R (Cherwell District Council) v First Secretary of State
| Jurisdiction | England & Wales |
| Judge | Lord Justice Chadwick,Lord Justice Dyson,Mr Justice Munby |
| Judgment Date | 28 October 2004 |
| Neutral Citation | [2004] EWCA Civ 1420 |
| Docket Number | Case No: 2004/0929 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 October 2004 |
[2004] EWCA Civ 1420
The Right Honourable Lord Justice Chadwick
The Right Honourable Lord Justice Dyson and
The Honourable Mr Justice Munby
Case No: 2004/0929
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT (MR JUSTICE COLLINS)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr David Elvin QC and Mr Reuben Taylor (instructed by the Solicitor to Cherwell District Council, Bodicote House, Banbury, Oxfordshire, OX15 4AA) for the Appellant
Mr Philip Sales and Miss Sarah Moore (instructed by the Treasury Solicitor of Queen Anne's Chambers, 28 Broadway, London SW1H 9JS) for the Respondent
Mr Keith Lindblom QC and Mr Rupert Warren (instructed by Berwin Leighton Paisner of Adelaide House, London Bridge, London EC4R 9HA) for the Interested Party
Lord Justice Chadwick
This is an appeal from an order made on 6 April 2004 by Mr Justice Collins on an application to quash the decision of the First Secretary of State to approve proposals by the Home Office for the construction of an accommodation centre for asylum seekers on land at Piddington, near Bicester. The appellant, Cherwell District Council, is the local planning authority. The appeal raises points of some general importance in relation to the use of the non-statutory procedure introduced by Department of Environment Circular 18/84 (Crown Land and Crown Development) in connection with what may loosely be described as public/private partnership development projects.
The proposed development
In February 2002 the government published its proposals for the delivery of "a properly managed, robust and integrated system of immigration, nationality and asylum" in a White Paper – 'Secure Borders, Safe Haven: Integration with Diversity in Modern Britain'. In a letter to the District Council dated 14 May 2002 the Minister of State at the Home Office explained that the establishment of accommodation centres for asylum seekers was "a key element of this more tightly managed asylum system". He wrote:
"The centres will be an integral part of a seamless end-to-end process, from initial application through to integration or removal. The government will establish new centres, with a total capacity of 3,000, to accommodate a proportion of new asylum seekers from application through initial decision and any appeal. This will be taken forward on a trial basis.
The centres will provide full-board accommodation. Services, including health care, education, interpretation and opportunities for purposeful activities will also be provided for. . . ."
One of the sites selected by the Home Office in furtherance of this policy was redundant land near Bicester, comprising some 13.9 hectares owned by the Ministry of Defence and formerly used as a Defence Storage and Distribution Centre (DSDC) . A Planning Supporting Statement, prepared by planning consultants on behalf of the Home Office and sent to the District Council with the letter of 14 May 2002, describes, in detail, the proposals for the construction of an accommodation centre for 750 asylum seekers on that site. Paragraph 1.3 of that Statement explains that:
"The Home Office wishes to secure the planning principle for the development of the site and there will then be a design, build and operate (ie DBO) tender for all the Accommodation Centres. The Home Office will retain ownership of the site but the Centre will be operated by the chosen contractor (ie the successful DBO bidder) . The Home Office will work with the chosen contractor on the detailed design for the Centre. . . ."
Statutory control of development
Statutory control of development is now contained in the Town and Country Planning Act 1990. Section 55(1) of that Act defines "development" to include the carrying out of building operations in, on, over or under land or the making of any material change of use of any buildings or other land. There is no dispute that, to the extent that the 1990 Act applies to the development of land by or on behalf of the Crown, the Home Office proposals would constitute "development" within the meaning of section 55(1) .
Section 57(1) of the Act provides that, subject to the following provisions of that section (which are not material in the present context), planning permission is required for the carrying out of any development of land. Further provisions in Part III of the Act (Control over Development) provide for the grant of planning permission; the matters to be taken into account in determining applications for planning permission; the right of appeal to the Secretary of State; the power of the Secretary of State to direct that an application be referred to him; and the reference of matters by the Secretary of State to a Planning Inquiry Commission.
Part VII of the Act contains provisions for the enforcement of planning control. Section 171A provides that the carrying out of development without the required planning consent constitutes a breach of planning control; section 172 empowers the local planning authority to issue an enforcement notice where it appears to them that there has been a breach of planning control; section 179(1) provides that, where there has been a failure to comply with an enforcement notice, the person who is then the owner of the land is in breach of the notice; and section 179(2) provides that an owner of land who is in breach of an enforcement notice is guilty of an offence. Further enforcement powers are contained in sections 183 to 187 (stop notices) and 187B (powers to restrain breaches of planning control by injunction) .
Section 106 of the 1990 Act (as substituted by section 12(1) of the Planning and Compensation Act 1991), read with sections 106A and 106B, contains provisions for the control of development through the acceptance of 'planning obligations'. Section 106 provides that any person interested in land in the area of a local planning authority may, by agreement or otherwise, enter into an obligation restricting the development or use of the land in any specified way, requiring specified operations or activities to be carried out in, on, under or over the land or requiring the land to be used in any specified way – see paragraphs (a), (b) and (c) of section 106(1) . An obligation into which the landowner (or other person interested in the land) has entered pursuant to section 106 (a planning obligation) is enforceable by the local planning authority against successors in title—section 106(4) ; and may be enforced by injunction—section 106(5) . Sections 106A and 106B of the 1990 Act contain provisions for the discharge or modification of planning obligations; including provisions for an appeal to the Secretary of State from the decision of a local planning authority that the planning obligation shall continue to have effect without modification.
Control of development on Crown land
The extent to which the statutory control of development is applicable to the development of Crown land is now prescribed by the provisions in Part XIII of the 1990 Act. But those provisions must be read in the light of the underlying principle, recognised by this Court in Ministry of Agriculture, Fisheries and Food v Jenkins and another [1963] 2 QB 317 and affirmed by the House of Lords in Lord Advocate v Dumbarton District Council [1990] 2 AC 580, that – in the absence of express provision or necessary implication, the Crown is not bound by the Planning Acts.
The position was explained by Lord Denning, Master of the Rolls, in the Jenkins case at page 325:
"Looking at the whole of the Town and Country Planning Act, 1947, I am satisfied that the Crown does not need to get planning permission in respect of its own interest in Crown lands. The reason it is exempt is, not by virtue of any provision in the Act itself, but by reason of the general principle that the Crown is not bound by an Act unless it is expressly or impliedly included."
That approach was endorsed by Lord Keith of Kinkel (with whose speech the other members of the House agreed) in the Dumbarton case. He observed, at [1990] 2 AC 580, 603G, that the provisions in section 253 of the Town and Country Planning (Scotland) Act 1972, read as a whole, made it "quite clear that the whole Act proceeds on the assumption that the Crown is not subject to any requirement of planning permission for development carried out by it". He rejected the view, which had prevailed in the Court of Session, that where the Crown is not expressly bound "it is not bound by necessary implication when acting within its rights but is so bound when acting without any right"; holding it preferable:
". . . to stick to the simple rule that the Crown is not bound by any statutory provision unless there can somehow be gathered from the terms of the relevant Act an intention to that effect. The Crown can be bound only by express words or necessary implication." [ibid, 604C-D]
As appears from the passage from the judgment of Lord Denning, Master of the Rolls, which I have set out, the planning legislation relevant to the decision of this Court in the Jenkins case was contained in the Town and Country Planning Act 1947. Section 87 of that Act included, at subsections (2) (b), (3) (a) and (5) respectively, provisions now found in sections 296(1) (c), 296(2) (a) and 294(1) of the 1990 Act:
"296(1) Notwithstanding any interest of the Crown in Crown land, but subject to the...
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