Hillside Parks Ltd v Snowdonia National Park Authority
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Lady Justice Nicola Davies,Lord Justice David Richards |
| Judgment Date | 03 November 2020 |
| Neutral Citation | [2020] EWCA Civ 1440 |
| Docket Number | Case No: A2/2019/2802 & A2/2019/2804 |
| Court | Court of Appeal (Civil Division) |
[2020] EWCA Civ 1440
Lord Justice David Richards
Lord Justice Singh
and
Lady Justice Nicola Davies DBE
Case No: A2/2019/2802 & A2/2019/2804
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
HHJ KEYSER QC (sitting as a judge of the High Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Robin Green (instructed by Aaron & Partners LLP) for the Appellant
Mr Gwion Lewis (instructed by Geldards LLP) for the Respondent
Hearing dates: 7 and 8 October 2020
Approved Judgment
Introduction
This is an appeal against the order of HHJ Keyser QC (sitting as a judge of the High Court), dismissing the Appellant's claim for certain declarations relating to the current status of a planning permission granted in 1967. The judgment was given on 8 October 2019.
Permission to appeal to this Court was granted by Leggatt LJ on 19 December 2019.
Factual Background
Events from 1966 to 1987
The case concerns a site comprising 28.89 acres of land at Balkan Hill, Aberdyfi, (“the Site”). Planning permission was applied for on 19 December 1966 by Mr John Madin and was granted by Merioneth County Council, which was at that time the local planning authority, on 10 January 1967 (“the 1967 permission”). The relevant application, which incorporated a plan referred to as the “Master Plan”, was for the development of 401 dwellings. The proposed siting for each of the dwellings was shown on the plan along with a proposed internal road network. The Master Plan detailed five key types of dwelling: Type A (3-bedroom semi 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 1967 permission was granted subject to one condition, that water supply be agreed before work commenced. That condition does not give rise to any issue in the present appeal.
Building of the first two houses began on 29 March 1967, but the approved location was found to be the site of an old quarry. Planning permission was applied for the houses as built and granted on 4 April 1967. Further planning permissions for departures from the Master Plan were granted on:
(1) 14 September 1967 for the addition of a 3-bedroom flat to the two built houses;
(2) 22 October 1970 for 2 houses and 5 garages which departed from the Master Plan on the Site “as part of development already approved”;
(3) 9 May 1972 for “adjustments to the agreed layout”;
(4) 13 June 1972 for “variation to approved plans for 2 flats with garages beneath”;
(5) 19 October 1972 for the “erection of dwelling houses and garages”; and
(6) 28 June 1973 for another variation to the layout of the Master Plan.
Merioneth County Council was replaced by Gwynedd County Council on 1 April 1974.
Landmaster Investments Limited acquired the Site in June 1978.
A dispute arose between the parties in January 1985, which led to proceedings being issued in the High Court. Gwynedd County Council denied that the 1967 permission was still valid.
The action before Drake J in 1987
The action was commenced by writ on 8 May 1985. The statement of claim sought declarations as to the status of the 1967 permission.
In the pleaded defence, dated 21 June 1985, issue was taken with the application for the declarations numbered 2, 3 and 4. The two issues that were raised, at paras. 6 and 7 of the defence, were that, first, the development permitted had not begun before 1 April 1974 and therefore could not lawfully be carried out because the permission had expired by operation of law; alternatively, if the development was begun before 1 April 1974, it was alleged to be in breach of the condition attached to the 1967 permission as to an adequate water supply.
Drake J gave judgment after a six day trial on 9 July 1987. By the time of the hearing before him the issues had been clarified, as he set out at page 2 of his judgment. It was agreed by the defendant that the 1967 permission was lawful. The defendant's contentions were as follows:
(1) The condition as to water supply was never fulfilled.
(2) Certain development on the land was carried out but, as the condition had not been satisfied, such development was unlawful.
(3) As no lawful development was ever commenced, the 1967 permission lapsed on 1 April 1974 by operation of law as a result of the statutory time limit for implementation of a planning permission.
(4) Such development as had been carried out was not pursuant to the 1967 permission but was pursuant to subsequent planning permissions granted in response to subsequent applications for certain development on the land.
It is clear from the judgment of Drake J that he viewed the subsequent grants of planning permission, for example that granted on 4 April 1967, as “a variation of the Master Plan”: see e.g. page 13G of his judgment.
It was common ground before us that, strictly speaking as a matter of law, the power to vary a planning permission did not exist at the material time and only exists in limited form even now, since amending legislation was enacted by Parliament in 1987 and subsequently. Nevertheless, what is submitted on behalf of the Appellant is that, as a matter of substance, the judgment of Drake J (and indeed the understanding of the local planning authority at the time) was that the subsequent permissions which were granted were in effect variations of the 1967 permission rather than additional permissions. Certainly this is consistent with the conclusion reached by Drake J at page 20C of his judgment:
“… Although development has gone on very slowly and with a number of variations, the Master Plan remains in force, and if the development is allowed to progress further it can be completed substantially in accordance with the rest of the Master Plan.”
Judgment was given by Drake J on 9 July 1987 and an order was made granting four declarations to the following effect. First, the full planning permission of 10 January 1967 was lawfully granted. Secondly, the 1967 permission was a “full permission which could be implemented in its entirety without the need to obtain any further planning permission or planning approval of details”. Thirdly, “the development permitted by the January 1967 Permission has begun; and that it may lawfully be completed at any time in the future”. The fourth declaration concerned the satisfaction of the condition attached to the 1967 permission. It is the third declaration that is of particular relevance to the present proceedings.
Events since the judgment of Drake J
Hillside Parks Limited acquired the Site from Landmaster Investments Limited on 6 February 1988. It is the Appellant before this Court.
Snowdonia National Park Authority (“the Authority” or “the Respondent”) came into existence on 23 November 1995 and became the relevant local planning authority for the Site on 1 April 1996.
Departures from the Master Plan were granted by the Authority on:
(1) 27 June 1996 for a single dwelling house as a variation to the 1967 Permission.
(2) 20 June 1997 for “two terraces forming: 1 attached dwelling, six apartment units and 8 garages with apartments over” as a variation to the 1967 permission.
(3) 18 September 2000 for a two-storey detached dwelling house and garage on Plot 5 of the Site.
(4) 24 August 2004 for 5 detached houses and 5 garages as a variation to the 1967 permission.
(5) 4 March 2005 for the erection of a 2-storey dwelling and detached garage on Plot 17 on the Site.
(6) 25 August 2005 for the erection of a detached dwelling at Plot 3 of “Phase 1” on the Site.
(7) 20 May 2009 for the erection of 3 pairs of dwellings.
(8) 5 January 2011 for 1 dwelling at Plot 3 on the Site.
On 23 May 2017, the Authority contacted the Appellant, stating that, in its view, the 1967 permission could no longer be implemented because the developments carried out in accordance with the later planning permissions rendered it impossible to implement the original Master Plan. The Authority required that all works at the Site should be stopped until the planning situation had been regularised.
The present proceedings
The present proceedings were commenced by the Appellant as a claim under CPR Part 8. The details of the claim set out the history and the nature of the dispute which had arisen between the parties from 2017. The Appellant sought the following declarations, at para. 17:
(1) The Respondent is bound by the judgment and declarations of Drake J given on 9 July 1987.
(2) The planning permission granted on 10 January 1967 by Merioneth County Council with reference number TOW.U/1115/P is a valid and extant permission.
(3) The said planning permission may be carried on to completion, save insofar as development has been or is carried out pursuant to subsequent planning permissions granted for alternative residential development.
It should be noted that there was an application by the Authority to strike out the claim on the ground, among others, that it was an abuse of process because the argument in the claim should have been made under the planning legislation by way of an application for a certificate of lawful development. An application for a certificate of lawfulness of proposed development can be made under section 192 of the Town and Country Planning Act 1990. That application to strike out was dismissed by HHJ Keyser QC on 10 May 2019 and no more need to be said...
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