Redrow Homes Ltd. v First Secretary of State & Anor [2004] EWCA Civ 1375

Case No C3/2003/2731[2004] EWCA Civ 1375
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT LIST
(MR JUSTICE SULLIVAN)
Venue Royal Courts of JusticeDate Tuesday, 5 October 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE MUMMERY
LORD JUSTICE MAURICE KAY
LORD SLYNN OF HADLEY
Between
REDROW HOMES LIMITEDRespondent-v-
Between
THE FIRST SECRETARY OF STATEAppellantSOUTH GLOUCESTERSHIRE COUNCILRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MISS N LIEVEN AND MR D KOLINSKY (instructed by Treasury Solicitor) appeared for AppellantMR M BARNES QC AND MR E CAWS (instructed by Redrow Group Services Limited) appeared for RespondentsMR T STRAKER QC AND MR R HUMPHREYS (instructed by South Gloucestershire County Council) appeared for 2nd Respondents
J U D G M E N T

LORD JUSTICE MUMMERY:

This

[1]is an appeal by the First Secretary of State ("the Secretary of State") from an order made by Sullivan J in the Administrative Court on 3 December 2003. Permission to appeal was granted by Laws LJ on 19 January 2004. The appeal is about the proper construction of a planning permission granted by the Local Planning Authority nearly 50 years ago.[2]Outline planning permission was granted for the industrial and commercial development of a very large area of land in Gloucestershire. Planning permission was also granted for the construction of accesses to existing public highways at three points indicated on a plan (plan B) attached to the permission. Redrow Homes Limited ("Redrow"), which now owns a substantial part of the development land and is the first respondent to this appeal, applied to the court under section 288 of the Town and Country Planning Act 1990. On the application the judge made an order quashing the decision of the appellant, the Secretary of State, which had been notified in a letter of 6 May 2003. The relevant decision was the imposition of conditions on the class of traffic use of the access at point 6C on plan B. The Secretary of State confined it to use by public service vehicles. I shall refer to the conditions he imposed as "the 2003 conditions".[3]The conditions were imposed by him on approving detailed plans for the construction of access to the development land at that point. The plans had been submitted for approval pursuant to condition 5 of the outline planning permission for the development, which was dated 27 November 1957. I shall refer to that as "the 1957 planning permission". The South Gloucestershire Council, which is the Local Planning Authority for the area where the relevant land is situated, is the second respondent to the appeal. Its predecessor, the Gloucestershire County Council, granted the 1957 planning permission to Imperial Chemical Industries ("ICI"). In common with Redrow, which has acquired part of the development from ICI, seeks to uphold the judge's order.[4]The crucial issue is this: what is the proper construction of the grant of outline planning permission to construct the access to the existing public highway, the B4055, indicated at point 6C on plan B.[5]It is common ground that:(1) The issue of construction is a question of law, to be determined on the language of the 1957 planning permission read as a whole and in context.(2) Neither side relies on any extrinsic material as an aid to construction. As stated by Keene J (as he then was) in R v Ashford Borough Council ex parte Shepway District Council [1988] PLCR 12 at 19C-D: "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."(3) As stated by Lord Morris of Borth-y-Gest in Kent County Council v Kingsway Investments [1971] AC 72 at 96A-B, in respect of a permission granted, as this was, subject to a condition of later approval of specified observed matters, it is obligatory to: " ... obtain the approval of the authority with respect to the reserved matters before any development is commenced. So if permission is granted after an outline application the applicant clearly knows that permission is conditional and that it will not be of use to him until he is able to submit details as to siting and design and the like which are acceptable. It must, of course, be assumed that the authority will act in good faith. They must not misuse their functions so as indirectly and without paying compensation to achieve what would amount to a revocation or modification of a permission already given. Any refusal by them to give approval of details submitted to them can be the subject of an appeal to the Minister. The Minister can overrule the authority."(4) If the construction of condition 5 of the 1957 planning permission proposed by the Secretary of State is rejected, as it was by Sullivan J, then it is accepted by the Secretary of State that the imposition of the 2003 conditions on approving the detailed plans for the construction of the access at point 6C was an impermissible modification of the 1957 planning permission, and that his decision on this point should be quashed.[6]I turn to the 1957 planning permission. It was an outline permission for the development of 2,645 acres in the Thornbury Rural District area near the Bristol Channel. In addition to permission for industrial and commercial development, permission was granted for the construction of three accesses to existing public highways, indicated on plan B at points marked 6A, 6B and 6C. Those accesses would serve a very substantial and extensive development area. The existing public highways, including the B4055, were and are used for all types of vehicular traffic.

The judge said at paragraph 48 of his judgment that:

" ... it is plain in that context that the permission to construct accesses is a permission to construct accesses suitable for use by all the types of traffic that would be generated by a very substantial area of industrial or commercial development."
[7]This construction of the access permission was disputed by the Secretary of State, who relied on(a) the fact that the access permission was subject to express conditions requiring official approval of the precise locations of the accesses and of the detailed plans for the construction of the accesses; and(b) the reasons expressly stated in the 1957 planning permission for the imposition of the conditions.[8]Condition 5 required the approval of detailed plans for the construction of the proposed accesses, when the precise locations had been agreed with the Local Planning Authority, or, in default of agreement, by the Minister. Condition 5 provided as follows:
"The proposed accesses shown on the application plan shall not be constructed until their precise location has been agreed with the local planning authority or in default of agreement determined by the Minister of Housing and Local Government and until detailed plans therefor have been approved by the local planning authority or by the Minister of Housing and Local Government on appeal."
It is noted that, contrary to the current practice, no time limit was imposed in the 1957 planning permission on the making of the application for official approval of the detailed plans.[9]The immediately following condition 6 was regarded by the judge as relevant to the construction of condition 5 of the 1957 outline planning permission. Condition 6 provided:
"The access proposed to be constructed at point 6B shall not be used as a principal access for the reception and despatch of goods."
[10]While accepting that the judge was entitled, when construing condition 5, to have regard to the different terms of condition 6, the Secretary of State challenged the correctness between the conclusion drawn by the judge from the differences in the two conditions.[11]Reasons were stated in the 1957 planning permission for the Council's decision to require compliance with conditions 5 and 6. According to the Secretary of State, those reasons support his construction of condition 5:
"5. In order to ensure safe and satisfactory means of access to existing highways and to ensure that these means of access shall conform to any improvements to the existing highways which may be proposed. 6. This access opens out on to a very narrow country highway and its use as a principal access for the reception and despatch of goods would involve heavy traffic using roads which are unsuitable for that purpose and would necessitate such traffic travelling through Compton Greenfield which would be undesirable."
[12]It is noted that neither condition 5 nor the particular reasons given for it expressly referred to, or restricted, the type of traffic which could use the access at point 6C to the existing public highway, the B4055. In this respect it was different from condition 6 and the particular reason given for it in respect of point 6B.[13]The present dispute arose when Redrow applied to the Council for approval of the precise location and detailed plans for the construction of the permitted access at location point 6C. It is agreed that, by the time the application was made, many years after the grant of the outline permission, traffic conditions in the public highway network in the vicinity of the development land had changed substantially. These changes were relied upon by the Secretary of State in his submissions, stressing the importance of the reasons given for condition 5; that is, ensuring safe and satisfactory means of access to existing highways and conformity to any improvements to the existing highways that may be proposed. It appeared from the evidence, including the inspector's report and plans put before the court, that the principal changes were the construction of motorways in the area, the M4, the M5 and the M49. Two bridges over the M49 had been built at Edsleigh and Farm Lane near to the development land. There was particular concern on the part of the Secretary of State about the traffic situation at junction 17 of the M5 and the B4055 to the south of the development land, and the effect on that of the construction of an access at point 6C, if it was not confined to use by public service vehicles.[14]As the Council did not grant formal approval within the statutory two-month period, Redrow appealed to the Secretary of State. He ordered a public inquiry. There was an inspector's report followed by an interim decision of the Secretary of State. After considering representations, the Secretary of State issued his decision letter on 6 May 2003, imposing the following conditions as to the traffic which could use the access at point 6C:
"12(i) The access shall be used by public service vehicles only. (ii) Prior to the commencement of the construction of the access further details of the design shall be submitted to and approved in writing by the local planning authority in accordance with a timescale to be agreed; such details to include methods to ensure compliance with condition (i). The access shall be constructed in accordance with the approved details and the approved method of enforcement shall be maintained thereafter."
[15]The judge construed the 1957 planning permission as permitting the construction of "all-purpose" access at point 6C; that is, without any restriction on the classes of traffic using the access. He said at paragraph 49 of his judgment:
"In the absence of any express words of limitation, one would therefore expect such accesses to be all-purpose accesses."
[16]Approval was only required, he held, for the precise location at, or in the immediate vicinity of, points 6A, 6B and 6C on plan B, and the detailed plans of the permitted all-purpose access at those locations. Condition 5 did not, he held, entitle the Secretary of State to restrict the use of the access at point 6C to public service vehicles.[17]The judge regarded the terms of condition 6 as putting the matter beyond doubt since, if the Secretary of State's construction of condition 5 was correct, condition 6 would have been otiose. The judge said at paragraph 55 of his judgment:
"Where the County Council did consider that one of the permitted accesses should not be used by a particular type of traffic, it took some care to explain in the conditions why that was so."
[18]The judge accordingly held that the 2003 conditions substantially modified the permission granted in 1957. They derogated from it by making it more onerous in relation to access at point 6C. The judge observed that condition (i) of the 2003 conditions imposed upon the approval of details a condition that was even more restrictive in relation to point 6C than condition 6 in relation to access at point 6B. He concluded at paragraph 65 of his judgment:
" ... the imposition of condition (i) is a very significant restriction upon the use of the all-purpose junction that was permitted at location 6C in 1957."
He accordingly made the order to which I have referred.[19]The Secretary of State submitted that the judge was wrong to construe the access permitted by the 1957 planning permission as an "all-purpose" access. It was pointed out that that expression was not used in the 1957 document, which simply referred to "access". The 1957 permission did not differentiate between restricted and unrestricted access. All that was fixed were the locations of the accesses, but the permission was otherwise silent on the other details, which were to be determined later as reserved matters.[20]The reasons stated for imposing condition 5 indicated, in the submission of the Secretary of State, that, when approving the detailed plans for the construction of access at point 6C, the Secretary of State was entitled to have regard to classes of traffic using it. That was relevant to considerations of ensuring "safe and satisfactory access" to existing highways, which also included future improvements to existing public highways.[21]It was submitted that the judge was also wrong on the assistance that could properly be derived from condition 6 when construing condition 5. It was pointed out that the language of condition 6 was explained by the nature and condition of the existing public highway at the point 6B, Vimpenny's Lane. The judge was not entitled to infer from that express restriction that the use of the access at point 6C was an unrestricted one. That was a matter which fell to be determined at a future date when the reserved matters of approval of detailed plans for the construction of the access would be dealt with.[22]In my judgment, the judge correctly construed condition 5 of the 1957 planning permission. I agree with his reasoning and his conclusion. I shall, however, explain in my own words my understanding of the effect of the 1957 document.[23]The 1957 planning permission (paragraphs (i)-(iv)) was for the industrial and commercial development of a very large area of land. Permission was also granted in paragraph (v) for the construction of three accesses as outlined on plan B "to existing public highways". One of the accesses was at point C. The existing public highway at that point was the B4055. That highway was and is used by all kinds of vehicular traffic. It neither was, nor is, only used by public service vehicles, such as buses. The natural and ordinary sense conveyed by the language of the grant to a reasonable reader on receiving the 1957 planning permission is that the access at point 6C could be constructed for traffic that was using the B4055, the existing public highway to which there was to be access at that point. Neither the permission granted to construct the access, nor condition 5 relating to reserved matters, specified any restriction on the kind of traffic which could use the access at that point. This was, as the judge pointed out, in contrast to condition 6, which expressly, in relation to the proposed access at point 6B, excluded use "for the reception and despatch of goods"; that is a restriction on the type of traffic user, conspicuously absent from condition 5.[24]It was submitted by the Secretary of State that the judge was wrong to rely on this difference, because he had failed to recognise that the cases were in fact different in 1957. It was pointed out, as I have already indicated, that the existing public highway at point 6B was Vimpenny's Lane, and that it was plain in 1957 that the Lane was unsuited to heavy goods vehicles and that there could only be limited vehicular access. Moreover, submitted the Secretary of State, the reference to "existing public highways" should not be confined to their condition in 1957, being a time when there were no motorways in the area of the development, and there were fewer accesses to the development land than there now are. The expression included, it was submitted, consideration of changes to the public highway network, the fact of their improvement, the traffic situation and safety considerations generally prevailing at the time when the reserved matters fell to be determined; that is, at the date when the application was made for approval for the detailed plans to construct the access. On this point the Secretary of State relied particularly on the reasons stated for condition 5, on the evidence as to substantial changes in traffic conditions and in the public highway network since 1957, and on the particular concerns about traffic congestion (junction 17 of the M5), if there were no restriction on the class of traffic using the access to be constructed at point 6C.[25]The Secretary of State also relied on the fact that this was a vast development which would take place over many years and during which conditions affecting access to the public highway were likely to occur. This, it was submitted, was contemplated by the reasons given for the condition.[26]I do not find these persuasive arguments on the construction of condition 5. In my judgment, the position is that there was no indication of any restrictions on classes of traffic user, either in the actual grant of permission to construct the access at point 6C, or in condition 5. That condition only mentioned the need for official agreement as to precise locations before the proposed accesses should be constructed, and for official approval of detailed plans for the construction of the proposed accesses. The precise locations proposed by Redrow have been agreed. They do not bear on the disputed issue of the kind of traffic use at point 6C. The condition as to the approval of the detailed plans for the construction of the accesses did not, in my view, allow the imposition of conditions on the kind of traffic, which it was reasonably contemplated in 1957 would use the access; that is, traffic of the kind normally using B4055 and seeking access to the development area. The effect of condition (i) of the 2003 conditions is to prevent what would reasonably be regarded as normal use of vehicular access for an industrial and commercial development over a very large area.[27]The argument advanced on behalf of the Secretary of State, relying on the reason for condition 5 concerning safe and satisfactory means of access, and conformity to proposed improvements to existing highways, does not meet the point that(a) the permission to the accesses was actually granted in terms, which did not restrict the type of vehicle using the access, and(b) the requirements in condition 5 specifically related to approval of location and detailed plans for construction. They did not relate to the kind of traffic allowed to use the access. The fact that there has been a substantial change in the public highway and road traffic situation generally may explain the reason for the imposition of the 2003 conditions on traffic use. It may indeed afford grounds for invoking appropriate procedures for the revocation or modification of the 1957 planning permission, which, if allowed, might lead to a right to compensation on the part of the developer. But none of those matters, in my judgment, affect the construction of the 1957 planning permission.[28]I should add that this case is different from the decisions on reserved matters where the matter of the scale of the development or where matters of access as a whole have been left for subsequent approval. The cases of Probern v Secretary of State [1990] 3 PLR 79 and R v Newbury District Council ex parte Chieveley Parish Council [1997] JPL 1137 do not assist on the question of the proper approach to the construction of the 1957 planning permission, which contains an express grant of permission for the construction of an access to an existing public highway and at a designated point.[29]I find it unnecessary to express a concluded view on the additional point made by Mr Straker, who appeared for the Council, as to the assistance to be gained from the statutory definition of the expression "means of access" in section 119 of the Town and Country Planning Act 1947, in the light of the general principle laid down in Wyre Forest District Council v The Secretary of State for the Environment, Transport and the Regions [1990] 2 AC 357, that where terms are defined in a statutory enactment, they bear the same meaning as, in the absence of any indication to the contrary, in any proposals or authorisations made pursuant to that enactment. The expression "means of access" is used in the reason given for condition 5, but it is not used in the actual grant of permission to construct the accesses or in condition 5 itself. The Result[30]The decision of the Secretary of State to impose a condition as to the class of traffic use was accordingly outside the terms of condition 5 in the 1957 planning permission under which approval was sought. The decision modified and derogated from the permission, which had been granted for the construction of the access at point 6C.[31]It follows that it is unnecessary to deal with the points on the Human Rights Act raised by Redrow in its respondent's notice, that even if lawful on planning law principles, the imposition of the 2003 conditions was in breach of Article 1 of the First Protocol to the European Convention on Human Rights, and that the procedure adopted by the Secretary of State was in breach of Article 6 of the Convention. I express no view on either of those points.[32]For these reasons I would dismiss the appeal.

LORD JUSTICE MAURICE KAY: I agree.

LORD SLYNN: I also agree.

Order

Appeal dismissed with costs.

Cited in 3 later judgments