Cherwell District Council, R (on the application of) v First Secretary of State & Anor

This is an appeal from an order made on 6 April 2004 by Mr Justice Collins on an application to quash the decision of the First Secretary of State to approve proposals by the Home Office for the construction of an accommodation centre for asylum seekers on land at Piddington, near Bicester. The appellant, Cherwell District Council, is the local planning authority. The appeal raises points of some general importance in relation to the use of the non-statutory procedure introduced by Department of Environment Circular 18/84 (Crown Land and Crown Development) in connection with what may loosely be described as public/private partnership development projects.

In February 2002 the government published its proposals for the delivery of “a properly managed, robust and integrated system of immigration, nationality and asylum” in a White Paper – ‘Secure Borders, Safe Haven: Integration with Diversity in Modern Britain’. In a letter to the District Council dated 14 May 2002 the Minister of State at the Home Office explained that the establishment of accommodation centres for asylum seekers was “a key element of this more tightly managed asylum system”. He wrote:

“The centres will be an integral part of a seamless end-to-end process, from initial application through to integration or removal. The government will establish new centres, with a total capacity of 3,000, to accommodate a proportion of new asylum seekers from application through initial decision and any appeal. This will be taken forward on a trial basis.

The centres will provide full-board accommodation. Services, including health care, education, interpretation and opportunities for purposeful activities will also be provided for. . . .”

One of the sites selected by the Home Office in furtherance of this policy was redundant land near Bicester, comprising some 13.9 hectares owned by the Ministry of Defence and formerly used as a Defence Storage and Distribution Centre (DSDC). A Planning Supporting Statement, prepared by planning consultants on behalf of the Home Office and sent to the District Council with the letter of 14 May 2002, describes, in detail, the proposals for the construction of an accommodation centre for 750 asylum seekers on that site. Paragraph 1.3 of that Statement explains that:

“The Home Office wishes to secure the planning principle for the development of the site and there will then be a design, build and operate (ie DBO) tender for all the Accommodation Centres. The Home Office will retain ownership of the site but the Centre will be operated by the chosen contractor (ie the successful DBO bidder). The Home Office will work with the chosen contractor on the detailed design for the Centre. . . .”

Statutory control of development is now contained in the Town and Country Planning Act 1990. Section 55(1) of that Act defines “development” to include the carrying out of building operations in, on, over or under land or the making of any material change of use of any buildings or other land. There is no dispute that, to the extent that the 1990 Act applies to the development of land by or on behalf of the Crown, the Home Office proposals would constitute “development” within the meaning of section 55(1).

Section 57(1) of the Act provides that, subject to the following provisions of that section (which are not material in the present context), planning permission is required for the carrying out of any development of land. Further provisions in Part III of the Act (Control over Development) provide for the grant of planning permission; the matters to be taken into account in determining applications for planning permission; the right of appeal to the Secretary of State; the power of the Secretary of State to direct that an application be referred to him; and the reference of matters by the Secretary of State to a Planning Inquiry Commission.

Part VII of the Act contains provisions for the enforcement of planning control. Section 171A provides that the carrying out of development without the required planning consent constitutes a breach of planning control; section 172 empowers the local planning authority to issue an enforcement notice where it appears to them that there has been a breach of planning control; section 179(1) provides that, where there has been a failure to comply with an enforcement notice, the person who is then the owner of the land is in breach of the notice; and section 179(2) provides that an owner of land who is in breach of an enforcement notice is guilty of an offence. Further enforcement powers are contained in sections 183 to 187 (stop notices) and 187B (powers to restrain breaches of planning control by injunction).

Section 106 of the 1990 Act (as substituted by section 12(1) of the Planning and Compensation Act 1991), read with sections 106A and 106B, contains provisions for the control of development through the acceptance of ‘planning obligations’. Section 106 provides that any person interested in land in the area of a local planning authority may, by agreement or otherwise, enter into an obligation restricting the development or use of the land in any specified way, requiring specified operations or activities to be carried out in, on, under or over the land or requiring the land to be used in any specified way – see paragraphs (a), (b) and (c) of section 106(1). An obligation into which the landowner (or other person interested in the land) has entered pursuant to section 106 (a planning obligation) is enforceable by the local planning authority against successors in title - section 106(4); and may be enforced by injunction - section 106(5). Sections 106A and 106B of the 1990 Act contain provisions for the discharge or modification of planning obligations; including provisions for an appeal to the Secretary of State from the decision of a local planning authority that the planning obligation shall continue to have effect without modification.

The extent to which the statutory control of development is applicable to the development of Crown land is now prescribed by the provisions in Part XIII of the 1990 Act. But those provisions must be read in the light of the underlying principle, recognised by this Court in Ministry of Agriculture, Fisheries and Food v Jenkins and another [1963] 2 QB 317 and affirmed by the House of Lords in Lord Advocate v Dumbarton District Council [1990] 2 AC 580, that – in the absence of express provision or necessary implication, the Crown is not bound by the Planning Acts.

The position was explained by Lord Denning, Master of the Rolls, in the Jenkins case at page 325:

“Looking at the whole of the Town and Country Planning Act, 1947, I am satisfied that the Crown does not need to get planning permission in respect of its own interest in Crown lands. The reason it is exempt is, not by virtue of any provision in the Act itself, but by reason of the general principle that the Crown is not bound by an Act unless it is expressly or impliedly included.”

That approach was endorsed by Lord Keith of Kinkel (with whose speech the other members of the House agreed) in the Dumbarton case. He observed, at [1990] 2 AC 580, 603G, that the provisions in section 253 of the Town and Country Planning (Scotland) Act 1972, read as a whole, made it “quite clear that the whole Act proceeds on the assumption that the Crown is not subject to any requirement of planning permission for development carried out by it”. He rejected the view, which had prevailed in the Court of Session, that where the Crown is not expressly bound “it is not bound by necessary implication when acting within its rights but is so bound when acting without any right”; holding it preferable:

“. . . to stick to the simple rule that the Crown is not bound by any statutory provision unless there can somehow be gathered from the terms of the relevant Act an intention to that effect. The Crown can be bound only by express words or necessary implication.” [ibid, 604C-D]

As appears from the passage from the judgment of Lord Denning, Master of the Rolls, which I have set out, the planning legislation relevant to the decision of this Court in the Jenkins case was contained in the Town and Country Planning Act 1947. Section 87 of that Act included, at subsections (2)(b), (3)(a) and (5) respectively, provisions now found in sections 296(1)(c), 296(2)(a) and 294(1) of the 1990 Act:

“296(1) Notwithstanding any interest of the Crown in Crown land, but subject to the following provisions of this section –

(c)

any restrictions or powers imposed or conferred by Part III, VII . . or VIII . . . shall apply and be exercisable in relation to Crown land, to the extent of any interest in it for the time being held otherwise than by or on behalf of the Crown.”

“296(2) Except with the consent of the appropriate authority –

(a)

no order or notice shall be made issued or served under any of the provisions of [section 172] . . . in relation to land which for the time being is Crown land; . . .”

“294(1) No enforcement notice shall be served [under section 172 of the 1990 Act] in respect of development carried out by or on behalf of the Crown after [1st July 1948] on land which was Crown land at the time when the development was carried out.”

In that context “Crown land” includes “land in which there is . . . an interest belonging to a government department” – see section 293(1) of the 1990 Act and, formerly, section 87(1) of the 1947 Act.

The effect of the provision now enacted as section 294(1) of the 1990 Act was explained by Mr Justice Robert Goff in Newbury District Council v Secretary of State for the Environment and others (1977) 35 P&CR 170, 180:

“The subsection provides that no enforcement notice shall be served in respect of such a development. It does not provide, as it easily could have done if such had been the intention, that no enforcement notice should be served on the Crown in respect of such development. It follows that, if a private citizen should subsequently acquire any such land from the Crown, he would not have to apply for planning permission in respect of development within the subsection. He too would be protected from the service of an enforcement notice by the terms of the subsection which are quite explicit.”

As the editors of the Encyclopedia of Planning Law and Practice point out, at note P294.03 (on page 2-3903):

“Subs. (1) [of section 294 of the 1990 Act] confers immunity from enforcement in respect of Crown development, not only for the period that the land remains in Crown ownership (which is in any event unnecessary because of the Crown’s immunity) but also thereafter . . .”

The provisions to which I have just referred - section 294(1) of the 1990 Act and its statutory predecessors – protected persons other than the Crown from enforcement proceedings in respect of development carried out by or on behalf of the Crown on land which was Crown land at the time when the development was carried out, notwithstanding that the land was subsequently transferred away from the Crown’s ownership. But those provisions did not, of course, confer protection from enforcement in respect of development carried out on that land by the new owner. And it was the view of the Law Officers that it was a necessary corollary of the principle that the Crown was not bound by the Planning Acts that the Crown could not, itself, seek a planning consent in respect of proposed development. The effect was that the Crown could not transfer land to the new owner for development with the benefit of a planning consent which it had obtained. That gave rise to uncertainty in relation to the value to be placed on land which had become surplus to the needs of the Crown for use in the public interest and which the Crown wished to sell on to a private developer. The problem is explained at note P299.03 (at page 2-3911) in the Encyclopedia of Planning Law and Practice.

In an attempt to meet that problem the then Minister of Housing and Local Government prescribed (in Circular 49/63) a procedure under which the disposing department of the Crown and the local planning authority could seek a non-binding opinion from the Minister on the question whether, if an application for development of the land consistent with that which the disposing department considered appropriate had been made and thereafter referred to him on appeal from a refusal by the planning authority, he would or would not have allowed the appeal.

In 1983 that procedure was challenged in R v Worthing Borough Council and Secretary of State for the Environment, Ex parte Burch [1984] JPL 261. It was held that the procedure was unlawful, in that it was intended to constrain the exercise by the local planning authority of its statutory powers when, following disposal of the land to the private developer, the new owner made a planning application under the Act. The decision in the Worthing Borough Council case led to the enactment of the Town and Country Planning Act 1984.

Section 1 of the 1984 Act was enacted in these terms, so far as material:

“(1)

This section has effect for the purpose of enabling Crown land, or an interest in Crown land, to be disposed of with the benefit of –

(a)

planning permission, . . .

(2)

Notwithstanding the interest of the Crown in the land in question, an application for any such permission . . . may be made by –

(a)

the appropriate authority; or

(b)

any person authorised by that authority in writing;

and, subject to subsections (3) to (5) below, all of the statutory provisions relating to the making and determination of any such application shall accordingly apply as if the land were not Crown land.

(3)

any planning permission granted by virtue of this section shall apply only –

(a)

to development carried out after the land in question has ceased to be Crown land; and

(b)

so long as that land continues to be Crown land, to development carried out by virtue of a private interest in the land;

. . .”

Those provisions have been re-enacted as section 299(1) to (3) of the 1990 Act.

The enlarged provisions for the control of development on privately owned land through the acceptance by the landowner of planning obligations, introduced by the Planning and Compensation Act 1991 and now contained in sections 106, 106A and 106B of the 1990 Act, were extended to Crown land by section 12(3) of the 1991 Act. That section inserted a new section, section 299A, immediately after section 299 of the 1990 Act. Section 299A(1) enables ‘the appropriate authority’ in relation to any Crown interest in land in the area of a local planning authority to enter into a planning obligation – that is to say, an obligation falling with paragraphs (a) to (d) of section 106(1) of the 1990 Act. In that context a government department is the appropriate authority in respect of land which it owns - section 293(2) of the 1990 Act. A planning obligation entered into under section 299A is enforceable by the local planning authority against any person with a private interest in the land deriving from the relevant Crown interest – section 299A(3) – and may, subject to the consent of the department which is the appropriate authority, be enforced by injunction – section 299A(4) and (5).

The Town and Country Planning Act 1984 received Royal Assent on 12 April 1984. It was to come into force at the end of the period of four months beginning on that day – section 7(2). Circular 18/84 was issued by the Department of the Environment on 3 August 1984. Paragraph 1 of the circular is in these terms, so far as material:

“1.

The Town and Country Planning Act 1984 comes into force on 12 August 1984. A commentary on its provisions in relation to England and Wales, and with reference to the regulations made under sections 1 and 3 of the Act which also come into force on the same day, is contained in Part I of the memorandum accompanying this circular. Section 1 of the Act enables planning permission to be sought prior to the disposal of Crown land or an interest therein. It thus renders redundant the procedure set out in Ministry of Housing and Local Government Circular 49/63 by which disposing Departments sought an informal opinion from local planning authorities about future uses of surplus Crown land. Circular 49/63 is hereby cancelled . . .”

Paragraph 4 described the scope of Part IV of the accompanying memorandum:

“4.

Part IV sets out the arrangements by which Government Departments and other Crown bodies consult local planning authorities about their proposals for development. . . .”

Part IV of the memorandum includes the following paragraphs:

“ Scope of consultation

4.

Development by the Crown does not require planning permission. But Government Departments will consult local planning authorities before proceeding with development (including material changes of use) which would otherwise require planning permission. . . .

. . .

Method of consultation

9.

When the formal stage of consultation is reached, the developing Department will send to the local planning authority four copies of a statement of their proposal marked “Notice of Proposed Development by (Department)” sufficient to enable the authority to appreciate its nature and extent. . . .

. . .

Action by the local planning authority

12.

The local planning authority will treat the Notice in the same way as they would a statutory planning application . . .

. . .

Publicity

18.

Although development proposals of Departments are not subject to statutory publicity, local planning authorities should give them the same publicity by way of press advertisement, site notices, notification of neighbours etc, as they would if the development proposals were the subject of an application for planning permission. . . .

Notification of local planning authorities views

19.

The local planning authority’s views on the proposed development should be sent to the developing Department within eight weeks from the date of receipt of the Notice of Proposed Development. . . . In formulating their views, the local planning authority should have regard to the views of any bodies consulted and to any comments received by the authority in response to the publicity given. They should make it clear whether they find the development acceptable and, if so, on what conditions (if any); or whether they find it unacceptable. In either case, reasons for the conditions or for finding the proposal unacceptable should be clearly stated. . .

. . .

Method of dealing with objections . . .

23.

Where the local planning authority object to the Notice of Proposed Development . . . or where there is any unresolved disagreement, the developing Department, if they wish to proceed with the proposal, will notify the Department of the Environment submitting copies of relevant documents and plans. . . .

. . .

25.

The method of dealing with proposals to which there have been objections will depend upon the circumstances but in all cases the local planning authority, the developing Department and other interested parties will be given an opportunity to express their views. It is expected that the written representations method will be suitable for most cases. . . . In other cases, it may be desirable to take more formal steps and to hold a non-statutory public inquiry. The result of the Secretary of State’s determination of the dispute between the developing Department and the local planning authority will subsequently be notified by the Department of the Environment by means of a letter to the local planning authority. . . .”

References in paragraphs 23 and 25 (and elsewhere in the circular) to the Department of the Environment and to the Secretary of State are now to be read as referring to the Office of the Deputy Prime Minister and to the First Secretary of State – see the Transfer of Functions (Transport, Local Government and the Regions) Order 2002 (SI 2002/2626), at article 16(5).

The Home Office, as the developing Department, took the view that the present case was one in which it was appropriate to use the non-statutory consultation procedure prescribed in Part IV of the memorandum accompanying Circular 18/84 (“the NPD procedure”). Notice of Proposed Development was sent to the District Council, as local planning authority, on 14 May 2002 with the letter from the Minister and the Planning Supporting Statement to which I have already referred. The proposed development was described in the Notice in these terms:

“PROPOSED DEVELOPMENT:

Demolition of existing buildings and erection of a Home Office – Immigration and Nationality Directorate – Accommodation Centre – Outline Proposal utilising existing access from the public highway.

AT: Land at DSDC, Bicester, Oxfordshire

RESERVED MATTERS: siting, design, external appearance and landscaping”

By letter dated 16 July 2002, the Council’s Head of Planning and Development Services notified the Home Office that, at a meeting on 11 July 2002, the Council’s South Area Planning Committee had resolved to object to the proposals in the Notice of Proposed Development on the five grounds which he set out. The letter included a request that the Office of the Deputy Prime Minister be asked to ensure that any subsequent appeal against this objection be dealt with at a public inquiry “in order to give all interested parties the opportunity to present their concerns in full to an independent inspector”.

The matter was referred to the Office of the Deputy Prime Minister in accordance with the provisions of paragraph 23 of the NPD procedure. On 9 August 2002 the First Secretary of State notified the Council that he had decided to hold a non-statutory public local inquiry into the matter, so that he could “consider all the relevant aspects of the proposed development”. That was a course open to him under paragraph 25 of the NPD procedure.

The inquiry opened on 10 December 2002 and extended over 14 days, concluding on 3 March 2003. The inspector appointed to conduct the inquiry reported to the First Secretary of State on 18 April 2003. He recommended that the proposals should not be approved. The reasons which led him to make that recommendation, on “the overall balance”, are summarised at paragraph 14.75 of his report. Although that paragraph has been set out in the judgment now under appeal, it is convenient to include it here:

“In making the overall decision it is my view that greater weight should be attached to the factors against the proposal than for it. I say this for three reasons. First, the need to create a more sustained pattern of development lies at the very heart of the Government’s well-established approach to land use planning in this country. It would, in my view, be inappropriate for the Government to make an exception in respect of its own development. Second, the necessity for, and the benefits of, the proposed Accommodation Centre being in this rural area were not, in my view, shown by the Home Office to be convincing or overriding. The proposal seems to me to be driven by the availability of some surplus Government-owned land and by an undemonstrated belief that this rural location would aid the self-containment of the Centre. Third, the risk of road accidents involving pedestrian asylum seekers and others is, in my view, a very real practical worry that was given insufficient attention by the Home Office. My overall conclusion is, therefore, that, on balance, the First Secretary of State should not give approval to the proposed development.”

The First Secretary of State did not accept the inspector’s recommendation. He approved the proposed development. His decision was communicated to the District Council by a letter dated 18 August 2003. The letter contained a detailed explanation of the reasons which led the First Secretary to his decision; and, at paragraph 49, set out the conditions subject to which approval was given. Those conditions were in the same terms as the Development Conditions set out in Schedule One to an agreement made pursuant to section 299A of the 1990 Act on 14 April 2003 (shortly after the completion of the inquiry hearings) between the District Council, Oxfordshire County Council, the Secretary of State for Defence and the Secretary of State for the Home Department. Notwithstanding the absence of any express power in the First Secretary to impose conditions under the NPD procedure, it has not been suggested that the imposition of conditions vitiates his decision.

In the course of his report the inspector had addressed a submission, advanced on behalf of the Council, that the proposed development could not lawfully be approved by the First Secretary of State under the NPD procedure. He summarised the arguments in support of that submission at paragraphs 7.4 and 7.5 of his report:

“Procedural Matters (CDC)

. . .

7.4

The use and application of the Circular 18/84 procedure by the Home Office has been wrong. It is difficult to understand why the Home Office have not used the procedure set out in Section 299 of the 1990 Act. This contains a specific power which would, notwithstanding the interest of the Crown in the land, allow the Crown to apply for planning permission in anticipation of the grant of the lease to the private contractor selected to implement the proposal. This would have allowed the statutory procedure to be followed and the implementation of planning conditions in the usual way. The difficulty with the non-statutory procedure being followed is that it does not provide the same enforcement mechanisms. Where the section 299 procedure is available, as it is here, there can be no proper reason for the Crown taking advantage of the non-statutory procedure.

7.5

It is difficult to see how the development can be regarded as ‘Development by a Government Department’ within Part IV of Circular 18/84. The ‘design, build and operate’ contractor would not simply be the architect or builder of the Centre for the Home Office but would be independent. The reserved matters Notification to be made would not relate to Crown development but to private sector development. The contractor cannot, in fact use the procedure in Circular 18/84 since the contractor would not be the Crown. The Home Office may not itself make the reserved matters Notification since they have no genuine intention to develop the Site themselves. Any such Notification would be an abuse of power in public law. The operator would have to apply for a new full permission to be able to lawfully develop the Site under the contract let by the Home Office. The Circular procedure is not intended to be a means by which the statutory procedure can be avoided, but provides the necessary procedure where the 1990 Act does not apply. Where the 1990 Act does apply, as here, it is neither reasonable nor fair to use Circular 18/84. It is therefore submitted that the First Secretary of State should not grant his approval on the Notification because the wrong procedure has been used and the effect of that error would be to subvert the proper statutory planning control and the public interest. In view of these factors it is seriously in doubt as to whether the First Secretary of State can lawfully approve the development under the Notification procedure.”

Amongst the documents before the inquiry there was a draft of the section 299A agreement. The agreement had been executed by the date that the inspector made his report. Clause 4.1 of the section 299A agreement provides for the transfer of the development site from the Ministry of Defence to the Home Office “subject to and as soon as reasonably possible after the satisfaction of the First Condition”. The “First Condition”, in that context, is the approval of the proposed development by the First Secretary of State under the NPD procedure. Clause 5.1.1 provides that the Home Office shall not permit the commencement of the development unless and until (i) the First Condition has been satisfied and the site has been transferred pursuant to clause 4.1, (ii) the DBO contract has been awarded and (iii) the site has been leased to the DBO contractor for a term which has commenced. Clauses 5.1.3 and 5.1.4 are in these terms:

“5.1.3

The Home Office shall include in the DBO Contract and the lease . . . a specific term that the Contractor will comply with the Planning Obligations including the Development Conditions and the Home Office shall not discharge or release (or agree to discharge or release) this requirement or allow it to be treated as discharged otherwise than by performance.

5.1.

In addition to the requirement of clause 5.1.3 the Home Office shall use all reasonable endeavours through and under its management of the DBO Contract to ensure the Contractor takes all necessary steps to comply with the Planning Obligations including the Development Conditions throughout the term of the DBO Contract . . .”

The ‘Planning Obligations’ include the ‘Development Conditions’; and include, also, obligations in respect of bus routes, highways, access and car parking. The Development Conditions are set out in Schedule One to the agreement. It was contemplated that they were to be the conditions upon which approval would be given by the First Secretary under the NPD procedure – see clause 6.1 of the agreement. As I have said, that is what happened. Effect is given to the conditions set out in the approval letter of 18 August 2003 through the obligations undertaken in the section 299A agreement.

The inspector had before him, also, the evidence of Mr Jonathan Payne, a Deputy Director at the Immigration and Nationality Directorate (IND) of the Home Office and the Project Manager for the development of accommodation centres for asylum applicants. Mr Payne’s proof of evidence, dated 8 November 2002, included the following description of the basis upon which the DBO contact would be let:

“Procurement of Accommodation Centres

2.1

Accommodation Centres will be procured on a design, build and operate basis. This means that the Home Office will let a contract to a single contractor or consortium via an open competition in accordance with EU procurement regulations. The successful contractor will design, build and operate the centre on the basis of specifications and standards laid down by the Home Office. The contractor may sub-contract some of the works and services to appropriate specialists. The contract will take account of any planning conditions which are imposed.

2.2.

Management of the contract will be the responsibility of IND. The contract manager will be a senior member of IND and will be based permanently on the site, along with a number of support staff. The freehold of the Notification site will be owned by the Home Office, which will assign a lease to the contractor for the duration of the contract.

2.3

Whilst many if not most of the specifications have been taken into account by the Home Office in developing the proposals at Bicester, plainly there are many points of detail which remain to be finalised as part of the negotiated procurement process. However it is not expected that the elements discussed in my evidence will change, since they emerge from the Government's policy itself.”

The inspector referred to the section 299A agreement at paragraph 6.3 of his report, in the course of summarising the case advanced at the inquiry on behalf of the Home Office:

“6.3

. . . Moreover, a detailed section 299A Agreement has been entered into with the Council and this effectively defines the development. It sets out development conditions and operational specifications which would be binding. The Council would retain the normal level of control of matters at the detailed stage. It cannot be argued that there is insufficient information for a decision to be made or that the section 299A agreement is inadequate to define the development and to regulate and ensure its proper implementation.”

In the paragraphs immediately following paragraph 6.3 the inspector set out the response of the Home Office to the District Council’s submission that the NPD procedure should not have been used:

“Procedural Matters (HO)

6.4

The Council argue that the Notification cannot lawfully be approved by the First Secretary of State. This is on the basis that while the Home Office have applied for clearance from the First Secretary of State it would be a private sector contractor who would make the reserved matters application, and build and operate the Centre, rather than the Crown itself, and that the Circular 18/84 Notification procedure cannot be used for a private sector development, even one on Crown land. The Council argue that in any case where section 299 of the Town and Country Planning Act 1990 (‘The 1990 Act’) offers the Crown the opportunity of making a planning application, to which planning conditions may be attached, it is an abuse of power to seek to use the Notification procedure.

6.5

These arguments are, however, misconceived and should be rejected. The Home Office would retain a close degree of control over the ‘design, build and operate contract’ through the contract management and lease. Such control is enforceable under the Section 299A Agreement by the Council as a matter of contract. The development would be run throughout under the auspices of the Home Office, who would gain a direct benefit from it and they would fund it in partnership with the contractor. The Notification process is a means of consulting upon the clearance of consent for an act of development. That does not refer to the operation of the Centre but to the initial act of development, which is to be carried out by the contractor for, and under the control of, the Home Office.

6.6

The facts here can only support a finding that this is a proposed development by a Government department. There can be no proper objection if the contractor submits the reserved matters application. It would still be Crown development.

6.7

The Council’s argument that, where section 299 of the 1990 Act gives the Crown the option to make a planning application, it is an abuse of power not to do so, is bad. The terms of the Section 299A Agreement are such that there is little practical difference between the enforcement of the Notification proposal and the conditions that would be attached to a Section 299 consent. The ability of the Council to take enforcement action has its counterpart in the provisions of the Agreement. The Agreement itself may be varied by the parties with at least as much flexibility as the variation of conditions. The Council’s submission that the Home Office is involving itself in, or inviting and abuse of power, should therefore be rejected. . . .”

The inspector’s conclusion on the procedural challenge raised by the District Council is found at paragraph 14.4 of his report:

“Procedural Matters

. . .

14.4

Whether or not the Home Office use and application of the Circular 18/84, Crown Land and Crown Development, procedure (which does not involve the grant of planning permission) in this case is correct is a matter of law for the First Secretary of State. The Council maintain that it is not and argue that any approval by the First Secretary of State would be an abuse of power. In my view, however, the Home Office are entitled to use either the Circular 18/84 procedure or the procedure in Section 299 of the Town and Country Planning Act 1990 (which does involve the grant of planning permission) as a matter of choice; there is nothing in the legislation to say otherwise. Nor does there appear to me to be any legal problem, as the Council believe, about who makes the detailed reserved matters proposal in due course. I consider that the development would clearly be Crown Development and that either the Home Office or the private contractor appointed to design, build and operate it could make the reserved matters proposal under the Circular procedure. Permissions and approvals generally run with the land and there is no reason to treat this case differently.”

On that issue the First Secretary of State agreed with the inspector. He addressed the Council’s submission that the Home Office had been wrong to use the NPD procedure in this case at paragraph 5 of his letter dated 18 August 2003. He wrote:

“Procedural Matters

Application Process

5.

At the inquiry, Cherwell District Council said that the use and application of Circular 18/84 – Crown Land and Crown Development – was wrong and that the Home Office should have used the procedure set out in Section 299 of the Town and Country Planning Act 1990 (‘the 1990 Act’). For the reasons given by the Inspector in paragraph 14.4 of his report, the Secretary of State agrees that it was open to the Home Office to use either the provisions of Circular 18/84 or section 299 of the 1990 Act. He agrees with the Inspector that the proposal is clearly development by the Crown and that either the Home Office or the private contractor appointed to design build and operate could make a reserved matters proposal under the Circular 18/84 process.”

These proceedings were commenced by the issue of a claim form on 31 October 2003. The Council sought judicial review of the decision of the First Secretary of State, contained in the letter of 18 August 2003 to which I have referred, to approve the development proposed in the Notice dated 14 May 2002. The seven grounds of challenge were set out at paragraph 31 of a lengthy and detailed statement attached to the claim form. In the present context it is necessary only to note the first of those grounds: that the First Secretary erred in law in his consideration of “the use of the Circular 18/84 procedure in circumstances where the statutory procedure under s.299 TCPA was applicable”. The relief sought included (i) a declaration that “the use of the Circular 18/84 procedure was unlawful and that the Home Office should if it intends to proceed be required to submit a planning application for the proposed Accommodation Centre under section 299 of the [1990 Act] and thereafter follow the statutory procedure for the determination of such an application” and (ii) an order quashing the decision contained in the letter of 18 August 2003 and remitting the matter to the First Secretary of State for him to reconsider according to law.

The respondent to the application for judicial review was the First Secretary of State – whose decision was the subject of the challenge – but the Secretary of State for the Home Department was joined as an interested party. Mr Payne, the Project Manager for the development of IND accommodation centres, gave evidence in a witness statement dated 10 February 2004. He disclosed in that witness statement that a “preferred bidder” for the proposed DBO contract had been selected in January 2004; and that, although the final form of the DBO contract had not been agreed, its principal features had been established. He exhibited (i) the form of contract under negotiation (redacted to exclude commercially sensitive clauses) which, as he said, “would assist the Court in an appreciation of the degree of control exercised by [the Home Office] over the design, build, operate and maintenance provisions of the contract” and (ii) a form of the lease that it was proposed to grant to the appointed contractor. He explained, at paragraph 7.6 of his statement, that the Home Office “will only agree the final contractual terms on the basis that the accommodation centre is developed on its behalf, and it maintains close control and a ‘step in’ power over its operation”. At paragraph 7.30, after referring to clause 7 of the proposed lease, he said this: “The contractor’s leasehold interest in the site is subject to its due performance of its contractual obligation to design, build, operate and maintain an accommodation centre for and on behalf of [the Home Office]”. Those statements have not been challenged. They led Mr Justice Collins to conclude – in a passage to which I shall refer later in this judgment – that “It is clear that the Accommodation Centre will be constructed and operated for the purposes of the Home Office. . . . There is no other purpose behind this development”. On the material that was before the judge that conclusion was inevitable.

Permission to apply for judicial review was granted by Mr Justice Richards on 20 January 2004. The substantive application came before Mr Justice Collins for hearing in March 2004. On 6 April 2004 he ordered that the claim be dismissed. He reached that conclusion for the reasons set out in the judgment which he handed down on that day, [2004] EWHC 724 (Admin). He refused permission to appeal.

Permission to appeal was granted by this Court (Lord Justice Carnwath) on 20 May 2004; but limited to ground 1 in the appellant’s notice. It is convenient to set out that ground:

“(1)

The learned judge erred in law in rejecting the Appellant’s first ground of challenge namely that the Secretary of State for the Home Department adopted the wrong procedure in respect of their proposed development. In particular the learned judge erred in rejecting the submissions that (i) the Secretary of State was obliged in the circumstances of the case to use the specific statutory procedure under Part XIII of the Town and Country Planning Act 1990 and (ii) the proposed development was not development by the Crown to which Crown immunity attached since given both the Home Office’s proposals and the terms of the legal agreement entered into the development could only be carried out by a private developer in possession of a private interest in the land to be developed.”

The judge addressed each of the seven grounds of challenge raised in the claim before him. But, in this Court, it is necessary only to consider that part of his judgment which relates to the matter in respect of which permission to appeal has been given - that is to say, the use of the NPD procedure in this case.

At paragraph 17 of his judgment the judge accepted that, in the circumstances that no development would be carried out until after the lease had been granted to the DBO contractor - so that the contractor would be carrying out the development by virtue of its private interest (as leaseholder) in the land in question, it would have been open to the Home Office to apply for planning permission under the provisions of section 299 of the 1990 Act. That, I think, is not in dispute and, as it seems to me, is plainly correct. It could have been said that an application for planning permission in respect of the proposed development of the site was made for the purpose of enabling a leasehold interest in the site to be granted to the DBO contractor with the benefit of planning permission. But, as the judge appreciated, the fact that it would have been open to the Home Office to apply for planning permission under section 299 did not, of itself, lead to the conclusion that the department was bound to do so. The judge went on to say this:

“But it is apparent that s.299 was enacted to enable the Crown to have an advantage that it otherwise would not have, namely the ability to dispose of land with the benefit of planning permission. Section 299(2) uses the word ‘may’. I see no reason to suppose that Parliament intended that, whenever the Crown wished to dispose of land or an interest in land with a view to development being carried out by a private person, s.299 had to be used.”

That, if I may say so, is also plainly correct.

If planning permission had been sought and obtained by the Home Office under section 299 of the 1990 Act, that permission would have applied to the development carried out by the DBO contractor by virtue of its private (leasehold) interest – section 299(3)(b) of the Act – whether or not the development was to be carried out by or on behalf of the Crown. But the important question, as the judge recognised at paragraph 20 of his judgment, was whether the development which was to be carried out by the DBO contractor by virtue of its private interest as leaseholder would be “development carried out by or on behalf of the Crown”. Notwithstanding the grant of the leasehold interest, the land would remain Crown land - section 293(1). If the development was carried out on Crown land on behalf of the Home Office, section 294(1) would prevent the issue of an enforcement notice. In practice, therefore, and provided that that condition was satisfied, the DBO contractor could carry out the development without planning permission. It would be protected from enforcement proceedings.

The judge addressed the question whether the proposed development was to be carried out on behalf of the Crown at paragraphs 20 to 23 of his judgment. After referring to the decision of Mr Justice Forbes in London Borough of Hillingdon v Secretary of State and others CO/1604/98, CO/1745/98 and CO/1770/98 (unreported, 30 July 1999), the judge said this:

“22.

It is clear that the Accommodation Centre will be constructed and operated for the purposes of the Home Office. The precise manner in which the centre is brought into being and operated and whether or not a lease is granted and whether before or after any development cannot detract from that. There is no other purpose behind this development. Mr Elvin [Mr Elvin QC, counsel for the District Council] in reply expressed horror at what he submitted was a novel suggestion that if the Crown was the freeholder it could require any development to be carried out by a private individual and such development would be immune from control. But that is not what is being decided. I see nothing in Forbes J’s decision that suggests he was not intending to apply a general test. In these days of public private partnerships and the involvement of the private sector in constructing and operating developments which are manifestly for Crown purposes, such as this Centre, the approach Forbes J approves is in my view manifestly correct. I have no doubt that this development will be carried out on behalf of the Crown and so will be within s.294(1). . . . Although the facts of a given case may well dictate whether any development can be said to be by or on behalf of the Crown, in my view the circumstances of this case are such that no other conclusion could reasonably be reached.

23.

It follows that the development by the DBO contractor does not require planning permission since it is development on behalf of the Crown and is protected by Crown immunity. . . .”

In reaching that conclusion the judge, as he said, followed the approach adopted by Mr Justice Forbes in the Hillingdon case. Mr Justice Forbes had considered what meaning should be given to the expression “development carried out by or on behalf of the Crown” in the context of section 294(1) of the 1990 Act in a lengthy passage (extending, in the version of the transcript which is before this Court, over pages 33 to 41 of a 72 page judgment). In substance he accepted the submission made on behalf of the Secretary of State for the Environment (who, as it happens, was represented by Mr Elvin QC in that case) that the expression “by or on behalf of the Crown” was not to be treated as having the same meaning as “by the Crown, its servants or agents”. The proper test, as Mr Elvin had emphasised, was “not whether the person doing the work is the Crown or a servant or an agent of the Crown, but whether the development is ‘by or on behalf of the Crown’ in the ‘public law sense’. Mr Justice Forbes expressed his conclusion in the two paragraphs which Mr Justice Collins set out at paragraph 21 of his judgment in the present case:

“I am satisfied that the expression ‘by or on behalf of the Crown’ is not to be interpreted, whether for the purposes of the common law principle of Crown immunity or for the purposes of Section 294 of the TCPA 1990, by a strict application of the private law definitions of master and servant and principal and agent. I agree with Mr Elvin that a wider and less restricted interpretation of those words is appropriate, at the very least when considering whether, as in the present case, the method whereby the Crown seeks to achieve its purpose in the development of land is ‘development by or on behalf of the Crown’.

Where (as in the present case) the context and subject matter, which is provided by the contractual provisions and other relevant circumstances relating to the development in question, demonstrate a significant degree of control by the Crown over the work being or about to be carried out by the independent contractor and show that the purposes of the Crown, from which it will derive significant benefit, are to be achieved by the particular method which has been adopted for developing Crown land, the essentially factual conclusion, that the development in question is ‘development by or on behalf of the Crown’ may well be justified – as in the present case.”

His conclusion that the development to be carried out by the DBO contractor in the present case would fall within section 294(1) of the 1990 Act enabled Mr Justice Collins to hold that, in the events which had happened, the development would not be subject to statutory planning control. But his conclusion on that point did not, of itself, answer the question whether it had been lawful for the Home Office to choose the non-statutory procedure rather than to apply for planning permission under section 299 of the Act. The judge referred to that question at paragraph 15 of his judgment – “Mr Elvin QC . . . submits . . . that the non-statutory procedure should not have been used”; and at paragraph 16 – “The inspector’s view was that . . . the Home Office was entitled to use either the statutory or the non-statutory procedure. The [First Secretary] agreed with the inspector’s opinion”.

It is clear that the judge decided that question against the District Council. His reasons for the conclusion which he reached on that point are not, perhaps, set out as clearly as those in relation to the other points which he decided; but they are found, I think, in the following passages of his judgment:

“18.

Mr Elvin contends that his submission [that the NPD procedure should not have been used] is supported by the lesser powers of enforcement which apply if the Circular is used. The whole panoply of enforcement notices, stop notices and injunction can be used against a private individual but not against the Crown. However, enforcement under Part XIII is subject to special rules. . . . [Reference is made to section 294 of the Act] . . . Section 299A enables the Crown to enter into planning obligations which echo those referred to in s.106(1)(a) to (d). There is such an agreement in this case. Breaches of any of those obligations can be enforced against (sic) by injunction, but by s.299A(5), the appropriate authority (in this case the Home Office) must consent to any such action. In the agreement it had to offer all reasonable co-operation in this respect and any failure would be enforceable through the court.

19.

Other than in relation to enforcement, it is accepted that the non-statutory procedure has provided the claimants and all other objectors with all the safeguards and rights which they would have been afforded had this been an application for permission by a private developer. If the development is properly to be regarded as having been carried out on behalf of the Crown, s.294(1) would apply so that enforcement is no different. . . .

. . .

23.

. . . The existence of the s.299A agreement and the 18/84 procedure has given the necessary protection and [the First Secretary] was right to reject the [Council’s] arguments. I too reject them.”

When those passages are analysed it can be seen that the judge’s conclusion that it had been lawful for the Home Office to choose the non-statutory NPD procedure rather than to apply for planning permission under section 299 of the Act rests on the following propositions: (i) that, save as to enforcement, the NPD procedure gives to objectors the same degree of protection (in respect of publicity, consultation and right to object) as the statutory procedure following an application under section 299A; (ii) that control through the acceptance of planning obligations under the section 299A agreement in this case is as effective as control through the acceptance of planning obligations under section 106 of the Act; (iii) that if, on a true appreciation of the facts, the proposed development is development on Crown land carried out by or on behalf of the Crown, then section 294(1) prevents the issue of enforcement notices against the developer (and the Crown has immunity) whether or not planning permission has been sought and obtained under section 299 of the Act. That third proposition is, I think, what the judge had in mind when he said, in paragraph 19 of his judgment, that: “If the development is properly to be regarded as having been carried out on behalf of the Crown, s.294(1) would apply so that enforcement is no different”.

Although the points on which the appellant seeks to rely, as they appear in ground 1 of the appellant’s notice, are put in the order: (i) the Home Office was obliged in the circumstances of the case to use the specific statutory procedure under Part XIII of the 1990 Act – that is to say, to apply for planning permission under section 299 - and (ii) the proposed development was not development by or on behalf of the Crown to which Crown immunity (or immunity under section 294(1)) attached, they are properly to be considered in the reverse order. That is because – absent immunity or the protection from enforcement afforded by section 294(1) of the Act – the development could not lawfully be carried out without planning permission. In such a case, unless the Home Office had sought and obtained permission under the provisions in Part XIII of the Act (more specifically, under section 299), the developer would have to apply under Part III (section 62). The choice would not be between use of the NPD procedure or an application for planning permission under Part XIII: the choice would be between an application by the Home Office under Part XIII or an application by the DBO contractor under Part III.

I turn first, therefore, to the question whether the proposed development was development by or on behalf of the Crown.

It is, I think, important to have in mind the particular context in which that question arises for the purposes of this appeal. On analysis it can be seen that there are three distinct contexts in which the question has been, or might need to be, considered. First, it was necessary for the Home Office, when deciding whether to invoke the NPD procedure or to apply for planning permission under section 299 of the 1990 Act, to consider whether (in the absence of statutory planning permission) the development could be carried out under the protection of section 294(1). Unless the Home Office was satisfied that the development could be carried out by the DBO contractor without statutory planning permission, the department’s decision to invoke the NPD procedure could have been said to frustrate a legitimate expectation that statutory planning permission would be sought. Second, it was necessary for the First Secretary of State, when giving approval under the NPD procedure, to satisfy himself that the NPD procedure had been properly invoked. In that context, the First Secretary needed to satisfy himself that the proposals described in the Notice of 14 May 2002 and its accompanying documents were for development within paragraph 4 of Circular 18/84 - to which (but to which alone) the procedure set out in Part IV of the accompanying memorandum applied. Unless satisfied that the proposed development was one for which statutory planning permission was not required, the First Secretary could not properly entertain a request by the Home Office, under paragraph 23 of the NPD procedure, to determine the dispute with the local planning authority; and could not properly proceed to a decision under paragraph 25. Third, the question would (or might) need to be considered by the First Secretary under section 174 of the 1990 Act, and (on appeal from his decision under section 289 of the Act) by the High Court, in the event that, after the commencement of the development – and in the absence of statutory planning permission – the local planning authority were to serve an enforcement notice on the DBO contractor. That was the context in which the question arose before Mr Justice Forbes in the Hillingdon case – see his description of the issues in appeals A-C under reference CO/1604/98.

On this appeal the question arises only in the context of the First Secretary’s decision, in his letter of 18 August 2003, that the NPD procedure had been properly invoked; that he could properly entertain a request by the Home Office, under paragraph 23 of the NPD procedure, to determine the dispute with the local planning authority to which the objections to the Notice of 14 May 2002 had given rise; and that he could properly proceed to a decision under paragraph 25. There is no formal challenge, in these proceedings, to the decision by the Home Office to issue the Notice of 14 May 2002 – although, of course, it is inherent in the challenge to the decision of the First Secretary which is the subject of these proceedings that the District Council contends that the Home Office decision in May 2002 was wrong. And there is no challenge, in these proceedings to the issue of an enforcement notice; matters have not reached that stage.

Put shortly, the challenge is to the First Secretary’s decision – recorded in paragraph 5 of the letter of 18 August 2003 – that “the proposal is clearly development by the Crown”. In reaching that decision the First Secretary expressed his agreement with the inspector’s conclusion (in paragraph 14.4 of his report) that “the development would clearly be Crown development”. It is reasonable to infer that he preferred the arguments advanced by the Home Office – set out at paragraphs 6.4 to 6.7 of the report – to those of the District Council – paragraphs 7.4 and 7.5.

We were urged by counsel for the First Secretary of State to take the view that the question whether the proposed development (as presented to the First Secretary under the NPD procedure) was properly to be regarded as a development by or on behalf of the Crown was “a matter of fact and degree which depends on the circumstances of each case”; with the consequence (it was said) that the First Secretary’s decision on that question was not susceptible to judicial review unless it fell outside the bounds of reasonable judgment. In support of that view we were referred to observations of Lord Hoffmann in Moyna v Secretary of State for Work and Pensions [2003] UKHL 44, at paragraphs 20, and 25-28, [2003] 1 WLR 1929, 1934-6.

The point is illuminated by Professor Paul Craig QC in his work Administrative Law (5th edition) at pages 488-9. In discussing the distinction between law and fact in the context of judicial review, he writes (ibid, 489):

“It [a rigid analytical approach] may lead to the situation in which all inferences drawn from certain primary facts, whether something existed, was present, etc., will be deemed to be questions of law. This would mean that the construction of most statutory terms would be characterised as a question of law. If, in addition, the judiciary then substitute their opinion as to the precise meaning that each of these terms should bear for that of the initial decision maker, the result will be an extensive form of review.

That is not the only possible approach for the courts to adopt. They could interpret the word ‘law’ in a more pragmatic or policy orientated sense. The application of certain statutory terms might be deemed questions of fact, or the courts could call the application of a statutory term a question of law, but accept that it does not have to have only the one meaning which the court itself would accord to it. Provided that the authority adopts a meaning which is reasonable or has a rational basis, the courts could accept that interpretation, even if it did not accord with the precise meaning which they would have ascribed. . . .”

And, after considering the observations of Lord Mustill in R v Monopolies and Mergers Commission, Ex parte South Yorkshire Transport Ltd [1993] 1 WLR 23, 32, - where the question was whether the jurisdictional condition that the supply of over 25 per cent of the services of any description “in a substantial part of the United Kingdom” would be carried on by one person had been satisfied, Professor Craig concludes (ibid, 500):

“The court will not necessarily substitute its judgment for that of the agency in circumstances like those in the South Yorkshire Transport case. In such a case the reviewing court will define the actual meaning that the statutory term is to have, but where that particular meaning is itself inherently imprecise the court will only intervene if the application of the term is so aberrant as to be irrational.”

It is said on behalf of the District Council that where (as in this case) development on Crown land is to be undertaken by a private contractor, occupying the development site by virtue of its own property interest under a lease, the development cannot be development by or on behalf of the Crown – paragraph 80 of the appellant’s skeleton argument dated 2 July 2004. That, as it seems to me, is properly to be characterised as a question of law. If, as a matter of law, development by a DBO contractor carried out by virtue of a private interest in the land cannot be development carried out “by or on behalf of the Crown” for the purposes of section 294(1) of the 1990 Act, then the court must say so. On that question it must substitute its own view for that of the First Secretary. But if there is no rule of law that development by a DBO contractor carried out by virtue of a private interest in the land cannot be within section 294(1), then the question whether the proposed development (as presented to the First Secretary under the NPD procedure) was properly to be regarded as a development by or on behalf of the Crown was, indeed, a matter of fact and degree; and the First Secretary’s decision on that question should not be disturbed unless it falls outside the bounds of reasonable judgment.

I am not persuaded that, as a matter of law, development by a DBO contractor carried out by virtue of a private interest in land which is Crown land cannot be within section 294(1) of the 1990 Act.

It is important to keep in mind that the provisions now in section 294(1) of the 1990 Act – and first enacted as section 87(5) of the 1947 Act - were not enacted for the protection of the Crown – as Mr Justice Robert Goff explained in Newbury District Council v Secretary of State for the Environment and others (1977) 35 P&CR 170, 180. The Crown does not need the protection of those provisions. The Crown is not subject to planning control under the Planning Acts. Service of an enforcement notice on the Crown would be of no effect. The purpose of the provisions now in section 294(1) of the 1990 Act is to protect persons other than the Crown from enforcement proceedings. The persons to be protected are persons who would otherwise be affected by the issue and service of an enforcement notice.

It is pertinent, therefore, to read section 294 in conjunction with the provisions relating to the issue of enforcement notices, and the persons affected by such notices. I have referred earlier in this judgment to sections 171A, 172 and 179 of the 1990 Act. The power to issue an enforcement notice arises where it appears to the local planning authority (a) that there has been a breach of planning control and (b) that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations – section 172(1). A copy of the notice is to be served (a) on the owner and occupier of the land to which it relates and (b) on any other person having an interest in the land, being an interest which, in the opinion of the authority, is materially affected by the notice – section 172(2). Failure to comply with an enforcement notice is an offence on the part of the owner of the land – section 179(1) and (2) - but subject to the defence under section 179(3); and to carry on any activity which is required by the notice to cease is an offence on the part of a person (other than the owner) who has control of or an interest in the land – section 179(4) and (5). In that context “owner” means a person entitled to receive the rack rent of the land – section 336(1) of the Act.

Where the land is Crown land, the person affected by the issue and service of an enforcement notice under section 172 of the Act will be the person (if any) who is entitled to occupy the land by virtue of a private interest. “Private interest” is defined in section 293(1). It was in order to enable planning control to be enforced in respect of development on Crown land carried out otherwise than by or on behalf of the Crown in a case where no person is entitled to occupy the land by virtue of a private interest that the special enforcement notice procedure – now contained in section 294(3) to (7) of the 1984 Act – was introduced by section 3 of the Town and Country Planning Act 1984.

It is clear, therefore, that, in a case where the land remains Crown land, the purpose – indeed, the only purpose - of the provisions now found in section 294(1) of the 1990 Act is to give protection from enforcement proceedings to the person (if any) who is entitled to occupy the land by virtue of a private interest. The protection is from enforcement proceedings “in respect of development carried out by or on behalf of the Crown”. To qualify for that protection the land must have been Crown land at the time when the development was carried out. The existence of the private interest in the land does not prevent land from being Crown land. The fact (if it be the case) that the private interest in the land existed at the time when the development was carried out does not prevent the land from being Crown land at the relevant time. A person who is in occupation of the land by virtue of a private interest is not disqualified from the protection of section 294(1) of the Act by reason only of the fact that the private interest existed at the time that the development was carried out. The only relevant question in each case is whether the development was carried out by or on behalf of the Crown.

I am unable to identify any reason in principle why the answer to that question should depend, as a matter of law, on whether or not the person carrying out the development has a private interest in the land at the relevant time or on whether or not he is able to carry out the development by virtue of his private interest. In my view Mr Elvin was correct to submit to Mr Justice Forbes in the Hillingdon case that the expression “by or on behalf of the Crown”, in the context of section 294(1) of the 1990 Act, was not limited to the strict private law concept of master and servant or principal and agent, but had the wider meaning adopted by the High Court of Australia in R v Portus and another, Ex parte Federated Clerks’ Union of Australia (1949) 79 CLR 428; and that that “wider and less restricted interpretation of those words is appropriate, at the very least when considering whether . . . the method whereby the Crown seeks to achieve its purpose in the development of land is ‘development by or on behalf of the Crown’”. In rejecting the local planning authority’s submission that “as a matter of law, Crown immunity only applies to Crown development of land when the development in question is physically carried out by the Crown itself or by its servants or by its agents, in the strict private law sense of each of those latter concepts”, Mr Justice Forbes said this:

“I accept Mr Elvin’s submission that such a restricted interpretation of the expression ‘by or on behalf of the Crown’ would have profound implications for the concept of Crown development of land, is not justified by the natural and ordinary meaning of the words themselves and is not to be preferred to the type of approach which was adopted to the meaning and application of such words by the High Court of Australia in the Portus case . . .”

Mr Justice Forbes was correct to take that view. Mr Justice Collins was right to follow that approach. As he said, in the passage at paragraph 22 of his judgment in the present case which I have already set out:

“In these days of public private partnerships and the involvement of the private sector in constructing and operating developments which are manifestly for Crown purposes, such as this Centre, the approach Forbes J approves is in my view manifestly correct.”

In any particular case, the existence of the DBO contractor’s private interest, and the fact that the development is carried out by virtue of that interest, may well lead to the conclusion that the development is carried out in order to serve the private interest rather than on behalf of the Crown. But that will be a question of fact and degree, turning on the particular circumstances in each case. Whether or not that question is properly to be characterised as involving a question of law – as Lord Reid suggested in Cozens v Brutus [1973] AC 854, 861, in the passage cited by Lord Hoffmann in Moyna v Secretary of State for Work and Pensions [2003] UKHL 44, [2003] 1 WLR 1929, 1935 – it should be seen as one of those questions as to which (to adopt the words of Lord Hoffmann in Moyna at paragraph 27) “lawyers have decided that it would be inexpedient for an appellate tribunal to have to form an independent judgment”. The court should not substitute its own view unless the view of the decision maker was outside the bounds of reasonable judgment.

In the present case the First Secretary of State took the view that “the proposal is clearly development by the Crown”. That was the view taken by the inspector at paragraph 14.4 of his report. Mr Justice Collins thought it clear that the accommodation centre would be constructed and operated for the purposes of the Home Office. As he put it: “There is no other purpose behind this development”. He took the view that in the circumstances of this case, the only conclusion that the First Secretary could have reached was that the development was to be carried out by or on behalf of the Crown. I agree.

It is said on behalf of the District Council that, even if the proposed development was properly to be regarded as development by or on behalf of the Crown – so as to fall within paragraph 4 of Circular 18/84 – it was, nevertheless an abuse of power for the Home Office to use the NPD procedure when it was open to it to apply for statutory planning permission under section 299 of the 1990 Act. As it is put in the appellant’s skeleton argument, at paragraph 51(1): “In other words, given the arrangements the HO chose to adopt it was obliged to use the s.299 procedure”. The basis of that submission is that an application for planning permission under section 299 “would have applied an appropriate statutory procedure and allowed the imposition of conditions in the usual way, which would have applied to any subsequent occupier of the Notification Site”. Further, it is said that the grant of planning permission “would also have allowed the Council to take enforcement action under [the 1990 Act] against any breaches of condition by the DBO contractor or other later occupier of the [accommodation centre]”.

The first of those points is difficult to follow – and it was not pursued in argument with any enthusiasm. It is, of course, correct that, where an application is made under section 299 (1) of the Act, “all the statutory provisions relating to the making and determination of any such application” shall apply as if the land were not Crown land – section 299 (2). But it is not suggested that, in the present case, the NPD procedure did not afford safeguards as to notification, publicity, consultation and the right to object in relation to the decision which the First Secretary made in his letter of 18 August 2003 which were the equal of those which would have been afforded under the statutory procedure. As the judge said, at paragraph 19 of his judgment: “Other than in relation to enforcement, it is accepted that the non-statutory procedure has provided the claimants and all other objectors with all the safeguards and rights which they would have been afforded had this been an application for permission by a private developer”.

Nor, as it seems to me, is it possible to sustain an objection based on the absence of statutory planning conditions. In the present case, as I have sought to explain, matters which would (or might) otherwise have been the subject of statutory planning conditions – the “Development Conditions” set out in Schedule One to the section 299A agreement and in the First Secretary’s decision letter – were accepted as planning obligations. Those planning obligations will be enforceable by the local planning authority against persons with a private interest deriving from the Crown (including, in this context, the DBO contractor) – section 299A(3) – to the same extent as if accepted under section 106 of the Act – section 299A(4). But, whether accepted under section 106 or under section 299A, planning obligations would not be enforceable by injunction or by entry onto the land without the consent of the Home Office – section 296(2)(aa) and section 299(5). As the judge put it, at paragraph 23 of his judgment: “The existence of the s.299A agreement . . . has given the necessary protection”.

The real complaint made by the District Council is that it cannot take enforcement action under the 1990 Act. The point is made at paragraphs 59 and 60 of the skeleton argument:

“59.

The difficulty with the non-statutory procedure is that, while it has certain parallels with the statutory procedures, it does not provide the same enforcement mechanisms and does not protect the public interest as would effective statutory planning control.

60.

In particular, the non-statutory process does not permit the imposition of conditions on an approval which would have the same effect as conditions on a statutory grant of planning permission and which would permit enforcement action pursuant to Part VII of the TCPA 1990. This means that even if conditions, of a type, are imposed on the non-statutory approval they are not conditions in the sense of conditions imposed on a planning permission and breach of them (even by a private individual taking an interest in the land from the Crown) would not be subject to the statutory enforcement process under e.g ss.172, 183 or 187A or 187B.”

The fallacy underlying that complaint, as it seems to me, is that it assumes that the statutory enforcement process would be available if planning permission had been sought and obtained under section 299 of the Act. But that assumption overlooks the fact that the reason why a person having a private interest in the land (for example, the DBO contractor) is protected from enforcement proceedings is not because planning permission has not been obtained under Part XIII of the Act (or under Part III, as the case might be); but because the development falls within section 294(1) of the Act. This was the point made by the judge in the sentence at paragraph 19 of his judgment to which I have already referred: “If the development is properly to be regarded as having been carried out on behalf of the Crown, s.294(1) would apply so that enforcement is no different”. Other than to assert that the development is not properly to be regarded as having been carried out on behalf of the Crown, the District Council offers no answer to that point.

As I have said, if planning permission had been sought on an application made by the Home Office under section 299(1) of the Act all the statutory provisions “relating to the making and determination of any such application” would have applied as if the land were not Crown land – section 299(2). Permission, if granted under section 299, would apply to development carried out by the DBO contractor after the grant of the lease – section 299(3)(b). But section 299 of the Act says nothing about the enforcement of planning control. Enforcement is governed by other provisions in the 1990 Act and (in relation to the Crown) by immunity under the general law.

It was held by this Court, in Ministry of Agriculture, Fisheries and Food v Jenkins [1963] 2 QB 317 – in a passage at page 325 to which reference has already been made – that the Crown does not need to get planning permission in respect of its own interest in Crown lands. The reason is that the Planning Acts – in that case the Town and Country Planning Act 1947 – do not bind the Crown. But the Planning Acts do bind the Crown’s tenants in respect of their own interests. That was made clear by section 87(2)(b) of the 1947 Act – now section 296(1)(c) of the 1990 Act. As Lord Denning, Master of the Rolls, observed, in a passage (ibid) on which the Council places much emphasis:

“[Section 87(2)(b)] proceeds on the assumption that the Crown is already exempt. It says that, ‘Notwithstanding any interest of the Crown in land being Crown land . . . any [planning] restrictions . . . shall apply and be exercisable in relation to the land, to the extent of any interest therein . . . held otherwise than by or on behalf of the Crown . . .’ That provision assumes that the Crown is already exempt in respect of its own interest in Crown land. All it does is to make sure that other persons (e.g., its tenants) have to get planning permission in respect of their interests; . . .”

But section 87(2)(b) of the 1947 Act was expressed to be subject to section 87(5) of that Act - now re-enacted as section 294(1) of the 1990 Act. Nothing said by this Court in the Jenkins case could have been intended to restrict the effect which the provisions formerly in section 87(5) of the 1947 Act, and now in section 294(1) of the 1990 Act, would otherwise have. The Court did not refer to those provisions. In deciding the issue that was before it in the Jenkins case, it did not need to do so. They had no relevance in that context.

The Planning Acts apply to private interests in Crown land. That is made clear by section 299(3)(b) and (6) of the 1990 Act. But they apply subject to the provisions in section 294(1) of that Act; and, also, to the provisions in section 296(2)(a) – which prevent enforcement under sections 172, 183, 187A and 187B in relation to land which for the time being is Crown land without the consent of the relevant government department. Those provisions – which have been in the Planning Acts since 1947 – are as much part of the legislation as any other provisions. Planning permission granted under section 299 of the 199 Act would have effect subject to the restrictions on enforcement contained in sections 294(1) and 296(2)(a). The judge was correct to take the view that he did on that point.

It follows that I am not persuaded that it was an abuse of power for the Home Office to use the NPD procedure in relation to its proposals for the construction of accommodation centres on the former DSDC land at Bicester – or, more pertinently in the context of the present proceedings, that the First Secretary of State was wrong to entertain a reference under paragraph 23 of that procedure or to proceed to a decision under paragraph 25.

I would dismiss this appeal.

I agree. I wish to add a few words of my own on the second issue. It is submitted on behalf of the District Council that it was an abuse of power for the Secretary of State for the Home Department (“SSHD”) to use the NPD procedure when he could have applied for planning permission under s 299 of the 1990 Act. Mr David Elvin QC is driven to argue for an abuse of power because on the face of it, s 299(2) is permissive and not mandatory: “notwithstanding the interest of the Crown in the land in question, an application for any such permission…..may be made….” (emphasis added).

Underpinning Mr Elvin’s case on abuse of power is the submission that no proper reason can exist for the Crown taking advantage of a non-statutory procedure which is less protective of the public interest than the controls of the 1990 Act. But for the reasons explained by Chadwick LJ, the safeguards available where an application is made under s. 299 are not materially different from those that are available if the NPD procedure is invoked. The suggested foundation for the abuse of power argument is, therefore, illusory.

Nor is it said that the SSHD used the non-statutory route improperly in order to achieve some other advantage or for some other motive. In view of the broad equivalence of safeguards between the statutory and non-statutory procedures, it is difficult to see what improper motive there could be. The reason why the SSHD chose to invoke the NPD procedure in this case, and indeed why he ever does so, is obscure. It is not explained in the evidence. Mr Philip Sales said that it was “probably due to the way in which matters developed historically”. There was a somewhat faint complaint by Mr Elvin that the SSHD has not advanced reasons for not using the s 299 procedure. But no challenge has been made to the lawfulness of the decision of the First Secretary of State on the grounds that the SSHD did not give reasons for adopting the NPD procedure. In my view, such a challenge could not in any event succeed. There is no basis in law for requiring the Crown to provide reasons for adopting one lawful procedure rather than another lawful procedure.

For these reasons, as well as those given by Chadwick LJ, I would dismiss this appeal.

I agree with both judgments.