“I/We hereby apply for permission to carry out the development described in this application and on the attached plans. I/We hereby undertake to carry out this development in all respects in conformity with the details now submitted and/or in accordance with the Town and Country Planning Acts and any permission granted thereunder.”
“The whole scheme has been designed so as to harmonise with the natural landscaping of the whole site, and to this end we have introduced a liberal amount of open space, which will be carefully maintained in conjunction with the development of the flats for the use of residents and visitors. The main lines of the public path have been retained so as to provide a further amenity to the citizens of Aberdovey and their visitors. The high land in the centre of this development overlooking the Estuary is to be retained as open space. It is proposed to construct a carefully designed gazebo from which to view the Estuary. We have tried to avoid continuous unbroken road frontages, and have clustered the dwellings in groups with the open space running between, and it would be the intention to complete each group with its landscaping as the development proceeds.”
“The above-named Local Planning Authority hereby grant permission for the development proposed by you in your application dated the 19th day of December 1966 of the land situate at Balkan Hill, Aberdovey by the erection of dwellinghouses and shown on the accompanying plans, subject to … the conditions specified hereunder: agreement being reached on water supply before any work is carried out.” agreement being reached on water supply before any work is carried out.”
“The above-named Local Planning Authority hereby grant permission for the development proposed by you in your application dated the 17th day of March 1967 of the land situate on the lower site of Balkan Hill development, Aberdovey by the erection of one pair of semi-detached dwellinghouses …”
“Due to site conditions which only became apparent after the complete excavation for the first pair of houses within the old quarry, and to maintain the units as a pair as approved, it has been found necessary to further excavate. This gives an opportunity to create a further unit in the form of a three bedroom flat and would be finished in natural stone facing, to improve the appearance of the whole building. I enclose duplicate copies of my drawings nos. 587/101 and /400 indicating my proposals and would be grateful to receive your approval for this amendment to the approved designs.”
“What happened was that when the site for the first two houses was excavated it was found to be the site of an old quarry; so that the firm ground levels were not at all what they had appeared to be. This created difficulty in siting the two houses as shown on the Master Plan. Mr Madin found that they could be satisfactorily built by altering their position and in some respects their design. Accordingly, on17 March 1967 he applied for what was, quite clearly, a variation of the consent granted on10 January 1967 . It was dealt with speedily by the planning authority and consent was given on4 April 1967 . I have no doubt at all that everyone regarded this as what it in fact was, namely a variation of the approved Master Plan. The planning authority gave it the same reference as the main consent. Subsequently a further variation in the design was applied for and approved, so that a three bedroomed flat was added to the unit. Again I am satisfied that this was rightly regarded as a variation of the main consent. Development proceeded very slowly indeed, and to date only 19 dwelling units have been built; and in some cases the units built were as substantial variations from the Master Plan. In place of the originally proposed next cluster of four houses there were built two separate units comprising flats over garages; and in a different location. These two units were each the subject of planning consent. The planning authority gave these consents a different reference number to that of the main consent. But in each case the applications were stated to be granted as a variation of the plans already approved, and in the whole context of the development I think this was in fact what they were. Finally, in place of the originally proposed four pairs of dwelling units in one block there were built eight flats and a garage. The eight flats were built on the same location as the originally proposed building. I find this, also, to be no more than a variation of the original main consent.”
“Although these buildings had been the subject of individual planning consents, I am satisfied that each such consent was merely a variation of the original consent of10 January 1967 . This finding accords with the view of Mr Lazarus [who in 1967 was the Deputy County Planning Officer of Merioneth County Council], who gave evidence of some of the history of these variations for which consent was granted.”
“Finally I add that although development has gone on very slowly and with a number of variations, the Master Plan remains in force, and if the development is allowed to progress further it can be completed substantially in accordance with the rest of the Master Plan.”
“3. That the development permitted by the January 1967 permission has been begun; and that it may lawfully be completed at any time in the future.”
“The Authority is of the view that it will not be possible to implement the [January 1967 Permission] further. This is because the developments carried out to date, in accordance with later planning permissions which have been granted and implemented, mean it is now physically impossible to implement the original planning permission further. The Authority has recently sought Counsel’s opinion with regards to the planning situation at this site and has received advice, given the situation set out above, that [the January 1967 Permission] is no longer capable of being implemented further. Should you believe that there is planning permission for further development of the site, we would advise you to submit an application for a certificate of lawfulness of proposed use or development undersection 192 of the Town and Country Planning Act 1990 . In the meantime you are required to immediately stop all works until the planning situation has been regularised. Should you fail to immediately stop works at the site, the Authority will take enforcement action.”
“14. Unless set aside by a court of competent jurisdiction, the judgment and declarations of Mr Justice Drake given on9 July 1987 are binding on the defendant. 15. Furthermore, the arguments advanced by the defendant through the opinion of Mr Lewis could have been made to Mr Justice Drake, but were not. The matter is now res judicata. 16. Further or alternatively, properly construed, the January 1967 Permission permits a number of independent acts of development. The subsequent grants of planning permission for what are in effect variations of the development shown in the 1967 Master Plan do not prevent the remainder of the development from being completed. Accordingly, the arguments now advanced by the defendant would have made no difference to the outcome of the claim before Mr Justice Drake. 17. For these reasons the claimant seeks the following declarations: (1) The defendant is bound by the judgment and declarations of Mr Justice Drake given on9 July 1987 in claim no. 1985 L No. 1504. (2) The [January 1967 Permission] is a valid and extant permission. (3) The said planning permission may be carried on to completion, save insofar as development has been or is carried out pursuant to subsequent planning permissions granted for alternative residential development.”
“There is, perhaps surprisingly, not very much authority on this point which one would think could often arise in practice, so I venture to start at the beginning with the more elementary principles which arise. In the first place I have no doubt that a landowner is entitled to make any number of applications for planning permission which his fancy dictates, even though the development referred to is quite different when one compares one application to another. It is open to a landowner to test the market by putting in a number of applications and seeing what the attitude of the planning authority is to his proposals. Equally it seems to me that a planning authority receiving a number of planning applications in respect of the same land is required to deal with them, and to deal with them even though they are mutually inconsistent one with the other. Of course, special cases will arise where one application deliberately and expressly refers to or incorporates another, but we are not concerned with that type of application in the present case. In the absence of any such complication, I would regard it as the duty of the planning authority to regard each application as a proposal in itself, and to apply its mind to each application, asking itself whether the proposal there contained is consistent with good planning in the factual background against which the application is made. I do not regard it as part of the duty of the local planning authority itself to relate one planning application or one planning permission to another to see if they are contradictory. Indeed I think it would be unnecessary officiousness if a planning authority did such a thing. They should regard each application as a proposal for a separate and independent development, and they should consider the merits of the application upon that basis. What is the consequence here? The fact that application 756 related to a bungalow central in the site, and the fact that it contemplated only one bungalow on the whole site, and the fact that that permission has now been implemented, means in my judgment that one must look back at permission 601, and see whether in fact that development there contemplated can now be carried out consistently with the development sanctioned in the implemented application number 756. For this purpose I think one looks to see what is the development authorised in the permission which has been implemented. One looks first of all to see the full scope of that which has been done or can be done pursuant to the permission which has been implemented. One then looks at the development which was permitted in the second permission, now sought to be implemented, and one asks oneself whether it is possible to carry out the development proposed in that second permission, having regard to that which was done or authorised to be done under the permission which has been implemented.”
“I base my decision on the physical impossibility of carrying out that which was authorised in number 601.”
“23. When an application for planning consent is made for permission for a single operation, it is made in respect of the whole of the building operation. There are two reasons for this. The first is the practical one that an application for permission partially to erect a building would, save in exceptional circumstances, fail. The second is that the concept of final permission requires a fully detailed building of a certain character, not a structure which is incomplete. This is one of the differences between an outline permission and a final permission: section 92of the Act. As counsel for Mr Sage accepted, if a building operation is not carried out, both externally and internally, fully in accordance with the permission, the whole operation is unlawful. She contrasted that with a case where the building has been completed but is then altered or improved. This demonstrates the fallacy in Mr Sage’s case. He comes into the first category not the second. 24. The same holistic approach is implicit in the decisions on what an enforcement notice relating to a single operation may require. Where a lesser operation might have been carried out without permission or where an operation was started outside the four-year period but not substantially completed outside that period, the notice may nevertheless require the removal of all the works including ancillary works: Ewen Developments Ltd v Secretary of State for the Environment[1980] JPL 404;Howes v Secretary of State for the Environment[1984] JPL 439, Hodgson J; Somak Travel Ltd v Secretary of State for the Environment [1987] JPL 630, Stuart-Smith J. The first of these upheld a requirement that the whole of an embankment be removed. In the second the inspector had directed himself that the removal of a hedge and the creation of an access was ‘a continuous operation and each step in the work prolong[ed] the period for serving the enforcement notice as regards every earlier step of the development’: the judge upheld the notice. The third case involved an unauthorised change of use case from residential to commercial use. The notice not only required the cessation of the commercial use but also the removal of an internal staircase which had been put in to facilitate that use though in itself the staircase had not required permission. 25. These decisions underline the holistic structure of planning law and contradict the basis upon which the Court of Appeal reached its decision in favour of Mr Sage.”
“18. First, the principle derives from the general law. Of course, in a specific case, the terms of the planning permissions granted may be particular. They may be crucial. 19. Second, of the subsequent development, Lord Scarman used the term ‘incapable of implementation’ (emphasis added). ‘Implementation’ is a term of art in planning. A development does not have to be completed for the permission under which it is done to have been ‘implemented’. There is no dispute before me that the 2003 Permission had been both ‘commenced’ and ‘implemented’ by the operations under it which had been performed. The Inspector found it so. The issue in this case is not whether the 2003 Permission can be lawfully implemented, but rather whether or not the development or building operation permitted by it can be lawfully completed, having regard to the circumstances as they appeared to the Inspector at the time of his decision, including of course the operations which had already been done in pursuance of development permitted by the 2005 Permission. 20. Third, reflecting the holistic structure of the planning regime, for a development to be lawful it must be carried out fully in accordance with any final permission under which it is done, failing which the whole development is unlawful (Sage per Lord Hobhouse, giving the only substantive speech, at [23] -[25]). Taken with my second observation, that means that if a development for which permission has been granted cannot be completed because of the impact of other operations under another permission, that subsequent development as a whole will be unlawful. 21. Fourth, Miss Clover for the Claimant expressly relies upon the de minimis principle. Whilst there is no doubt room for that principle in relation to changes to a development for which planning permission has been granted (see for example Lucas at page 114), Miss Clover conceded that a change to a development for which permission has been granted is not allowed under that permission merely because it is minor or immaterial. That concession was well made. On application by a person with an interest in the relevant land, section 96A of the 1990 Act (enacted in the light of the decision in Sage) gives a planning authority express power to change a planning permission if they are satisfied that that change is not material. Such a provision would be otiose if they could make such (immaterial) changes in any event. Whether a change is material or not is a matter of fact and degree for the authority, which must have regard to the effect of the change in making that decision. If the change is material, then it requires the consent of the planning authority following an application under section 73, which, for self-evident reasons, requires a more sophisticated procedure. However, any change—material or not—requires the consent of the planning authority under section 73 or section 96A.”
“23. Although [counsel for the landowner] concedes that, ‘The driveway and garden layout are no longer physically capable of being implemented as shown on the plan and application of [the 2003 Permission]’, it is sufficient, she submits, that the development can be ‘substantially implemented as originally envisaged’ (written submissions, conclusions (iv) and (v)): and the Inspector erred in law finding otherwise. 24. I do not find this submission compelling. It is based upon the false premise that, where a final planning permission has been granted (as it has been under the 2003 Permission), it is not necessary to implement that permission ‘… in its entirety, exactly as it appears in the application and plans as granted’. But that is precisely what is necessary. 25. As I have indicated, as a matter of law, a development generally must be regarded holistically and, where some parts of it are physically incapable of being implemented (or completed), then the whole development becomes unlawful. Of course, on its proper construction, a particular planning permission may authorise the carrying out of a number of independent acts of development. …”
“It seems to me that such development as is contemplated would be permitted and would be development permitted by the 1952 planning permission. It has been said that there are inconveniences which would arise if that be the right view; it has been said, on the other hand, that there would be inconveniences if it were not the right view. I do not propose to enumerate all those considerations. Quite a number of them have been raised and canvassed before the court. The more basic matter, I think, is that, whilst a planning authority may well have as its object in granting planning permission for a contemplated housing estate upon a lay-out, considered by the planners, the achievement of a whole, it does not follow as a matter of law that development conforming with that lay-out is only permitted if the whole lay-out is completed and conditionally upon its completion. The motive for acceptance of a change of use—for example, from agricultural land to residential use—may well be the achievement by the planning authorities, in their area of jurisdiction, of a well-laid-out, symmetrical, balanced housing estate; but, as I see it, those are matters of motivation, matters of planning policy which operate in the minds of the planning authorities, but are not the subject or defining scope of the planning permission which for those reasons they see fit to grant. The authorities do not permit the development of a housing estate of, e.g. , twenty-eight houses, they permit the development of sites of land delineated upon the plan respectively and separately by the erection upon them of dwelling-houses to be occupied as such with those areas of land, contemplating that cumulatively such items or exercises of development will produce the intended housing estate. What would be contrary to the statute, unless done in pursuance of planning permission, would be the erection of any one of those houses, or occupancy of any building erected upon any of these sites, otherwise than in conjunction with the area of land shown on the application or otherwise than for use as a dwelling-house. Without, as I say, going into any detailed consideration of inconvenience, I think that it is right to approach this problem on the basis of an assumption that Parliament cannot have intended to leave individual owners of separate plots comprised in the contemplated total housing scheme dependent upon completion of the whole of the scheme by the original developer, or by some purchaser from him, so that they would be vulnerable, were the whole scheme not completed, separately to enforcement procedure which might deprive them of their houses and of the money which they would have invested in those houses, whether or not they built them themselves.”
“Before I complete this judgment I ought briefly to refer to the two authorities to which I have had regard in reaching the conclusions already expressed. The first is a decision of Winn J in F. Lucas & Sons Ltd v Dorking and Horley Rural District Council(1964) 62 LGR 491 . That was a rather exceptional case where planning permission had been granted for the erection of a substantial number of houses in conformity to a layout plan which had accompanied the application. Later a further permission was granted for the development of two houses on part of the land contemplated in the first permission, but in a manner inconsistent with the layout prescribed in the first permission. Winn J had to consider whether, those two houses having been built in implementation of the second permission, it was still open to the owner of the rest of the land to develop it in accordance with the original permission. He came to the conclusion that it was, but as I understand his judgment, for the reason that he construed the first planning permission as authorising the carrying out of a number of independent acts of development, and taking that view it naturally followed that the implementation of the second permission did not deprive the owner of the rest of the land from carrying out the independent acts of development authorised on such part of the site as remained under his control. More helpful I find the second authority to which we have been referred, and an authority on which the Secretary of State himself relied, that is Ellis v Worcestershire County Council(1961) 12 P&CR 178 , a decision of Mr Erskine Simes QC. I refer to this for one passage which seems to me exactly to express the conclusion that I have independently reached in regard to the propriety of endeavouring to implement the second conflicting planning permission. He said, at p. 183: ‘If permission were granted for the erection of a dwelling house on a site showing one acre of land as that to be occupied with the dwelling house, and subsequently permission were applied for and granted for a dwelling house on a different part of the same area which was again shown as the area to be occupied with the dwelling house, it would, in my judgment, be impossible to construe these two permissions so as to permit the erection of two dwelling houses on the same acre of land. The owner of the land had permission to build on either of the sites, but wherever he places his house it must be occupied with the whole acre.’ That exactly illustrates the principle upon which I would base my decision in this case and in the result I would regard the Secretary of State’s decision as showing no error of law and I would dismiss the appeal.”
“The appellants relied upon a decision of Winn J in F. Lucas & Sons Ltd v Dorking and Horley Rural District Council (1966) [sic] 17 P&CR 111. But there the partial development proposed was held to be comprised within the planning permission originally granted. This decision was subsequently treated by the Divisional Court in Pilkington v Secretary of State for the Environment[1973] 1 WLR 1527 , 1533, (rightly, if we may respectfully say so) as ‘a rather exceptional case’. In Pilkington’s case it was held that where one of a number of grants of planning permission had been implemented, it was not thereafter permissible for the landowner to implement another grant of planning permission which was inconsistent with the permission already implemented. We respectfully agree with and adopt the reasoning in the judgment of Lord Widgery CJ.”
“The legal principles applicable to the use of other documents to construe a planning permission are not really in dispute in these proceedings. It is nonetheless necessary to summarise them: 1. 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: see Slough Borough Council v Secretary of State for the Environment (1995) JPL 1128, and Miller-Mead v Minister of Housing and Local Government[1963] 2 QB 196 . 2. This rule excludes reference to the planning application as well as to other extrinsic evidence, unless the planning permission incorporates the application by reference. In that situation the application is treated as having become part of the permission. The reason for normally not having regard to the application is that the public should be able to rely on a document which is plain on its face without having to consider whether there is any discrepancy between the permission and the application: see Slough Borough Council v Secretary of State (ante); Wilson v West Sussex County Council[1963] 2 QB 764 ; and Slough Estates Limited v Slough Borough Council[1971] AC 958 . 3. For incorporation of the application in the permission to be achieved, more is required than a mere reference to the application on the face of the permission. While there is no magic formula, some words sufficient to inform a reasonable reader that the application forms part of the permission are needed, such as ‘... in accordance with the plans and application ...’ or ‘... on the terms of the application ...’, and in either case those words appearing in the operative part of the permission dealing with the development and the terms in which permission is granted. These words need to govern the description of the development permitted: See Wilson (ante); Slough Borough Council v Secretary of State for the Environment (ante). 4. If there is an ambiguity in the wording of the permission, it is permissible to look at extrinsic material, including the application, to resolve that ambiguity: see Staffordshire Moorlands District Council v Cartwright (1992) JPL 138 at 139; Slough Estates Limited v Slough Borough Council (ante); Creighton Estates Limited v London County Council (1958) The Times,20th March 1958 . 5. If a planning permission is challenged on the ground of absence of authority or mistake, it is permissible to look at extrinsic evidence to resolve that issue: see Slough Borough Council v Secretary of State (ante); Co-operative Retail Services v Taff-Ely Borough Council(1979) 39 P&CR 223 affirmed(1981) 42 P&CR 1 .”