Downderry Construction Ltd v The Secretary of State for Transport, Local Government & The Regions Caradon District Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Richards,MR JUSTICE RICHARDS |
| Judgment Date | 11 January 2002 |
| Neutral Citation | [2002] EWHC 2 (Admin) |
| Date | 11 January 2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2858/01 |
[2002] EWHC 2 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable Mr Justice Richards
Case No: CO/2858/01
Mr RL Fookes (instructed by Foot Anstey Sargent for the Claimant)
Mr T Mould (instructed by The Treasury Solicitor for the First Defendant)
The Second Defendant did not appear
The claimant owns some 2.64 hectares of land at St Anne's Chapel, Gunnislake, Cornwall. During the 1970s separate planning permissions were granted for the phased development of the land for housing. In 1973 full planning permission was granted for the construction of 31 dwellings on Phase 1. That permission was renewed in 1978. Later in 1978 full planning permission was granted for the construction of 37 dwellings and 38 garages on Phase 2. In 1986 planning permission was granted on appeal for the development of Phase 1 at a higher density of dwellings. By May 2001 Phase 1 had been substantially completed and the estate road laid in up to the boundary of Phase 2.
On 4 February 2000 the claimant applied to Caradon District Council as local planning authority for a certificate of lawfulness of proposed development on Phase 2. The claimant proposed to construct a dwelling on the area of land for which the Phase 2 planning permission had been granted in 1978. The dwelling was to be the first of the 37 dwellings and 38 garages authorised by that grant of planning permission.
The application for a certificate of lawfulness was made under s.192 of the Town and Country Planning Act 1990, which provides:
“(1) If any person wishes to ascertain whether—…
(b) any operations proposed to be carried out … on … land would be lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the … operations in question.
(2) If, on an application under this section, the local planning authority are provided with information satisfying them that the … operations described in the application would be lawful if … begun at the time of the application, they shall issue a certificate to that effect; and in any other case they shall refuse the application.”
By virtue of s.191(2), operations are lawful at any time if:
“(a) No enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and
(b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force.”
By s.192(4), the effect of a certificate of lawfulness is conclusively to presume to be lawful the operations it describes on the land that it specifies.
On 5 May 2000 the council refused to grant the claimant the certificate requested. The claimant appealed under s.195 of the 1990 Act to the Secretary of State, who appointed an inspector to determine the appeal. There were two issues before the inspector: (1) whether the development authorised by the permission granted for Phase 2 in 1978 had been implemented by carrying out a material operation within the requisite period, and (2) whether the claimant had established on the balance of probabilities that the council was estopped from taking enforcement action in respect of the construction of the dwelling. The council had found against the claimant on both issues. In a decision letter dated 14 June 2001 the inspector dismissed the appeal on both issues.
The claimant now applies under s.288 of the 1990 Act to quash the inspector's decision. It does not challenge the inspector's conclusion on the first issue. The challenge relates only to his conclusion on the second issue. The question for this court is whether the inspector erred in law in finding that the council was not estopped from denying the lawfulness of the development proposed by the claimant on the Phase 2 land.
Factual background
I have referred already to the grant of planning permission for Phase 1 in 1973 and for Phase 2 in 1978.
The grant of planning permission on appeal in 1986 for a higher density of dwellings on Phase 1 is relevant to the arguments on estoppel. The inspector's decision, dated 21 March 1986, identified as the main issues “the acceptability or otherwise, of the proposed development, having regard firstly, to the available mains water supply and secondly, to the proposed access on to the Class I highway”. Having described the site, the inspector went on:
“4. There is no dispute that, by reason of previous planning consents in 1973 and 1978, and the start of construction work, there is an extant planning permission covering the whole of the 2.64 ha in your clients’ ownership, for 68 dwellings (31 on Phase I—appeal site, and 37 on Phase II). Due to a change in policy following the introduction of the approved Cornwall Structure Plan, and the non-statutory District Settlement Policies and Plan, which, contrary to the former County Development Plan, seek to restrict housing development to fewer locations, any new permission for residential development here would conflict with that policy. I note however, that the council have taken into account the planning history of the site and in addition, recognises that the present application, for small 2-storey development, at a higher density than the earlier proposal, but with only a limited increase in persons accommodated, is in step with the general need to produce more small dwellings, including starter homes, as encouraged by government policy, set out in Circular 22/80. Furthermore, as pointed out in Circular 14/85, Development Plans are one, but only one of the material considerations that must be taken into account in dealing with planning applications.
5. Notwithstanding this, the fact that your clients already have permission to carry out development on this site, does not give them any legal or moral right to expect the grant of permission for the present development, as each application must be considered on its merits, but the existence of this permission is itself a material consideration, and having regard to the planning history of the site, the nature of the present proposals, and the general acceptance of the council of the principle of the development, apart from the access, I am of the opinion that, insofar as the principle of the development is concerned, such harm as the proposal may generate is insufficient to overcome the presumption in favour of allowing the appeal, as provided for in Circular 14/85.”
Having rejected the council's reasons for refusal in relation to water supply and access, the inspector stated:
“9. The council have suggested that, in the event of this appeal being allowed there should be a Section 52 agreement between your clients and the council, limiting the number of dwelling units on Phases I and II, to the 68 originally permitted, but this is unacceptable to your clients. I am unable to make it a condition of planning consent that such an agreement be entered into, and consider that such a condition imposed by me would be unreasonable, bearing in mind the planning history. It is however a matter of importance, and is one for consideration by the council, and the appellants in the light of current planing policies, the development already approved, including this development, and any future proposals.”
The inspector went on to allow the appeal and to grant planning permission for the erection of 52 dwellings and alterations to access on the Phase 1 land.
In 1993 the consultation draft of the Caradon Local Plan was produced. It was followed by the deposit version in September 1994 and the plan was finally adopted in December 1999. All versions of the plan identified the Phase 2 land as benefiting from planning permission, both on a map and in the accompanying text. Paragraph 13.02 stated that “2.62 ha of land to the west of Old Mine Lane has permission for 89 dwellings” (which is plainly the total of the 52 authorised by the 1986 planning permission for Phase 1 and the 37 authorised by the 1978 planning permission for Phase 2).
On 9 June 1994 Black Horse Agencies wrote to Mr P Oakley of the council's planning department in relation to the proposed sale of the Phase 1 and Phase 2 land. The letter stated:
“We act for the vendors of the above mentioned land and we attach herewith an ordinance [ sic] survey plan showing the extent of the land edged red, together with a copy plan showing the approved layout on phase 1 for 52 units.
It is proposed that this land will be disposed of in the near future and it is anticipated that it is likely that the development will take place under a joint venture type arrangement, where the vendor acts as sponsor and a separate development company carries out the construction.
Our understanding of the situation is as follows:
1. By reason of previous consent in 1973 and 1978 and the start of construction works there is an extant planning permission covering the whole of the 6.5 acres for 68 dwellings (31 on phase 1 – 37 on phase 2).
2. There is a detailed planning consent for 52 units on phase 1, granted on appeal in 1986, and extant by virtue of a material start ….”
The letter went on to refer to a number of possible forms of development and to invite comments on them.
In a reply dated 22 June 1994, signed by Mr Oakley on behalf of the Director of Planning Services, it was stated:
“I refer to your letter of June the 9 th concerning the residential land at St Anne's...
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