a manner that was Wednesbury unreasonable in concluding that the factors raised in favour of allowing the development were insufficient to outweigh the harm such development would cause.
The Court held that it could not be said that the balance struck by the planning inspectors between the factors in favour of development and those against development defied logic, R v North and East Devon Health Authority Ex p Coughlan (1999) LGR 703 considered. All the relevant factors had been considered. While a different decision could have been reached, it did not follow that the decisions in these cases were irrational. The issue of whether the need for accommodation for travelling showmen outweighed the need for protection of the countryside was pre-eminently a matter for the planning inspectors. The fact that there was not a site available in an urban area did not mean that any site outside an urban area must be acceptable. In addition, the fact that one of the planning inspectors had assessed the prospect of finding a suitable site as "remote" did not mean that such a site could not be found.
Very special circumstances - green belt - gypsies
South Bucks DC v Porter
[2004] UKHL 33
A planning inspector was entitled to grant retrospective permission to override green belt policies under PPG 2 in a case where a Romany Gypsy had lived on a plot that she owned in breach of planning control.
Article: Adequate reasons by Stephen Cottle, 2 Garden Court (Solicitors Journal, 20 August 2004, p989).
First Secretary of State v Simmons
[2005] EWCA Civ 129
The Secretary of State appealed against the decision of the High Court quashing a decision of the secretary of state upholding an enforcement notice issued by the local authority requiring the respondent to discontinue use of a green belt land for stationing caravans.
The secretary of state had dismissed the appeal against the enforcement notice concluding that although there was an unmet need for gypsy sites in the local area, he did not regard that factor alone was sufficient in itself to amount to "very special circumstances" justifying inappropriate development in the green belt under the Planning Policy Guidance 2 (1995) para.3. He also stated that there was no clear evidence of any real effort being made by the appellant to find alternative sites, and that the lack of evidence of a search for other sites weighed against his case. The appellant challenged that decision. The judge held that the secretary of state had rejected the finding of a lack of available sites simply because of a lack of clear evidence of searches by the appellant but that he had not taken account of all the evidence.
The Court of Appeal found that on the evidence, the secretary of state was entitled to make a finding that there was lack of evidence of a search for other sites. The secretary of state was entitled to reach the planning judgement he did and the judge had accordingly erred by finding that the secretary of state had failed to take account of all the evidence.
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