British Railways Board v Secretary of State for the Environment and Others
| Jurisdiction | UK Non-devolved |
| Judge | Lord Keith of Kinkel,Lord Templeman,Lord Jauncey of Tullichettle,Lord Browne-Wilkinson,Lord Mustill |
| Judgment Date | 28 October 1993 |
| Judgment citation (vLex) | [1993] UKHL J1028-1 |
| Date | 28 October 1993 |
| Court | House of Lords |
[1993] UKHL J1028-1
House of Lords
Lord keith of Kinkel
Lord Templeman
Lord Jauncey of Tullichettle
Lord Browne-Wilkinson
Lord Mustill
My Lords,
In May 1988 the appellants the British Railways Board ("British Rail") applied to Hounslow London Borough Council ("Hounslow") for outline planning permission to develop for housing and ancillary purposes part of the former Feltham marshalling yard. The site shown on the plan annexed to the application covered land belonging to British Rail but also an area of land owned by Hounslow, lying between British Rail's property and the A314 road. It was proposed that a vehicular access to the housing development should be formed over the land so owned by Hounslow. Hounslow failed to determine the application within the statutory period, and so British Rail appealed to the Secretary of State for the Environment ("the Secretary of State") against the deemed refusal of it.
The Secretary of State appointed an inspector, Mr. David Fenton, to hold a public local inquiry into the appeal and to report to him. Mr. Fenton duly held the inquiry in July 1989 and reported on 13 September 1989. He recommended that the application providing for access from the A314 be granted, subject to the completion of an agreement with Hounslow under section 52 of the Town and Country Planning Act 1971 and to certain conditions set out in the report. These conditions included:
"10. The residential development hereby approved shall not exceed 440 dwelling units.
"13. The works to provide the main access road shall be completed to base course level prior to the commencement of the construction of the residential development hereby approved, and shall be fully completed prior to the occupation of buildings."
The Department of the Environment on 7 November 1989 sent copies of Mr. Fenton's report to British Rail and to Hounslow with a letter stating that the Secretary of State agreed generally with the inspector's view but that before making a decision he desired confirmation of the completion of a legal agreement under section 52 within 28 days. Thereafter British Rail made strenuous efforts to persuade Hounslow to enter into such an agreement, but without success. Hounslow's objection was based on environmental grounds. The former marshalling yards, disused for 30 years, had become the habitat for various interesting species, and the land belonging to Hounslow over which the proposed access road was to pass, consisted in the Pevensey Road Open Space and former sewage pits, which the inspector found to be areas with their own nature conservation interest and public amenity value. Various correspondence followed until on 21 March 1990 the Department sent to British Rail a letter stating inter alia
"2. There are, of course, similar difficulties about your alternative suggestion of imposing a "Grampian" condition or conditions. A House of Lords decision in 1984 was to the effect that a condition prohibiting the carrying out of development or the occupation of buildings until such time as works (or other action) have been carried out by a third party is a valid condition provided its imposition is reasonable in the circumstances of the case. The 'reasonableness' of the condition is to be judged on the basis of whether there is at least a reasonable prospect of the works in question (or other action to be taken) being carried out within a reasonable time. The relevant timescale to be considered is that within which the permission must be implemented.
"3. Given the present circumstances there appears to be no reason to believe that the council would be willing to co-operate. That being so, it is felt that there is no reasonable prospect of the works in question being carried out within a reasonable time. A Grampian condition or conditions would therefore not seem appropriate."
A "Grampian" type condition, which takes the name from the decision of this House in Grampian Regional Council v. Aberdeen District Council (1984) 47 P.&C.R.633, is one which provides that approved development shall not be commenced until some event, in that case the closure of a section of public road, has taken place. The proposed condition 13 in the inspector's report was a Grampian type condition. It will be seen that the Secretary of State took the view that the adjection to the planning permission of this condition would not be valid unless there was a reasonable prospect of its being fulfilled. Hounslow on 28 March 1990 wrote to the Secretary of State stating that the council at a meeting on 27 March had decided not to enter into a section 52 agreement with British Rail. By decision letter dated 5 June 1990 the Secretary of State refused planning permission. He did so on the basis that he was precluded in law from granting the permission subject to conditions which appeared to have no reasonable prospect of fulfilment within the five year life of the permission. The question in the case is whether he was correct in that view of the law.
British Rail applied to the High Court, under section 288 of the Town and Country Planning Act 1990, to quash the Secretary of State's decision. The application was heard by Mr Gerald Moriarty, Q.C., sitting as a Deputy Judge of the Queen's Bench Division, who on 20 December 1991 dismissed it, and his decision was affirmed by the Court of Appeal (Dillon, Kennedy and Hirst L.JJ.) on 6 October 1992. British Rail now appeals to your Lordships' House.
The power to adject conditions to the grant of planning permission is contained in section 29(1) of the Act of 1971, which provides in its latter pan that a local planning authority: " (a) subject to sections 41 and 42 of this Act, may grant planning permission, either unconditionally or subject to such conditions as they think fit: or ( b) may refuse planning permission."
The power, though widely expressed, is not unrestricted. In Newbury District Council v. Secretary of State for the Environment [1981] A.C. 578, Lord Lane said, at p.627:
"Despite the breadth of the words 'subject to such conditions as they think fit', subsequent decisions have shown that to come within the ambit of the Act and therefore to be intra vires and valid a condition must fulfil the following three conditions: (1) it must be imposed for a planning purpose; (2) it must fairly and reasonably relate to the development for which permission is being given; (3) it must be reasonable; that is to say, it must be a condition which a reasonable local authority properly advised might impose… The third test is probably derived from Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223, and ensures that the Minister, if he is asked to review the actions of a local authority, may, even if tests ( 1) and (2) are quite satisfied, nevertheless allow an appeal on much broader grounds, if the effect of the condition would be to impose an obviously unreasonable burden upon the appellant. Decisions of the local planning authority should not, however, lightly be set aside on this ground."
It is clear from the latter pan of this passage that Lord Lane had in mind that where a local planning authority adjected to a planning consent a condition which was unreasonable in the Wednesbury sense an appeal by the would-be developer would be allowed to the effect of rendering the consent free of the condition, as happened in City of Bradford Metropolitan Council v. Secretary of State for the Environment (1987) 53 P & CR 55. However, it appears to have come about that the law is viewed, particularly in the Court of Appeal, as being to the effect that if a condition which on its merits is reasonable and necessary on planning grounds has no reasonable prospects of fulfilment then that condition cannot validly be imposed and planning permission must be refused. That view is apparently thought to be supported by a passage in the speech which I delivered, with the concurrence of my colleagues, in Grampian Regional Council v. City of Aberdeen District Council (1984) 47 P.&C.R. 633. That was a case where the regional council had applied to the district council and another local planning authority for planning consent to industrial development on a site which spanned the boundary between the authorities. The reporter to whom the Secretary of State for Scotland had delegated the decision on the application considered that the development, while desirable on planning grounds, would generate a volume of traffic likely to cause a road safety hazard. This hazard could, however, be eliminated if a section of public road leading to a certain junction were to be closed. The reporter took the view that it would not be competent to grant permission for the development subject to the condition that the road in question should be closed, since it was not in the power of the applicants to close the road at their own hand. An appeal by the applicants to the Court of Session was allowed, and the decision was affirmed by this House, the...
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