Orange Personal Communications Services Ltd & Ors, R (on the application of) v London Borough of Islington

J U D G M E N T

1. LORD JUSTICE LAWS: This is an appeal, with permission granted by myself on 23 July 2005, against a decision of Mr Justice Crane sitting in the Administrative Court on 10 May 2005 when he quashed notices of withdrawal issued by the appellant local planning authority on 23 June 2004 whereby the council withdrew, or purported to withdraw, a number of enforcement notices issued pursuant to Section 173A of the Town and Country Planning Act 1990.

2. Before the judge there were two issues, namely (1) whether the notices should be quashed; and (2) whether the claimants should have pursued an alternative remedy. Only the first of these issues is engaged in this court.

3. The case concerns the planning status of the installation of certain telecommunications equipment at Canonbury Telephone Exchange in what is now the Highbury New Park Conservation Area. The equipment included antennae, dishes a cabin and ancillary work. The judge crisply summarised the facts as follows:

"3 On 30 October 2000 the first claimants made a full planning application for the installation at the Canonbury Telephone Exchange. There followed discussions between the first claimants and the defendant local planning authority, and agreement was reached that the Development Order Part 24 applied. In February 2001 the first claimants therefore withdrew their full planning application and applied for prior approval under the Development Order Part 24, paragraph A.2 (4), which involved the submission of details and plans.

4 On 4 April 2001 the defendants issued a prior approval notice, which in fact said that prior approval of details of siting and appearance were not required. But that in fact had the effect that the planning permission granted was for work in accordance with the details and plans submitted. Following that, the second claimants, as agents for the first claimants, commenced the installation work. In March 2002 the third claimants notified the defendant of an intention to install additional equipment. This was an installation for which no prior approval was required. Part of the additional equipment was to be attached to the equipment installed by the second claimant, and part was separate.

5 In May 2002 both the second and the third claimants completed work. But it is common ground that the work carried out by the second claimant, and consequently the attached work carried out by the third claimants, did not comply with the details and plans that had been submitted. The separate work carried out by the third claimants complied with the law.

6 On 14 October 2002 the Conservation Area was designated. It included the site of these installations, which site became 'Article 1 (5) land' for the purpose of the Development Order. In February and in August 2003, four Enforcement Notices were issued by the local planning authority. The effect of them was to require the removal of all the equipment installed by the second claimant and the relevant equipment installed by the third. The claimants appealed against those Enforcement Notices under section 174 of the principal Act.

7 Discussions followed between the claimants and the defendants. Following that, the claimants agreed to withdraw their appeals and the defendant agreed to vary the original Enforcement Notices. On 9 January 2004 Enforcement Notices varied under section 173A of the principal Act were issued. The effect of those varied Enforcement Notices was to require alterations to bring the installation into line with the details and plans that had been submitted. The precise wording of the original Enforcement Notices and the varied Enforcement Notices differed in paragraph (3), but I am persuaded that, in the end, nothing turns on that difference.

8 There is no doubt that alteration work at least commenced. But before work had been completed, on 25 June 2004 the Withdrawal Notices were issued. According to the claimants, the alteration work was close to completion. In the Withdrawal Notices, the defendant said this:

' ..... no permitted development rights exist pursuant to the Town and Country Planning (General Permitted Development Order) 1995 which would permit the development that the [Enforcement] Notices required to be carried out.'.

9 In a letter of the same date, the Council said this:

'The Council has now received counsel's opinion, as a result of which the Council is firmly of the view that permitted development rights granted by the Town and Country Planning (General Permitted Development) Order Article 3 (1), Schedule 2, Part 24 no longer apply to the above site. This is because of the inclusion of the site in the Highbury New Park Conservation Area on 14 October 2002. In the light of counsel's opinion the Council is further of the view that prior approvals granted before the designation of the site as a Conservation Area cannot be relied upon to authorise erection following such designation. Development has not occurred in accordance with the details in the prior approval and Notice of Intention. The works undertaken are therefore in breach of condition and unlawful. Permitted development right cannot therefore be relied upon now to carry out the development because of the Conservation Area designation.'

10 A new Enforcement Notice was issued requiring the removal of the installation. Work in fact continued, and the claimants' case is that, on 5 July 2004, some four days before the deadline that had been laid down by the defendant, the alteration work was completed. According to the claimants, the alteration work resulted in the installation complying with the original approved work. The defendants reserve their position on whether the installation is now compliant. The claimants appealed against the Enforcement Notice dated 25 June and that appeal is due for hearing before an inspector in the near future.

11 The claimants also applied for permission to apply for judicial review, permission which was granted on 2 November 2004 by Forbes J on the papers.

12 It is clear that the claimants were at fault in not complying with what was the equivalent of prior approval. The work, it is accepted, did not follow in a number of respects to the details and plans submitted. However, it is clear from the correspondence that the defendant had in mind the existence of the Conservation Area at all material times following its designation, and it is, to say the least, unfortunate that, having agreed to the alteration work in January 2004 and allowed the work to continue for several months, they then hit upon a different view of the law and issued the Withdrawal Notices. Nevertheless, the court is faced with deciding the legal issue. I turn to the basic planning legislation."

4. Planning permission is required by Section 57 of the 1990 Act for the carrying out of development on land, and it is beyond contest that the installation here is development.

5. Section 58 (1) provides for two, and only two, legal routes by which planning permission may be obtained: first, by development order; second, from the local planning authority or the Secretary of State upon an application being made. Section 59 provides for the making of development orders by the Secretary of State. Section 60 (1) provides that planning permission granted by a development order may be granted unconditionally or subject to conditions or limitations specified in the order.

6. The development order relevant in this case is the Town and Country Planning (General Permitted Development) Order 1995 in the form in which it was in force at the date of material events in 2001 ("the development order"). Here are its relevant provisions. Article 1 (5) defines the expression "Article 1 (5) land" as including land within a conservation area. Article 3 provides, in part:

"3 (1) Subject to the provisions of this Order ..... planning permission is hereby granted for the classes of development described as permitted development in Schedule 2.

(2) Any permission granted by paragraph (1) is subject to any relevant exceptions, limitation or condition specified in Schedule 2."

Article 4 is of some importance given the judge's reasoning. It empowers the local planning authority, if satisfied that development as described in Schedule 2 should not be carried out without the grant of planning permission on an application, to give a direction that it should not be carried out unless permission is thus granted. Section 108 of the 1990 Act provides for compensation to be payable accordingly. Section 97 of the 1990 Act is parallel to Article 4 of the development order. It allows for the revocation of planning permission where the local planning authority consider it expedient to do so, and in that event Section 107 provides for compensation.

7. I go to schedule 2 of the development order. Under the heading "Permitted Development" it includes, under class A -

"Development by or on behalf of a telecommunications code system operator for the purpose of the operator's telecommunications system in on over or under land controlled by that operator or in accordance with his licence consisting of (a) the installation, alteration or replacement of any telecommunications apparatus."

Under the heading "Development not Permitted" this appears at A1 (h) -

"Development is not permitted by class A (a) if -

'(h) In the case of development of any Article 1 (5) land ..... it would consist of -

(i) the installation or alteration of an antenna or of any apparatus which includes or is intended for the support of such an antenna ..... "

Paragraph A.2 of Part 24 stipulated certain conditions attaching to the grant of planning permission under that Part. A.2 (4) provides that Class A development (with certain limitations) -

" ..... is permitted subject, except in a case of emergency, to the following conditions:

.....

(ii) before beginning the development, the developer shall apply to the local planning authority for a determination as to whether the prior approval of the authority will be required to the siting and appearance of the development.

(iii) the application shall be accompanied -

(aa) by a written description of the proposed development and a plan indicating its proposed location together with any fee required to be paid; ..... "

Condition (iv) (aa) provides that the development shall not be begun until the applicant has received from the local planning authority a written notice of their determination that such approval is not required. Condition (v) requires that in that case the development must be carried out in accordance with the details submitted with the application for prior approval.

8. Amendments were made to the 1995 Order by an order of 2001. In paragraph A.1 (h) the words "or of any land which is or is within a site of special scientific interest" are added immediately after the reference to Article 1.5 land. Under the cross-heading "Transitional Provisions" this appears:

"5 The amendments made to the 1995 Order by this Order shall not apply in relation to applications for a determination as to whether the prior approval of the local planning authority will be required for the siting and appearance of the development made before the coming into force of this order."

9. The statute law in relation to conservation areas is contained in the Planning (Listed Buildings and Conservation Areas) Act 1990, Section 69 (1) of which provides:

"Every local planning authority -

(a) shall from time to time determine which parts of their area are areas of special architectural or historic interest the character or appearance of which it is desirable to preserve or enhance, and

(b) shall designate those areas as conservation areas."

10. I mention two other provisions of the 1990 Act. Section 61D is in these terms;

"(1) A development order or local development order may include provision permitting the completion of development if -

(a) planning permission is granted by the order in respect of the development, and

(b) the planning permission is withdrawn at a time after the development is started but before it is completed.

(2) Planning permission granted by a development order is withdrawn -

(a) if the order is revoked,

(b) if the order is amended so that it ceases to grant planning permission in respect of the development or materially changes any condition or limitation for which the grant of permission is subject.

(c) by the issue of a direction under powers conferred by the order."

11. Lastly Section 173A of the 1990 Act, to which I referred in passing, provides that -

"a local planning authority may withdraw an enforcement notice whether or not the notice has taken effect."

12. It will make for clarity if at this stage I emphasise certain dates although they already appear in the judge's summary of the facts which I have set out. The respondents applied to the appellants for prior approval under Schedule 2, Part 24, paragraph A.2 (4) (ii) in February 2001. On 4 April 2001 the appellants sent a notice indicating that the prior approval of siting and appearance was not required. Installation work began and was thereafter completed in May 2002 though not in accordance with the details that had been submitted. The conservation area was designated on 14 April 2002 whereupon the site of the installation became Article 1 (5) land. The judge below expressed his conclusions in three paragraphs:

"41 It is conceded, I think, and certainly is in my view correct that a grant by Development Order where there is no prior approval required carries no acquired right to develop until work is substantially completed. The difficulty arises in relation to grant by Development Order where prior approval is appropriate. The answer to this question is not in my view at all straightforward. It seems to me that there are sufficient differences between a grant by the local planning authority and a grant by Development Order for me to disagree with claimants' counsel, Mr Katkowski QC, that the latter is a mirror image of the first.

42 My approach is this. Once a prior approval is given, the extent of the permission is clearly crystallised or defined. On the day before the designation of a Conservation Area, such permission is effective. It is necessary therefore for the defendant to demonstrate that the designation has the effect that, on the day after the designation, no such permission exists. As a matter of law, the fact that here there was an unlawful installation makes no deference [sic]. The point would be the same in law if there had been no attempt to carry out any work. The argument is that the permission cannot now operate because the Article is now Article 1 (5) land. At this point I disagree with the claimants' counsel that the word 'would' in sub-paragraph (h) of Schedule 2, Part 24 points in his favour. I am inclined to the view that, even without the existence of Article 4 of the Development Order, there is insufficient indication in the legislation that the designation of a Conservation Area takes away what had been granted and defined.

43 But the strongest argument in the claimants' favour which ultimately persuades me is that Article 4 is available. Article 4 undoubtedly permits in certain circumstances a direction which would require a specific application for planning permission. Although Article 4 can operate in a number of circumstances, it plainly can operate in a situation where a Conservation Area has been designated. In my view the scheme of the Act and of the Development Order points to Article 4 as being the correct route for a local planning authority to use, if so advised, in a situation such as the present. Article 4, if there is a further application and it is refused, can result in a right to compensation. It seems to me, therefore, that the Withdrawal Notice was wrongly issued, and that, subject to counsel's submissions, the remedies sought are available."

13. The skeleton argument prepared by Mr Katkowski QC, counsel for the respondents, formulates the issue in this appeal as follows:

"Was the judge correct that the first respondent had an accrued right to develop the site in accordance with the details submitted in the application at least from the date of issue of the Prior Approval Notice, so that the right to develop was unaffected by the subsequent designation of the Highbury New Park Conservation Area?"

Mr Taylor, for the appellants, this morning formulated the question somewhat differently -

"Whether at the point of time development is to be carried out it would consist of development on Article 1 (5) land."

I apprehend, with respect to Mr Taylor, that the respondents' formulation is perhaps a little clearer.

14. I think there are difficulties however the case is regarded. One may perhaps postulate two extremes. Take, first, the proposition that since the General Development Order grants planning permission, permission to carry out all the forms of development permitted by Part 24 accrued when the development order came into effect subject only to a prohibition on commencement until stipulated conditions were fulfilled where that applied. That would mean that the exception to permission in a case of Article 1 (5) land, provided for by paragraph A.1 (h), would only apply where the relevant land was already Article 1 (5) land at the time the development order came into force. That seems most improbable and no one contends that it is the right approach.

15. Take, secondly, the proposition that Part 24 permission only accrues when the work is substantially completed so that if, at any time before that event, the land becomes Article 1 (5) land the planning permission is defeated. That is, in my judgment, even more improbable. It would mean that developers might begin operations not knowing whether they enjoyed an effective planning permission or not.

16. Mr Taylor has suggested that some support may nevertheless be obtained for this latter approach by a decision of Mr Justice Ouseley in a case named Watts[2002] EWHC Admin 993. That case dealt with a different form of development under the development order. I will refer to it briefly later.

17. I would reject the two extremes I have postulated.

18. The question then arises - what middle way can be found consistent with principle and the statutory language? Plainly the Development Order has to be read as a whole. Certainly Part 24 has to be read as a whole. Thus the grant of planning permission for class A development and its withholding by paragraph A.1 (h) have to make sense in the light of each other. It seems to me therefore that if we contemplate the notional case of a prospective developer who has not yet taken any steps to carry forward his development - whether by seeking prior approval, commencing works or otherwise - and who, on a particular date, asks the question "Does he have an approved right to install telecommunications apparatus on a particular site?" the answer will be "Yes, unless on the facts then prevailing any of the exceptions including paragraph A.1 (h) apply." So much is consistent with the concession made by Mr Katkowski that in a "non-prior approval" case no right to develop accrued until work had begun. I note in passing that this concession is incorrectly recorded by the judge at the start of paragraph 41 as going to the time when the work had been substantially completed.

19. It seems to me that in a non-prior approval case once the work has been done the advent of conservation area status cannot condemn the development as unlawful. The planning permission has been implemented; work has been done and expense incurred on the faith of it.

20. It is true, as Mr Taylor submitted this morning, that in such a case the developer - perhaps a home owner - will have incurred expense before starting the work and that expense would not be compensatable if then the conservation area is designated before the works are commenced. The matter is, no doubt, inevitably rough and ready, but a point has to be fixed somewhere for the crystallisation of the benefits given by the planning permission; and it seems to me that the start of the works provides at least a desirable degree of certainty.

21. So much for a non-prior approval case. What about a case where prior approval has to be sought, as here? The judge thought this instance was not at all straightforward. I am bound to say that I have some sympathy with that. It seems to me, as Mr Katkowski submits, that in a prior approval case the analogue to the commencement of work in a non-prior approval case is the application for prior approval and receipt of and reliance on the planning authority's response. In making the application the developer must have committed resources to assembling the required materials.

22. In a case where, in response, the planning authority grants prior approval, unlike this case where the response was that approval was not required, it would surely be unjust if the developers' inevitable reliance on the grant could be defeated by the adventitious fact of a conservation area designation. Cases like the present where no approval is required cannot be in a different category.

23. I would not fix the date at which the planning permission crystallises or its benefits accrue in a non-prior approval case at the moment of commencement of the work but at the time when the favourable response of the local planning authority is received.

24. As Mr Katkowski submitted this morning, there is a strong parallel between the prior approval process and the process of the grant of planning permission by a local planning authority in the ordinary way. In that latter case, as far as I can see, it is beyond contest that the planning permission once granted cannot be undermined by a later change in the status of the land save, I suppose, where there is expressly restrospective legislation or something of the kind. Mr Katkowski submitted also that prior approval fixes the particular location and details of the development and the time within which it may be carried out. Those matters seem to me to be grist to the same mill.

25. I deal with two points. First, Mr Katkowski relies on the transitional provisions made in 1991, and in particular the change to Article A.1 (h) in Part 24, together with the transitional provisions in paragraph (5). The point he makes, which seems to me to be good, is that if one applies the approach taken by Mr Taylor on behalf of the local planning authority, namely that in a prior approval case the benefit of the permission does not accrue or crystallise until work has either started or is substantially completed. The consequence is that there is no sensible scope for application of the transitional provision in Article 5. The reason for that is that on Mr Taylor's submission the planning permission is defeated by the advent in this case of the site of special scientific interest, and paragraph 5 has nothing sensible on which it can bite.

26. The other point arises from Section 61D of the statute which I have read. It was suggested in the course of argument that this section tends to support Mr Taylor's approach to the case, not least by reference to the expression "completion of development" in Section 61D (1). Mr Katkowski's response is that it may be said that but for the enactment of Section 61D the position would be that a planning permission of the kind contemplated would continue effective, notwithstanding the revocation or amendment of the development order. That seems to me to be right although some difficulty certainly remains given the legislator's use of the word "completion". But I regard this as too fragile a basis on which to undermine the overall approach to this elusive statutory question which I have suggested is the right one.

27. There is also Mr Justice Ouseley's decision in Watts to which I have made passing reference. With respect, I do not propose to go into it. Although there is certainly some similarity between Mr Justice Ouseley's reasoning and one of Mr Taylor's formulations of his argument, it dealt with a different provision in the development order and it does not seem to me that there is any potential read across that would assist Mr Taylor.

28. In all the circumstances, then, I agree with the judge. In a prior approval case the planning permission accrues or crystallises upon the developers' receipt of a favourable response from the planning authority to his application. I acknowledge the court, in dealing with the conundrum presented by this case, has had to deploy ideas such as accrual and crystallisation which do not appear on the face of the legislation. But the two extremes to which I referred earlier demonstrate the need for an approach to be taken to the statute - notwithstanding that it requires assistance from such sources - that produces in the end fairness and overall conformity with the scheme and the planning legislation.

29. For all the reasons that I have given, for my part, I would dismiss this appeal.

30. LORD JUSTICE JONATHAN PARKER: I agree.

31. LORD JUSTICE RICHARDS: I also agree.

Order: Appeal dismissed