COGHURST Wood LEISURE Park Ltd and Secretary of State for Transport, Local Government and The Regions and and ROTHER District Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Richards |
| Judgment Date | 29 May 2002 |
| Neutral Citation | [2002] EWHC 1091 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 May 2002 |
| Docket Number | Case No: CO/5318/2001 |
[2002] EWHC 1091 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Honourable Mr Justice Richards
Case No: CO/5318/2001
Mr Gregory Jones (instructed by Coole & Haddock) for the Claimant
Mr Paul Brown (instructed by The Treasury Solicitor) for the First Defendant
The Second Defendant did not appear
This is an application under s.288 of the Town and Country Planning Act 1990 challenging a decision by the Secretary of State dated 21 November 2001 by which he dismissed appeals against refusals by Rother District Council to grant lawful development certificates in relation to the proposed construction of 250 chalets on land at Coghurst Wood, Ivyhouse Lane, Guesting, East Sussex.
The relevant history starts with the council's grant of outline planning permission (RR/86/2504) on 26 June 1990 for a development described as "tourist park including access road from Ivyhouse Lane, internal circulation roads, 250 self-catering tourist chalets in the form of log cabins, open-air swimming pool, children's pool; control and administration building comprising reception office, shop, laundry, toilets and 2-bedroom staff flat; and further building incorporating family room, games room, licensed bar, toilets and changing rooms". All matters of detail were reserved for subsequent approval by the council. Reference was made to illustrative layout plans and details of the chalets, but it was stated expressly that they were not approved.
The outline planning permission included the following conditions:
"(1) Application for approval of reserved matters must be made not later than the expiration of three years beginning with the date of this permission. The development must begin not later than whichever is the later of the following dates: the expiration of five years from the date of this permission or the expiration of two years from the final approval of the reserved matters.
(2) Before the development permitted hereby is commenced, details of the siting, design and external appearance of the building(s), the means of access to and the landscaping of the site, which matters are herein referred to as 'reserved matters', shall be submitted to and be subject to the approval of the District Planning Authority."
It followed that application for approval of reserved matters had to be made by 26 June 1993.
An application for approval of reserved matters was submitted on the claimant's behalf in April 1993. The application form, dated 23 April 1993, described the proposed development as "erection of 250 log cabins, layout road, access and sewage treatment plant and associated car-parking". Accompanying the application, although not referred to in the form, were plans showing 18 log cabins clustered in three small groups, one of four cabins and two of seven cabins, each group having its own cul-de-sac access from the main service roads. There was a separate full planning application for the administration and communal buildings.
A covering letter dated 20 April 1993 from the claimant's chartered surveyor stated:
"You will observe that the first application is for the details in pursuance of the Outline Planning Consent showing the log cabins and in diagrammatic form their locations and sitings in small groups. As agreed the exact position and location of each and every unit will be determined on site in order to minimise the effect on existing trees and undergrowth. The application also shows the layout of the service roads and access ways and the nature of finish and construction of them, together with the sewage treatment plant located on the north east corner of the site …."
The council acknowledged receipt of the application. In August 1993 a decision on the application was deferred to allow further discussions and negotiations concerning a management plan for the woodland, which is not material. On 30 March 1994 the council issued a formal approval of reserved matters (RR/93/0758). The heading included the description "erection of 250 log cabins, layout road, access, parking and treatment plant pursuant to outline permission RR/86/2504" and gave the site address. The text provided:
"the Rother District Council hereby approve the following details required by planning permission RR/86/2504
Siting, Design, External Appearance, Means of Access and Landscaping subject to the following conditions …."
There followed nine conditions dealing with matters such as details of foul and surface water drainage, surface treatment of hard surfaced areas and car parking, and detailed plans for boundary walls and fences. None of the conditions related to the siting of the cabins.
A note at the end of the approval stated that the decision notice related to "the proposals as shown on the originally submitted plans and subsequently amended plan(s)", namely the plans submitted with the application for approval of reserved matters dated 23 April 1993 and subsequent amendments to those plans.
On 30 September 1994 the claimant's surveyor wrote to the council as follows:
" Erection of 250 Log Cabins, Coghurst Wood, Guestling
Following the issue of the planning approval for reserved matters Ref No RR/93/0758/P we have also now received planning permission from Hastings Borough Council for the alterations to Ivyhouse Lane and the access road into the site. This work in fact has commenced as our clients were anxious to undertake that part of the work before the winter.
As it is proceeding satisfactorily it has also been decided to continue the access road around the edge of the fields belonging to the Pern family and into the woodland, terminating at this stage in and around the point crossing the stream, i.e. in line with the footbridge to the railway line. Again the work will only be at a base course level without kerbs etc but it will enable vehicular access to the woodland, albeit by forward drive vehicles, and will also enable the legal agreement with the Pern family to be properly implemented and their land can then be restored in and around the line of the roadway. Our clients do not have any proposal to extend the roadway into the main body of the site, nor at this stage to undertake the commencement of the construction and erection of the log cabins or communal buildings etc.
However, we are aware that Condition Nos. 2, 3, 4, 5 and 6 of the planning approval RR/93/0745 seek details of various matters to be submitted and agreed with you prior to commencement. It is considered that the submission of those details are somewhat premature at this stage and we are writing to inquire if you would allow the excavation and base course of the roadway to be undertaken as outlined above in accordance with the planning approval but waiving the necessity to submit details of the other matters at this stage. It would assist our client if the line of the road can be established and formed prior to the winter and we would be pleased for your assistance in this matter."
A reply dated 9 November 1994 by a Mr Scott on behalf of the District Planning Officer stated:
"I refer to your letter of 30 September 1994 regarding the new access road to Coghurst Wood. The works to Ivyhouse Lane and the access junction are I note substantially complete.
Provided the access construction is confined to the fields and is to base course only I confirm that I would have no objection subject to submission of all outstanding matters prior to commencement of development within the woodland area. This would allow construction to base course at the access road from cross-section point 1 on drawing no. 93–006–0 to cross-section point 7, (where the access road enters the strip of woodland). Fencing and landscaping details will be required in due course for this section of the access road."
On 22 November the claimant's surveyor wrote to the claimant stating:
"I enclose herewith a copy letter I have received from Rother District Council giving approval to the construction of the access road up to base course level across the field to the woodland. This is the confirmation of the telephone approval I received earlier and as soon as that work is started the detailed planning approval that I recently obtained on your behalf will also have been commenced and cannot then be affected by the lapse of time.
I look forward to hearing from you therefore if you wish this work to proceed, but obviously it is in your best interests to protect the value of the land."
It is common ground that the claimant carried out initial works for the construction of an access on or before 13 March 1996. A witness statement on behalf of the claimant states that the claimant has acted throughout in good faith and has taken the outline planning permission and the subsequent approval of reserved matters together with the letter of waiver from the council at face value and has expended substantial amounts of money running into several hundred thousand pounds in acquiring land and carrying out works.
On 11 April 1997 the claimant applied to the council under s.192 of the 1990 Act for a certificate of lawful development (referred to in the documents as a "LDC") in respect of the carrying out of further works pursuant to the outline planning permission and approval of reserved matters. On 19 June 1997 the council refused the application on the basis that the outline permission had lapsed. A further application for a certificate...
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