Monmouthshire County Council v National Assembly for Wales & Ors

Mr Justice Mackay:

The background:

“(1) The permission hereby granted shall relate solely to the parking of 2 heavy goods vehicles within the area edged red on the approved plan.

(2) This permission shall enure for the sole benefit of the occupiers of the adjacent dwelling house known as Farthing Hill and the vehicles parked within the above area shall be those vehicles driven by the occupants of the dwelling house only.”

5. In June 1998 Mr. Gareth Rees disposed of his interest in Farthing Hill House. On the 8^th March 2002 on behalf of the Second Defendant the son of Mr. Gareth Rees an application was made to vary the conditions attached to the 1985 grant. It related to Condition 2 only and sought to modify it so as to remove the apparent link between the occupation of the dwelling house and the use of the adjacent land by substituting a proposed new condition that the permission “shall enure for the sole benefit of the owner/owners of Farthing Hill Woods”. Monmouth refused this application on the 3^rd July 2002 on the basis that the proposed alteration would no longer protect the use of the appeal site from commercial purposes connected with haulage and that such activity would be detrimental to the amenity of the woodland and local environment and would be contrary to the Monmouth Borough Adopted Local Plan. The Second Defendant appealed against this decision on the 30^th July 2002. The grounds of appeal noted that the stated reason for the imposition of the condition it was being sought to vary was “to define the limit of the planning permission”. The grounds recited the history of the matter and claimed that the proposed new condition would not require any modification to the reason for the imposition of the original condition. The point was taken that at the time of the original grant there might have been some justification for the imposition of Condition 2, since it appeared that the Claimant regarded the residential property and the woodland as a single planning unit. But since this was no longer the case the justification for Condition 2 no longer existed; the clear relationship between the first two conditions would not be disturbed by the modification sought, and the primary objective, which was to contain the parking area to a defined size and location and restrict the use of that area to the Appellant’s family, could be met. It was contended that the condition as it then stood failed the tests of necessity, relevance and reasonableness set out in W.0. Circular 35/95.

6. To add to the complications there had been for some years prior to this appeal disputes as to the Appellant’s compliance with the original grant which had led to enforcement proceedings separately appealed, which appeal was proceeding to the stage of an inquiry. It is to be noted that even at the time of the original application in 1984 the Second Defendant’s father was said to have anticipated the grant of planning permission by proceeding with the development before obtaining permission.

7. Monmouth responded to the appeal pointing out that in its view the proposed modification would break the link between the woodland site and the house, the effect of which would be to allow the continued use of the woodland for commercial purposes, namely the parking of lorries. It also complained of non-compliance with the original grant, which it said rendered the permission invalid and necessitated a new application for permission.

The decision letter:

8. In his decision letter of 23^rd September 2002 the Inspector acknowledged Monmouth’s claim that the use of the land extended beyond the area originally set aside for 2 parked lorries and accordingly he proposed to treat the appeal application as having been made under s.73A(2)(c) of the Town and Country Planning Act 1990 as amended, and as seeking retrospective planning permission for development carried out without complying with some condition subject to which planning permission was previously granted by deleting the disputed condition and substituting the Appellant’s suggested condition in its place. He noted that there was currently an appeal against Monmouth’s enforcement notice which was being dealt with by means of a separate Public Inquiry and their contention that although the original permission only dealt with the parking of 2 lorries it was now necessary to consider the impact on the woodland of its continued use as a commercial haulage enterprise. He rejected this approach as being in his opinion in conflict with s.73(1) of the 1990 Act.

9. That section reads:-

“1. This section applies …… to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted.

2. On such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted and –

(a) If they decide that planning permission should be granted subject to conditions differing from those subject to which previous permission was granted or that it should be granted unconditionally they shall grant planning permission accordingly and –

(b) If they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted they shall refuse the application.”

10. The words “shall consider only the question of the conditions” are at the heart of the main issue in this case. Monmouth says that these words in this context mean only that the original permission must be left intact and do not mean that the Authority or the Inspector is prevented from looking also at the wider considerations affecting the original grant of permission. They say that looking at the decision letter the Inspector failed to apply the various current planning policies which he correctly identified in paragraphs 6 to 9 of his decision letter and therefore his decision is flawed for that reason.

11. S.73 received extensive consideration by the Court of Appeal in R –v- Leicester City Council exp Powergen UK Limited 81 P& CR 47. That was a case in which outline permission had been given for the development of land subject to conditions requiring approval of reserved matters to be made within 3 years of the grant and development to be begun within 5 years. Giving the judgment of the Court Schiemann LJ cited with approval an extended passage from the Judgment of Sullivan J in Pye –v- The Secretary of State for the Environment 1998 3 PLR 72 in that decision Sullivan J expressed the view that under s.73 applications it is not possible to “go back on the original planning permission”, which therefore remains as a baseline whether the s.73 applications succeeds or fails.

12. He continued as follows:-

“Considering only the conditions subject to which planning permission should be granted will be a more limited exercise than the consideration of a “normal” application for planning permission under s.70 but ….. will depend on the nature of the condition itself. If the condition relates to a narrow issue such as hours of operation or the particular materials to be employed in the construction of the building the local planning authority’s consideration will be confined within a very narrow compass. Since the original planning permission will still be capable of implementation the local planning authority looking at the practical consequences of imposing a different condition as to hours or materials will be considering the relative merit or harm of allowing the premises to remain open until, say, 10 o’clock rather than 8 o’clock in the evening, or to be tiled rather than slated ….. in my view however the position is different where ….. an application is made under s.73 to alter a condition so as to extend the period for submission for reserved matters at a time when the original planning permission is no longer capable of implementation by reason of the effect of s.93(4) because time for submission for reserved matters has expired.

While the council are constrained to consider only the question of the condition subject to which planning permission should be granted, in deciding whether to grant a planning permission subject to different conditions under paragraph (a) or to refuse the application under paragraph (b) are they required to ignore the fact that the original planning permission is no longer capable of implementation, so that if they adopt the latter course it will not be possible for the development to take place whereas if they adopt the former course it will be possible for the development to take place? In my view there is nothing in s.73 that requires the local planning authority to ignore the practical consequences generally of imposing a different condition and this is surely a most important practical consequence …..

The local planning authority have to have regard to the factual circumstances as they exist at the time and to have regard to the facts that exist at the time of their decisions. If at the time the original planning permission is incapable of implementation by reason of s.93(4) I can see no basis in the statutory code for requiring the local planning authority to ignore that important fact.”

13. In paragraph 40 Schiemann LJ, having expressly approved what Sullivan J said above, put the matter this way:-

“I agree that if it does not now matter from a planning point of view whether the future development of the site is governed by Condition X as imposed on the old permission or Condition Y as suggested by an applicant then the authority would be wrong to refuse permission just because they objected to the development in principle. An example might be a proposed change in the fenestration in a building …. the comparison is not between the present effects of Condition X imposed now and the present effects of Condition Y imposed now but rather between the present effects of Condition X imposed years ago and the present effect of Condition Y imposed now”.

On the particular facts of the Powergen case it was beyond argument in his judgment that current planning policy and effects had to be taken into consideration because, to adopt the words of Sullivan J, the original outline permission was “incapable of implementation”.

14. Monmouth argue that that is the case here. The original case for planning permission depended on the fact, they say, that the lorry owner lived next door and that the permission he sought was ancillary to his use of the adjacent residential land.

15. The Defendants say that this is incorrect and that there still exists a planning permission capable of implementation. They say it would be lawful for the present occupant of Farthing Hill House to drive 2 lorries on to the wood. The Powergen and Pye cases were in effect attempts to use a s.73 application for what was effectively a renewed application for planning permission in which, if the amendment was not allowed, there was no planning permission which was capable of implementation. Here they say the original permission remains capable of implementation and the position is more close to Sullivan J’s hours of opening or “tiles as against slates” examples.

16. In my judgment I should ask the question that Schiemann LJ posed in paragraph 40 of Powergen, modified to suit the facts of this case, in this form:-

“Does it matter from a planning point of view today whether those who drive lorries on to the site are the occupiers of the adjacent dwelling house or not?”

The Inspector answered this question at paragraph 20 of his decision, which was in the event to delete Condition 2, which he described as:-

“unnecessary because the visual impact of heavy goods vehicles does not depend on their ownership [or] the identity of their drivers”.

17. In paragraph 10 of his decision letter he had identified as a second main issue the question of whether or not the modification or deletion of this condition would “harm the character or appearance of the locality”. As I have said he had already shown in paragraphs 6 – 9 of the decision letter that he was aware of the policies that guided him, and he dealt with the question in paragraphs 18 – 20 reaching to the conclusion I have cited. One adds to this the fact that, looking at the reason originally given by Monmouth for the imposition of Condition 2, it is in my judgement impossible for them now to argue that it was imposed for planning policy reasons or to achieve protection of the woodland nature of this site. It is certainly not what they said at the time. In effect the Inspector is saying that Condition 2 was never relevant for the protection of land use relating as it did only to the personality of the user. He says in terms in paragraph 19:

“I can see no reason why its modification or deletion would have any perceptibly adverse visual impact on the rural street scene or the wider local landscape setting.”

18. Therefore construing the decision letter as I think I should, not as a

statute but attempting to give effect to the sense of it, the Inspector was indeed having regard to wider planning considerations, but in any event was considering a case where, whatever the outcome of the application, there existed an original grant which was capable of implementation. In my judgement the Inspector identified the issues appropriately and dealt with them in a way in which he was entitled to do.

19. The second issue raised by Monmouth is whether the Inspector failed to have regard to the circumstances in which and the reasons for which the original planning permission had been granted subject to conditions. I have set out above the way in which the Second Defendant’s father framed his application, no doubt in order to make it as attractive as possible to the council given the previous difficulties that had been experienced. But the reasons for the condition must be taken to be the reasons which the council themselves gave, which I repeat in the case of Condition 2 was given as “to define the limit of the planning permission”, an identical reason for that justifying the imposition of Condition 1, namely the limitation to 2 vehicles within a specified area on the appeal site. Monmouth’s argument is that Condition 2 was imposed for reasons “very much linked to the ownership of the house and ancillary to its use”. The Defendants’ argue that it is not appropriate to go behind the reasons attached to the grant of conditional permission which do not say this. The question that I have to ask is that which Schiemann LJ asks at paragraph 40 of Powergen; and having asked it, it seems to me that it does not now matter from a planning point of view whether this site is in future governed by old Condition 2, the proposed modified Condition put forward by the Second Defendant or no such condition at all.

20. Planning Policy Wales March 2002 says that conditions should only be imposed where they are necessary, relevant to planning and the development to be permitted, enforceable, precise and reasonable in all other respects. In general the Defendants’ submission that planning permission is concerned with the use of land as opposed to the identity of the user must be right. This second issue is answered in my judgement by the fact that Condition 2 was not stated by Monmouth itself to have been put in place for planning or amenity purposes and I see therefore no force in it.

21. The third question raised is whether the Inspector failed to have regard or sufficient regard to the fact that there had as a matter of history been a breach of Condition 1 limiting the permission to the placing of 2 vehicles in a defined area on the plan, and whether those activities amounted to material change of use of the site which affected the appeal he was hearing. It is said that his own findings at paragraphs 12, 14 and 15 of the decision letter, in which he identifies the difficulties in establishing on the ground where the “area edged red on the approved plan” referred to in Condition 1 should be placed, show that he was aware that there must have been a breach of this condition. If the Second Defendant was in breach, argue Monmouth, there would have to be very good reasons in the face of that circumstance to grant permission and it was a material consideration to be taken into account by him against the application.

22. The Defendants answer that at paragraph 21 of his letter the Inspector says he has taken these matters into account (they were in the council’s written representations), and rightly says that it was not proper for him to comment on them as they were subject to separate enforcement proceedings before a different inspector. In order to take these matters into account, even if it was right so to do, he would have had to have made a finding that there had indeed been a breach rather than that there were allegations to that effect. There had been no application by Monmouth to adjourn the Inspector’s report or to consolidate his inquiry in any way with that of the other inquiry.

23. In my judgement the allegations of past breach were not relevant to the task the Inspector had to carry out and his approach to this point was appropriate.

24. The fourth issue really grows out of the third. The council argue that he failed to have sufficient regard to the fact that the changes in the physical appearance of the site which he records in his decision letter meant that the original planning permission was no longer capable of being implemented in accordance with Condition 1, specifically there were the difficulties in locating the designated parking area which might well be at the present time buried under land fill. At paragraph 15 he states:

“I was not able to identify any specific parking area for the 2 authorised heavy lorries and it would be perfectly possible to find a secluded spot within the appeal site where they could be completely hidden from the public gaze. Whether or not that would amount to material change of use requiring planning permission is not for me to decide and it would not be appropriate for me to comment further on that aspect of the case because of the fact that it is now the subject of a separate appeal”.

This is said to have been a perverse finding. In my judgement there is no force in this allegation. The Inspector was only seized of the problem of Condition 2 namely who could park, rather than Condition 1, what could they park and where.

25. Monmouth’s fifth point is whether the Inspector failed properly to consider whether or not planning permission would have been refused if the disputed condition were not to be imposed, in accordance with P.P.W. March 2002, which requires that applications not in accordance with the development plan be not allowed unless material considerations justify their grant, and Welsh Office Circular 35/95 as to the use of conditions in planning permission. At paragraphs 8 and 9 he accurately summarised the effects of those two sources of guidance and in paragraph 10 he identified the first main issue as:

“whether or not the disputed condition satisfies all of the relevant tests above”.

Monmouth ask me to find, having considered the report to the planning sub-committee and the minutes of its meeting on the 20^th December 1984 that if Condition 2 had not been imposed permission would have been refused. They say the Inspector failed to apply the same test himself and he should have done.

26. To a large extent this point depends on how one applies the guidance given in the Powergen case which I have cited above and in particular paragraph 40 of the Judgment. As I have stated above my view is that it does not now matter from a planning point of view whether the future development of this site is governed by old Condition 2 or no such condition. In any event this question is addressed in my judgment by the Inspector at paragraphs 18 to 20 with the conclusion I have already summarised, namely that he could see no reason why the deletion of this condition would have any perceptible adverse visual impact on the site. He had seen this site, and he was aware of the planning policies in force in relation to it. He had to look at the question as at the date of his decision and the facts that were before him.

27. The final point taken by Monmouth is that the comment by the Inspector at paragraph 17 of the decision letter, that he could not see any sound reason to prevent a single lorry engaged in silvicultural activities being parked in the woodland, and at paragraph 19, that whatever development may have taken place in the woodland over the past 4 or 5 years does not seem to have been in any way inhibited by the imposition of the disputed condition, was at best the inclusion of irrelevant considerations and was also perverse. Proposed silvicultural use was no part of the Second Defendant’s application to modify the condition. It was plain, as indeed the Second Defendant told me, that he wished to park 2 lorries there for commercial purposes ancillary to his haulage business.

28. I agree that certainly the second of these two points was not a material consideration for the Inspector to have taken into account, if indeed he did so to a material degree. Neither of these statements by him seem to be part or at least an essential part of his reasoning. Given the clarity of the rest of his decision I do not regard them as considerations which would or might have led him to any different conclusion had he omitted them, and standing on their own I do not therefore consider that they form a basis for allowing this claim.

Conclusions

29. In is common ground that I can only review this decision if it was perverse in the sense that no reasonable inspector properly directing himself on the relevant material could have reached the conclusion that he did reach, or if he took into account irrelevant material or failed to take into account material which was relevant. For the reasons I have endeavoured to explain I do not consider that I am entitled to interfere on either of the above bases with this decision and this claim must therefore fail.

- - - - - - - - - - - - -

MR JUSTICE MACKAY: Miss Sabic, is that the right pronunciation?

MISS SABIC: That is.

MR JUSTICE MACKAY: You are here today on behalf of the claimant, is that right?

MISS SABIC: Yes, my Lord.

MR JUSTICE MACKAY: Thank you.

I formally hand down my judgment in this matter in accordance with the draft previously circulated to counsel and as finally approved by me. Any member of the public in this court or in Cardiff interested in obtaining a copy should apply to my clerk who will provide a copy for them. Likewise, any member of the press may so do.

Are there any matters arising from this? Mr Walters, it is your judgment, in effect. You ask, I imagine, for the claim to be dismissed, is that right?

MR WALTERS: My Lord, yes.

MR JUSTICE MACKAY: What else do you ask for, if anything?

MR WALTERS: I ask for costs on the general principle, obviously, of the order being a dismissal of the appeal. I ask for those to be subject to summary assessment. A schedule of costs has been served on the claimant, and your Lordship should have a copy signed and dated 4th June.

MR JUSTICE MACKAY: Well, I should do, but I do not, I am afraid it may have gone astray. I am being handed one now, thank you very much.

MR WALTERS: My Lord, perhaps I can reply to any matters rather than expand at this stage?

MR JUSTICE MACKAY: I think that is the usual way. Let me just cast an eye on it for myself, thank you.

Yes, Miss Sabic, in principle, is there a reason why the defendants should not have their costs?

MISS SABIC: No, my Lord.

MR JUSTICE MACKAY: Thank you. Do you have any objection to a summary assessment and/or do you have anything to say to me on any of the items on this schedule, so far as their amount is concerned?

MISS SABIC: My Lord, I do not have any objection to the summary assessment. The only issue that we take is on the second page; the attendance at judgment on 6th June by the instructing solicitor on the other side is down for one hour.

MR JUSTICE MACKAY: Yes.

MISS SABIC: My Lord, we would seek to reduce that time since the handing down of the judgment is not going to take one hour. That is the only issue.

MR JUSTICE MACKAY: He has his travel and his waiting as well.

MISS SABIC: That is right, my Lord.

MR JUSTICE MACKAY: Yes, I think I might give you a win on that then. Are there any other items you wish to attack?

MISS SABIC: No, my Lord.

MR JUSTICE MACKAY: Thank you very much. Well, Mr Walters, you have your work cut out to justify that £150. Are you going to do so or shall I strike it out?

MR WALTERS: My Lord, as there is travel and waiting I would simply ask for -- it would be a nominal sum, I agree, in respect of the attendance to reflect the actual time?

MR JUSTICE MACKAY: £50 you can have. That is £100 off.

MR WALTERS: I am obliged.

MR JUSTICE MACKAY: There is no VAT on this, is there?

MR WALTERS: No there is not.

MR JUSTICE MACKAY: So I would simply reduce the 4692 to 4592. Nothing else is challenged, so it seems to me that you should have your costs, that they should be summarily assessed at £4,592.

MR WALTERS: Thank you, my Lord.

MR JUSTICE MACKAY: Does that deal with all matters so far as you are concerned?

MR WALTERS: My Lord, it does. In the event the video link has only been for my benefit so I am grateful for that, my Lord. I think it does reflect partly in the costs.

MR JUSTICE MACKAY: I think it is a sensible way of doing it. Miss Sabic, do you have any other application?

MISS SABIC: No, my Lord.

MR JUSTICE MACKAY: Thank you very much. So be it then. There will be judgment for the Defendants, this claim will be dismissed with the First Defendant's costs summarily assessed at £4,592.

I thank both counsel who argued the case before me for their assistance and their forbearance. This judgment took a little time to emerge, but I am afraid this is the first time I have been back in London since hearing the case in Wales. Thank you very much.