I'M Your Man Ltd v Secretary of State for the Environment
| Jurisdiction | England & Wales |
| Judge | THE DEPUTY JUDGE |
| Judgment Date | 04 September 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0904-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CO/728/98 |
| Date | 04 September 1998 |
[1998] EWCA Civ J0904-3
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)
Royal Courts of Justice
The Strand
Mr Purchase Qc
(Sitting as a Deputy High Court Judge)
CO/728/98
MR P BROWN (Instructed by Messrs Davies & Partners, Gloucester GL4 7RT) appeared on behalf of the Applicant.
MR R SINGH [MS S DAVIES—for judgment] (Instructed by the Treasury Solicitors) appeared on behalf of the Respondent.
Friday, 4 September 1998
In this application I'm Your Man Limited applies under Section 288 of the Town and Country Planning Act 1990, to quash the decision of an Inspector appointed by the First Respondent dismissing the Applicant's appeal from the refusal by the Second Respondent of planning permission for the permanent use for sales, exhibitions and leisure activities of buildings at Weston Business Park, the Airport, Locking Moor Road, Weston-Super-Mare. This application gives rise to an important point of principle concerning "limitations" imposed on planning permission. Put shortly, on the 15th February 1995 an Inspector on appeal granted planning permission for the use of the buildings for "sales, exhibitions and leisure activities for a temporary period of seven years". No condition was imposed requiring cessation of that use at the end of seven years. Would continuance of the use beyond seven years constitute a breach of planning control? In other words, was the permission in effect permanent or temporary. Additionally there are related issues (1) whether the status of the permission was material to the decision with which this application is concerned and (2) discretion. Mr Paul Brown, who appears for the Applicant, accepts that, if on its true construction the earlier permission was temporary, his application must fail. I will deal with the main issue before considering the other issues.
Permanent or Temporary?
Background
The appeal premises comprise two large hangars and ancillary accommodation on the former Weston Airport. In 1994 application was made for planning permission for the use of the buildings for sales, exhibitions and leisure activities for a temporary period of seven years. An appeal was made against non-determination. The appeal was conducted by written representations. In his decision letter dated the 15th February 1995, at paragraph 6, the Inspector identified the main issue as "the effect of the vehicle movements the proposal would generate on the free and safe flow of traffic on the A371." At paragraph 14 he concluded that the traffic generated would not be unduly detrimental in that respect. At paragraph 18 he allowed the appeal and granted "planning permission for additional use of warehouse/factory for sales, exhibitions and leisure activities for a temporary period of seven years at Weston Business Park…in accordance with the terms of the application" subject to various conditions, none of which required cessation of the use after seven years. On the 17th April 1997 the Applicant applied for the permanent use of the premises for the same purposes. That application was refused. The Applicant appealed, relying, inter alia, on the ground that the 1995 permission was in effect a permanent planning permission. The appeal was also conducted by written representations. In the representations at para. 1.03, the Applicant explained that what was sought was confirmation that the permitted use was permanent. In Section 5 of the representations it set out reasons why the 1995 permission was in effect permanent. In their response the Second Respondent commented on the Applicant's representations, including the following:
"8.1 Much of the (Applicant's) statement strives to justify why the existing seven year temporary consent is in fact permanent…the Local Authority would suggest that the temporary seven year period was implicit in the previous consent and unambiguously stated within the description. Seven years was the period applied for and it was clearly on this basis that the Inspector reached his decision. There appears to the Local Authority to be no justification whatsoever either legislative or otherwise to disregard this unequivocal statement by the Department of the Environment.
8.2 The authority fails to understand the (Applicant's) claim that the permanent use of the site would somehow be exempt from enforcement action. It is a statutory obligation of any local planning authority to investigate breaches of planning permission and then act accordingly."
In his decision letter dated the 16th January 1998 the Inspector referred to the competing contentions at paragraphs 20 and 21. He continued:
"Whereas as I accept as a general point the thrust of your argument that the 1994 and 1995 permissions are material considerations in relation to this appeal, it is not for me to reach a conclusion as a matter of law as to whether or not the latter consent is of a temporary or permanent nature. Nevertheless, the fact that planning permission was granted conditionally on appeal in 1995 for the development now applied for is clearly a matter to which I shall afford weight in this appeal."
The Inspector did not thereafter make a clear finding whether or not the 1995 permission was temporary or permanent in effect. I will deal with the remainder of the decision letter, so far as relevant, later in this judgment. He dismissed the appeal.
The Statutory Provisions
It is convenient in the first place to set out the relevant statutory provisions. By Section 57(1) of the 1990 Act, subject to the subsequent provisions of the Section, planning permission is required for the carrying out of any development of land. So far as relevant, by Section 55(1) development means the making of any material change in the use of any buildings or other land. By Section 58 planning permission may be granted by a Development Order or by the Local Planning Authority (or the Secretary of State) on application to the authority in accordance with a Development Order.
By Section 60(1) planning permission granted by a Development Order may be granted either unconditionally or subject to such conditions or limitations as may be specified in the Order. I would comment that that provision has remained in substantially the same form since the Town and Country Planning Act 1947 (see 1947 Section 13(2)). Thus, in the Town and Country Planning General Development Order 1988 and the current General Permitted Development Order 1995 planning permission was and now is granted "subject to any relevant exception, limitation or conditions specified in the schedule". For example, Part 4, Class B of the 1995 Order permits the use of land for not more than 28 days in total in any calendar year subject to specified limitations and exceptions. While no conditions are specified under Class B, Class A (which deals with temporary buildings) is subject to conditions requiring that the buildings be removed and the land reinstated.
By Section 70(1) of the 1990 Act, where an application is made to the authority for planning permission, the authority may grant planning permission either unconditionally or subject to such conditions as it thinks fit or it may refuse permission. By Section 79 and Schedule 6 the Secretary of State or an Inspector on appeal may deal with the application as if it had been made to him in the first instance. Those provisions have also remained in substantially the same form since the 1947 Act (1947 Sections 14(1) and 16(2)).
Section 72(1) provides:
"Without prejudice to the generality of Section 70(1), conditions may be imposed on the grant of planning permission under that section…(b) for requiring the removal of any building or works authorised by the permission, or the discontinuance of any use of land so authorised, at the end of the specified period, and the carrying out of any works required for the reinstatement of land at the end of that period."
Article 22 of the General Development Procedure Order 1995 requires that a decision notice shall "state clearly and precisely the full reasons…for any condition imposed…". Section 78 (1)(a) provides a right of appeal where the Planning Authority "refuse an application or grant it subject to conditions".
I note that, in contrast to the power granted in respect of the grant of planning permission by Development Order (which expressly includes the imposition of limitations) and the provisions specifically providing for the imposition of and appeal against conditions, there is no express power to impose limitations on the grant of planning permission on an application.
Section 57(2) provides:
"Where planning permission to develop land has been granted for a limited period, planning permission is not required for the resumption, at the end of that period, of its use for the purpose for which it was normally used before the permission was granted".
Section 72(2) provides:
"A planning permission granted subject to such a condition as mentioned in sub-section (1)(b) is in this Act referred to as "Planning permission granted for a limited period"."
Section 72(1)(b) (to which I have referred above) provides for the imposition of a condition requiring the removal of buildings or works for the discontinuance of use of land at the end of a specified period. The definition does not, therefore, include the imposition of a time limit by limitation. In contrast, Section 57(3) provides:
"Where by a Development Order planning permission to develop land has been granted subject to limitations, planning permission is not required for the use of that land which...
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