Cardiff County Council v National Assembly for Wales and Another
| Jurisdiction | England & Wales |
| Judgment Date | 22 June 2006 |
| Neutral Citation | [2006] EWHC 1412 (Admin) |
| Docket Number | Case No: CO/10681/05 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 June 2006 |
[2006] EWHC 1412 (Admin)
MR JUSTICE DAVIS
Case No: CO/10681/05
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand London, WC2A 2LL
Ms Morag Ellis (instructed by Sharpe Pritchard as Agents for Ms Kate Berry, Solicitor for Cardiff County Council) for the Appellant
Mr Clive Lewis (instructed by Treasury Solicitors) for the First Respondent
Davis J.:
Introduction
This appeal raises a point of construction of section 95 of the Town and County Planning Act 1990. This issue is this. Where a development in respect of which planning permission has been granted is not completed, despite the service of a completion notice, does the planning permission become entirely invalid for the entirety of the development, including those works carried out prior to the expiry of the completion notice? Or do those works which have been carried out prior to the expiry of the completion notice remain development authorised by the planning permission? The appellant, Cardiff City Council ("the Council"), argues for the former proposition. The first respondent, the National Assembly for Wales ("the Assembly"), argues for the latter proposition.
The facts
The background facts giving rise to the legal dispute that has arisen can be quite shortly stated.
Mr Mohammed Malik, the second respondent to these proceedings, occupies a house at 215 Allensbank Road, Heath, Cardiff. He submitted a planning application on 4 th May 1993 for the erection of a detached garage at the rear of the property. Full planning permission, in accordance with the application and plans submitted, was granted by the Council on 9 th June 199It was a condition of the permission, as is usual, that the development permitted should be begun before the expiration of five years from the date of the planning permission. A further condition was imposed to ensure that the amenities of the adjoining properties were protected, to the effect that the garage be used only for purposes incidental to the enjoyment of the dwelling-house.
It is not in dispute that Mr Malik, through his servants or agents, started construction shortly thereafter. But that ceased in 1994 and no works have been carried out since then. Various explanations for that have been put forward, most recently in a letter dated 19 th May 2006 from Mr Malik's son-in-law. This alluded to problems with ill-health, money and the like. The fact remains that the garage was, and remains, uncompleted. Photographs produced indicate that the current uncompleted structure is something of an eye-sore. Unsurprisingly, it attracted complaints from a number of Mr Malik's neighbours.
On the 17 th December 2001 the Council served a completion notice on Mr Malik pursuant to its powers under s.94 of the TCPA 1990. Although in the letter of 19 th May 2006 it is suggested on behalf of Mr Malik that the completion notice was out of time or otherwise invalid, that has not been pleaded and is a point rejected both by the Council and by the Assembly. I therefore proceed on the footing that the completion notice was validly served. The stated reasons for serving such a notice included, among other things, harm to the amenities of nearby residents because of the "incongruous appearance" in the street scene. The notice indicated, in effect, a period of 12 months after which the planning permission would cease to have effect.
By virtue of the provisions of s.95 of the TCPA 1990, and as stated in the completion notice itself, such notice only could take effect if confirmed by the Assembly. That confirmation was given in a detailed letter to the Council (copied to Mr Malik) dated 31 st December 2002. It was common ground before me that that had the effect of extending the completion period to 31 st December 2003.
Notwithstanding that, Mr Malik did not complete the development or undertake any further works before the 31 st December 2003 or, indeed, at all.
In consequence the Council, acting (or purporting to act) under s.172 of the TCPA 1990, issued an enforcement notice dated 5 th May 2004. The notice stated that it appeared to the Council that there had been a breach of planning control and that it was expedient to issue the notice. It also stated, among other things, that the planning permission had ceased to have effect, by reason of the completion notice, on 31 st December 2003; that the part-built structure was not authorised under any extant planning permission; and that such structure was unsightly and detrimental to the visual amenity of the area. The notice required demolition and removal of resultant debris within 3 months. The notice was stated to take effect on 9 th June 2004 unless an appeal was lodged.
Mr Malik did appeal, as he was entitled to do under s.174 of the TCPA 1990. He invoked several of the grounds set out in s.174(2). One of those grounds was that the matters set out in the enforcement notice did not constitute a breach of planning control.
The Assembly, as it was empowered to do, took in the appeal for its own decision. However a hearing took place before an Inspector, appointed by the Assembly, for the purposes of his assessing the evidence and competing contentions and making a recommendation to the Assembly. The Inquiry was opened on 2 nd November 2004 and the Inspector's Report – a conspicuously careful and thorough document – was issued on the 13 th December 2004.
The Report set out the background. It recorded the evidence given and the rival submissions. It found that such work as had been done on the garage appeared to comply with the scheme approved in 1993. It noted that it was agreed that "the partial construction was therefore lawful up to the date on which the completion notice took effect". The Inspector then recorded the competing legal arguments – which in essence were the same as those advanced before me albeit, I apprehend, with much less elaboration. The Inspector considered the wording of s.95(5) of the TCPA 1990 "slightly ambiguous". His conclusion was that the effect of it was not to save permission for a partially completed development, taking the view that otherwise the effect of serving a completion notice would be to allow part-built structures to remain ad infinitum without the prospect of remedial enforcement action. Accordingly his view was that the effect of the completion notice was to withdraw permission for the garage development and that the part-built structure did not now have permission; and thus that its erection and retention was a breach of planning control.
The Inspector went on to deal with other grounds of appeal and rejected them. One of those grounds involved the question of a deemed planning application (see s.177 of the TCPA 1990). He rejected the suggestion that planning permission should be granted for the part-built structure, considering it to be "an untidy and visually intrusive feature" and that it would be undesirable to allow it to remain on the site in its current state. Overall his recommendation was that the appeal should fail and that the enforcement notice be upheld.
The Assembly did not accept that recommendation. It allowed the appeal and quashed the enforcement notice, on a basis which had previously been flagged up in its letter confirming the completion notice. The decision letter was dated 28 th November 2005 and set out the Assembly's reasoning – which is reflected in the arguments advanced before me – at some length. The decision was to the effect that, by reason of the wording of s.95(5), the works which had been the subject of the enforcement notice had the benefit of planning permission and were not therefore in breach of planning control. The appeal was allowed on that basis, it not being necessary to deal with the other grounds of appeal which had been advanced.
Against that decision of the Assembly the Council now appeals under s.289 of the TCPA 1990. Permission was granted on the 20 th February 2006 by Wilkie J.
At the hearing before me the Council was represented by Miss Morag Ellis and the Assembly by Mr Clive Lewis. Mr Malik did not appear and was not represented; but his letter of 19 th May 2006 indicated that he supported the Assembly's approach and conclusion.
The legal framework
To put the issue arising in context, it is necessary to set out a number of the provisions of the TCPA 1990 (as amended). It was common ground before me that planning law is to be regarded as a comprehensive code and it is the duty of the courts to give effect to the intention of Parliament as evinced by the statutory provisions considered as a whole. It is a corollary of that that "if the statute law covers the situation it will be an impermissible exercise of the judicial function to go beyond the statutory provisions by applying [principles of private law] merely because they may appear to achieve a fairer solution to the problem being considered": see Pioneer Aggregates Ltd v Secretary of State for the Environment [1985] 1AC 132 at pp140H-141C (per Lord Scarman).
Section 54A makes provision for the status of development plans in making any determination under the Planning Acts (see also section 70(2)). Section 55(1) provides a definition of "development" in the following terms:
"(1) Subject to the following provisions of this section, in this Act, except where the context otherwise requires "development" means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making any material change in the use of...
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