Payne v Caerphilly County Borough Council

LORD JUSTICE BUXTON: This is an application by Mr Payne for permission to appeal against a judgment of Maurice Kay J dated 8th April 2003. The matter has previously been before this court by way of application before Pill LJ on 5th August. On that day Mr Payne sought to appeal not only from the decision of Maurice Kay J but also from a related decision of Davis J. Pill LJ did not grant permission to appeal from the decision of Davis J but he remitted, for further consideration, the matter that arises with regard to the judgment of Maurice Kay J. The background to this matter is fully set out in the various judgments and I therefore need only to refer to the matters that are in issue today.

After a good deal of litigation Mr Payne succeeded in persuading this court that under the provisions of the Environment Act 1995 he was entitled to a continuing planning permission linked to a permission granted to the National Coal Board as long ago as 21st December 1955. As part of that application Mr Payne submitted conditions that he said should attach to his new or continuing permission.

His complaint now is this: that in the permission for development that was given in December 1955 the application was for the whole of the curtilage now, as I understand it, occupied by Mr Payne, but the permission for development said this:

The document continued:

Put shortly Mr Payne says that is to be read as a grant of permission in respect of the whole of the land, subject to a condition that there should be no relevant development at all in sections BB, CC and DD. Now that the conditions relevant to this grant are those which he has proposed and which are upheld by the Court of Appeal, those conditions, and those only, should apply to the land, and therefore the previous limitation with regard to sections BB, CC and DD has disappeared.

This matter clearly turns, as was perceived by Maurice Kay J, and indeed by the Court of Appeal who previously considered the matter, upon the construction of the grant in 1955. Mr Payne's point quite shortly is: if the document says condition then that must be a condition and not any limitation of the grant. I quite agree with him and indeed with Maurice Kay J that the document is unfortunately phrased. It should not have set out the limited permission that was granted under the heading of 'Conditions'. No doubt that was because this was a standard form document that the local authority used for that purpose.

That said, however, it seems to me entirely clear that what was being granted in 1955 was what the local authority said was being granted: that is to say, permission for the area covered by sections AA and EE, but not for the area covered by sections BB, CC and DD. In other words, the permission was limited to part of the sought site. No permission at all was granted in respect of sections BB, CC and DD and therefore it was not appropriate for conditions to be imposed in respect of those areas, because there can be no conditions on an area which is not the subject of planning permission.

Mr Payne argues that it was not open to the local authority to impose limitations on a grant of planning permission. He draws my attention to a case that verbally appears to establish that, I'm Your Man Ltd v Secretary of State for the Environment (1988) 77 P.&C.R. 251. I cannot agree that that case helps him. There are two reasons for that. First of all, as I have already indicated, the document of 1955 is to be construed as a permission in respect of a certain area, and no permission in respect of any other area. It is not, therefore, a limitation on an overall grant of planning permission. Secondly, the "limitations" that were in issue in I'm YourMan Ltd v Secretary of State for the Environment were indeed limitations in that they were limitations as to time in respect of a general grant of permission.

Whether or not that decision was correct, it does not apply in this case, because in this case there is no question of a permission having been granted in respect of a particular area of land and then being sought to be limited by some factor other than the area to which the permission applies.

This is a short case of construction. I agree with the view taken of it by Maurice Kay J. I am also fairly confident that that was the view of the matter taken by Schiemann LJ when this matter was before the Court of Appeal, but the matter was not argued out there and I make it clear that I do not decide this case on the basis that I am bound by what Schiemann LJ said. I decide it on the basis, as did Maurice Kay J, of my own construction of the underlying document.

Permission to appeal from Maurice Kay J is therefore refused.