Hillside Parks Ltd v Snowdonia National Park Authority
| Jurisdiction | England & Wales |
| Judge | Keyser |
| Judgment Date | 08 October 2019 |
| Neutral Citation | [2019] EWHC 2587 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: F90CF015 |
| Date | 08 October 2019 |
[2019] EWHC 2587 (QB)
HIS HONOUR JUDGE Keyser Q.C.
sitting as a Judge of the High Court
Case No: F90CF015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CARDIFF DISTRICT REGISTRY
Cardiff Civil Justice Centre
2 Park Street, Cardiff, CF10 1ET
Mr Mark Lowe QC and Mr Robin Green (instructed by Aaron and Partners LLP) for the Claimant
Mr Gwion Lewis (instructed by Geldards LLP) for the Defendant
Hearing dates: 4 and 5 September 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HIS HONOUR JUDGE Keyser Q.C.
JUDGE Keyser QC:
Introduction
The claimant, Hillside Parks Limited (“Hillside”), is the owner of a large parcel of land comprising about 29 acres at Balkan Hill, Aberdyfi (“the Site”). Hillside acquired the Site in 1988.
The defendant, Snowdonia National Park Authority (“the Authority”), came into existence on 23 November 1995 and became the local planning authority for the National Park that includes the Site on 1 April 1996.
These proceedings concern the status of planning permission granted by the Authority's predecessor as local planning authority, Merioneth County Council, in January 1967 in relation to the Site (“the January 1967 Permission”) and the status of an order made by Drake J in this court on 9 July 1987 (“the 1987 Order”), when he declared that the January 1967 Permission had been lawfully granted and that the development permitted by it had been begun and might be lawfully completed at any time in the future.
In brief, Hillside contends that it is entitled to complete the remaining parts of the development permitted by the January 1967 Permission, because the Authority is bound by the 1987 Order and, in any event, because on its true construction the January 1967 Permission remains capable of being complied with. The Authority, to the contrary, contends that the 1987 Order was made per incuriam and does not bind the Authority and that the January 1967 Permission cannot now be complied with because, by reason of subsequent development of the Site pursuant to further grants of planning permission after January 1967 (the “Additional Permissions”), it is no longer possible to achieve full compliance with the January 1967 Permission.
I am grateful to Mr Lowe QC and Mr Green, counsel for Hillside, and to Mr Lewis, counsel for the Authority, for their helpful submissions.
The facts
Until 1987
The January 1967 Permission was granted by Merioneth County Council on 10 January 1967 upon the application of Hillside's predecessor in title. The application for planning permission, dated 19 December 1966, described the proposed development (Section 3) as “Clusters of residential dwellings” and stated (Section 9) that there were to be 401 dwellings. The standard form of wording on the back page of the application form, signed on behalf of the applicant, stated:
“I/We hereby apply for permission to carry out the development described in this application and on the attached plans.
I/We hereby undertake to carry out this development in all respects in conformity with the details now submitted and/or in accordance with the Town and Country Planning Acts and any permission granted thereunder.”
Among the plans submitted with the application, only one (“the Master Plan”) is relevant for present purposes. It showed the proposed siting of all 401 houses on the Site as well as the internal road network. A key on the Master Plan referred to five main types of dwelling on the Site: Type A (3-bedroom semi-detached or terrace); Type B (2-bedroom bungalow); Type C (2-bedroom flat); Type D (3-bedroom and study bedroom); and Type E (2-bedroom and study bedroom).
The letter dated 19 December 1966 from Mr John H. D. Madin (a planning consultant who acted for the owner of the Site and subsequently acquired the Site himself), under cover of which the application was submitted, explained:
“The whole scheme has been designed so as to harmonise with the natural landscaping of the whole site, and to this end we have introduced a liberal amount of open space, which will be carefully maintained in conjunction with the development of the flats for the use of residents and visitors. The main lines of the public path have been retained so as to provide a further amenity to the citizens of Aberdovey and their visitors.
The high land in the centre of this development overlooking the Estuary is to be retained as open space. It is proposed to construct a carefully designed gazebo from which to view the Estuary. We have tried to avoid continuous unbroken road frontages, and have clustered the dwellings in groups with the open space running between, and it would be the intention to complete each group with its landscaping as the development proceeds.”
Merioneth County Council granted the January 1967 Permission on 10 January 1967 and expressly incorporated the application:
“The above-named Local Planning Authority hereby grant permission for the development proposed by you in your application dated the 19 th day of December 1966 of the land situate at Balkan Hill, Aberdovey by the erection of dwellinghouses and shown on the accompanying plans, subject to … the conditions specified hereunder:
agreement being reached on water supply before any work is carried out.”
Construction work on the first two houses on the Site began very shortly after the grant of permission and was soon completed. However, because of a problem with ground levels the houses were not in the position designated on the Master Plan. Accordingly, on 17 March 1967 Mr Madin applied for planning permission for the houses as built, and the permission was granted on 4 April 1967 in the following terms:
“The above-named Local Planning Authority hereby grant permission for the development proposed by you in your application dated the 17 th day of March 1967 of the land situate on the lower site of Balkan Hill development, Aberdovey by the erection of one pair of semi-detached dwellinghouses …”
In August 1967 Mr Madin submitted a further application, which he explained in a letter dated 30 August 1967:
“Due to site conditions which only became apparent after the complete excavation for the first pair of houses within the old quarry, and to maintain the units as a pair as approved, it has been found necessary to further excavate.
This gives an opportunity to create a further unit in the form of a three bedroom flat and would be finished in natural stone facing, to improve the appearance of the whole building.
I enclose duplicate copies of my drawings nos. 587/101 and /400 indicating my proposals and would be grateful to receive your approval for this amendment to the approved designs.”
Pursuant to that application, on 14 September 1967 Merioneth County Council granted permission for the development “of the land situate at Balkan Hill, Aberdovey by the erection of a three bedroom flat”.
These were the first of the Additional Permissions. It is unnecessary to recite the subsequent planning history to 1987 in detail. Suffice it to say that in the period from April 1967 until October 1974 the local planning authority from time to time (Merioneth County Council before April 1974, and Gwynedd County Council thereafter) granted a total of eight planning permissions relating to the construction of houses, apartments and/or garages on the Site, all of them representing some kind of departure from the scheme of development set out in the Master Plan in respect of either the location or the nature of the buildings or both of them. (The last of these eight permissions, dated 14 October 1974 and the only one to be granted by Gwynedd County Council, was the approval of amendments to detailed plans for the “approved scheme at Hillside, Balkan Hill, Aberdyfi” but was given pursuant to a condition on a planning permission granted on 6 September 1966.)
In 1985, when seven of the total of 14 Additional Permissions had been granted, a dispute arose between Gwynedd County Council and the owner of the site at the time, Landmaster Investments Ltd (“Landmaster”). Gwynedd County Council denied that the January 1967 Permission was valid and extant. Landmaster issued a writ in the Queen's Bench Division of the High Court, claiming certain declarations: that the January 1967 Permission was lawfully granted (which in fact was never in issue); that it could be implemented in its entirety without the need for further permission or approval; that the development permitted by it had begun and might be lawfully completed at any time in the future; and that the condition in the January 1967 Permission was satisfied if, prior to the particular part of the development thereby permitted being undertaken, the agreement of the responsible water supply authority was obtained.
By its defence, Gwynedd admitted that the January 1967 Permission had been lawfully granted but averred that it had lapsed because the development permitted by it had not begun or, alternatively, had not been lawfully begun in accordance with the condition before 1 April 1974, which was taken as the date by which the permission had to be implemented. There was also a dispute as to the requirements of the condition; that dispute has no bearing on this case.
The action came on for trial in the Queen's Bench Division before Drake J over several days in June and July 1987. He gave judgment on 9 July 1987. In short, he accepted Landmaster's case and granted the relief sought.
The 1987 Judgment and Order
In his judgment, Drake J explained the issues before him, which concerned the requirements of effective implementation of the January 1967 Permission and, in...
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