Melap Singh v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HICKINBOTTOM |
| Judgment Date | 12 February 2010 |
| Neutral Citation | [2010] EWHC 1621 (Admin) |
| Docket Number | Case No: CO/6776/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 February 2010 |
[2010] EWHC 1621 (Admin)
Before: MR JUSTICE HICKINBOTTOM
Case No: CO/6776/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Birmingham Civil Justice Centre
Priory Courts
33 Bull Street
Birmingham
B4 6DS
Miss Clover appeared on behalf of the Claimant
Mr Kimblin appeared on behalf of the First Defendant
The Second Defendant was not represented, but representatives attended to observe
(As Approved)
MR JUSTICE HICKINBOTTOM:
Introduction
This is an application under section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) in which the Claimant, Melap Singh, seeks to quash a decision dated 5 June 2009 of an inspector (Mr D A Hainsworth, “the Inspector”), appointed by the First Defendant Secretary of State, in which he dismissed an appeal by the Claimant against the refusal by the Second Defendant planning authority of a Certificate of Lawful Use or Development for which he had applied under section 191(1) of the 1990 Act.
Background
A landowner is entitled to make any number of applications for planning permission for development of the same land. The owners of 128 Harborne Road, Oldbury (which occupies a site at the corner of Harborne Road and Lenwade Road) have taken full advantage of that right.
In 2003 the then-owner submitted an application for the construction of a two-storey extension at the back of the existing house, with a family room on house level and a double garage below. The development also involved a proposed driveway opening onto Lenwade Road. The development was shown on a number of plans lodged with the application. Full planning permission was granted on 16 April 2003, with reference number DC/02/39783 (“the 2003 Permission”). The grant was subject to a number of conditions, including:
“1. The development must conform with the terms of, and the plans accompanying the application for permission and must remain in conformity with such terms and plans, save as may be otherwise required by… approved amendments….
2. …
3. The landscaping and planting scheme shown on the approved plan shall be implemented within three months of the development being brought into use.”
The Claimant obtained an interest in the property in July 2004, with the 2003 Permission in place —although no works under it had by then commenced.
On 6 December 2004 he applied for planning permission for demolition of the existing double garage and single-storey extension, and the construction of a new house (to be 126 Harborne Road, “the new dwelling”) alongside the existing house (which was to remain as 128 Harborne Road, “the existing dwelling”). A driveway was shown on the plans leading off Lenwade Road, to a detached double garage that would have a garage for each of the dwellings, and three parking places. Although the driveway was to emerge into Lenwade Road at the same point as the proposed driveway under the 2003 Permission, it was proposed that the new dwelling would be built on part of the driveway and turning circle shown in the plans of that earlier permission. Under the proposed new development, part of the garden area to the existing dwelling would also fall within the garden area of the new dwelling.
On 3 March 2005 planning permission was granted for that development with reference number DC/04/ 43719 (later amended retrospectively but, for the purposes of this application, immaterially by DC/06/47185) (“the 2005 Permission”). That permission was subject to the same Condition 1 as the 2003 Permission.
In 2006 the Claimant submitted a further planning application involving the construction of a domestic store behind the existing dwelling, removal of trees, raising ground levels, construction of a retaining wall, and rationalization of amenity space; all substantively relating to the existing (rather than the new) dwelling. Planning permission was granted in relation to that in August 2009, following an appeal (“the 2009 Permission”) —but, save possibly for one aspect to which I shall come, that permission is not relevant to this application.
The Claimant commenced the works in respect of the development permitted under both the 2003 and 2005 Permissions. In relation to the 2003 Permission, retaining walls were built and trenches excavated. It is rightly not in issue that that amounts to a material operation comprised in the development —and therefore the development has commenced. In relation to the 2005 Permission, the new dwelling was completed, and the Claimant and his family are living in it as a family home.
The new dwelling have been completed, the Claimant then wished to build the extension the subject of the 2003 Permission, and, on 26 November 2008, he applied for a Certificate of Lawful Use or Development, the application being for “completion of part-constructed family room and garage extension as [the 2003 Permission]”. Again, a plan accompanied the application, which proposed that a single-storey extension behind the existing dwelling be knocked down, and one of the double garages behind the new dwelling be converted into a car port that would enable a car to drive through that building to access the new garage building behind the existing dwelling.
That application was refused by the local planning authority on 31 December 2008, for reasons which included that the 2003 Permission was incompatible with, and was superseded by, the implementation of the 2005 Permission.
On 5 June 2009 the Claimant's appeal to the Secretary of State against that refusal was dismissed by the Inspector. The Inspector was satisfied that the planning authority's refusal of the application was well-founded and a certificate should not be granted because, he found, it was impossible to complete the 2003 development. His findings and reasons that led him to that conclusion are effectively set out in paragraph 11 of his decision, as follows:
“… [I]t would not be possible to complete the development in accordance with the terms of [the 2003 Permission]. Firstly, the driveway could not be constructed as approved, because of the double garage that belongs to the new [dwelling] has been built on some of the area needed for the driveway. Secondly, the turning area could not be constructed as approved, because part of this area is now in the garden area of the new [dwelling]. Thirdly, the garden could not be laid out as approved, because some of it is now in the garden area of the new [dwelling].”
It is against that decision that the Claimant now appeals, on the ground that the Inspector erred by misinterpreting and misapplying the law on “impossibility”, and hence erred in his conclusion that the 2003 Permission was, at the date of his decision, not capable of implementation and completion.
The Law
I was referred to a number of authorities, including Lucas & Sons v Dorking and Horley Rural District Council [1964] 17 P & CR 111, Pilkington v Secretary of State for the Environment [1973] 1 WLR 1527, Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] 1 AC 132 and Sage v Secretary of State for the Environment, Transport and the Regions [2003] 1 WLR 983, as well as provisions under the planning regulatory Scheme, from which I derive the following.
Under the planning regime, a landowner is entitled to make any number of applications for planning permission for the development of the same land “which his fancy dictates”, even though they may be mutually inconsistent: and the planning authority must deal with any such applications made ( Pilkington, per Lord Widgery LCJ at page 1531E-F, and Pioneer Aggregates per Lord Scarman at page 144C).
Although the planning regime was intended to be a comprehensive code, it may have lacunae —in the form of circumstances not envisaged or catered for at all by the regime —that require to be filled by the common law ( Pioneer Aggregates per Lord Scarman at page 141A-B). One such lacuna was identified in Pilkington. Where there are different developments for which separate permissions have been granted, and one has been completed or at least implemented, can the development permitted by the second permission proceed, and if so in what circumstances? The regulatory scheme did not cover that eventuality. Lord Widgery in Pilkington said at page 1532A-B:
“For this purpose I think one looks to see what is the development authorised in the permission which has to be implemented. One looks first to see that full scope of that which has been done or can be done pursuant to the permission which has been implemented. One then looks at the development which was permitted in the second permission, now sought to be implemented, and one asks oneself whether it is possible to carry out the development proposed in that second permission, having regard to that which was done or authorised to be done under the permission which has been implemented.”
Pilkington was approved by the Court of Appeal in Hoveringham Gravels v Chiltern District Council [1977] 76 LGR 533: and the theme of the passage I have quoted was taken up in Pioneer Aggregates, particularly in the speech of Lord Scarman (with whom the entire Judicial Committee agreed), who confirmed that by proceeding with one development, that may make “the development authorised in [another] permission incapable of being implemented” (page 145A). He did not consider that there would be any uncertainty or, it seems, difficulty in the application of this...
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