Norfolk Homes Ltd v North Norfolk District Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 20 August 2020 |
| Neutral Citation | [2020] EWHC 2265 (QB) |
| Docket Number | Case No: QB-2019-004500 |
| Court | Queen's Bench Division |
| Date | 20 August 2020 |
[2020] EWHC 2265 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HON. Mr Justice Holgate
Case No: QB-2019-004500
Mr. Christopher Lockhart-Mummery QC (instructed by DLA Piper) for the Claimant
Ms. Estelle Dehon (instructed by eastlaw) for the First Defendant
The Second Defendant did not appear and was not represented
Hearing date: 21 st July 2020
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.
THE HON. Mr Justice Holgate
Introduction
The Claimant, Norfolk Homes Limited (“NHL”) is a developer and the owner of land off Cley Road, Woodfield Road, Holt Norfolk (“the site”). The First Defendant, North Norfolk District Council (“NNDC”) is the relevant local planning authority.
On 15 August 2011 NHL an outline application (with all matters reserved apart from means of access) was submitted to NNDC for planning permission for the erection of up to 85 dwellings, access, public open space and associated infrastructure. NNDC resolved to grant planning permission subject to the prior execution of a deed under s.106 of the Town and Country Planning Act 1990 (“TCPA 1990”) between the then landowner, NNDC and Norfolk County Council (“NCC”) to secure the provision of 45% of the total number of units constructed as affordable housing together with a number of financial contributions. On 22 June 2012 the section 106 obligation was executed (“the 2012 agreement”). On 26 June 2012 NNDC issued the decision notice granting planning permission under reference PO/11/0978 (“the 2012 permission”).
On 19 September 2013 NNDC granted a planning permission under s.73 of TCPA 1990 (reference PF/15/0774) for the purpose of varying two of the conditions on the 2012 permission (“the 2013 permission”). On 2 September 2015 NNDC granted another s.73 planning permission (reference PF/15/0774), in order to remove conditions 19 and 20 of permission PO/11/0978 and substitute a new condition requiring construction details for reducing energy demand to be submitted for approval (“the 2015 permission”). The grant of the 2013 and the 2015 permissions was not made contingent upon the prior execution of any further s.106 obligation, in particular, one imposing the same requirements as those contained in the agreement dated 22 June 2012.
On 7 September 2018 NNDC issued a decision notice under s.192 of TCPA 1990 refusing a certificate that PF/15/0774 could lawfully be implemented without triggering the landowner's obligations under the 2012 agreement. NNDC set out their reasoning as to why development could not lawfully be carried out under permission PF/15/0774 without complying with that agreement. NHL explained that the s.192 application had been made as a straightforward and economical way of testing the legality of continuing to implement the 2015 permission.
NHL did not appeal NNDC's refusal of the application for the certificate because they recognised that it had been “made outside the limited terms of section 192 of the Act, and there would be no jurisdiction to determine the appeal” (footnote 1 of NHL's skeleton). That would appear to be correct. Section 191 enables the planning authority to determine (inter alia) whether operations which have been carried out are lawful and whether “any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful”. Section 192 enables the authority to determine whether any operations proposed to be carried out on land would be lawful. These provisions do not enable the legal effect of non-compliance with a s.106 obligation to be tested (see also s. 193(5)). Such an obligation is a freestanding legal instrument which does not form part of the grant of any planning permission and its conditions (see further below).
Accordingly, NHL brings the present proceedings under CPR Part 8 seeking:-
(i) A declaration that the continuing residential development of land off Cley Road and Woodfield Road, Holt, Norfolk pursuant to the 2015 permission (PF/15/0774) is not subject to any of the owner's obligations contained in the 2012 agreement; and
(ii) An order requiring NNDC to remove any reference to the 2012 agreement from the local land charges register within 28 days of the Court's judgment.
If NHL is entitled to relief under (i) above, NNDC does not resist relief under (ii). That is because it is common ground that both the 2012 and 2013 permissions have lapsed by becoming time-expired, and so the 2012 agreement must have ceased to have effect (under clause 7.7 referred to below) unless the term “Planning Permission” in the 2012 agreement includes the 2015 permission.
Ms. Estelle Dehon submits on behalf of NNDC that NHL is not entitled to that relief, relying on two alternative lines of argument:-
(1) On a proper interpretation of the 2012 agreement and the subsequent “variations” of the 2012 planning permission according to their plain and natural meaning, and in the light of the Supreme Court's decision in Lambeth London Borough Council v Secretary of State for Housing, Communities and Local Government [2019] 1 WLR 4317, the owner's obligations in the 2012 agreement apply to development carried out under the 2015 permission; or
(2) Additional wording should be implied into the 2012 agreement so that: “Development” would mean “the development carried out pursuant to the Planning Permission granted in accordance with the Application [i.e. PO/11/0978] or any variation under section 73 of the Act”; and “Planning Permission” would mean “the outline planning permission subject to conditions to be granted by the Council pursuant to the Application as set out in the Second Schedule, or any variations of those conditions under s.73 of the Act”.
The words I have italicised in [7(2)] above represent the additional wording which NNDC seeks to imply into the 2012 agreement. It is common ground between the parties that if the implication of that language can be justified, the legal consequence would be that the owner's obligations in that agreement would apply to the carrying out of development under the 2015 permission. However, Mr Lockhart-Mummery QC submitted on behalf of NHL that each of NNDC's arguments is unsustainable.
NCC was also due to receive various financial contributions under the 2012 agreement. However, in its Acknowledgement of Service NCC stated that it did not intend to contest the claim. This was in line with an email sent by its legal department on 4 September 2019.
NHL applied for summary judgment on its claim. The application came before Thornton J on 5 March 2020. The judge dismissed the application. In her judgment she explained why she was not satisfied that the case raised any short points of law or, more particularly, that the parties had had an adequate opportunity in the context of that application to make submissions on the legal issues involved, or that NNDC did not have a real prospect of successfully defending the claim. Accordingly, the matter proceeded to trial.
I wish to express my gratitude to both Counsel for their helpful written and oral submissions.
The remainder of this judgment is set out under the following headings:-
The 2012 planning permission and the 2012 agreement
| Heading | Paragraph Numbers |
| The 2012 planning permission and the 2012 agreement | 13 – 30 |
| The section 73 planning permissions | 31 – 46 |
| The Statutory Framework | 47 – 60 |
| Issue (1): the interpretation of the 2012 agreement | 61 – 102 |
| Issue (2): whether additional words should be implied in the 2012 agreement | 103 – 130 |
| Conclusion | 131 |
The 2012 planning permission (PO/11/0978) granted permission for the development of up to 85 dwellings, access, public open space and infrastructure subject to 22 conditions.
Condition 2 provided that the reserved matters related to the appearance, landscaping, layout and scale of the development. Condition 1 imposed a standard time limit for the duration of the consent. All applications for approval of reserved matters had to be made within 3 years beginning with 26 June 2012 and these matters had to be approved before any development could commence. The development had to be begun not later than the expiration of 2 years from final approval of the reserved matters. Other conditions on the permission required further detailed approvals to be obtained before development could lawfully commence.
Condition 3 provided that the permission was granted in accordance with certain specified plans, which included a Site Parameters Plan (drawing PL-003 Revision E) and Junction Access Plans (G261/APP1; G261/APP2 and G261/APP3).
Linked to NNDC's approval of the access arrangements under the 2012 permission, condition 7 provided that a maximum of 12 dwellings could be served by the vehicular access off Cley Road.
Condition 19 required all dwellings to achieve a rating of “Code Level 3” for sustainable methods of construction and to be certified as such prior to occupation. Condition 20 required details to be submitted and approved, prior to commencement of any development, as to how at least 10% of energy supply for the development would be secured from renewable or low-carbon sources.
The 2012 permission was accompanied by “Notes” which did not form part...
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