Henry Boot Homes Ltd v Bassetlaw District Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SULLIVAN |
| Judgment Date | 15 March 2002 |
| Neutral Citation | [2002] EWHC 546 (Admin) |
| Docket Number | NO: CO/39/02 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 March 2002 |
[2002] EWHC 546 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand
London WC2
Mr Justice Sullivan
NO: CO/39/02
MR D ELVIN QC and MR T MORSHEAD (instructed by Sharpe Pritchard) appeared on behalf of the Claimant
MR M LOWE QC and J CLAY (instructed by Leeds City District Council) appeared on behalf of the Defendant
Friday, 15th March 2002
INTRODUCTION
1. This is claim for a declaration that a development of 315 houses authorised by an Outline Planning Permission dated 25th August 1995 (the “Outline Permission”), and an Approval of Reserved matters dated 5th December 1995 (the “Detailed Consent”) relating to land off Hallcroft Rd, Retford, Nottinghamshire, commenced prior to 2nd August 2000. Alternatively, the claimant seeks a declaration that it has a legitimate expectation that the Defendant Council will treat the development authorised by the outline permission and detailed consent as having commenced before 2nd August 2000, to which the defendant is bound to give effect and from which it would be unlawful for the defendant to resile. The claim was issued in the Queen's Bench Division on 30th April 2001 and transferred to the Administrative Court on 14th December 2001.
THE SITE
2. The site is bounded to the east by the River Idle. To the south there is open land, partly in the floodplain, further south there is a retail store, with access off Amcott Way. To the north there is open land which contains a number of lakes. To the west there is residential development, some of which was constructed by the claimant. That residential development is served by a number of estate roads, including Heathfield Gardens and Woodbeck Rise.
3. The site falls into two parts: Part A (often referred to as Site A), is bounded by residential development to its north, by Woodbeck Rise to the west and is separated from the larger Site B to the east by a drainage ditch. Site A is, in turn, divided into Phase 3, on which 63 houses have been constructed, and Phase 4 on which part of an estate road has been laid out but no houses have been constructed. In the documents Part B (or Site B) is sometimes referred to as Phase 5; Phases 1 and 2 were the developments of Heathfield Gardens and Woodbeck Rise. Site B is undeveloped.
PLANNING HISTORY
4. On 9th February 1994 an application for residential development on sites A and B was made by RV Developments (Retford) Limited (“RV”). An officer's report recommended refusal of planning permission on a number of grounds, including conflict with planning policies and access difficulties. Access was proposed via Heathfield Garden and no provision was made for access southwards to Amcott Way. The National Rivers Authority objected because the application did not make proper provision for a flood alleviation scheme. Notwithstanding the officer's recommendation, outline planning permission was granted on 19th May 1994 and reserved matters were approved on 28th September 1994. Following the grant of outline planning permission, the claimants offered to buy the site noting in correspondence with the landowner that “we have serious reservations about the effect of the floodplain of the River Idle on the nett development area.” Having purchased the site the claimant sought planning permission under section 73 of the Town and Country Planning Act 1990 (“the Act”) to remove or amend condition 3 of the 1994 planning permission which required details of a road layout which included an extension of Heathfield Gardens in a particular location.
5. Officers made no recommendation, doubtless bearing in mind that their recommendation to refuse the 1994 application had not been accepted. Permission was granted on 2nd August 1995. The outline permission contained the standard time limits and reserved matters conditions, 1 and 2 respectfully:
“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 and the development must be begun not later than whichever is the later of the following dates:
(a) the expiration of five years from the date of this permission; or
(b) the expiration of two years from the final approval of the reserved matters…
2. The siting, design and external appearance of the building(s), the means of access thereto, and the landscaping of the site shall be only as may be approved in writing by the District Planning Authority before any development commences.”
6. Condition 3 was as follows:
“The details required by Condition No 2 above shall provide for an adoptable road layout which shall include an extension of Heathfield Gardens in a easterly direction, making provision for access to adjoining land to the south in the manner indicated in Drawing No BH6616/1F… No dwelling shall be commenced until the extension to Heathfield Gardens, including the roundabout and the access to the land to the south have been constructed to at least base course level, from the existing end of Heathfield Gardens to the point where it meets the southern boundary of the site.”
7. This was a different form of extension to Heathfield Gardens from that required by Condition 3 in the 1994 outline permission.
8. Condition 8:
“No development of the site shall begin until such time as full details of the manner in which foul sewage and surface water are to be disposed of from the site have been submitted to and agreed in writing by the District Planning Authority.”
9. Condition 10:
“The landscaping scheme required by Condition No 2 shall be submitted to and approved in writing by the District Planning Authority before development commences…”
10. On 8th September 1995 the claimant applied for approval of reserved matters. The officers made no recommendation but reported that the NRA had repeated its objections to development on the ground that the site was in part within the floodplain of the River Idle. Other difficulties mentioned in the report included problems in relation to access. The Committee deferred consideration of the reserved matters application on 17th October. On 10th November 1995 there was a meeting between the claimant, officers of the Defendant Council, Nottinghamshire County Council, and the National Rivers Authority.
11. The minutes of that meeting explained, inter alia, the concern of the NRA about protecting the floodplain:
“The NRA now accept that it is impossible to turn back the clock. They are willing to re-consider their objection to the present application and consider measures to mitigate the potential flooding.”
12. On behalf of the claimant it was explained that it was:
“…willing to consider amendment of the scheme to reduce potential flooding problems. However, they are unable to lose any developable land.”
13. Discussions between the claimant and the NRA had taken place, and the minutes note:
“Henry Boots wish to start development as soon as possible. They agree to limit the 1st phase to land outside the flood plain and have given assurances to NRA regarding their willingness to amend the remainder of the scheme. This is likely to involve re-siting of the open space so that it contributes to the flood plain.
NRA are willing to withdraw their objection and accept the assurances given by Henry Boots.
[The defendant's officers] made it clear that amendment of the later phases of the scheme cannot be a planning requirement. NRA will need to trust in the good faith of Henry Boots.”
14. The NRA said that it would write a letter withdrawing its objection and making its position clear.
15. The claimant wrote to the defendant on 17th November 1995 confirming that development would commence in January 1996.
16. On 5th December 1995 the reserved matters application was approved subject to a number of conditions, including:
“2. No dwelling shall be commenced until the extension of Heathfield Gardens has been constructed, and surfaced to at least base course level, from the existing end of Heathfield Gardens to the point where it meets the southern boundary of the site…
5. Before development commences precise details of the finished floor level of each dwelling, road and footpaths, garden areas and open spaces shall be submitted to and agreed in writing with the District Planning Authority…
6. The facing and roofing materials to be used in the development hereby permitted shall be only as may be agreed in writing by the District Planning Authority before development commences.
7. A scheme for tree planting on and landscaping treatment of the site, including the area indicated as Public Open Space, shall be submitted to and agreed in writing by the District Planning Authority before development commences…
8. The form of surfacing used for all outdoor hard surfaces on the site shall be only as may be agreed in writing by the District Planning Authority before development commences.
9. Precise details of the landscaped strip adjacent to the Rive Idle shall be submitted to and agreed in writing by the District Planning Authority before development commences…
10. No development of the site shall begin until such time as full details of the manner in which foul sewage and surface water are to be disposed of from the site have been submitted to and agreed in writing by the District Planning Authority.
12. Precise details of the landscaping, surfacing treatment and footpath provision for the strip of land containing the gas main shall be submitted to and agreed in writing with the District Planning Authority before development commences…”
17. On 8th December 1995 the...
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