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

This is an appeal under Section 289 of the Town and Country Planning Act 1990 ("the Act") by the claimant Local Planning Authority against a decision of an Inspector appointed by the first defendant allowing an appeal by the second defendant against an enforcement notice issued by the claimant on 6th February 2003. In a decision letter dated 6th October 2003 ("the decision letter") the Inspector allowed the second defendant's appeal and quashed the enforcement notice. In another letter of the same date, the Inspector allowed the second defendant's application for costs and made a costs order against the claimant ("the costs decision"). The claimant challenges both the decision letter and the costs decision.

On 6th June 1990 the claimant granted outline planning permission for the construction of a 27 hole golf course at Pedham Place, Farningham, Kent. The planning permission was subject to 19 conditions. They included condition 12 which was as follows:

The reason given for the imposition of this condition was:

Condition 12 may be contrasted with condition 8, which provided:

The reason given for the imposition of condition 8 was:

Condition 12 was complied with insofar as details of the engineering works were submitted to and approved by the claimant before the development commenced. However, part of the engineering works, the creation of earth bunds, was not carried out in accordance with the approved details. The claimant contended that as completed, five bunds (bunds A-E) were between 2 and 5.89 metres too high.

The claimant issued two enforcement notices on 6th February 2003. Notice A alleged that the bunds had been constructed without planning permission. That notice was withdrawn at the start of the inquiry on 16th September 2003 because the claimant acknowledged that it had no evidence to contradict the second defendant's claim that the bunds had been completed more than four years before the enforcement issue was noticed: see ground (d) in section 174(2) of the Act.

Notice B alleged a breach of condition in the following terms:

The second defendant appealed against Notice B on a number of grounds including ground (c) in section 174(2) of the Act: that the matters alleged in the enforcement notice did not constitute a breach of planning control. The second defendant also contended that Notice B was invalid because it was vague, ambiguous and unclear. For example, the notice did not identify the condition that was alleged to have been breached. The Inspector concluded that Notice B could be amended without injustice by inserting a reference to condition 12. In paragraph 9 of the decision letter, he concluded that:

Having concluded that the notice was correctable, the Inspector turned to the second defendant's ground (c) appeal. In paragraphs 10 to 12, he said:

Having dealt with certain other arguments advanced by the claimant based upon the terms of the approvals of detail, which are not relevant for present purposes, the Inspector said at paragraph 17:

In paragraphs 20 and 21, the Inspector said:

The other appeal decision referred to in paragraph 17 of the decision letter was an appeal against another enforcement notice issued by the claimant which alleged that a dwelling had been erected without planning permission at Wilmington, Dartford ("the Dartford decision letter"). The appellant in that appeal had argued that the dwelling had the benefit of a planning permission which had been granted in 1989 by Dartford Borough Council. Unfortunately for the appellant, only two thirds of the site was in Dartford, the remaining one third was in Sevenoaks. The Inspector concluded that Dartford Borough Council had no power to grant planning permission for development to be carried out in Sevenoaks. He also concluded that the 1989 permission had not been lawfully implemented because two conditions which required the submission and approval of certain details before development commenced had not been complied with. The appellant argued that one of those conditions was:

The Inspector did not accept that argument:

Returning to the present case, in his costs decision letter, the Inspector recorded the second defendant's submission:

So far as Notice A was concerned, the Inspector concluded that the claimant had not addressed the ground (d) issue until preparation for the inquiry commenced a matter of weeks beforehand. It had therefore behaved unreasonably. In paragraph 9, he said:

The Inspector then dealt with the council's reliance on the terms of the approval of details, noting that that was untenable and, in any event, had not been relied upon in issuing the enforcement notice.

Having noted that the Act defines a breach of planning control as having "two limbs", development without planning permission and failing to comply with a condition, and that in issuing a notice a local planning authority is required to indicate to which of those two limbs the notice relates, the Inspector said:

On behalf of the claimant, Mr Lewis submitted that it was possible to imply an "implementation clause" into condition 12, so that it required not merely the submission of details of the proposed engineering works for approval, but also that those works should be carried out in accordance with the approved details. In support of that submission, he put forward the following propositions: firstly that planning permissions and conditions in permissions are not to be strictly construed against the Local Planning Authority. They are to be construed in a common-sense way, having regard to the underlying planning purpose of the permission or condition in question. In Crisp from the Fens Ltd v Rutland County Council (1950) 1 P&CR 48, planning permission had been granted for a change of use for the manufacture of potato crisps subject to a condition that:

However, the Court of Appeal interpreted the condition as though it read:

The court placed considerable weight on the reasons given for the imposition of the condition. Bucknill LJ said, at page 55:

Denning LJ said at page 59:

Secondly, it was therefore possible to imply words into a condition if it was necessary to do so in order to enable the condition to achieve its purpose. In the present case, the purpose of condition 12 was plain: to ensure that the earth bunds were constructed as approved in order to protect the visual amenities of the area.

Thirdly, planning permissions, as public documents, were not to be construed as though they were private documents such as wills or contracts. A planning permission is "to be given the meaning that a reasonable reader would give to it", having regard to the terms of the permission itself together with any further admissible documentary evidence: see Arden LJ at page 1054 of Carter Commercial Developments Limited (in Administration) v Secretary of State for Transport, Local Government and the Regions and Mendip District Council [2003] JPL 1048; [2002], EWCA Civ 1914.

If a "reasonable reader" of condition 12 was asked, "do the golf course have to carry out the engineering works in accordance with the details once they have been approved?", he would answer, "of course".

Mr Lewis also referred to a decision of Woolf J, as he then was, in Penwith District Council v Secretary of State for the Environment [1986] JPL 432 which was cited by Mann J, as he then was, at page 63 of Bromsgrove District Council v Secretary of State for the Environment [1988] 1 PLR 59. Mann J said this:

Woolf J said this:

Mann J continued:

Mr Lewis fairly acknowledged that Woolf J did not purport to express any final conclusion upon the matter, but he was prepared to entertain at least the possibility that additional material could be read by implication into a condition. He relied rather upon the fact that Mann J did not appear to dissent from the provisional view expressed by Woolf J. Thus, he submitted, an implementation clause might be implied into a condition such as condition 12 in the present case.

So far as the issue of costs was concerned, while the claimant council might have been wrong, it was not unreasonable to serve Notice B based upon an allegation of breach based upon an allegation of failing to comply with condition 12. In doing so, the council had relied in particular upon the Inspector's conclusion in the Dartford decision letter. That had not been referred to by the Inspector in his costs decision. The council had provided reasonable justification for issuing Notice B, namely the Inspector's view in the Dartford decision letter.

On behalf of the Secretary of State, Miss Selway submitted that the Inspector was correct in concluding, in paragraph 12 of the decision letter, that condition 12 was clear on its face. That being the case, there was no scope for implying some further obligation such as an implementation clause into the condition. Crisp from the Fens and Carter could be distinguished upon the basis that in both of those cases, the Court of Appeal had concluded that the conditions in question were ambiguous. In Crisp, there had been a division of opinion in the Divisional Court as to the meaning of the condition. The three members of the Court of Appeal were all agreed that the condition was ambiguous. On page 54, Bucknill LJ said:

Singleton LJ agreed:

In Carter, there was a dispute as to the meaning of a condition which required the carrying out of flood prevention works. As Ward LJ explained in paragraph 45:

Miss Selway accepted that if there was an ambiguity in a condition, then it had to be resolved in a common-sense manner, having regard to the underlying planning purpose of the condition as evidenced by the reasons given for its imposition. She further accepted that conditions should not be strictly construed against the local planning authority; but submitted that where the meaning of the condition was clear, there was simply no room for implying further obligations. A planning permission was a public document, any condition should therefore be clear on the face of the document itself.

On behalf of the second defendant, Mr Turrall-Clarke made submissions to the same effect and referred to the advice in Circular 11/95 which deals with the use of conditions in planning permissions. Under the heading, "Test of Precision", paragraph 30 in the annex to the Circular says this:

Model Condition 25 in appendix A to the Circular does just that:

In relation to the costs decision, both Miss Selway and Mr Turrall-Clarke submitted that the Inspector was entitled to have regard to the claimant's conduct overall, which he fairly summarised in paragraph 2 of the costs decision letter. The Council had not taken sufficient care in deciding to issue the notices and in preparing them. As a consequence, one of the notices had to be withdrawn at the beginning of the enquiry, and the other required extensive correction, and even then, the proposition that there had been a breach of condition 12 was plainly contrary to the advice in circular 11/95 (see above). The Inspector's expression in view of the Dartford decision letter was too slender a basis on which to justify issuing an enforcement notice alleging a breach of condition. At best, the Inspector's observation in the Dartford decision letter was an aside, and no authority was cited for his view that there could be an implied implementation clause.

I accept the defendants' submissions. I agree with the Inspector that condition 12 is perfectly clear on its face. Although there are references in the judgments in Crisp from the Fens to the intention of the parties in that case (the company and the County Council), it has to be remembered that those observations were made at a time when the Town and Country Planning Act 1947 was "a novel act". The Town and Country Planning Code has become more familiar and more comprehensive over the last 50 years. We no longer consider it appropriate to examine the intentions of the applicant and the local planning authority. In construing a planning permission the question is not what was the intention of the applicant for planning permission, nor is an examination of the intentions of the local planning authority appropriate. The question is: what was permitted by the local planning authority? The answer to that question is to be found by construing in a common-sense way the planning permission together with such other documentary evidence as may be admissible: see per Arden LJ in Carter, paragraphs 27 and 28.

Since a planning permission is a public document and breach of a condition may ultimately have criminal consequences if a breach of condition notice and/or an enforcement notice is served/issued and not complied with, it is essential that any obligation by way of a condition is clearly and expressly imposed. In both Crisp from the Fens and Carter, the Court of Appeal concluded that the condition in question was ambiguous. That is not the position in the present case. There is no ambiguity in condition 12.

The 1990 planning permission has to be construed as a whole, and as soon as that is done, the contrast with condition 8 could not be more plain. It will be recalled that condition 8 requires the access from the A20 to be "completed in accordance with the approved details". Thus, when the claimant wanted details to be not merely submitted and approved, but also that the works should be constructed in accordance with the approved details, it expressly said so. In these circumstances, there is no basis for implying such an obligation if the claimant failed for whatever reason to impose it by express words.

It is not as though the claimant fell into a concealed trap. The advice contained in paragraph 30 of the annex to Circular 11/95 is not new. It gives a clear warning, and the claimant failed to heed that warning. Although the Circular does not purport to give definitive legal advice, paragraph 30 is nevertheless consistent with the well-established principle that it is not possible to have implied conditions in a planning permission.

In Pardes House School Trustees and Others v Hendon Borough Council 15 P&CR 326, planning permission had been granted for the use of premises as a primary school for 35 boys. An enforcement notice was served requiring discontinuance of the use of the premises as a school for more than 35 boys. The school appealed and its appeal was allowed to the extent that the enforcement notice was varied. The council contended that a condition should be implied to the effect that the premises must not be used as a school for more than 35 boys. The Inspector rejected that contention and:

A similar approach is to be found in a decision of the Court of Appeal in Trustees of Walton-on-Thames Charities v Walton and Weybridge Urban District Council [1970] 68 LGR 488. Planning permission was deemed to be granted for 50 pre-fabricated bungalows. It was argued on behalf of the Council that that deemed permission was subject to a number of implied conditions, including a time condition, such that the value of the land upon acquisition was £5,000 rather than £125,000. The council's arguments were rejected. Widgery LJ, as he then was, said this at page 497:

Mr Lewis distinguished these two cases upon the basis that the claimant was not seeking to imply a condition into the 1990 planning permission. Condition 12 was already there. The claimant was merely seeking to imply an additional obligation into condition 12.

In my judgment, that is a distinction without a difference. The same principles are equally applicable whether the local planning authority is seeking to imply a further obligation by way of an additional condition or by way of an addition to an existing condition. If conditions are to be included in a public document such as a planning permission, they should be clearly and expressly imposed, so that they are plain for all to read. There is no room for implication.

The observations of Woolf J in Penwith were obiter, and he made it clear that he was not expressing a final view. There is no indication that the Walton case had been cited to him.

Mann J treated Penwith as an example of a condition that was void for uncertainty. Condition 12, by way of contrast, is not uncertain. It may not have achieved all that the claimant wished it to achieve, but that is another matter altogether.

It may well be that a layman unfamiliar with the authorities dealing with the interpretation of planning permission and the drafting advice in Circular 11/95 would assume that the claimant must have intended that the engineering works would be constructed in accordance with the approved drawings. As soon as that "reasonable reader" reread the condition in the light of the authorities and the advice in paragraph 30 of the annex to circular 11/95, he would be left in no doubt that if this was the claimant's intention, it had failed to achieve its objective.

For these reasons, the challenge to the decision letter must be dismissed.

I deal briefly with the costs decision. The letter has to be read as a whole. Although a partial costs award would have been possible, it is somewhat artificial to try to separate out the Council's conduct in respect of Notice A and Notice B. Notice A was withdrawn at a very late stage; Notice B was presented to the Inspector in what he described as a "far from satisfactory" state. Although the Inspector did his best to correct Notice B, the final stumbling block was condition 12. Against this background, the Inspector was entitled to accept the second defendant's submission that the claimant simply did not take sufficient care in deciding to issue the notices and in preparing them.

The position was that one notice was withdrawn very late in the day. The other notice was not merely defective, it was plainly contrary to the advice in paragraph 30 of annex A to Circular 11/95 to assert that there had been a breach of condition 12. No authority was advanced for the proposition that there had been a breach of condition 12 or that it was permissible to imply a further implementation obligation into the condition, apart from the Inspector's observation in the Dartford decision letter. That was a very slender basis upon which to found an enforcement notice.

In the first sentence of paragraph 17 of the Dartford decision letter, the Inspector was dealing with what was at best a peripheral aspect of the appeal before him. His observation can fairly be described as little more than an aside. In essence, he was deciding that the omission of an implementation obligation did not render one of the conditions in the 1989 permission invalid. He observed that no appeal had been made against the condition. The absence of an implementation obligation did not render condition 12 in the 1990 permission invalid. It was merely less effective than the claimant had hoped.

There is nothing to indicate that the Dartford Inspector's observation that a requirement that development be carried out in accordance with approved details can reasonably be implied was based upon any authority. In particular, Woolf J's somewhat tentative suggestion in the Penwith case does not appear to have been relied upon in argument before the Inspector in the Dartford case.

Thus, the claimant was, in essence, basing an enforcement notice upon a mere aside on a peripheral point in an inspector's decision letter dealing with another site. In these circumstances, the Inspector was entitled to conclude that there was no "reasonable justification" for the claimant's allegation that what had taken place was a breach of condition 12.

I remind myself that the test is not whether I would have made a partial award of costs, but whether the Inspector could reasonably conclude that a costs order ought to be made in favour of the second defendant in respect of the whole of the costs of the enquiry.

For the reasons given above, it cannot be said that the Inspector's conclusion was perverse. It follows that the challenge to the costs decision must also fail.

MS SELWAY: In the light of your Lordship's judgment, on behalf of the Secretary of State, I would ask for an order for costs and for your Lordship to assess those costs in the sum that has been claimed on behalf of the Secretary of State, which is £4,565.50. I do not know if my learned friend Mr Lewis has had a chance to look at the costs schedule.

MR JUSTICE SULLIVAN: I will only look at the detail if Mr Lewis tells me he wants to argue about the detail.

MR LEWIS: No, my Lord.

MR JUSTICE SULLIVAN: I should imagine you are not arguing about the principle of the Secretary of State's costs.

MR LEWIS: It did not occur me to think about arguing that, no. I did think to argue quantum, but I will not.

MR JUSTICE SULLIVAN: I am not trying to provoke you at all. Yes, Mr Turrall-Clarke.

MR TURRALL-CLARKE: My Lord, I have put in a skeleton argument to your Lordship relating to our claim for costs in this court.

MR JUSTICE SULLIVAN: Yes, you did. You have to show me that there is a jolly good reason, really, have you not?

MR TURRALL-CLARKE: I have. My Lord, you will have seen our witness statement and, in particular, the approval of reserved matters, which we put in, but I think I would say that CNP 1, 3, 5 and 6, it was responsible to put those in, and they could have been helpful to your Lordship in your determination of this decision. But in particular the approval of reserved matters, because that clearly demonstrated, at least to us when we made our decision, that that document could have contained a compliance clause but did not do so. I would have thought, my Lord, that you would have been unhappy had you not had the advantage of seeing that document, and it is our witness statement that puts it to you.

In relation, my Lord, to my argument, it is right to say that I was aware, of course, that to some extent quoting Penwith was against us, but my view was that it was my duty to the court to make sure that you saw that decision, and clearly you have put your mind to it. I also thought it my duty, my Lord, to explore in some detail, and it does seem to be the basis of your decision, Circular 11/95.

My Lord, in those circumstances, I feel that a second defendant is in a very difficult position, as I say in my skeleton argument. He has to consider his duty in this case to the court, that the court has everything in front of it; his duty on behalf of his clients, which counsel must consider; and whether it was really necessary to intervene, to put in a skeleton argument and the witness statement in particular. The view was taken, on my advice, that it was necessary, particularly with the reserved matters, my Lord.

My Lord, I feel that we have acted responsibly and reasonably in doing what we have done. It seems unfair if we are now to be in effect penalised for our efforts by being condemned to costs.

MR JUSTICE SULLIVAN: Thank you very much. Mr Lewis, I do not need to trouble you, thank you very much.

MR LEWIS: I am grateful.

MR JUSTICE SULLIVAN: The appeal is dismissed. The claimant is to pay the first defendant's costs. Those costs are to be summarily assessed in the sum of £4,565.50. So far as the second defendant's costs are concerned, whilst I have a degree of sympathy with Mr Turrall-Clarke's submissions, and I do not for a moment suggest that the second defendant did not act responsibly and reasonably, the authorities are quite clear that it is not enough that a second defendant can be said to have acted responsibly and reasonably in appearing before the court but really has to be something very much out of the ordinary to justify a second award of costs. There might be cases, for example, where the second defendant and only the second defendant would know what had occurred at a planning enquiry and could provide supplementary information about that. But the present case was really a very short, albeit an important question, and in the circumstances, I do not think it would be justified or proportionate to order two lots of costs.

I am afraid, Mr Turrall-Clarke, your clients will simply have to be content with the bunds.

MR TURRALL-CLARKE: We are very content, my Lord.

MR JUSTICE SULLIVAN: Good. Thank you very much indeed.