Kent County Council v Kenworthy; Kingsway Investments (Kent) Ltd v Kent County Council
| Jurisdiction | UK Non-devolved |
| Judge | Lord Reid,Lord Morris of Borth-y-Gest,Lord Guest,Lord Upjohn,Lord Donovan |
| Judgment Date | 16 December 1969 |
| Judgment citation (vLex) | [1969] UKHL J1216-2 |
| Date | 16 December 1969 |
| Court | House of Lords |
[1969] UKHL J1216-2
Lord Reid
Lord Morris of Borth-y-Gest
Lord Guest
Lord Upjohn
Lord Donovan
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause County Council of the Administrative County of Kent against Kenworthy, that the Committee had heard Counsel, as well on Monday the 27th, Wednesday the 29th and Thursday the 30th, days of October last, as on Monday the 3d, Tuesday the 4th, Wednesday the 5th, Thursday the 6th and Monday the 10th, days of November last, upon the Petition and Appeal of the County Council of the Administrative County of Kent, of County Hall, Maidstone, in the County of Kent, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 10th of December 1968, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of Allan Kenworthy, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 10th day of December 1969, complained of in the said Appeal, be, and the same is hereby, Reversed, and that judgment be entered for the Defendants: And it is further Ordered, That the Respondent do pay, or cause to be paid, to the said Appellants the Costs incurred by them in the Courts below, and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
Upon Report from the Appellate Committee, to whom was referred the Cause County Council of the Administrative County of Kent against Kingsway Investments (Kent) Limited, that the Committee had heard Counsel, as well on Monday the 27th, Wednesday the 29th and Thursday the 30th, days of October last, as on Monday the 3d, Tuesday the 4th, Wednesday the 5th, Thursday the 6th and Monday the 10th, days of November last, upon the Petition and Appeal of the County Council of the Administrative County of Kent, of County Hall, Maidstone, in the County of Kent, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 10th of December 1968, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of Kingsway Investments (Kent) Limited, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 10th day of December 1968, complained of in the said Appeal, be, and the same is hereby, Reversed, and that judgment be entered for the Defendants: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellants the Costs incurred by them in the Courts below, save that the Appellants do pay to the said Respondents their Costs of, and occasioned by, the striking out of paragraph 8 of the Defence pursuant to the Order of the Honourable Mr. Justice Lyell, of the 29th day of April 1968: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellants the Costs incurred by them in respect of the said Appeal to this House, the amount of such Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
The facts in these two cases have been set out by my noble and learned friends and I shall not repeat them. Nor shall I deal with the matter on which your Lordships are all agreed—that there can be valid conditions setting time limits to planning permissions if something is not done within a prescribed time. The question in these cases is whether on their true construction the conditions as to time attached by the Appellants to outline planning permissions granted to the Respondents are or are not valid.
Section 14(1) of the Town and Country Planning Act, 1947, authorises the local planning authority to grant permission to develop land "subject to such conditions as they think fit". But it is, I think, clear that there are limitations on this power to impose conditions. In the first place, any condition must be reasonably related to planning considerations. Secondly, it must not be ultra vires. And thirdly it must not be unreasonable—using that word in a somewhat restricted sense. I do not think that ultra vires and unreasonableness are indistinguishable. A condition is ultra vires if it conflicts with some requirement of the Act. But it may not be unreasonable to attempt to do something which the Act forbids.
These conditions were reasonably related to planning control. If, after outline permission has been given for one development in a particular area, another developer seeks permission for another development in that area, there may be nothing intrinsically wrong with the second proposed development but on planning grounds there may be no room for both in the same area. So in order to do justice to the second application the planning authority must know within a reasonable time whether the first scheme is to proceed. And that requires that some time limit should be put on the availability of the first permission. And no doubt there are other justifications for time limits.
But a time limit can only be intra vires if it does not conflict with the applicant's statutory right to appeal to the Minister should the local planning authority decide against him. The applicant must act reasonably. He cannot be heard to complain if unreasonable action on his part deprives him of his right to appeal. But he can complain if the operation of the time condition is such that by reason of matters not within his control he may be deprived of that right. I say "may be deprived" because the validity of a condition must be capable of determination when it is first imposed. So if there is any substantial chance that, notwithstanding reasonable action on his part, the condition may operate to cut off his statutory right then the condition must be ultra vires.
I can see nothing wrong in a condition that plans must be approved within three years provided that if at the end of that period an appeal is pending before the Minister the time shall be extended so that the Minister can decide that appeal. If the applicant submits his plans for approval by the local planning authority more than two months before the expiration of the three years no action or inaction of that authority can prevent him from appealing within the three years. If the authority approves within that period well and good—the condition is satisfied. If it rejects or seeks to modify the plans within two months then the applicant can immediately appeal. If it comes to no decision within that period then the Act allows an immediate appeal on the ground that the authority is deemed to have refused the application. And it is not unreasonable that the applicant should have to submit his plans for approval at least two months before the end of the three years.
But it would in my view be ultra vires to impose a condition that the outline permission shall cease to have effect at the end of three years unless plans have been approved within that period. The applicant cannot control the time which the Minister may take to dispose of an appeal, and these matters are often so complicated that the Minister may need more than a year to carry out his duties and reach a decision. So the applicant cannot know how long before the expiry of the three years he must submit his plans for approval if he is to be sure of getting a final decision within that period. It may be that in the great majority of cases there would be no difficulty in getting a decision within three years even where an appeal to the Minister is necessary. But as I have said the validity of a condition must be determinable when it is imposed. Circumstances may change and complications may arise even in an apparently simple case. So I do not think we can say that in some cases such a condition would be valid but in others invalid.
It was not argued that there can be any difference between the first (Kingsway) case where the position was complicated and the second (Kenworthy) where it was comparatively simple. So I shall deal first with the condition in the Kenworthy case because it is more simply expressed. Two conditions were imposed in each case and those imposed in the Kenworthy case were:
"1. The subsequent submission and approval of details relating to:—
( a) Siting, height, design and/or external appearance of the building,
( b) means of...
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