Rastrum Ltd & Anor v Secretary of State for Communities and Local Government & Anor

This is an appeal against the order dated 4 February 2009 of Sir George Newman, sitting as a deputy judge of the Queen’s Bench Division, allowing an appeal by the respondents against a decision of an Inspector appointed by the appellant, dismissing the first respondent’s appeal under section 195 of the Town and Country Planning Act 1990 (“the Act”) against the interested party’s decision to refuse to grant a Certificate of Lawful Use or Development (“the LDC”] to the first respondent under section 192 of the Act.

The application for the LDC was made by letter dated 12 February 2004, which sought a certificate of lawfulness “…in relation to the implementation of a planning permission for ‘industry/warehousing/wharfage, marina and waterside housing, yacht club and public facilities’” (“the development”) on land at “The Saltings, Rye Harbour Road, Rye Harbour” (“the site”).

The planning permission referred to in the application was an outline planning permission granted by the East Sussex County Council on 18 March 1981 for the development at the site “In accordance with your application … and subject also to due compliance with the conditions specified hereunder”.

The permission was subject to a number of conditions. For present purposes only two of those conditions are relevant:

“1)

The development hereby permitted must be begun either before the expiration of the period of five years beginning on the date hereof, or the expiration of two years beginning on the date of the notice of final approval of reserved matters set out in condition 2 below or, in the case of approval on different dates, on the date of the notice of final approval of the last such matter to be approved, whichever is the later date.

2)

An application for approval of detailed particulars of the following aspects of the development (the “reserved matters”) shall be submitted to the District Council for determination by the County Council within the period of three years beginning on the date of this outline permission and development must not be commenced until details have been approved:-

(a)

Number, siting, design and materials of all buildings;

(b)

Layout of the site including access roads, footways, footpaths, parking for cars, boats and commercial vehicles, and provision where practicable for separate circulation of private and heavy goods vehicles

(c)

Landscaping, including screening by fences, walls or other means, planting of trees, hedges and shrubs of appropriate species and grass, formation of banks and terraces, other earthworks and amenity features, paving;

(d)

Foul and surface water drainage;

(e)

Engineering and harbour works, including the construction of a harbour bar or lock, piling and other riverside engineering works, excavations and filling operations;

(f)

Finished ground levels, floor levels and roof levels of buildings.”

The material provisions of sections 192 and 195 of the Act are as follows:

The interested party refused the LDC application and the first respondent appealed under section 195. The appellant appointed an Inspector to determine the appeal. The Inspector’s decision letter dismissing the appeal is dated 31 October 2007.

Returning to the planning history, prior to the application for the LDC an application for approval of reserved matters had been made on 9 March 1984 within the three-year period prescribed by condition 2 in the permission. On 31 January 1985 the interested party had approved details of “siting, design, external appearance and means of access”, subject to a number of conditions.

The Inspector recorded in paragraph 11 of the decision letter that it was agreed that, following that approval, some aspects of the conditions in the permission were met and some remained to be satisfied. Before the Inspector there was a signed statement of common ground which set out the parties’ agreement as to which reserved matters were included in the approval on 31 January 1985 and which were not. See paragraph 12 of the decision letter.

Basing himself upon that agreed statement, the Inspector found that details of the following reserved matters had not been approved. References in parenthesis are references to the relevant paragraphs in the decision letter.

So far as the access was concerned, the Inspector said that before 31 January 1987:

“…a substantial length of roadway was laid out which appeared to comply with the position and dimensions of a roadway shown on the approved drawings.”

The Inspector described the laying out of the roadway as “a significant start to the development”.

There is no dispute that in physical terms those works would have been sufficient to begin the development for the purposes of condition 1 and that they were carried out within two years from the final approval of details on 31 January 1985. The Inspector said in paragraph 5 of the decision letter:

“What has to be determined, for the most part, is whether, when commencement of operations took place, it was lawful to have made a start on the development as approved at that time, having regard to the terms of the conditions attached to those planning permissions then in place and the quantum of development that had been granted an appropriate form of planning permission before 31 January 1987.”

The question for the Inspector to determine under section 195 was whether the interested party’s decision that, at the time of the application for the LDC in February 2004, it would not be lawful to implement the permission for the development was not well-founded. On the agreed facts before the Inspector there was, in my judgment, only one possible answer to that question: the interested party’s decision was well-founded and the first respondent’s section 195 appeal had to be dismissed.

By the time that the access works were carried out in January 1987, the permission was no longer capable of lawful implementation. The second respondent, Mr Benge, appearing on his own behalf, submitted that an examination of the 1984 application form and accompanying plans demonstrated that details of all of the reserved matters in condition 2 of the permission had in fact been submitted for approval within the three-year period prescribed by the condition. However, the terms of the approval notice dated 31 January 1985, which simply approved details of siting, design, external appearance and landscaping and, in particular, the requirements in the conditions imposed on the approval that details of, for example, foul and surface water drainage, boundary walls and fences, trees and shrubs and the proposed lock should be submitted for approval, suggest that either detailed particulars of all of the matters reserved by condition 2 in the permission were not included in the application for approval of reserved matters dated 9 March 1984 or that, if they were, they were certainly not approved in 1985. In view of the matters agreed between the first respondent, the appellant in the section 195 appeal, and the interested party in the Statement of Common Ground, the Inspector was entitled to reach the conclusion that details of materials in respect of condition 2(a) and details of the matters reserved by conditions 2(c), (d), (e) and (f) had not been approved in 1985.

After 18 March 1984 (three years from the date of permission) it was too late to submit further details of those unapproved reserved matters for approval. It was therefore impossible to comply with condition 2. Planning permission was not granted for the carrying out of a development comprising industry/warehousing etc, but for the carrying out of that development “subject to due compliance with the conditions specified” in the permission.

In the first respondent’s skeleton argument reliance was placed on the cases of Whitley and Sons v SSW  [1992] 64 P&CR 296 and R(Hammerton) v London Underground Ltd and Ors [2003] JPL 984. In my judgment such reliance was misplaced. In those cases the works relied upon (the equivalent of the access works in the present case) as having begun the development within the time limit prescribed by the permission had been carried out before the necessary approvals (Whitley) or the laying out of the exchange land as an open space in compliance with a condition (Hammerton), but if those works could nevertheless be treated as having been lawfully carried out, either because the approvals had been applied for and were subsequently granted (Whitley, page 306) or because it would have been irrational or an abuse of power to take enforcement action to prevent the development proceeding because of the failure to lay out the exchange land as an open space (Hammerton, paragraph 127), there was then no other obstacle to the carrying out of the development in accordance with the terms of the permission including all of the remaining conditions.

That is not the position in the present case. I readily accept the submission of Mr Porten QC on behalf of the first respondent that the construction of the roadway, albeit that it was in breach of planning control in January 1987, then became immune from enforcement action after four years and, since the coming into effect of the Planning and Compensation Act 1991 (“the 1991 Act”) on 27 July 1992, must be treated as lawful because enforcement action was no longer possible: see section 191(2) of the Act as substituted by the 1991 Act.

However, it does not follow that those now lawful works were capable in January 1987 of being a lawful commencement of the permission because, as Mr Brown QC submitted on behalf of the appellant, that permission was “dead” (incapable of lawful implementation) after 18 March 1984 because it was no longer possible to submit details of the unapproved reserved matters for approval in accordance with condition 2. Mr Porten’s submission that the carrying out of the access works in 1987 was sufficient to commence the permitted development so that the permission is still “alive” was at odds with his further submission that it was of no consequence that there are no approved details of the matters reserved by conditions 2(a) (in respect of materials) and 2(c) to (f) because the permission can now be implemented without complying with any of those conditions. If the permitted development was lawfully commenced so that the permission is still “alive” today, then condition 2, as part of that permission would also be “alive” and enforceable, save insofar as it related to the access works.

Mr Porten submitted that the breach of condition 2 by the carrying out of the access works before all of the reserved matters had been approved meant that condition 2 as a whole ceased to be enforceable. I do not accept that because a condition requiring the prior approval of a number of matters -- access, drainage, landscaping, levels etc -- has been breached in respect of one of those matters, it then ceases to be effective in respect of all of the remaining matters. Indeed Mr Porten’s acceptance that any development that was carried out on the site would have to accord with those details which had been approved under condition 2 would appear to be an implicit acceptance of the proposition that if the planning permission is still alive then so also is condition 2.

In any event, as Mr Brown submitted, it is not correct to characterise the carrying out of the access works in January 1987 as a breach of condition, if the permission was by then incapable of lawful implementation. All of the authorities to which we were referred tend to be fact specific, but the nearest analogy to the circumstances of the present case is to be found in the Court of Appeal’s decision in Oakimber Limited v Elmbridge BC and Surrey CC [1991] 62 P&CR 594. In that case a permission (WAL 326) had been granted in 1939 “in principle” for industrial development subject to a condition requiring the submission and approval of detailed plans. Development was carried out on the site, but it was carried out without detailed plans having been submitted and approved. It was contended by the local planning authority that the permission had lapsed because no development relating thereto had been commenced before 31 March 1974 (when universal time limits for planning permissions came into force). It was submitted on behalf of the land owner that:

“Non compliance with a condition does not turn the acts relied upon into development without planning permission but into development in breach of condition against which the planning authority can if they wish take enforcement proceedings. Such breach of condition does not … prevent the acts done from implementing the permission”

That submission was accepted by Hodgson J. Purchas LJ, with whom Taylor LJ and Beldam LJ agreed said at pages 608 to 609:

“With respect to Hodgson J I find that I must part company with him on this part of his judgment. Mr Boydell [who appeared for the local authorities] relied upon the judgment of Woolf J in Etheridge v Secretary of State for the Environment for the proposition that development in breach of condition would not be a development contemplated by paragraph 21 of Schedule 24 to the 1971 Act. In any event WAL 326 being an approval in principle only, there was no development which could be implemented otherwise than by first obtaining approval in detail and subsequently beginning to execute it. I have no hesitation in agreeing with this approach. In my judgment WAL 326 gave no permission for any physical development to be carried out unless there had been prior approval of a detailed plan. The 1949 application sought only approval in principle to an outline development plan. It is well-established that the planning consent with or without conditions can never grant more than is sought in the application.”

In the present case the permission was a bare outline planning permission, with all details of the development reserved for subsequent approval. In effect, the development had been permitted “in principle”. Unlike Oakimber some of the details of the development had been approved by the time that the access works were constructed, but many of the details had not been and could no longer be approved in accordance with the terms of the permission.

It is unnecessary to consider what the position might have been if say all of the reserved matters save for landscaping had been approved pursuant to condition 2 before the access works were carried out and the development had thereafter been continued and completed. Would the whole of the development have been completed without planning permission or would there have been only a breach of the condition in respect of landscaping? That was the kind of situation with which the decision in R (Hart Aggregates Ltd) v Hartlepool BC [2005] 2 P&CR 3 was concerned. Despite the fact that mining operations had continued in that case for well over 30 years since a planning permission granted in 1971, it was contended on behalf of the local planning authority that none of those operations had been carried out pursuant to the 1971 planning permission because, when the operations commenced over 30 years before, there had been a breach of a condition requiring a restoration scheme to be agreed before extraction commenced. Perhaps unsurprisingly, the local planning authority’s submission was rejected.

I mention the case of Hart only because the Inspector made extensive reference to it in the decision letter. The facts of the present case are very different indeed from those in Hart and in my judgment the decision in Hart is of no real assistance in the determination of this appeal. However, the Inspector’s conclusion in paragraph 17 of the decision letter:

“…that the cumulative lack of detail that had been provided or approved by the development, the subject of these two permissions, in the areas of details of the harbour and associated works and on sewage and flooding, was so deficient that it went to the heart of the approved development and prevented a lawful start being made on the development within two years of the last matter approved…”

was correct. For the reasons set out above, it was not possible to lawfully commence the permission in 1987. Moreover, if, contrary to my view, the permission has to be treated as though it is still alive, condition 2, save insofar as it related to the access works, would also still be alive and enforceable to prevent the carrying out now of any development purportedly in accordance with the permission.

Thus, whichever way the matter is considered, the section 195 appeal had to be dismissed unless there was some “other reason” why enforcement action could not be taken. See section 191(2) of the Act, which provides:

“(2)For the purposes of this Act uses and operations are lawful at any time if --

(a)no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason)...”

Before the Inspector it was contended on behalf of the respondents that there was such an “other reason” because the first respondent:

“…enjoyed a legitimate expectation that a lawful start had been made on the development, such that it could still be completed today without breaching planning control” (18)

The Inspector rejected that submission (22) and he also rejected another submission, founded on Hammerton, that it would be an abuse of power if the local planning authority took enforcement action against development that was implemented “as closely as possible to the permission”. (23).

Before Sir George Newman, it was conceded on behalf of the appellant that the Inspector’s approach to the latter issue was less than satisfactory, but it was submitted that any defect in the decision letter caused thereby was of no consequence because, unless the respondents could establish that they had a legitimate expectation as they alleged, there was no rational basis on which it could have been concluded that enforcement action would be an abuse of power on the part of the interested party. I agree with that submission.

When Mr Porten was asked why it might have been an abuse of power for the interested party to take enforcement action to stop the implementation of the development in February 2004 (the time when the application for the LDC had to be considered), he replied that, having accepted and/or asserted that the permission was capable of implementation for some 20 years, it would have been an abuse of power for the interested party to change its mind. I do not accept that submission. Although the Inspector was not concerned with the planning merits of carrying out the development in 2004, it appears from the limited documentation in the court bundle that the relevant planning policies may well have changed since 1981. Indeed it would be surprising, given the lapse of time, if they had not done so, and there seems to have been conflicting legal advice over the years as to whether or not the planning permission had lapsed.

These changes are illustrated in paragraph 6.65 of the Initial Deposit Draft of the Rother District Plan, published in 2001, which said:

“The Saltings on the north side of the former Alsford wharf has been excluded from the employment area. The planning permission that had existed on that site for a marina and employment development was thought to have lapsed but the legal opinion appears to indicate that the permission is still valid. The Saltings have since been designated a Site of Special Scientific Interest. Land at the rear of the former Spun Concrete site has also been excluded from the employment area. It is also part of a designated Site of Special Scientific Interest”.

Unless prevented from doing so because the respondents had a legitimate expectation that it would not occur, it would have been unlawful for the interested party to decide whether enforcement action was expedient for the purposes of section 172(1)of the Act on any basis other than current planning policy and current legal advice in 2004. Was there a legitimate expectation as alleged by the respondents?

Before Sir George Newman, the respondents contended that such an expectation had arisen as a result of the interested party’s conduct and statements in the period from the carrying out of the access works up to and including the execution of a section 106 agreement on 25 August 1992 (“the Agreement”). Sir George Newman concluded that the matters relied upon by the respondents prior to the agreement were:

“insufficient to have created a legitimate expectation upon which Rastrum can rely that the 1981 permission and 1985 approval are to be regarded as extant and to entitle Rastrum to the requested certificate of lawfulness”

(See paragraph 49 of the judgment.)

Sir George Newman considered that it was arguable that the agreement could be the basis of a legitimate expectation. He said in paragraphs 57 and 58 of the judgment:

“ … I have concluded that an arguable case has been disclosed justifying further investigation into whether a legitimate expectation was created that the District Council would not, when considering the section 192 application, dismiss it on a ground which contradicted its own lawfully stated position in 1992. Further investigation of the facts is required before a court could conclude that on this occasion the decision to refuse a certificate constituted such a variation from the District Council’s stated position as to make it an abuse of power.

58.

In order to weigh the balance of fairness in the public interest, more evidence is required which is directly adduced to the issues I have identified. I have concluded that, contrary to Rastrum’s submission, the court is not in a power to reach a conclusion on the issue of legitimate expectation and/or abuse of power. The evidence before the Inspector was too scant. For example, on my view of the law, in order for Rastrum to succeed it seems clear to me that reliance by it and the consequences of reliance would have to be in evidence so as to establish an overwhelming case of unfairness. Whether the company had legal advice available is not clear. The reasons for the change of position by the District Council have not been sufficiently explained. Indeed, it is not clear what evidence there was on this issue. Nor has the possible prejudice to third party interests been properly explored. Further, I should add that I have concluded that the Inspector’s narrow approach to the issues before him prevented him from properly considering and weighing the material which was before him.”

Mr Porten submitted that, since the Inspector’s approach had been inadequate, the question whether a legitimate expectation had or had not been created should be remitted to him for determination. Mr Porten did, however, accept that he had to persuade this court that there was some basis on which the Inspector could rationally have concluded that there was such an expectation. We were told that the first respondent had called no oral evidence at the inquiry before the Inspector. It had relied on the documents which are before this court and on the evidence of Mr Benge who, although he is a director of the company, gave evidence in his own right at the inquiry. The Inspector had to determine the section 195 appeal on the evidence before him. On that evidence there were, in my judgment, three reasons why there was no rational basis on which the Inspector could have concluded that there was a legitimate expectation.

Those three reasons are as follows. First, if the permission was “dead” by the time the access works were carried out in 1987, the interested party had no power to “revive” it by simply making a representation to that effect. That there is only a very limited scope for any expectation that a waiver of the statutory requirements will be legitimate in the context of town and country planning is demonstrated by the decision of the Court of Appeal in Henry Boot Homes Limited v Bassetlaw District Council [2003] 1 P&CR 23 EWCA Civ 983.

Having reviewed the authorities and endorsed the proposition that:

“It is important at all times to remember the public nature of Town and Country Planning. It is not a matter for private agreement between developers and Local Planning Authorities”,

Keene LJ said that:

“22.

The scope, therefore, for waiver by non-statutory means of the need to comply with a condition must be extremely limited. That is so, whether one is concerned with an alleged waiver of a condition in total or with an allegation that the local planning authority has allowed development to take place in a phased manner, contrary to a condition. The latter still involves an informal variation of the condition and gives rise to the same problems as any other kind of non-statutory variation.

…

23.

The interests of third parties and the public in such matters also greatly reduce the potential for a legitimate expectation, such as is contended for in the present appeal, to arise. One of the reasons is that it is difficult to see how a legitimate expectation, said to derive from the conduct of the local authority, could operate so as to prevent an interested third party from questioning whether development has validly begun and whether the planning permission is still extant. This is not a remote possibility: the commencement of judicial review proceedings by Aldergate and Mr Christian in the present case demonstrates how such issues extend beyond merely the developer and the local authority. Yet those third parties did nothing to give rise to any legitimate expectation on the appellant's part.
24. Mr Lowe invited us to say that legitimate expectation could never operate so as to enable the developer to begin development validly and effectively in breach of condition. I am not prepared to adopt so absolute a proposition. It is possible that circumstances might arise where it was clear that there was no third party or public interest in the matter and a court might take the view that a legitimate expectation could then arise from the local planning authority's conduct or representations. But, as was said in the CoghurstWood case, one suspects that such cases will be very rare. The situation which normally arises in a planning context is very different from that which obtains in cases such as Unilever, where the issue is essentially one as between the individual and the public body, in that case the Inland Revenue. Legitimate expectation has a far greater role to play in such circumstances.”

Against this background, it is difficult to see how it could possibly be said that there is no third-party or public interest in the present case. When another application for planning permission for a marina, lock gates, houses, shops and industrial units on the site was made in 1989, the Nature Conservancy Council said that it was:

“opposed in principle to development of this location and recommend that the application is refused.”

Second, I do not accept the first respondent’s submission that the agreement constituted a clear representation in 1992 that the remainder of the permission could lawfully be implemented because the access works had been carried out. The agreement was entered into in connection with a grant of planning permission in 1990 for the development that the Nature Conservancy Council had opposed.

Recital 10 to the agreement refers to the permission, and recital 11 is in these terms:

“The 1981 permission and the 1984 approval were implemented to the extent only that works were carried out to an access which for purposes of identification only is shown coloured yellow on the plan annexed hereto the said works consisting of excavation of soil to form the base for the proposed vehicular access to the industrial part of the development permitted by the 1981 permission.”

That recital leaves open the question with which we are concerned. What was the legal effect of carrying out those access works? Recital 11 must be considered in conjunction with clause 15 in the agreement, which is in these terms:

“In the event of the District Council or the County Council resolving to make an order under section 97 of the 1990 Act revoking or modifying the 1981 permission and the 1984 approval the Company will not oppose the order and no claim whatsoever shall be made against the District Council or the County Council by the Company whether under section 107 of the 1990 Act or otherwise arising from the said order and the company indemnifies the District Council and the County Council from and against all claims made against and costs and expenses incurred by the District Council or the County Council as a result of or arising from the said order insofar as the same relates to the land.”

I accept that an explanation for clause 15 would be that it was thought by the two councils that the permission was still capable of legal implementation and that therefore it needed to be revoked if there were not to be two permissions in existence on the same site. However, an unambiguous representation is required in order to found a legitimate expectation, and an equally plausible explanation for recital 11 combined with Clause 15 would be that the two councils were unclear as to what were the legal implications of the roadworks that had been carried out and, so long as there was an element of doubt, it was prudent for them to make provision for the making of a revocation order without incurring any potential liability for compensation.

Thirdly, even if there had been a clear representation in the section 106 Agreement there was no evidence before the Inspector that the first respondent, which was the applicant for the LDC and the appellant against its refusal, had relied upon that representation or that such reliance had been to its detriment: see paragraph 58 of Sir George Newman’s judgment above. Mr Brown’s acceptance of the first respondent’s submission that reliance and detriment are not, as a matter of law, essential in every case where a legitimate expectation is asserted was entirely correct, but so also was his submission that on the facts of the present case there could be no unfairness, much less any conspicuous unfairness, unless there had been both reliance by the first respondent and a significant degree of detriment as a result thereof.

The first respondent was not a party to the section 106 Agreement. It purchased the site in 1996. While it is reasonable to infer from the terms of a conveyance dated 31 October 1989 that the first respondent’s predecessor in title, J Alsford Limited, purchased the site in 1989 in the belief that the permission was capable of implementation and that the price paid in 1989 reflected that belief, that purchase was before the agreement in 1992 and the basis for J Alsford Limited’s belief is unclear. When J Alsford Limited (In Administrative Receivership) sold the land to the first respondent, the sale particulars said that the land had the benefit of planning permission, but we do not know, and the Inspector did not know because he was not told, what enquiries, if any, the first respondent had made as to the status of the planning permission and to what extent, if any, the price it paid for the site reflected the outcome of those enquiries. It was for the first respondent to persuade the Inspector that the interested party’s decision not to grant an LDC was not well-founded. The absence of any evidence as to reliance and detriment would have been fatal for the first respondent’s case even if there had been an unambiguous representation and even if that representation had been capable of bypassing the statutory provisions and raising the permission from the dead. There was no basis for a finding that there was a legitimate expectation.

For these reasons I would allow the appeal and restore the Inspector’s decision.

I agree.

I also agree. So the appeal is allowed.