Town Planning-Planning permission-Conditions-Planning ... · Town Planning-Planning...

9
... ... -.. .. -.. . ... . ..- . .. .- .- 1973 Oct. 4,5 Lord Widgenj C. J., Bridge and May Jf. Town Planning-Planningpermission-Conditions-Planningpermission to rebuild railway station-Permissionsubject to condition that land over which electrictractioncablelay to be used only for car parking-Restriction of existing use rights without payment of compensation-Validity-Town and Country Planning Act 1971 (c.78), s. 30 (1) (a) The British Railway Board applied to the local planning authority for planning permission to rebuild a station. Permission was granted subject to a condition that "the land shown allocated for car parking purposes on the drawings approved shall be made available for such purposes at all times and shall be used for no other purposes." The land referred to was unoccupied by buildings but the main electric traction cable for the board's railway ran along the boundary. The station was rebuilt but the car park was not provided. The local planning authority served and enforcement notice on the board requiring them to comply with the condition. The board appealed to the Secretary of State, who decided that, since the condition sought to abrogate existing use rights without payment of compensation, it was ultra vires the local planning authority and should be discharged and the enforcement notice quashed. On appeal the local planning authority:- Held, allowing the appeal, that there was no general principle of planning law which required a local planning authority when granting planning permission to refrain from attaching conditions restricting use rights unless compensation was paid and, accordingly, the Secretary of State had erred in holding that condition was ultra vires the local planning authority. Hartnell v. minister of Housing and LocalGovernment [1965] A.c. 1134, H.L.(E) and Allnatt London PropertiesLtd. v. Middlesex County Council (1964) 62 L.G.R. 304 distinguished. The following cases are referred to in the judgements: Allnatt London Properties ltd. v. Middlesex County Council (1964) 62 L.G.R. 304. Hartnell v. minister of Housing and Local Government [1965] A.C. 1134; [1965] 2 W.L.R. 474; [1965]1 All E.R. 490, H.L. (E.). Petticoat Lane Rentals Ltd. v. Secretanj of State for the Environment [1971] 1 W.L.R. 1112; [1971] 2 All E.R. 793, D.C. Prossor v. Minister of Housing and Local Government (1968) 67 L.G.R. 109, D.C. Pyx Granite Co. Ltd. v. Minister of Housing and Local Government [1958] 1 Q.B. 554; [1958] 1 All E.R. 625, c.A. -- - - --

Transcript of Town Planning-Planning permission-Conditions-Planning ... · Town Planning-Planning...

Page 1: Town Planning-Planning permission-Conditions-Planning ... · Town Planning-Planning permission-Conditions-Planning permission to ... it was ultra vires the local ... wrong in his

... ... -.. .. -.. . ... . ..- . .. .- .-

1973 Oct. 4,5 Lord Widgenj C. J., Bridge and May Jf.

Town Planning-Planning permission-Conditions-Planningpermission to rebuild railwaystation-Permissionsubject to conditionthat land over which electrictractioncablelay to beused only for car parking-Restriction of existing use rights without payment ofcompensation-Validity-Town and Country Planning Act 1971 (c.78), s. 30 (1) (a)

The British Railway Board applied to the local planning authority forplanning permission to rebuild a station. Permission was granted subject to acondition that "the land shown allocated for car parking purposes on the drawingsapproved shall be made available for such purposes at all times and shall be used forno other purposes." The land referred to was unoccupied by buildings but the mainelectric traction cable for the board's railway ran along the boundary. The stationwas rebuilt but the car park was not provided. The local planning authority servedand enforcement notice on the board requiring them to comply with the condition.The board appealed to the Secretary of State, who decided that, since the conditionsought to abrogate existing use rights without payment of compensation, it was ultravires the local planning authority and should be discharged and the enforcementnotice quashed.

On appeal the local planning authority:-

Held, allowing the appeal, that there was no general principle of planning lawwhich required a local planning authority when granting planning permission torefrain from attaching conditions restricting use rights unless compensation waspaid and, accordingly, the Secretary of State had erred in holding that condition wasultra vires the local planning authority.

Hartnell v. minister of Housing and LocalGovernment [1965] A.c. 1134, H.L.(E)and Allnatt London PropertiesLtd. v. Middlesex County Council (1964) 62 L.G.R. 304distinguished.

The following cases are referred to in the judgements:

Allnatt London Properties ltd. v. Middlesex County Council (1964) 62 L.G.R. 304.Hartnell v. minister of Housing and Local Government [1965] A.C. 1134; [1965] 2 W.L.R.474; [1965]1 All E.R. 490, H.L. (E.).Petticoat Lane Rentals Ltd. v. Secretanj of State for the Environment [1971] 1 W.L.R. 1112;[1971] 2 All E.R. 793, D.C.Prossor v. Minister of Housing and LocalGovernment (1968) 67 L.G.R. 109, D.C.Pyx Granite Co. Ltd. v. Minister of Housing and Local Government [1958] 1 Q.B. 554;[1958] 1 All E.R. 625, c.A.

-- - - --

Page 2: Town Planning-Planning permission-Conditions-Planning ... · Town Planning-Planning permission-Conditions-Planning permission to ... it was ultra vires the local ... wrong in his

The following additional cases were cited in argument:

Gray v. Minister of Housing and LocalGovernment (1969) 68 L.G.R. 15, CA.Hall & Co. Ltd. v. Shoreham-by-Sea Urban District Council [1964] 1 W.L.R. 240; [1964] 1All E.R. 1, CA.Westminster Bank Ltd. v. Beverley Borough Council [1971] A.C 508; [1970] 2 WL.R. 645;[1970] 1 all E.R. 734, H.L.(E.).

APPEAL from the Secretary of State for the Environment.

On February 27, 1967, the British Railways Board applied to the localplanning authority, Kingston-upon-Thames Royal London Borough Council forplanning permission to rebuild Berrylands railway station, Surbiton. On May 10,1967, the local planning authority granted planning permission subject to a conditionthat" the land shown allocated for car parking purposes on the drawings approvedshall be made available for such purposes at all times and shall be used for no otherpurpose." The land referred to was occupied by buildings by the main electrictraction cable for the board's railway ran along its southern boundary. The boardrebuilt the station but did not provide the car parking facilities and on January 11,1972 the local planning authority served an enforcement notice on the boardrequiring them to comply with the condition. On February 8, 1972, the boardappealed against the enforcement notice to the Secretary of the State for theEnvironment. After an inquiry the Secretary of State decided that since the conditionsought to abrogate existing use rights in the appeal site without payment ofcompensation it was ultra vires the local planning authority and should bedischarged. He allowed the appeal and quashed the enforcement notice.

The local planning authority appealed on the ground that the Secretary ofState had erred in holding that the condition was ultra vires.

Bernard Marder for the local planning authority.Michael Rich for the Secretary of State.David Keene for the British Railways Board.

LORD WIDGERY c.J. We have spent a considerable time in this case, but thetime has not been wasted if this matter serves to clear p a doubt on what is reallyquite an important point of planning law. The case comes before this court on anappeal, under section 246 of the Town and Country Planning Act 1971, brought bythe local planning authority, and is an appeal against the decision of the Secretary ofState for the Environment, whereby he ordered that a condition attached by the localplanning authority to a planning permission granted to the British Railways Boardshould be discharged.

2

- ---

Page 3: Town Planning-Planning permission-Conditions-Planning ... · Town Planning-Planning permission-Conditions-Planning permission to ... it was ultra vires the local ... wrong in his

This history of the matter is simple enough. Some years ago in 1967 the boardwere minded to reconstruct their station at Berrylands in Surrey, a station which nodoubt serves a large number of people who travel to central London to work. Theywanted planning permission for this reconstruction, and they duly asked for it. Theapplication for planning permission for this substantial reconstruction occupied nomore than the formal form used on these occasions, one foolscap sized sheet togetherwith an accompanying plan, and the application was for reconstruction inaccordance with that plan. When one comes to look at the plan, it shows that on thesouth side of Berrylands station there was a piece of land owned and occupied bythe board which is described at one point in the papers as unused. The applicationplan upon which the application was based shows this piece of land in two places.First of all in the small scale key plan it is shown without any sort of description orlegend, but in the larger scale plan showing the ground floor development, there isshown upon this plan showing the ground floor development, there is shown uponthis plan diagonal lines indicating places to park motor cars, and the words "carparking space" were superimposed upon this area. The lines shown on the planwould accommodate seven cars, although it seems that the land itself would be largeenough to have taken a larger number had that been desired. The plan, thefoundation of the application, shows seven spaces and describes then as car parkingspaces.

When the application was received by the local planning authority, thegranted planning permission, but they subjected the planning permission to thiscondition:

"The land shown allocated for car parking purposes on the drawingsapproved shall be made available for such purposes at all times and shall beused for no other purposes."

The land allocated for car parking purposes on the drawings seems to me tobe the seven car parking spaces which are given the legend 'car parking space" onthe drawings. The condition as a matter of construction required that that areashould be made available for car parking at all times and should not be used for anyother purpose.

This condition not being complied with, an enforcement notice was servedand one can go over the intermediate steps quite quickly. The board appealed to theSecretary of State to secure the discharge of that condition. It was within thejurisdiction of the Secretary of State in considering this appeal to consider that thecondition should be set aside as being ultra vires in point of law if that was theconclusion which he took; alternatively he could order that if be discharged on whatone may call the merits, namely, that it was unreasonable, or on some basis of thatkind or, of course, he could have decided that the condition should stand. What he

did decide in paragraph 9 of his decision letter was:

3

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

Page 4: Town Planning-Planning permission-Conditions-Planning ... · Town Planning-Planning permission-Conditions-Planning permission to ... it was ultra vires the local ... wrong in his

"The condition requires that the land allocated for car parking purposes shallbe made available at all times for such purposes and would prevent its use forany other purpose. Whilst such a condition might be valid by virtue of article3 (2) of the General Development Order 1963 if the land was presentlyunused, the facts found by the inspector show that the land is usedoperationally for the purposes of the undertaking as the main electric tractioncable runs across most of the southern boundary of the appeal site. This is alawful use of the land which, if it is strictly complied with, the condition seeksto prevent without the payment of compensation. For those reasons it isconsidered that the condition as drafted is ultra vires and should be

discharged."

The reference there if to the main electric traction cable, and although the inspector'sreport and the Minister's letter are not wholly clear on this, I understand that tomean that on the southern boundary of the site and thus on the side of the carparking space remote from the platforms, there lies a main electric cable which iscarried in a conduit, and is concerned with supplying the energy to the electric trainsthat use this line. I think what the Secretary of State is saying is that the existence ofthis cable represents a use of the car parking spaces which would have todetermined or at any rate adjusted in some way if car parking was to be carried on,and I think he is saying that a condition which requires the landowner either toremove the cable or to cease to use the cable or otherwise to relinquish any of hisexisting rights under the planning legislation is void as a matter of law unless it isaccompanied in some way with an offer of compensation.

That being the decision of the Secretary of State, the issue for this court iswhether he was right in his approach to the law. In paragraph 10 of his letter hegoes on to deal with what one might call the merits of the condition, and to makesome consideration of whether it would be worthwhile moving the cable in financialterms for the sake of providing seven parking spaces, but I do not myself see in whathe said any clear decision on this part of the case, and indeed it seems to me that ifhe is wrong in his view of the law under paragraph 9, then the matter ought to goback to him, because it would be a fundamental factor, and he should review his

decision in the light of our conclusion. For my part, and I say this once, I am quitesatisfaction that the Secretary of State was wrong in his conclusion that thiscondition was ultra vires and contrary to law.

To reach that conclusion, one has got to look at the learning on the question ofwhat conditions can properly be attached to planning permissions. The attached ofconditions to planning permission is as old as the planning legislation itself, and isnow to be found in section 30 (1) of the Town an d Country Planning Act 1971:

"Without prejudice to the generality of section 29 (1) of this Act, conditionsmay be imposed on the grant of planning permission thereunder - (a) forregulating the development or use of any land under the control of theapplicant (whether or not it is land in respect of which the application was

4

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

Page 5: Town Planning-Planning permission-Conditions-Planning ... · Town Planning-Planning permission-Conditions-Planning permission to ... it was ultra vires the local ... wrong in his

_ __ _h ... .. - ... ....-

made) or requiring the carrying out of works on any such land, so far asappears to the local planning authority to be expedient for the purposes of orin connection with the development authorised by the permission; "

Those are wide words; they clearly on their face entitle the local planning authorityto impose conditions which affect land not the subject of the application itself, andwhich go to the restriction of the past user or the removal of existing works.Although they are wide it has been recongnised for a very long time that they aresubject to certain restrictions. The two principal restrictions which the courts haveplaced on those words are first that a condition is invalid as being contrary to lawunless it is reasonably related to the development in the planning permission whichhas been granted. It must not be used for an ulterior purpose, and must, in the wellknown words of Lord Denning M.R. in Pyx Granite C. Ltd. v. Minister of Housing andLocal Government [1958] 1 Q.B. 554, 572, "fairly and reasonably relate to the permitteddevelopment." The second restriction on those words which the courts haveadopted in recent years is that a condition which is so clearly unreasonable that noreasonable planning authority could have imposed it may be regarded as ultra viresand contrary to law and treated as such in proceedings in this court.

But as far as I know those are the only two general limitations on the widepowers in section 30 of the Town and Country Planning Act 1971, and the Secretaryof State, as I see it, has relied on a third restriction, namely, that a condition imposedon an application of this kind cannot restrict existing activities which would be legalunder the planning law if the proposed development had not taken place, unless insome way compensation is paid for that restriction. Without looking at authority, Iwould have thought such a proposition was wholly untenable, and I would havethought it well known to anyone with experience in this field that in a great numberof cases when applications for planning permission are made, the attitude of theplanning authority properly is that although the proposal is acceptable if certainother activities are discontinued, it would not be compatible with a continuance ofall the previous activities and all the existing work on the applicant's land oradjoining land. I am sure we can all think of hundreds of cases in which a planningauthority in granting planning permission has imposed a condition which wouldrestrict the applicant's rights on other land, or require him to remove works orbuildings on other land as section 30 of the Town and Country Planning Act 1971provides.

The proposition that this cannot be done except on payment of compensationseems, until one turns to the authorities, to be wholly novel one. When one comes tothe authorities, there is first of all Prossor v. Minister of Housing and Local Government(1968) 67 L.G.R. 109. This was a case where a landowner owning a service stationhad carried on business for a number of years and undoubtedly obtained certainexisting use rights, as they are normally called in planning language. He applied forpermission to develop the service station by substantial rebuilding, and he wasgiven permission, but the permission had attached to it a condition not unlike that inthe present case, that no retail sales other than the sale of motor accessories should

5

---

Page 6: Town Planning-Planning permission-Conditions-Planning ... · Town Planning-Planning permission-Conditions-Planning permission to ... it was ultra vires the local ... wrong in his

be carried out on the site. There had no doubt been difficulties between the

landowner and the local authority about the selling of secondhand cars on the site,and the condition was designed to ensure that when the garage was rebuilt,secondhand cars should not be displayed.

That condition was challenged on much the same grounds as in the presentcase. It was said it was not competent for the local planning authority to impose acondition which would prevent the applicant continuing his existing use of land forsale of secondhand cars. But Lord Parker c.J., giving the leading judgement,decided that whether or not such existing use rights existed, and there was somedoubt about that, the condition was a perfectly valid one. He said, at p. 113:

"Assuming, therefore, everything in Mr. Butter's favour, assuming that herewas at all material times prior to April 1964, an existing use right running onthis land for the display and sale of motor cars, yet by adopting thepermission granted in April 1964, the appellant's predecessor, as it seems tome, gave up any possible existing use rights in that regard which he may havehad. The planning history of this site, as it were, seems to me to begin afreshon April 4, 1964, with the grant of this permission, a permission which wastaken up and used, and the sole question here is: has there been a breach ofthat condition? It is admitted that there has, and accordingly in myjudgement the appeal on this point should be dismissed."

That passage has been the subject of comment in subsequent cases, and it may bethat in this case one does not have to accept every word of it, but what is clearbeyond doubt from Prossor v. Minister of Housing and Local Government is that theproposition that a condition could not restrict existing uses in the absence ofcompensation is not sustained; indeed the decision of this court is exactly to thecontrary.

Prossor v. Minister of Housing and Local Government was referred to with approval in alater decision of this court in Petticoat Lane Rentals Ltd. v. Secretanj of State for theEnvironment [1971] 1 W.L.R. 1112; that was a case in which vacant land had beenbuilt upon pursuant to a planning permission, and it was said that the planningpermission could not take away existing rights established in the vacant land when itwas vacant. It was not a "condition" case; it was not a case in which the questionwas whether a condition attached to the planning permission was valid, and I referto it only for the purpose of reminding myself that in my judgement, at p. 1117, Iexpressed the view that Prossor v. Minister of Housing and LocalGovernment, 67 L.G.R.109 was properly decided, and I was supported in that, as I understand it, both byLord Parker c.J. and Bridge J.

One may well ask, therefore, why it is that the contrary view that a conditioncan only affect existing right on payment of compensation should exist at all. I thinkthe answer is to be found in two authorities that have not been fully understood.The first is in the House of Lords, Hartnell v. Minister of Housing and Local Government

6

- --

Page 7: Town Planning-Planning permission-Conditions-Planning ... · Town Planning-Planning permission-Conditions-Planning permission to ... it was ultra vires the local ... wrong in his

[1965] A.c. 1134. In that case reference was made to the inability of a planningauthority to remove existing use rights without payment of compensation, the samekind of phrase as the Secretary of State used in this case. But the case is not reliedupon by Mr. Rich on behalf of the Secretary of State, and I think rightly so becausethat was a very special case in which the applicant had not really desired to haveplanning permission at all, but owing to the shape of legislation then current withregard to the licensing of caravan sites, he was bound to make what was in effect anapplication for such permission. When the permission was granted, it was subject toconditions restricting the existing use rights. It was not surprising that the courtstook the view that that could not be done. Hartnell's case was decided purely on itsown facts, it had nothing to do with the present case except that the phrase aboutremoving existing rights without compensation may have found its roots in thosevery different factual circumstances.

The other case which supports the Secretary of State's conclusion is AllnattLondon Properties Ltd. v. Middlesex County Council (1964) 62 L.G.R. 304. This was adecision of Glyn-Jones J., and it was concerned with a case in which application forplanning permission had been made by factory owners for an extension of thefactory; the extension was of quite a small size and it was intended to replace anumber of subsidiary buildings on site. The whole site was used for industrialpurposes. When this application was made for the building of the extension of thefactory, permission was granted subject to two conditions:

"(1) That the new extension should be used only in conjunction with the mainexisting factory as one industrial unit and (2) that until 1971 the site should beused only by a person or firm occupying at the date of the permission a lightor general industrial building within the county."

At the time as the report shows, and as some of us indeed remember, MiddlesexCounty Council was in some difficulty in regard to industrial development and hadendeavoured on more that one occasion when granting permission for the erectionof new industrial premises, to make it a condition that other industrial premises inthe county should be shut down, and this in a sense was an example of theapplication of that policy. Glyn-Jones J. held that both those conditions were voidand could not be enforced and, in his judgement in Pyx Granite Co. ltd. v. Minister ofHousing and Local Government [1958] 1 Q.B. 554 in which Lord Denning had referredto an earlier decision where the London County Council had sought to impose acondition on the grant of planning permission for a new factory, that the existingworks on another site should be closed down. Lord Denning had said, at p. 573:

"But the Minister was advised (rightly, I think) that the condition could notproperly be imposed as it was, in part, an attempt to suppress existingdevelopment by depriving the manufacturers of the right to use their existingfactory; and that suppression of an existing use of this king could only beachieved by an order under section 26:"

7

Page 8: Town Planning-Planning permission-Conditions-Planning ... · Town Planning-Planning permission-Conditions-Planning permission to ... it was ultra vires the local ... wrong in his

that is to say, an order based on the payment of compensation.

Basing himself upon that authority and other considerations, Glyn-Jones J.came to the conclusion that the two conditions were void as being unreasonable, forthe defendants had thereby misused their powers by attempting to deprive theplaintiffs of part of their existing use rights in the site without compensation. Againone comes back to the concept of a condition being void if it destroys existing userights without compensation. With respect to Glyn-Jones J., I think he may havecome to the right conclusion in Allnatt's case but I think he was misled in theprinciples by which he supported his decision. I think the decision can besupported, if at all, on the ground that the condition sought to be imposed did notreasonably relate to the development to be carried out; certainly that would be so inregard to any attempt to require the applicant to close down other premises as acondition of obtaining permission to carry out the development applied for. I do notcast doubt on the correctness of the decision in Allnatt's case; I think that the reason

is wrongly expressed, and had perhaps given rise to the Secretary of State's error, asI find it, in the present case.

Turning to the arguments which we have had on those facts and thoseauthorities, Mr. Keen, on behalf of the board, sought to support a contention that theenforcement notice was void for uncertainty. He said it was void for uncertaintybecause the plans were not entirely clear as to what the area of car parking was to be.I find no substance in that argument. He also sought to contend that the conditionwas ultra vires because it did not properly relate to development for which thepermission was granted. That I find a wholely untenable argument. Whenreconstructing a railway station, conditions relating to parking space for that station,I should have thought, must inevitably relate to the development for whichpermission was being granted.

Mr. Rich recognised that is the condition in question had omitted the lastseven or eight words and had not specifically required that the land should not beused for any other purposes, it would be a proper condition. His contention is thatthe vice of the condition lies in that prohibition of use for any other purpose, ad hesays that that is not permissible without payment of compensation, since that wouldprevent the continued presence of the electric cable either in its present position ornear thereto. For my part I cannot find any reason for thinking that the omission ofthe last seven or eight words would have made the least difference to that condition.The substance of the condition with or without those words is that the land in

question shall be used for car parking and shall not be used for anything else.

Whether or not that is a valid condition depends in my judgement on whetherit was unreasonable having regard to the fact that some alternation in the line orlevel of the electric cable might be a necessary consequence of the land being usedfor car parking. It is not suggested that the condition was so unreasonable that itcould be held to be invalid in law under the second of the principles to which I

8

-- - - -

Page 9: Town Planning-Planning permission-Conditions-Planning ... · Town Planning-Planning permission-Conditions-Planning permission to ... it was ultra vires the local ... wrong in his

... . .--.

earlier referred, and whether or not the Secretary of State thinks that the condition isunreasonable as a matter of degree is a matter for him and not for us.

1 hope 1 do not do an injustice to Mr. Rich's argument if I do not proceed todeal with the remaining points he made, because the difference between hisargument and my view of this case is that in my judgment there never has been anygeneral principle requiring a planning authority when granting planning permissionto refrain from attaching a condition affecting existing use rights without financialcompensation. It has never been any part of the planning law and in deference tothe Minister's view I think his decision was wrong in law; I would allow the appealand send the case back to the Secretary of State to that he may reconsider it in thelight of that view.

BRIDGE J. I agree and add a few words of my own only because we areexpressing some difference from the views expressed by Glyn-Jones J. in AllnattLondonPropertiesLtd. v. MiddlesexCounty Council,62 L.G.R.304.

The language of section 30 (1) (a) of the Town and Country Planning Act 1971(re-enacting section 14 (2) (a) of the Act of 1947) is explicit and leaves no room for theprinciple contended for by Mr. Rich on behalf of the Secretary in this appeal. Acondition imposed in exercise of the express power to regulate the use of, or torequire the carrying out of works on land other than the land in respect of which theplanning application was made, must, in the nature of the case, encroach upon theapplicant's established rights over that other land, which, but for that condition, hewould continue to enjoy free of any such regulation or requirement. Providedalways such a conditions fairly relates to the permitted development and cannot bechallenged on the ground of unreasonableness, the effect on existing rights in noway affects its validity.

In so far as the judgment of Glyn-Jones J. in Allnatt London Properties Ltd. v.Middlesex County Council, 62 L.G.R. 304 supports a contrary view it was, in myjudgment, erroneous. Speaking for myself I feel considerable doubt as to whetherthe decision in that case declaring void the two planning conditions in question canbe supported on the ground that they were unrelated to the permitted developmentor unreasonable. Certainly, the first condition, that the permitted extension of theexisting factory should be used only in conjunction with the main factory as oneindustrial unit, was, I should have thought at first blush, a perfectly propercondition. But it is unnecessary to express any concluded view on this issue. In thepresent case I entirely agree with the conclusions expressed by Lord Widgery c.J.

MAY J. I agree.

Appeal allowed with costs.

9

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