Food Convertors Ltd v Wiltshire Council [2016] EWHC 136 (Admin)

Case No CO/6567/2015[2016] EWHC 136 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29/01/2016
Before
THE HON. MR JUSTICE CRANSTON
Between
FOOD CONVERTORS LIMITEDClaimantWILTSHIRE COUNCILDefendant
Thomas Rothschild (company director) for ClaimantRichard Moules (instructed by Ian R Gibbons, Solicitor to the Council, Wiltshire Council) for DefendantHearing Hearing dates: 21/01/2016
Judgment
[1]This is a renewed application for permission to apply for judicial review against the refusal on the papers by Jay J. He said this:
“The stance taken by the defendant in its letter dated 15 December 2015 is correct. The defendant is not accepting your applications to discharge the conditions attached to the relevant planning permissions because these permissions have expired. Your best course lies under sections 191 – 192 Town and Country Planning Act 1990. I recommend that you obtain legal advice before proceeding further.”
[2]The claimant was represented by Mr Thomas Rothschild, its director. The claimant is apparently the successor to an earlier company, RH Tomlinssons (Trowbridge) Ltd, of which Mr Rothschild was also a director. I shall treat both companies as one for the purposes of this application. In the course of the history of this matter planning functions transferred from West Wiltshire District Council to Wiltshire Council. I treat these as one in the judgment (“the Council”).[3]The background is that the claimant company owns a four acre site at Church Road, Heywood, Westbury, Wiltshire. It was granted planning permission W96/1460 for a sports pitch, children’s play area, car park and access on 5 June 1997 (“the 1997 permission”). Condition 4 provided:
“To ensure adequate parking and servicing provision is available at the time the use is commenced, detailed plans of the parking and servicing areas, together with the means of access thereto, shall be submitted to and approved by the Local Planning Authority before development commences.”
[4]On 5 May 1999 further planning permission W98/0187 was granted for repositioning the access road (“the 1999 permission”). Conditions 2 and 3 provided:
“2. In order to define its terms, this permission shall relate solely to the construction of an alternative access to the sports pitch previously permitted on 5 June 1997 under reference W96/1460. For the avoidance of doubt, it does not grant permission, nor does it simply imply that permission will be granted for any other development proposal indicated on the Continuation of decision notes. 3. To enable the Local Planning Authority to ensure that the development when carried out is complete and incorporates every appropriate and necessary ancillary feature, the development hereby permitted shall be carried out and completed in its entirety, in accordance with the attached and certified approved plans and those the subject of subsequent approval before it is brought into use.”
[5]The claimants entered a section 106 agreement in 1999. Later the Council was to state, in a letter of 22 September 2015, that the section 106 agreement effectively revoked the 1997 permission, so far as the access road was concerned.[6]On 16 October 2001, Mr S Vellance, a Council planning officer, wrote to the claimant that it had not implemented landscaping. On 24 January 2002 Mr Vellance wrote to a third party that landscaping had commenced. On 29 October 2002 he wrote to another third party:
“I appreciate your concerns with regard to the condition of the above piece of land, but it is worthwhile to remember that the landowner has a valid planning permission that has been implemented; therefore he is entitled to carry out works to the land.”
[7]Under reference 05/0533, the Council granted planning permission in May 2005 for a new vehicular access gateway to the land (“the 2005 permission”). Condition 6 was that this was for agricultural use of the site only. In a decision dated 1 October 2012, the Council refused planning permission for a proposed football pitch and associated access on the land.[8]The claimant applied to discharge planning conditions on the land in May 2013. The Council refused the application. In a letter of 15 December 2015, it stated that any development commenced pursuant to the 1997 permission was carried out in breach of condition 4 because detailed plans of the parking, servicing areas and means of access were never submitted to and approved by the Council before the development commenced. Consequently, the 1997 permission was not implemented and had expired. The letter stated that the development could not be carried out in accordance with the approved plans under the 1997 permission due to the subsequent carrying out of development pursuant to the 2005 permission for agricultural access.[9]The Council’s letter of 15 December 2015 also stated that the planning enforcement officer had visited the site and confirmed that the access way was not materially in accordance with the approved plans for the 1999 permission. It was approximately 1.9 metres away from where it should have been under the approved plans. As a result, the 1997 permission was not lawfully implemented and subsequently had expired.[10]The claimant applied for judicial review of the Council’s decision contained in the letter of 15 December 2015 refusing to discharge planning conditions on the land.[11]Mr Rothschild advanced a number of arguments to support his challenge. First, he submitted, the letter of 15 September 2015 had made clear that condition 4 of the 1997 permission was being revoked, since the 1999 permission was for the repositioning of the access road and car park and did not have any conditions attached.[12]To my mind that submission flies in the face of the plain words of these two permissions. In particular, the 1999 permission was clearly confined to the construction of alternative access, nothing more. Condition 4 of the 1997 permission covered not just access but the parking and servicing areas, including drainage, landscaping, construction and pedestrian provision.[13]Secondly, in response to the Council’s point that no application for approval of condition 4 of the 1997 permission was made within 5 years, Mr Rothschild submitted that the company was not doing any work on the land covered by condition 4. All the company was doing was constructing the access road and the associated stone wall and pillars. The Council’s Highways Department was engaged with this aspect of the development in inspecting the work by Valetta Surfacing Ltd, as was the Council’s Mr Vellance, the implementation officer.[14]In my judgment, that submission goes nowhere because on the company’s own admission that it has not implemented condition 4 of the 1997 permission as regards anything other than access. Section 91 of the Town and Country Planning Act 1990 (“the 1990 Act”) has the effect that the 1997 permission was subject to the condition that the development to which it related had to be begun not later than the expiration of 5 years beginning with the date on which the permission was granted. Since no application for approval under condition 4 was made within 5 years of the date on which the 1997 permission was granted, under section 93(4) of the 1990 Act it effectively expired. Similarly, the 1999 permission also expired because it was not lawfully implemented.[15]Thirdly, Mr Rothschild submitted that the letters of Mr Vellance, the Council’s own implementation officer, made plain that the company had implemented landscaping measures. If the Council was correct about the 5 year period, said Mr Rothschild, the company had acted within that period as evidenced by Mr Vellance’s letters.[16]The difficulty with this submission is that the company never obtained approval pursuant to condition 4 of the 1997 permission. Whatever Mr Vellance may have said, the law is that any development carried out in breach of a pre-commencement planning condition is not lawful and such works are not sufficient to preserve the planning permission: F G Whitley & Sons v. Secretary of State for Wales (1992) 62 P & CR 296. In any event, I note first, that there is no concept of estoppel in these circumstances (in other words, Mr Vellance’s actions are not binding on the Council); and secondly, what Mr Vellance said, as recorded in the letters, was in relation to landscaping, not other aspects of the development.[17]Fourthly, Mr Rothschild sought to meet the point about the out of alignment access by reference to the supervision of the work at the time by the Council, acting as a highways authority. As to the 2005 permission, that was to use the land in the meanwhile for agriculture, until the foothill pitches were constructed. But given the size of the access, Mr Rothschild said that it was obvious it was not designed for agricultural use alone. All that needed to be done was for him to make an application for change of use later.[18]The law stands in the way of this submission. The 2005 permission prevented implementation of the 1999 permission (if it still existed), since the principle is that if there are two planning permissions in relation to the same land, both cannot be implemented when they are mutually inconsistent: Pilkington v. Secretary of State for the Environment [1973] 1 W.L.R. 1527. By implementing the 2005 permission, the claimant prevented implementation of the 1999 permission. In any event, the access is approximately 1.9 metres away from the approved alignment, which means it has not been lawfully implemented.[19]Finally, I note that Jay J, in his reasons in refusing permission on the papers stated, correctly, that the claimant can apply for a certificate of lawfulness. A basic principle of judicial review is that it will be refused if the claimant has an alternative remedy: it has in this case. If the claimant is refused a certificate of lawfulness it can appeal, the appeal being heard by a planning inspector.[20]Consequently, I refuse the renewed application.