Bielecki v Suffolk Coastal County Council
| Jurisdiction | England & Wales |
| Judge | JUDGE SHAUN SPENCER |
| Judgment Date | 11 November 2004 |
| Neutral Citation | [2004] EWHC 3142 (QB) |
| Docket Number | Case No: 04/TLQ/845 |
| Court | Queen's Bench Division |
| Date | 11 November 2004 |
[2004] EWHC 3142 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
His Honour Judge Shaun Spencer Q.C.
Case No: 04/TLQ/845
LITIGANT IN PERSON
MR JOHN NORMAN (instructed by Wrightman Vizards) appeared on behalf of the DEFENDANT
Introduction
The claimants, Mr and Mrs Bielecki, assert that they have a contractual claim to planning permission for the erection of three dwellings in the garden of High House, Orford, Suffolk. That claim is disputed by the defendant council, which is the local planning authority. It is contended on behalf of the defendant council that there was no contract in fact; that there could be no contract in law; and that in any event, any action is time-barred.
For the reasons which I am about to give, I shall direct that the claimant's claim be dismissed, and that there be judgment entered for the defendant council. I observe that if I could conscientiously, and in accordance with the law as I understand it and the facts as I find them, have provided the claimants with some remedy, I would have been glad to do so, for they have had a raw deal.
The Facts
The claimants are, and have been, since 31 st March 1987, the owners of a substantial property, High House, Daphne Road, Orford in Suffolk. I refer to the plan which appears in the red trial bundle, 12/9. The whole of the property conveyed in 1987 appears on that plan marked with a red line around the perimeter. The property had, at the time of the transfer, the benefit of planning permission authorising in total, six dwellings. I refer to the table, which appears as part of the trial bundle. So far as the particular areas are concerned, High House, which appears on the plan in red, had planning consent to be constructed as two dwellings, permission C6894. Coach House, which appears on the plan in yellow, sometimes referred to in documents as the stable, had permission to be developed as one dwelling, C6894/4 The lodge, or cottage as it is sometimes referred to, which appears in green, had the benefit of planning permission to be used as one dwelling.
At the time of the conveyance in 1987, there was a further planning consent and that was to erect two houses in the garden of High House. That is in the area to the north of High House, an area which has a blue line around the perimeter of it. The particular permission appears in the red trial bundle and it is at 12/7, it is number C6894/3 and is dated 24 th March 1986.
The claimant, Mr Bielecki said, and I accept his evidence on that, that the total price which was paid for the property reflected inter alia the fact that the garden had development value, as I describe it, and its value was not confined to the amenity value which it would confer upon High House itself.
On 15 th July 1988, the claimants submitted an application C88/1509. That was an application for outline planning permission to build four houses in the garden, rather than the two which were the subject of the existing planning permission C6894/3. I interpose here that at that time there was pending, an application dated 28 th April 1988 C88/0852, which was an application for works to be done to High House. The particular permission, which was eventually granted on 26 th September 1988, appears in the trial bundle at 12/11. It is common ground that the object of those works was to reconvert to one dwelling, the High House.
I go back to a consideration of C88/1509, the application for the four houses in the garden. Subsequent to that application being made, there followed discussions between the claimant and the planning department. It is not suggested that there were any oral discussions which are not adequately or accurately reflected in the documentation and so I turn directly to the relevant documents. At 12/15 is a faxed letter from Alison Gemmell, who was a planning officer within the planning department of the defendant council. It is dated 18 th January 1989 and addressed to Mr Bielecki and it says this:
"Following our recent telephone conversations I am writing to ask you to (1) confirm in writing that you are willing for planning permission C6894 and listed building consent C6894/1, alterations to provide for the conversion of High House into two dwellings and C6894/4, conversion of the coach house to one dwelling, to be voluntarily revoked without compensation being sought from the council. The reason for wishing to have these permissions revoked would be to maintain low density of developments on this site and the siting of the coach house in relation to the parent site."
I should say that there will have been every reasonable expectation that the claimants would not in any way gibe at that proposal, because they had already on foot themselves under the application C88/0852, the project of their own to reconvert High House to unitary occupation. When I say unitary, I mean for one family. The family is very substantial, being Mr and Mrs Bielecki and six children.
The planning officer made clear that the reason for wishing to have those conditions revoked was to maintain low density of developments on the site, and it was obviously intended to be a counter-balance to what was proposed in the garden.
By paragraph 2, she requested an amended site plan, setting out the footprints of the three proposed houses and the letter concluded in this way:
"On the basis of receiving the above information, it is the officer's intention to recommend that the development control sub-committee, when they meet on 7 th February 1987, accepts residential development on this site for three detached dwellings, with associated garaging and access improvements."
The letter concludes thus:
"It should be noted that this letter does not mean that outline planning permission will necessarily be granted."
By 12/10 and a letter of the same date, 18 th January 1989, Mr Bielecki faxed his response to Miss Gemmell. It was in these terms:
"Thank you for your facsimile dated 18 th January 1989. I can confirm that on the basis that planning permission is granted under the current application for three detached dwellings with associated garaging and access improvements, then I am willing to voluntarily revoke, without compensation from the council, the permissions numbered C6894 and 6894/4 and listed building consent 6894/1."
He said also in that letter that he confirmed:
"My existing application for four dwellings should be amended to an application to increase the number from two to three dwellings only."
The planning officers reported to the sub-committee 12/17 and 18. The conclusion of the report is in these terms:
"On looking at this proposal it is felt that if the committee were minded to approve the three dwellings, then the planning permissions and listed building consents for the sub-division of High House and the use of the stable as a residential unit should be revoked. This action would help to retain the low density residential character of the area and lead to a reduction of one dwelling potentially being served off the private driveway. The applicant has agreed in writing that subject to outline planning permission being granted for three dwellings, the planning and listed building consent applications mentioned could be revoked without compensation being sought from the local planning authority."
And the recommendation from the planning officers was that the application, subject to those terms, be approved.
The resolution of the local authority dated 7 th February 1989 appears 12/20. After discussing the background and current circumstances relating to the above proposal and noting the views of council (inaudible), the sub-committee resolved that the director of planning services be authorised to approve the application subject to controlling conditions and subject to the applicant agreeing to the voluntary revocation of planning permission register consent numbers 6894, 6894/4 and listed building register consent 6894/1 and that the chief executive and clerk of the council be authorised to take all necessary action under s.45 and 46 of the Town and Country Planning Act 1971, to secure revocation orders in respect of the planning permissions already identified.
Subsequent to the resolution of the sub-committee, Miss Gemmell wrote to the claimant on 13 th February 1989 12/22. She wrote in these terms:
"The development control sub-committee at their meeting on 7 th February 1989 agreed that this application could be approved in its amended form, subject to controlling conditions, your agreement to an implementation of the voluntary revocation of planning permission register consent numbers."
And she there set out the consent numbers. One of them is there put erroneously as 6794/4, when it should be 6894/4, nothing turns on that.
She concluded with these words:
"I am informed that the revocation procedures take approximately three months if no unforeseen difficulties arise."
In the light of the subsequent history, the reference to a period of three months for revocation procedures can evoke only a hollow laugh.
The revocation procedures came to the attention of the council's solicitor, Mr Burridge, who gave evidence before me. I have his memorandum dated 17 th July 1989, some five months after the resolution of the planning committee. He set out his analysis of the planning history. That analysis was careful and accurate and agreed to by the planning department's 12/25. His view was that the revocation consents were inapt, because the relevant consent had already been implemented and what...
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