Norris v First Secretary of State & Anor [2006] EWCA Civ 12

[2006] EWCA Civ 12Case No C1/2005/1184
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
FORBES J
CO/6009/04
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/01/2006
Before
LORD JUSTICE LAWSLADY JUSTICE ARDENSIR PAUL KENNEDY
Between
Ian NorrisAppellantFirst Secretary of State (1)RespondentsStoke on Trent City Council (2)Respondent
Paul Brown (instructed by Richard Buxton (Cambridge)) for AppellantTimothy Mould (instructed by The Treasury Solicitors) for 1 st RespondentIan Dove QC and Satnam Singh (instructed by Sharpe Pritchard (London)) for 2 nd RespondentHearing Hearing date: 10 th November 2005
Judgment

INTRODUCTORY

[1]This is an appeal against the order of Forbes J given in the Administrative Court on 13 May 2005 when he dismissed the appellant’s application for an order to quash the decision of the first respondent Secretary of State dated 18 October 2004. By that decision the Secretary of State made operative the confirmed City of Stoke-on-Trent Tunstall Northern By-Pass Local Government Act Compulsory Purchase Order 1999 (“the Order”). Mummery LJ granted permission to appeal on consideration of the papers on 11 July 2005.[2]The Order was made by the second respondent, the Stoke-on-Trent City Council, in July 1997. As its name suggests its purpose was to facilitate the construction of a by-pass road. It relates to the third and final phase of what is called the Tunstall By-Pass Project. This final phase was referred to as the Tunstall Northern By-Pass. The Order was made so as to authorise the acquisition of land required for the by-pass itself together with land to be utilised for the provision of replacement public open space in exchange for existing tracts of public open space which were being acquired for the purpose of constructing the by-pass.

THE STATUTE

[3]In order to make sense of what follows I should at once sketch the relevant statutory scheme. The Acquisition of Land Act 1981 (“the ALA”) enacts a standard procedure for the authorisation of compulsory purchase of land by public authorities. Where the body seeking to make the acquisition is a local authority, the compulsory purchase is first made by that authority, but then submitted to what is called the “confirming authority” – here the Secretary of State. If (as happened in this case) there are outstanding objections to the Order, the confirming authority must hold a public inquiry and consider the inspector’s report before making a decision. S.19 of the ALA, which is relevant in this appeal, makes special provision for a particular class of case. S.19(1) provides in part:
“Insofar as a compulsory order authorises the purchase of any land forming part of a common, open space or fuel or garden allotment, the order shall be subject to special parliamentary procedure unless the Secretary of State is satisfied that - (a) that there has been or will be given in exchange for such land, other land, not being less in area and being equally advantageous to… the public, and that the land given in exchange has been or will be vested in the persons in whom the land purchased was vested, and subject to the like rights, trusts and incidents as attached to the land purchased … and certifies accordingly.”
The “special parliamentary procedure” there referred to was that provided by the Statutory Orders (Special Procedure) Act 1945 (“the 1945 Act”). Where by force of s.19 of the ALA this procedure applied, the compulsory purchase order in question had to be laid before Parliament; and if petitions were presented against it, there had to be a hearing before a Joint Committee of both Houses of Parliament. (a) that there has been or will be given in exchange for such land, other land, not being less in area and being equally advantageous to… the public, and that the land given in exchange has been or will be vested in the persons in whom the land purchased was vested, and subject to the like rights, trusts and incidents as attached to the land purchased … and certifies accordingly.”

THE FACTS

[4]I turn to the facts so far as they need to be explained in order to understand and resolve the grounds of appeal. In 1993 the second respondent designated an area of land at Tunstall, Stoke-on-Trent, as open space. It is called the Greenway, and is used for public recreation. On 24 April 1997 the second respondent granted planning permission to itself, subject to conditions, for the construction of the Tunstall Northern By-Pass. The proposed line of the by-pass runs east/west and bisects the Greenway. This planning permission was subject to twelve conditions. The first provided:
“The development must be begun not later than the expiration of five years beginning with the date of this permission”
. The third condition provided:
“No development shall take place until the replacement of public open space, of comparable size and quality to that being lost, has been secured and made accessible to the public for use. Details of the precise boundaries of the public open space shall first be submitted to and approved in writing by the local planning authority.”
[5]In July 1997 the second respondent made the Order. As I have foreshadowed it authorised the acquisition of land required for the by-pass itself, and also various areas of land for the provision of public open space in exchange for existing open space, at the Greenway and at a location called the Clanway Sports Stadium, which by the Order would be acquired for the construction of the by-pass. The Order was accompanied by a proposal for the issue of a certificate under s.19(1) of the ALA in respect of the replacement open space land.[6]There were numerous objections to the Order, including objections from the appellant. He is a former councillor who has consistently opposed the construction of the by-pass. Given the objections the Secretary of State convened a public local inquiry. The inquiry was opened on 28 April 1998. On the day before, 27 April 1998, the second respondent resolved to grant outline planning permission to Redland Property Ltd (“Redland”) for a residential or mainly residential development which would consist of some 500 houses at a site called Clanway Farm. This development was dependant upon the by-pass being constructed. The application drawings associated with the proposal showed 5.4 hectares of public open space. The Redland proposal was not, however, any part of the “exchange land” which the second respondent put before the inquiry into the Order.[7]Following the inquiry the inspector made his report to the Secretary of State. The report is dated 8 August 1998. The inspector recommended that the Order be confirmed but that no s.19 certificate be issued. In particular he concluded that although the quantity of exchange land contemplated by the second respondent would be no less in area than the land that would be lost (paragraph 146 of his report), it would not be equally advantageous to the public. This was because (paragraph 149) the Order land which would be lost had what was described as a “synergistic effect” arising from its continuity with the remaining area of open space not directly affected by the Order.[8]After he received the inspector’s report the Secretary of State wrote to the second respondent, seeking comments on the inspector’s conclusion relating to the s.19 certificate. The second respondent replied drawing attention to the 5.4 hectares of public open space which the Redland development would make available. At length by his decision letter of 13 April 1999 the Secretary of State concluded (taking account of the synergy effect which the inspector had described) that the exchange land would not be equally advantageous to the public. He stated that he took no account of the Redland 5.4 hectares which were not part of the exchange land before him. In the result he accepted his inspector’s recommendation that the Order should be confirmed without a s.19 certificate. And so he confirmed the Order.[9]In consequence the Order became subject to the special parliamentary procedure under the 1945 Act. 21 petitions were presented against the Order, including one from the appellant. Accordingly a hearing was convened before a Joint Committee of both Houses of Parliament. It started on 29 November 1999 and took eight days. The Joint Committee produced its report in December 1999. It amended the Order by the insertion of an additional clause 3A as follows:
“This Order shall come into operation on a date to be determined by the Secretary of State for the Environment, Transport and the Regions not being earlier than the date on which he is satisfied that in addition to the exchange land, not less than 5.4 hectares of the Clanway Farm site will be provided for the purpose of open space open to the public under the Open Spaces Act 1996 being land of such nature and in such location as in the opinion of the Secretary of State is suitable for that purpose.”
In correspondence thereafter the second respondent suggested that the requirement of 5.4 hectares imposed by the Joint Committee could be met by the public open space on offer by virtue of the Redland proposal. On 23 August 2000 the Secretary of State issued his decision to the effect that he was satisfied as to the 5.4 hectares required by the Joint Committee (making it clear that the need would be met by the Redland proposal) and accordingly that the Order was now operative. This decision was successfully challenged in the High Court and was quashed by Harrison J on 27 November 2000. It is unnecessary to travel into the merits of those proceedings save to say, since Mr Brown for the appellant attaches some importance to it, that the judge held that the Secretary of State should have consulted persons including the appellant upon the question what would constitute suitable exchange land. He stated (paragraph 56):
“The only relevance of my conclusion on the unfairness arising from the lack of consultation is that, if this decision is quashed, the Secretary of State should now consult with the Claimant and the other petitioners on the proposal for the additional exchange land being put forward by the Council for the consideration of the Secretary of State, so that they can give their views on a fully informed basis.”
[10]And so the Secretary of State had to re-determine the matter. He wrote to the second respondent and the objectors, including the appellant, inviting representations on the question what areas should be considered suitable for the extra open space. Suggestions or proposals were made in response. On 17 October 2001 the Secretary of State issued his further decision, accepting the second respondent’s proposal which was referred to as “Option B Phase 1”. In his letter of that date the Secretary of State set out the criteria he had applied. In light of counsel’s submissions I should cite criterion number (iv). In paragraph 48 of the decision letter of 17 October 2001 the Secretary of State stated that he needed to be satisfied “(iv) that such land will be provided in a legally binding way to ensure that it is made available for the public under the Open Spaces Act 1946 by the opening of the by-pass”.[11]In paragraphs 64-65 of the same decision letter the Secretary of State gave reasons for his view that Option B Phase 1 would meet the Joint Committee’s requirement. He stated:
“64. The Secretary of State understands that planning approval to carry out the reclamation and landscaping works on the Option B Phase 1 land has been secured via the application by Redland for detailed approval of the landscaping condition on their existing residential permission. He notes that an amended Deed of Variation to the original Section 106 Town and Country Planning Act 1990 Agreement and an amended Agreement for the exchange of land between Redland and the Council would be entered into to provide a guarantee that the new open space land would be transferred into the ownership of the Council and be held by them as public open space and would be available for use by the public by the completion of the by-pass. 65. The Secretary of State is satisfied these measures would ensure that the land proposed for new open public space in Option B Phase 1 would be reclaimed as public open space by completion of the by-pass and would be available to the public under the Open Spaces Act 1906.”
Then in paragraph 69 the Secretary of State’s formal decision, accepting Option B Phase 1, is set out. The paragraph contains this observation:
“However, before making the Order operative he [sc. the Secretary of State] needs to be satisfied that the necessary legal agreements have been entered into and the relevant planning approvals obtained. Would you therefore please submit the proposed legal agreements for consideration as soon as possible together with a copy of the relevant planning approval for the Option B Phase 1 open space proposal.”
Paragraph 70 of the decision letter of 17 October 2001 noted that a copy of it was being sent to the petitioners, thus including the appellant.[12]Thereafter, certain significant events took place relating to the commencement of the works pursuant to the planning permission for the by-pass. On 23 November 2001 the second respondent resolved to commence work on the construction of the by-pass on the basis that this would meet condition 1 of the planning permission (requiring commencement within five years: the five years would, of course, expire on 24 April 2002). On 26 November 2001 the second respondent’s Assistant Director of Highways and Transportation sent an inter-departmental memorandum to the Assistant Director of Planning. It is headed with the reference for the planning permission for the by-pass. The memorandum reads in part:
“I should be grateful if you would confirm that the following details are sufficient to meet the requirements of the Planning Conditions. Condition 3 Replacement Public Open Space In respect of the following information regarding proposals for replacement of public open space, could you please confirm whether it would be acceptable for development to commence in advance of the entirety of the proposed public open space being available and accessible to the public.”
Then under the heading “Phasing”:
“It is proposed to make an initial start of construction in the area of the junction of Turnhurst Road with St Michael’s Road, which does not in any way affect the existing POS [sc. public open space]. The area of existing POS that is required for the construction of the by-pass (44,091 m2) will be occupied by the Contractor at the start of the main contract for the construction of the by-pass. The phasing for the provision of the replacement POS is as follows: Plot 7 (21,511 m²) – was landscaped and made available for use as POS in 1999. Plot 6 (18,715 m²) – will be made available as POS within the first three months of the main contract for the construction of the by-pass following minor works to make safe coal workings, improve access to the site and provide boundary fences. Plots 8 and 9 (total 4,538 m²) – will be made available as POS on completion of the contract for the construction of the by-pass. Additional POS on the north side of the by-pass adjacent to the Clanway Farm development site (5,700 m²) – will be available as POS on completion of the contract for the construction of the by-pass. Additional POS on the Clanway Farm development site (54,500 m²) – will be available as POS on completion of the contract for the construction of the by-pass. An additional area of landscaping of the by-pass (8,540 m²) will be returned as POS on completion of the by-pass.”
It is then stated that the final quantity of replacement open space will amount to some 140,960 m², “some 2.38 times the amount lost”. Condition 3 Replacement Public Open Space The phasing for the provision of the replacement POS is as follows:

Condition 3 Replacement Public Open Space

[13]The Assistant Director of Planning replied in a memorandum of 14 February 2002. He stated:
“… I would confirm that the details submitted are acceptable. The following conditions of the consent … are satisfied: 3 … With reference to condition 3, I would clarify for the avoidance of doubt that it is satisfied on the following basis: I can confirm that the areas and boundaries of the proposed public open spaces are acceptable and hereby approved in respect of their locations. Further, I can confirm that the areas of open space meet the requirements of the condition in terms of being of comparable or greater size and also of a comparable quality to that being lost in the by-pass construction. As you are aware, the condition says no development shall take place until the replacement public open space has been made accessible to the public for use. However, it is clear that 21,511 m² of POS was created in 1999 and is already accessible to the public. This amounts to 48.8% of the total to be lost to the road. Within 3 months of commencement of the main contract a further 18,715 m² will be made available. Together, these areas will replace 91% of the open space actually being lost to the road. I note you state that it is proposed to make an initial start on the road which does not in any way affect the existing open space. You are also in the process of completing a legally binding contract for land on the adjacent Clanway Farm development site comprising in total 54,500 m² of POS which you are additionally legally bound to implement as part of the CPO confirmation. In conclusion I acknowledge that the final quantity of replacement open space will be 104,960 m², which is 2.38 times the amount being lost, and that the laying out of these additional areas of open space will form part of the by-pass contract. I therefore consider that your proposals, legal agreements and commitments are sufficient for it to be accepted that the ability to provide replacement POS, which will be accessible to the public for use, has effectively been secured. Given that 21,511 m² of POS has already been provided, and that for the initial start on the roads the existing open space will not be disturbed and therefore still be available for public use, I do not consider it would be expedient to take enforcement action, or serve breach of condition notices, regarding commencement of development.”
[14]Notice of the second respondent’s intention to carry out works pursuant to the planning permission was given in February 2002. Certain works were carried out starting on 4 March 2002, in purported implementation of the planning permission.[15]Now I may come to the decision actually under challenge. On 18 October 2004 the Secretary of State issued his decision letter relating to the Order. The letter recalls paragraph 69 of the letter of 17 October 2001 indicating the Secretary of State’s acceptance of the second respondent’s proposals for additional open space “subject to the completion of the necessary legal agreements and planning permissions”. The letter continues:
“The First Secretary of State for the Office of the Deputy Prime Minister is now satisfied that these have been completed. Consequently, he accepts that the requirements placed on him by the Joint Committee’s amendments have been met. Therefore he has decided to make operative without delay the confirmed City of Stoke-on-Trent Tunstall Northern Bypass Local Government Act Compulsory Purchase Order 1997, as amended and this letter constitutes his decision to that effect.”

THE ISSUES

[16]The proceedings before the judge below, and on appeal to this court, are brought under s.23 of the ALA which I need not set out. It provides for what might be called a form of statutory judicial review. Before the judge three points were taken. The first, described as “the rationality challenge”, is not pursued here. The appeal is against the judge’s rejection of the appellant’s arguments on the other two points. Of these the first was described as “the by-pass planning permission challenge” and the second as “the consultation challenge”. On my view of the case only the first of these has any substance. THE BY-PASS PLANNING PERMISSION CHALLENGE[17]I turn to the by-pass planning permission challenge. This is how it is articulated in the judgment below:
“In concluding that the necessary legal agreements and planning permissions were in place, the Secretary of State erred in law in that: (i) he failed to consider or ask whether the planning permission for the by-pass was still extant, alternatively (ii) if and to the extent that he concluded that the permission for the by-pass was still extant, he was wrong in law to do so.”
The argument deployed in support of this challenge involves two stages, as follows. (1) On the history, and in particular by reference to paragraph 69 of the decision letter of 17 October 2001, the Secretary of State had effectively bound himself not to make the Order operative without first having satisfied himself that the by-pass planning permission of 1997 was still extant, that is, that it had been implemented or remained legally capable of being implemented. Alternatively, it was, objectively, a condition of any lawful decision to make the Order operative that the planning permission should be extant. In either event the Secretary of State made the Order operative without satisfying himself that the permission was in fact extant. (2) On the facts and in light of the applicable law the 1997 permission was not in fact extant in October 2004. First Limb of

THE BY-PASS PLANNING PERMISSION CHALLENGE

[18]I should first explain that it was common ground before Forbes J, as he records at paragraph 69 of his judgment, that the Secretary of State had made no enquiries into the current position relating to the by-pass planning permission before deciding in October 2004 to make the Order operative. We are told that in argument before Forbes J Mr Mould for the Secretary of State indicated to the judge that the Secretary of State had proceeded on the assumption that the planning permission remained extant.[19]The question whether the permission indeed remained extant at the date of the decision of October 2004 was not something that the Secretary of State was required by statute to consider, nor was he so obliged by force of the amendment made to the Order by the Joint Parliamentary Committee; nor by any statement of general policy. The appellant submits, rather, that the Secretary of State had obliged himself to consider (and resolve) the question by the approach he had taken in paragraph 69 of the decision letter of 17 October 2001. I have referred to this more than once but clarity requires that I should again set out the closing passage:
“… before making the Order operative [the Secretary of State] needs to be satisfied that the necessary legal agreements have been entered into and the relevant planning permissions obtained. Would you [sc. the second respondent] therefore please submit the proposed legal agreements for consideration as soon as possible together with a copy of the relevant planning approvals for the Option B Phase 1 open space proposals.”
[20]Mr Brown for the appellant submits that “the relevant planning approvals” must have included the planning permission for the by-pass and it would have been irrational if they had not. The reasons which are said to support this submission were succinctly set out by Forbes J as follows (paragraph 71):
“In support of that submission, Mr Brown pointed out that: (i) the by-pass planning permission was the very bedrock upon which the Order was built; (ii) the reason that the Secretary of State wished to be satisfied that the necessary planning permissions were in place was so that he could be satisfied that the open space would actually be provided and condition 3 of the by-pass planning permission was an important guarantee that it would be so provided (condition 3 required that open space of comparable size and quality be both secured and made available before development took place); and (iii) the continuing validity of the by-pass planning permission was critical to the prospects of the by-pass being brought forward within a timescale that would ensure that obligations in other relevant agreements would be triggered.”
[21]Now, it will be recalled that in paragraph 64 of the decision letter of 17 October 2001 the Secretary of State had identified three components which, so he stated in paragraph 65, would ensure that the land proposed for new public open space in Option B Phase 1 would be reclaimed as such by completion of the by-pass. The three components were:(a) the landscaping requirements of the detailed residential planning permission for Redland’s Clanway Farm site,(b) the amended s.106 agreement relating to that planning permission and(c) the amended land exchange agreement between Redland and the second respondents.[22]If this part of the case depended purely on the construction of paragraph 69 of the decision letter of 17 October 2001, I would hold without hesitation that the “legal agreements [and] relevant planning approvals” were and were only those directly concerned with the Option B Phase 1 open space proposals and did not include the 1997 planning permission. That is the plain sense of the paragraph’s language. But Mr Brown’s argument is a deeper one. He submits (skeleton argument paragraph 36) that it was expressly accepted for the Secretary of State before Forbes J that this contractual regime – effectively these three components – was founded on the proposition that the 1997 by-pass planning permission remained capable of implementation. He says that if the 1997 permission were not in place the three components could not deliver the exchange open space; and accordingly the 1997 permission was integral to the approach taken by the Secretary of State in paragraph 69 of the October 2001 letter. So the Secretary of State was, in reason, bound to satisfy himself that that permission was still extant.[23]Mr Dove QC for the second respondent does not accept that the measures in question could not deliver the exchange open space without the 1997 permission. They do not provide that the open space will be furnished if and only if the by-pass is lawfully built according to that permission. Thus fulfilment of the land exchange agreement was made conditional on the second respondent letting a contract for the construction of “the Road Scheme”, and the “Road Scheme” is defined as “the proposed Tunstall Northern Bypass as defined and identified in [the 1997 permission]”; but, says Mr Dove, this cross-reference made for the purposes of identification does not entail the quite different proposition that the Road Scheme must be built in accordance with the 1997 permission if the land exchange is to take place.[24]Without setting out the other references (which are of no greater assistance to Mr Brown) I may say that as a matter of strict construction I think Mr Dove is right. But that is not the end of the point. Mr Brown would I apprehend submit that it was in any event an assumption or premise of the Secretary of State’s consideration of the matter in October 2004 that the by-pass would in fact be constructed in accordance with the 1997 permission. That being so, he could not rationally proceed to make the Order operative without being satisfied that that would happen. And there is a linked argument, which in describing the issue on this part of the case I have expressed as an alternative formulation: that it was, objectively, a condition of any lawful decision to make the Order operative that the planning permission should be extant. The dimension which this adds may, I think, be encapsulated as follows. By making the Order operative as he did the Secretary of State has made it possible for the second respondent to implement the Order, and so execute the compulsory purchase which it permits, without the by-pass being constructed strictly as had been intended; and that is to inflict a wrongful detriment on the owners whose land would be taken.[25]I cannot accept Mr Brown’s submissions on this part of the case. The Secretary of State confirmed the Order as long ago as 13 April 1999. After the Joint Parliamentary Committee amended the Order by adding clause 3A, the only matter remaining to be determined was the provision of replacement open space to satisfy the requirements of ALA s.19 in accordance with the amendment. In rejecting “the rationality challenge”, as regards which as I have said no appeal is mounted here, Forbes J held that that matter had been properly resolved by the Secretary of State by his decision letter of 17 October 2001: see paragraph 67 of the judgment. All that remained thereafter was the need to be satisfied that the legal components required to deliver the preferred exchange land, represented by Option B Phase 1, were in place. That is the focus, and the entire focus, of paragraph 69 of the letter of 17 October 2001.[26]No doubt it is true that the Secretary of State assumed that the by-pass would proceed according to the planning permission that had been granted. That was necessarily the practical basis on which he was, in 2004, considering whether the preferred exchange land would be delivered as required. But he was by no means then concerned to decide whether that would happen. The only question for him was whether, if the by-pass was built, there would be effective legal obligations in place which would ensure provision of the relevant open land. As Mr Mould submitted, it was no part of his function to police the overall progress of the by-pass scheme.[27]Nor was it his function to police the legality of what the second respondent might do with the Order in the event that the 1997 permission was no longer extant.

The judge below said (paragraph 76):

“… the operative effect of the Order since October 2004 does not relieve the Council, as a public authority, from the need to act both fairly and reasonably in deciding whether and when to take further steps in exercising the powers of compulsory purchase conferred by the Order. In particular, if the Claimant (and/or others) continue to maintain that there is now the need for the Council to renew the planning permission for the construction of the by-pass, it would be necessary for the Council to consider whether it would be fair and reasonable for it to take any such further steps in advance of having secured a fresh grant of planning permission for the road scheme. Any decision by the Council (and any such further steps) would, of course, be amenable to judicial review.”
That seems to me to be correct. Elementarily, the second respondent can only implement the Order for a proper purpose and to the extent that it is lawful in the circumstances to do so. The court is the only judge of the legality of any such action by the second respondent. It was no part of the Secretary of State’s function as he came to his decision in October 2004 (or at all) to act as an advance guard against the chance of unlawful action by the second respondent in reliance on the Order.[28]The status of the 1997 planning permission was in truth irrelevant to the Secretary of State’s decision in October 2004. The Secretary of State did not bind himself to consider it by the terms of the October 2001 letter, or at all. Nor was it, objectively, a condition of any lawful decision to make the Order operative that the planning permission should in fact be extant. There is nothing in this part of Mr Brown’s case.

Second Limb of the By-pass Planning Permission Challenge

[29]My conclusions thus far, were my Lady and my Lord to concur in them, would dispose of the case against the appellants. If the status of the 1997 permission was as I have held irrelevant to the Secretary of State’s decision in October 2004, its determination cannot affect the appeal’s outcome. (The “consultation challenge”, as I shall very briefly indicate, adds nothing.) I have accordingly considered whether it is appropriate to go into the question of the permission’s status at all. Our conclusions would be obiter. However, we have had full argument on the point, and if by dealing with it now we can discourage another round of expensive and time-consuming litigation, that must be desirable. So I shall embark on the issue.[30]As I have indicated condition 1 of the planning permission required that the development commence within 5 years of the permission’s grant, that is to say by 24 April 2002. In order to show compliance with condition 1 the second respondent has to rely on the works which were done or started on 4 March 2002. But by that date only part of the replacement open space had been made available. Accordingly, says Mr Brown, the works done in March 2002 were in violation of condition 3 of the permission, which required all the public open space to be made accessible before development could begin. I repeat condition 3 for convenience:
“No development shall take place until the replacement of public open space, of comparable size and quality to that being lost, has been secured and made accessible to the public for use. Details of the precise boundaries of the public open space shall first be submitted to and approved in writing by the local planning authority.”
Mr Brown submits that development cannot be lawfully commenced, so as to fulfil a requirement such as that imposed by condition 1, by works which themselves violate a condition – here condition 3 – contained in the planning permission. On that basis the development permitted by the 1997 permission was not lawfully commenced, and is to be treated as not having been commenced, by the March 2002 works. It follows that since the date (24 April 2002) by which condition 1 required that the works be commenced has passed, the permission can no longer be implemented and is no longer extant.[31]For the proposition that development cannot be lawfully commenced by works which are themselves unlawful, being in breach of a condition of the permission, Mr Brown referred to Henry Boot Homes v Bassetlaw DC [2003] JPL 1030. That case is not itself the source of this proposition, which is particularly associated with the decision of this court in Whitley & Sons v Secretary of State (1992) 64 P & CR 296. In Henry Boot Keene LJ stated:
“37. It was accepted by counsel for the appellant in the court below, and not challenged before us, that there is an established principle of law that in order for operations to amount to the commencement of development under a planning permission, those operations must be authorised by the permission in question, read together with its conditions. In general, operations carried out in breach of a condition cannot be relied upon as material operations capable of commencing the development… This principle, sometimes referred to as the Whitley principle, goes back at least to Etheridge v Secretary of State for the Environment (1984) 48 P & CR 35…”
[32]Mr Dove for the second respondent submits first that on the facts the Whitley principle has no application, because the commencement of the development was effectively authorised under the procedure prescribed by Article 21 of the Town and Country Planning (General Development Procedure) Order 1995 which provides:
“Where an application has been made to a local planning authority for any consent, agreement or approval required by a condition or limitation attached to a grant of planning permission… the authority shall give notice to the applicant of their decision on the application within a period of eight weeks from the date when the application was received by the authority, or such longer period as may be agreed by the applicant and the authority in writing.”
The contention is that the memorandum sent by the Assistant Director of Highways and Transportation to the Assistant Director of Planning on 26 November 2001 constituted an application under Article 21, and the reply of 14 February 2002 constituted the second respondent’s consent or approval given in response. I have set out both memoranda. I should say that for the purpose of this argument (and Mr Dove’s next and more substantial submission, in which reliance is also placed on the memoranda) nothing turns on the fact that this is a case of a local authority granting planning permission to itself. It is accepted on all hands that the planning procedures, including the impact, if any, of the memoranda, are to be treated as if the developer were at arm’s length from the council. Pressed with the question where in condition 3 (which I have set out and repeated) any requirement for a relevant “consent, agreement or approval” was to be found, Mr Dove pointed to the second sentence.[33]In my judgment the provision made in the second sentence of condition 3 is not capable of engaging the Article 21 procedure so as to allow the second respondent in effect to abrogate, at least to modify, the rigour of the condition’s primary requirement in the first sentence. It requires the details specified to be submitted and approved before any of the requisite open space is provided. It does not contemplate that the development may be started before some or any of the exchange open space is made available.[34]Mr Dove’s next argument starts with the proposition that the rigour of the Whitley principle was modified, or its application was confined, by the decision of Collins J in Agecrest [1998] JPL 325. The case concerned an outline planning permission for the construction of five holiday villages. Conditions precedent to the commencement of works were imposed as to various matters including landscaping and the design of bridges. However the local planning authority approved details relating to the construction of a short length of access road while some conditions remained unfulfilled. The purpose was to allow the development to be started before certain legislation came into force. A question arose as to whether works done on the faith of the council’s approval of details constituted a lawful commencement of the development. Collins J said (334):
“[I]t seems to me that there must be some flexibility in the manner in which the conditions precedent to an extensive development can be approved. There could be no conceivable prejudice to the purpose of the conditions in what was done. The construction of the spur road did not and could not `in any way affect the need for the compliance with the conditions for any further development. This was not a case of waiver but of the Council exercising a proper and sensible discretion in the manner in which it dealt with the conditions. I am satisfied that the works were lawful, and that the principle in Whitley is not applicable.”
[35]As I have indicated Mr Dove relies in this context also on the exchange within the second respondent council of the memoranda of 26 November 2001 and 14 February 2002. I apprehend he would suggest that the latter document shows the council “exercising a proper and sensible discretion in the manner in which it dealt with [condition 3]”. However Mr Dove recognised that the case law has moved on since Agecrest was decided, and his argument has had to be modified accordingly. I should say that some of the discussion in the authorities (see in particular Reprotech [2003] 1 WLR 348, in their Lordships’ House) has been concerned with the question whether a species of estoppel, or something akin to it, might in certain circumstances operate to prevent a planning authority from performing its regulatory functions – enforcement action would be an instance – if it has itself acquiesced in the state of affairs by which those functions are engaged. No such submission is made here, and with respect I need not take time with the learning upon that distinct question.[36]In Coghurst Wood Leisure Park [2003] JPL 206 Richards J as he then was, after citing Reprotech and Powergen [1999] 4 PLR 91 (Dyson J) and [2000] JPL 1037 (Court of Appeal) said this at paragraph 62:
“As to the criticism that the Inspector did not consider the Agecrest line of reasoning, I do not think that Agecrest should now be regarded as a discrete exception to the general principle that operations carried out in breach of condition cannot be relied on as material operations capable of commencing a development. Any exceptions to that principle need to be established in accordance with the principles discussed in Powergen and Reprotech… In any event I have difficulty in seeing how the decision in Agecrest fits into the present statutory framework and I would accept Mr Brown’s submission that it was narrow in scope and is distinguishable.” “[T]he present statutory framework” there mentioned is explained by Richards J at paragraph 45, and given the march away from Agecrest it is only fair to refer to it. As Richards J indicated it means “the statutory conditions as to time-limits now contained, as regards outline planning permissions, in s.92 of the Act”
. Richards J continued in the same paragraph:
“The present context is materially different [sc. from that prevailing when Agecrest was decided], in that there is now a clear legislative intention that a planning permission expires unless the time limits laid down by the s.92 conditions are met, subject to the possibility of an application under s.73 for permission to carry out a development without full compliance with conditions. Such an application… carries with it a requirement of publicity, consultation and so forth in order to protect all relevant interests… All this would be sidestepped if it were possible for a developer to rely on a planning officer’s statement that development could be commenced without compliance with conditions.” “The present context is materially different [sc. from that prevailing when Agecrest was decided], in that there is now a clear legislative intention that a planning permission expires unless the time limits laid down by the s.92 conditions are met, subject to the possibility of an application under s.73 for permission to carry out a development without full compliance with conditions. Such an application… carries with it a requirement of publicity, consultation and so forth in order to protect all relevant interests… All this would be sidestepped if it were possible for a developer to rely on a planning officer’s statement that development could be commenced without compliance with conditions.”
[37]Hammerton [2003] JPL 984 was decided by Ouseley J on 8 November 2002, about six months after Coghurst Wood Leisure Park. I should first note Ouseley J’s citation, at paragraph 119, of the observation of Sullivan J at first instance in Henry Boot Homes ([2002] EWHC Admin 546):
“Agecrest should now be confined to its own particular facts, an express agreement in writing reached in the context of a less comprehensive planning code.”
Then after citing Coghurst Wood Leisure Park, Powergen and Reprotech Ouseley J set out eleven propositions which he culled from the cases. I need only refer to the fifth and the ninth:
“127. (5) I consider that the principle discernible in Woolf LJ’s reasoning [sc. in Whitley] is that where it would be unlawful, in accordance with public law principles, notably irrationality or abuse of power, for a local planning authorityto take enforcement action to prevent development proceeding, the development albeit in breach of planning control is nevertheless effective to commence development… … 131. (9) … [I]t would be insufficient to show that the authorities were indifferent to the breach, or unlikely to take enforcement action or indeed that they had decided not to (although no concluded view is required). It is necessary to conclude that they could not do so.”
[38]Next, I come full circle to the Henry Boot Homes case. Keene LJ (with whose judgment Brooke LJ and Bodey J agreed without additional reasoning) observed at paragraph 47 that s.73 of the Town and Country Planning Act 1990, which was introduced by s.49 of the Housing and Planning Act 1986, “provides a statutory mechanism by which a person can… seek a variation in a condition on a planning permission or the discharge of such a condition”. It does so by providing for an application for planning permission to be made “without complying with conditions subject to which a previous planning permission was granted”. Keene LJ pointed out at paragraph 53 that Agecrest was dealing with events taking place in 1967, well before the enactment of s.73. In the same paragraph Keene LJ expressed his agreement with Richards J’s observation at paragraph 62 of Coghurst Wood Leisure Park:
“I have difficulty in seeing how the decision in Agecrest fits into the present statutory framework”
. Then at paragraph 54 he said:
“The scope, therefore, for waiver by non-statutory means of the need to comply with a condition must be extremely limited.”
[39]Henry Boot Homes was decided in this court only some three weeks after Ouseley J’s decision in Hammerton, and the latter is not referred to in Keene LJ’s judgment. But it was taken up in this court’s judgment in Prokopp [2004] Env LR 8, [2003] EWCA Civ 961. Buxton LJ said this:
“83. The ‘Whitley principle’ is that development in breach of a condition is not development relevant to the planning permission, and thus must be ignored for the purposes of deciding whether that permission has been implemented. Woolf LJ however recognised an exception to that principle, in cases where enforcement action in respect of the breach of condition would not be possible: that is, would constitute a breach of the authority’s public law obligations… … 85. I would… respectfully agree with the view of Ouseley J in Hammerton that irrationality of enforcement action falls within the public law exception to the Whitley principle…”
[40]We can see from this line of authority how the Whitley principle stands today. It is to the effect that unlawful operations cannot amount to the commencement of development under a planning permission. On the face of it operations undertaken in breach of a condition will be unlawful. But there will be circumstances in which, for one reason or another, operations which on their face violate a condition are not to be treated as unlawful: notably, but not exclusively, where enforcement action taken against such operations would on the facts be irrational within the meaning of the Wednesbury principle ([1948] 1 KB 223). As the citation from Buxton LJ’s judgment in Prokopp at paragraph 85 shows, the Whitley principle has heretofore been expressed as a rule that operations in breach of condition cannot suffice to commence development under a planning permission, and then there is recognised exception to the effect that the breach of condition is excused for the purpose of the rule if it could not lawfully be the subject of enforcement process. I venture to think that this formulation fails to catch the principle’s true basis. The reason why operations in breach of conditionwill not ordinarily suffice to commence development is that a developer (like anyone else) should not be advantaged by his own unlawful act. But a breach of condition will not be treated as unlawful for this purpose if it would be irrational, or otherwise legally objectionable, to enforce against it. As it seems to me the true principle, therefore, is that unlawful operations cannot amount to the commencement of development.[41]Consistently with this approach Mr Dove submits that the March 2002 works were not unlawful operations. To make the submission good he has to show that it would not have been legally proper for the council to have taken enforcement action in relation to them. His argument is that indeed it would not, because (as is clear from the memoranda) none of the existing public open space was lost by reason of the March 2002 works. Work had been commenced in a way that entailed no such loss. It is convenient to repeat these passages from the memorandum of 14 February 2002:
“… [I]t is clear that 21,511 m² of POS was created in 1999 and is already accessible to the public. This amounts to 48.8% of the total to be lost to the road. Within 3 months of commencement of the main contract a further 18,715 m² will be made available. Together, these areas will replace 91% of the open space actually being lost to the road. … I acknowledge that the final quantity of replacement open space will be 104,960 m², which is 2.38 times the amount being lost, and that the laying out of these additional areas of open space will form part of the by-pass contract. I therefore consider that your proposals, legal agreements and commitments are sufficient for it to be accepted that the ability to provide replacement POS, which will be accessible to the public for use, has effectively been secured. Given that 21,511 m² of POS has already been provided, and that for the initial start on the roads the existing open space will not be disturbed and therefore still be available for public use, I do not consider it would be expedient to take enforcement action…”
The word used is “expedient”: which is not on the face of it the obverse of irrational or unlawful. But the facts disclosed in the memoranda offer, in my judgment, a substantial basis upon which to conclude that no reasonable planning authority considering the matter in March 2002 would have embarked upon enforcement action. Mr Brown submitted in reply that the matter is by no means concluded by the fact that none of the existing public open space was lost by reason of the March 2002 works. He said that it was necessary to consider not only the position at that date, but also what might happen as time went on: there might be a threat to the availability of public open space as works proceeded. He submitted that the concern was not merely with the area, but also the quality, of the open space in question.[42]These arguments advanced by Mr Brown lose much of their force when one recalls what was anticipated in the memorandum of 14 February 2002, in terms of the availability of public open space, as time went on: 21,511 m² of [new] public open space already accessible to the public (48.8% of the total to be lost to the road); a further 18,715 m² within 3 months of commencement of the main contract; together replacing 91% of the open space actually being lost to the road.[43]There remains, in my judgment, a strong case for the conclusion that no reasonable planning authority would have embarked upon enforcement action in light of what was done in March 2002, and that accordingly there was no violation of the Whitley principle and the by-pass development was lawfully commenced at that time. But that is not, it seems to me, all there is to be said. Mr Dove has a further submission to the effect that it is now far too late to challenge the commencement of the development as constituted by the works of March 2002. He relies on evidence showing that after the proposed commencement was advertised in the local press on 28 February 2002 the appellant wrote to the second respondent objecting to the works being described as the start of the construction of the by-pass; and in reply, on 5 March 2002, the Assistant Director of Highways and Transportation wrote confirming that the works in hand were indeed part of the by-pass scheme. In those circumstances, submits Mr Dove, the appellant was on notice from the beginning that the second respondent treated the March 2002 works as commencing the by-pass development for the purposes of the 1997 planning permission. Any challenge to that position based on the Whitley principle could and should have been launched at that time, by judicial review proceedings for a declaration or other appropriate relief. Such proceedings would have been properly constituted, would not have been academic or hypothetical, and would have expeditiously resolved any doubt about the matter. The court should not allow a challenge now, three years on, to the legal efficacy of what was done in 1992, whether in the guise of an assault to the decision of October 2004 or at all.[44]In my judgment this submission is compelling and correct. In my judgment it is not properly open to the appellant now to challenge the legal efficacy of the March 2002 works as commencing the by-pass development for the purpose of condition 1 of the 1997 planning permission.

THE CONSULTATION CHALLENGE

[45]In the circumstances this adds nothing. The suggestion was, put shortly, that the Secretary of State should have consulted interested parties including the appellant as to the status of the 1997 planning permission. Since as I would hold the issue of the planning permission’s status was not relevant to the Secretary of State’s task in October 2004, he cannot have been obliged to consult about it. I should add that had I taken a different view of the relevancy of the planning permission’s status, I would still have rejected the consultation challenge; but I see no purpose in lengthening this judgment by going into the reasons why.

CONCLUSION

[46]I would dismiss the appeal.[47]I agree that this appeal should be dismissed for the reasons given by Laws LJ, including his reasons for rejecting both limbs of the by-pass planning permission challenge, with two minor qualifications. First, I prefer to express no view as to the consultation challenge if the status of the 1997 planning permission had been relevant to the decision of the Secretary of State. Secondly, it is unnecessary on this appeal to decide whether the true basis of the Whitley principle is that operations in breach of a condition in a planning permission cannot constitute development for the purposes of the condition or that the developer should not be advantaged by his own wrongful act. The matter has not been fully argued and the latter formulation may be said to require the courts to adjudicate upon the merits of, or motives for, the developer’s act. It is not necessary to decide this question on this appeal because it is common ground that the relevant question is whether the public law exception to the Whitley principle applies.

Sir Paul Kennedy:

[48]I agree that the appeal should be dismissed for the reasons given by Lord Justice Laws.

Cited in 1 later judgment