Hill, R (on the application of) v First Secretary of State & Anor [2005] EWHC 1128 (Admin)

Case No CO/5956/2004

[2005] EWHC 1128 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Tuesday, 17 May 2005

Strand

London WC2

B E F O R E:

MR JUSTICE SULLIVAN

Between

THE QUEEN ON THE APPLICATION OF MICHAEL HILLClaimant

-v-

Between

FIRST SECRETARY OF STATEDefendant

EXMOOR NATIONAL PARK AUTHORITYDefendant

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Smith Bernal Wordwave Limited

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MR IAN ALBUTT (instructed by D M H Stallard of Brighton) appeared for CLAIMANT

MR JAMES STRACHAN (instructed by Treasury Solicitor) appeared for DEFENDANTS

J U D G M E N T

[1]MR JUSTICE SULLIVAN: This is an application under Section 288 of the Town and Country Planning Act 1990 ("the Act") to quash a decision of one of the first defendant's inspectors granting outline planning permission for residential development at The Cleave, Lee Road, Lynton, North Devon in accordance with an application for planning permission made by the claimant under Section 73 of Act, dated 16 June 2003, ("the application") without compliance with condition no. 8 previously imposed on an outline planning permission dated 4 November 1997 ("the 1997 permission"), but subject to the other conditions imposed on that permission, including condition no. 3 which required application for approval of reserved matters to be made before 4 November 2003.

[2]The 1997 planning permission was an outline planning permission for residential development on the site. It was subject to no less than 17 conditions of which the following are relevant for the purposes of the present application:

"1 Approval of the details of the siting, design and external appearance of the building(s), the means of access thereto and the landscaping of the site (hereinafter called 'the reserved matters') shall be obtained from the local planning authority in writing before any development is commenced. 2 Plans and particulars of the reserved matters referred to in condition 1 above, relating to the siting, design and external appearance of any buildings to be erected, the means of access to the site and the landscaping of the site, shall be submitted in writing to the local planning authority and shall be carried out as approved. 3 Application for approval of the reserved matters shall be made to the local planning authority before the expiration of (three) years from the date of this permission. 4 The development hereby permitted shall be begun either before the expiration of (five) years from the date of this permission, or before the expiration of (two) years from the date of approval of the last of the reserved matters to be approved, whichever is the later. 5 Not more than three dwellings shall be erected on the site hereby approved for residential development. ..... 8 The details required by Condition No 1 above shall make provision for the construction of dwellings of a high standard of design, sympathetic to the more traditional buildings found in the locality, and with regard to the topography of the site with the proposed dwellings to be on the lower part of the site and the roof ridges no higher than 1.5 metres above the ridge level of the adjacent Bakers Court housing. ..... 14 The existing access of the south-east corner of the application site shall be permanently closed to the satisfaction of the Local Planning Authority as the first stage of any development works."

[3]The claimant sought the removal of conditions 5, 8 and 14. No application was made in respect of condition 3. The inspector's decision is contained in a decision letter dated 15 October 2004. In that decision letter the inspector dealt with two appeals made by the claimant, appeal A against the second defendant's refusal of the Section 73 application, and appeal B against the second defendant's refusal to approve details that had been submitted on 29 August 2000 pursuant to conditions 1, 2 and 3 of the 1997 permission. There was no suggestion that any other details of reserved matters had been submitted in accordance with conditions 1, 2 and 3 of the 1997 permission. It followed that if appeal B was dismissed the 1997 permission would effectively lapse unless condition 3 was removed and a new condition imposed extending the time within which details of reserved matters could be submitted for the second defendant's approval.

[4]The inspector decided that it would not be appropriate to remove condition 5. In paragraph 20 of the decision letter he said:

"20 In the circumstances, I consider that, whilst it is clear that more than 3 dwellings could be accommodated on the appeal site, it would not be appropriate now to remove condition 5 due to the changes in planning policy which have occurred since 1997. I consider that neither the education requirement nor the restriction of the occupation of the dwellings to persons with local housing needs could be secured satisfactorily by the imposition of other conditions. I am also mindful that the removal of condition 5 would be little more than an academic exercise (as acknowledged by the appellant at the hearing), having regard to condition 3 of the same outline planning permission which required the submission of an application for the approval of reserved matters before the expiry of 3 years (i.e. before 4 November 2000). I have considered whetherthat condition should be varied to allow more time, which would in effect renew the permission, but inview of the changes in planning policy I haveidentified above I am strongly of the view thatwould be inappropriate as well." (Emphasis added)

The inspector considered condition 8 in paragraph 21 of the decision letter:

"21 With regard to condition 8, in my view this is little more than an informative. As a condition it lacks precision, other than the 1.5m height restriction (which itself appears to be an arbitrary figure). As the siting, design and external appearance of the buildings are all reserved matters I consider that the condition is unnecessary as any proposal that would cause unacceptable harm to the landscape or the living conditions of adjoining occupiers could be refused."

In paragraphs 22 and 23 the inspector explained why he did not consider that it would be appropriate to remove condition 14. The inspector drew the threads together in respect of appeal A in paragraph 24 of the decision letter:

"24 On the main issue in respect of Appeal A, having regard to the natural beauty of this part of the Exmoor National Park, the provision of housing in Lynton, highway safety and the living conditions of adjoining occupiers, I conclude that condition 8 is unnecessary and should be removed but that conditions 5 and 14 should be retained. The removal of condition 5 would conflict with Policies H1 and H2 (as recommended to be changed) of the emerging Local Plan First Alteration and the requirement to provide an education contribution. The removal of condition 14 would conflict with Policy 49 of the Structure Plan and Policy TR3 of both the Local Plan and the emerging Local Plan First Alteration. Ihave also considered the other conditions attachedto the 1997 outline planning permission but see noreason to remove or vary any of them." (Emphasisadded)

[5]The inspector then dealt with appeal B in respect of the reserved matters application and concluded, for a number of reasons set out in paragraphs 25 to 30, that it should be dismissed. In his conclusions the inspector said:

"Appeal A 31 For the reasons given above and having regard to all other matters raised, I conclude that the appeal should partly succeed. I will grant a new outline planning permission without the disputed condition 8 but retaining the disputed conditions 5 and 14 andthe relevant non-disputed conditions from theprevious permission." (Emphasis added)

Pausing there, it will be recalled that condition 3 was one of the non-disputed conditions. "Appeal B For the reasons given above and having regard to all other matters raised, I conclude that the appeal should not succeed."

[6]The inspector's formal decision in respect of appeal A in paragraph 33 of the decision letter was:

"I allow the appeal in part and grant outline planning permission for residential development at [the site] in accordance with [the application] without compliance with condition number 8 previously imposed on [the 1997 condition] but subject to the other conditions imposed therein (forthe avoidance of doubt including condition 3 whichrequired application for the approval of reservedmatters to be made before 4 November 2000) so far asthe same are still subsisting and capable of takingeffect."

In paragraph 34 the inspector dismissed appeal B. There is no challenge to the latter decision.

[7]On behalf of the claimant Mr Albutt submitted that the inspector clearly intended to grant a planning permission but that the permission he granted is a nonsense because it requires application for approval of reserved matters to have been made before 4 November 2000, some four years prior to the decision letter. Since a planning permission subject to such a condition is, on its face, incapable of implementation, the inspector's decision to grant a permission in that form was perverse. If the inspector had concluded that the 1997 permission should not be renewed then he should simply have dismissed appeal A and not granted a new planning permission under Section 73. Mr Albutt referred to the provisions of Section 72 of the Act and submitted that, but for the words in parenthesis in paragraph 33 of the decision letter, Section 92 (3) would have had the effect of imposing a new 3-year time limit for making an application for approval of reserved matters beginning with the date of the outline planning permission granted by the inspector (see Section 92 (2) (a)).

[8]Mr Strachan's principal submission on behalf of the Secretary of State was that these proceedings were academic. If the inspector had fallen into error there had been no prejudice to the claimant who had received a useless (because unimplementable) planning permission when he should logically have had both appeal A and appeal B dismissed. It followed that either the claimant could not be a person aggrieved for the purposes of sub-section (1) of Section 288 or, alternatively, if he could bring himself within the description of a person aggrieved, the court should exercise its discretion under sub-section (5) of Section 288 not to quash the decision to grant planning permission.

[9]Mr Strachan acknowledged that the inspector's decision might appear curious, but submitted that it was nevertheless within the strict terms of Section 73 (2) which required the inspector to - "consider only the question of the condition subject to which planning permission should be granted, and -(a) if [he] decided that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, [he] shall grant planning permission accordingly, and

(b) if [he] decide[d] that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, [he] shall refuse the application."

[10]Since the inspector had concluded that condition 8 was unnecessary, he could not simply refuse the application under paragraph (b) and was therefore constrained to deal with the application under paragraph (a) in sub-section (2). In so doing, he was not imposing a new time limit for the submission of reserved matters, but merely "re-affirming" the time limit in the 1997 permission which the claimant had not asked to remove or alter: see Pye v Secretary of State for the Environment and Another

[1998] 3 PLR 72

at page 86 B. He further submitted that Section 92 did not apply to a grant of planning permission under Section 73 since it applied to an outline planning permission granted in accordance with the provisions of a development order. There was no need for Section 92 to apply to grants of planning permission under Section 73 since the time limits required to be imposed by Section 92 would have been imposed on the original planning permission.

[11]This issue was raised in Powergen United Kingdom PLC v Leicester City Council and Safeway Stores PLC [2000] JPL 1037. In paragraphs 34 to 36

Lord Justice Schiemann summarised the submissions of leading counsel on behalf of the appellant:

"34 He pointed out that section 73 (2) (a) contemplated the grant of unconditional planning permission, submitted that this would conflict with the requirements of sections 91 and 92 of the Act as to time limits and submitted that therefore the permission granted pursuant to section 73 must in some way relate to the earlier permission. 35 He submitted that to construe section 73 as envisaging the grant of an independently viable permission would produce absurd results in situations where details had already been approved under the earlier outline permission. They would need to be submitted and approved afresh under the later permission. In such circumstances there would be no advantage in making a section 73 application rather than starting afresh. 36 He argued that if each permission pursuant to a section 73 application were to be regarded as an independently viable permission then the time limits for submission of reserved matters and commencement of development would start afresh."

Lord Justice Schiemann responded to these submissions in paragraph 38:

"These are powerful arguments and they were skilfully put. Nonetheless, I am not persuaded by them. The purpose behind the imposition of time limits in sections 91 and 92 is to enable the Planning Authority and others to know what outstanding permissions are capable of implementation and which, if I may borrow a term from food retailing, have reached their expiry date."

The learned editor's comment upon the Court of Appeal's decision included the following:

"Mr Taylor [leading counsel for the appellant] said that if the permissions were separate then the time limits for submission of reserved matters and commencement of development would start afresh. Their Lordships did not address the point, which is correct. Local planning authorities should be alert when granting section 73 applications and adjust the time periods to match the original consent unless the intention is to exten[d] the life of the first permission. Conditions unaltered from the original consent should be included in the section 73 decision notice."

[12]The question raised is an interesting one, but it is unnecessary to resolve it for the purpose of determining this application. For whatever reason, the claimant in the present case did not ask for condition 3 in the 1997 permission to be removed, nor did he submit that the effect of Section 92 of the Act would be to impose a new three year time limit. In these circumstances it is difficult to see how he can justifiably complain that the inspector made it plain in paragraph 33 of the decision letter that the time limit originally imposed by condition 3 should remain.

[13]If this case serves any useful purpose it is perhaps that local planning authorities and inspectors should be on their guard when dealing with Section 73 applications and be astute to consider any issues arising in respect of time limits imposed on the original permission. In principle, it would normally be unreasonable to grant a planning permission subject to any condition (including a time limit condition) that, on its face, made the permission incapable of implementation. However, in the present case the inspector gave the claimant precisely what he had requested in respect of condition 3.

[14]In my judgment, the inspector was not constrained by Section 73 (2) (a) and (b) to reach a result which appears somewhat absurd on its face. I suspect Parliament did not have in mind the kind of circumstances that arose in the present case when it enacted the provisions of Section 73. How is the local planning authority (or the Secretary of State on appeal) to react to an application under Section 73 which seeks the removal of one condition, but does not seek the removal of another condition which, unless removed, effectively prevents the implementation of the permission. In some cases there may be doubt as to whether retaining the latter condition could have such an effect, b ut in the present case it was (or should have been) plain that unless the time limit imposed on the original permission was removed and a new time limit imposed, the appropriateness of the remaining conditions became academic.

[15]It is understandable that the inspector dealt with conditions 5, 8 and 14 at the outset because at that stage in his decision letter appeal B had not been decided. Since the reserved matters, the subject of that appeal, had been submitted within time, if appeal B had been allowed, the Section 97 permission would have been capable of implementation and it would then have made sense to remove any unnecessary conditions such as condition 8. However once the inspector had decided to dismiss appeal B, it was plain that the 1997 permission would lapse unless the time limit imposed by condition 3 was extended so as to enable the submission of fresh details for approval.

[16]Although he had not been asked to do so, the inspector did consider whether it would be appropriate to extend the time limit, and clearly concluded that it would not (see the final sentences in paragraphs 20, 24 and 31 above). If those references had left the informed reader of the decision letter in any doubt as to what the inspector intended, that doubt would have been removed by the words in parenthesis in paragraph 33 of the decision letter. The decision letter has to be read as a whole, and once that is done it becomes clear that the inspector was very firmly of the view that it would not be appropriate to, in effect, renew the 1997 permission. Having reached that conclusion, the logical course, in my judgment, would have been to refuse both appeals. Since the circumstances facing the inspector were probably not envisaged by Parliament, they do not fit easily within a literal interpretation of either paragraph (a) or paragraph (b) in Section 73 (2). In circumstances such as those which arose in the present case, I consider that the inspector could lawfully have decided that - because the question of the other conditions became academic (in view of the fact that he had decided that the original time limit should remain and should not be extended) - it would be pointless to grant a fresh outline planning permission subject to different conditions and that therefore the sensible course would be to refuse the application and grant permission subject to the same conditions, since that would ensure that the lapsed planning permission would not be renewed.

[17]However it is unnecessary to reach a firm conclusion as to the ambit of the inspector's powers under Section 73 for the purposes of the present case since(a) the claimant did not ask this inspector to remove condition 3 or to take any action in respect of it, and

(b) the inspector nonetheless considered that possibility but emphatically rejected it. In these circumstances it is difficult to see how the claimant can sensibly be described as a "person aggrieved" for the purposes of Section 288 (1). At its highest the claimant's case is that he received a useless permission for which he had asked when logically he should have received a refusal of planning permission.

[18]Even if the claimant can be said to be "aggrieved" by this turn of events, it would, in my judgment, be wholly inappropriate to quash the inspector's decision. I would therefore exercise my discretion not to quash the decision under sub-section (5).

[19]Mr Albutt submitted that if the decision was quashed the matter might go back before a fresh inspector who might reach a different conclusion on the planning merits. The object of these proceedings is not to give the claimant the opportunity of having a second bite at the cherry on the planning merits, but to correct any errors of law contained in this decision letter. If and insofar as the inspector erred, the only rational conclusion open to him in the light of the underlined passages in paragraphs 20, 24, 31 and 33 of the decision letter would have been to refuse planning permission and dismiss appeal A as well as appeal B.

[20]For these reasons, even if the appellant is a person aggrieved, it would not be appropriate to quash this decision letter. For these reasons the application must be dismissed.

[21]MR STRACHAN: I ask for an order in those terms. I also seek an order that the claimant pay the first defendant's costs. There should be a summary schedule.

[22]MR JUSTICE SULLIVAN: Not from the Secretary of State, I do not think. I have not seen one anyway.

[23]MR STRACHAN: I will hand one up. There was one served. While that is being done, can I speak to my friend as to quantum?

[24]MR JUSTICE SULLIVAN: Of course. (Pause) I did not get one, but provided it has got to Mr Albutt and the other side has had an opportunity to consider it .....

[25]MR STRACHAN: I understand he has. I apologise. I do not know for what reason it is not with you. We seek an order that the costs be summarily assessed in the sum of £5,937. My friend has indicated to me that is something that may not be in dispute. I leave him to confirm that.

[26]MR ALBUTT: I do not dispute the quantum.

MR JUSTICE SULLIVAN: The principle?

[28]MR ALBUTT: Nor the principle. I spoke too quickly. I do have an observation to make about costs. In the light of the comments made in the judgment, while I entirely accept that the decision has been quashed, it is a case where clearly in terms of errors being made, errors of law by the inspector, I think it is fair to say that clearly the claimant has established that, particularly in the light of you saying the more logical approach would have been simply to have refused both appeals. In this case the inspector chose to grant a planning permission, albeit a useless one.

[29]My application is that, in fairness, so far as costs are concerned, it was a proper challenge to bring, properly identifying errors of law, and that the fairest order for costs that should be made is that each side bears their own costs in the light of the claimant properly identifying the errors of law that have occurred.

[30]MR STRACHAN: My understanding of your Lordship's judgment is that you were very careful not to articulate that the inspector necessarily erred in law, and you did not find it necessary to decide the ambit of Section 73 (2) (a) although you felt he was not constrained - - you did not say he erred in so doing. It is quite clear from your judgment that on any sensible reading of the decision letter this claim was pointless. Whilst it may be interesting for us to debate these points, certainly, so far as costs was concerned, it what was a claim which should not have been brought and did not need to be brought and costs should therefore follow the event.

[31]MR JUSTICE SULLIVAN: I am satisfied that costs ought to follow the event in that whatever errors of law may or may not have been made by the inspector, there could have been only one outcome if there was an error of law, refusal of the appeal. So to that extent the challenge was wholly academic albeit it raised a number of interesting points.

[32]The application is dismissed. The claimant is to pay the first defendant's costs, those costs to be summarily assessed in the sum of £5,937.

[33]MR ALBUTT: There is always one other matter, that is permission to appeal. I recognise that the decision your Lordship has made is in relation to the effective interpretation of Section 73. As you did point out, the rather unusual circumstances of this case were probably not envisaged by the Parliamentary draughtsmen when draughting Section 73. Therefore it raises a point of interest in that respect. I do recognise that you were also indicating quite clearly that, for all the reasons even regardless of the errors, it would not be appropriate even if the defendant were a person aggrieved to do so - that is a more difficult task - but it seems to me that both points would fall to be determined together. On the basis of those issues arising out of Section 73, we ask for permission to appeal.

[34]MR JUSTICE SULLIVAN: I do not need to trouble you, Mr Strachan. Since the decision essentially turned on a matter of discretion, that is to say whether or not the court should exercise its discretion not to quash, I may sound immodest to say so, but I am not persuaded that there is any arguable error or principle in the exercise of that discretion given the clear terms in which the inspector expressed himself in respect of the matter.

[35]I do not think there is a real prospect of success on appeal. I do not think that any other point of principle arises given the particular circumstances of this case, so I refuse the application for permission to appeal. Mr Albutt, you have the opportunity to persuade the Court of Appeal that that is wrong. ---