R Kemball v Secretary of State for Communities and Local Government (First Defendant)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr. Justice Holgate,Mr Justice Holgate
Judgment Date15 October 2015
Neutral Citation[2015] EWHC 3338 (Admin)
Docket NumberCO/2661/2015
Date15 October 2015

[2015] EWHC 3338 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

Mr Justice Holgate

CO/2661/2015

Between:
The Queen on the Application of Kemball
Claimant
and
Secretary of State for Communities and Local Government
First Defendant

Mr Wayne Beglan appeared on behalf of the Claimant

Miss Justine Thornton appeared on behalf of the First Defendant

Mr. Justice Holgate

Introduction

1

Mr. Robert Kemball applies under section 288 of the Town and Country Planning Act 1990 ("TCPA 1990") to quash the decision of the Secretary of State for Communities and Local Government ("the First Defendant") given by his Inspector on 28 April 2015. The Inspector dismissed the Claimant's appeal under section 195 against the refusal by the Lake District National Park Authority ("the Authority") to grant a certificate under section 192 (1)(b) that the proposed construction of two dwellings on a site south of Keldwith, Keldwith Drive, Troutbeck Bridge, Windermere would be lawful.

2

According to the Claim Form the application was originally made to the Authority on 3 December 2010 and was refused by a letter dated 16 February 2011. An Inspector dismissed the Claimant's appeal on 21 October 2011. That decision was quashed on 4 February 2013 by a consent order in the High Court on an application by the Claimant. The appeal was redetermined by a different Inspector on 11 November 2013. That decision was in turn quashed on 23 April 2014 by a second consent order in the High Court, again on an application made by the Claimant. The appeal was then redetermined by a third Inspector in the decision letter dated 28 April 2015 which is the subject of these proceedings.

3

The planning history of Keldwith is long and complex. I should emphasise that the Court has been shown documents relating to only part of that history, namely those documents which the parties consider would enable the Court to resolve the issues which now fall to be decided. But I note that the original application is not before the Court.

4

The background is conveniently set out in paragraphs 7 to 10 of the 2015 decision letter which read as follows:

"…

7. The lengthy and complicated planning history of this case dates from January 1957. Many of the surviving records are on microfiche and are difficult to read. It is not absolutely certain that everything in the relevant files was preserved.

8. An outline application was made in January 1957 for " the layout for eighteen houses" in the grounds of Keldwith. A split decision was issued. On 14 March 1957, permission was refused for nine houses north of Keldwith and outline planning permission was granted for the "layout for nine houses south of Keldwith". This was subject to 2 conditions. The first required the submission and approval of details of sighting, design and external appearance and means of access prior to the commencement of work. The second concerned access and stipulated that all access should be from the A591 and that there should be no new access constructed to the Patterdale Road, A592.

9. Following an exchange of correspondence and the submission of a revised plan, a further decision notice was issued on 5 September 1957, granting outline planning permission for "layout for nine houses south of Keldwith. This permission was subject to 2 conditions. The first replicated the 1 st condition of the March permission regarding the submission and approval details. The second stated "The vehicular access to the site shall be from the main road A591 and no new access shall be constructed to the Patterdale Road A592 except to serve the houses marked "A" and "B" on the plan attached to the consent notice, and such new access shall include a suitable turning space for vehicles off the highway to the satisfaction of the local planning authority."

10. The Authority regards the September 1957 permission to have been valid as a matter of law. It was made in writing, was accompanied by a plan and was the subject of a formal determination. This is consistent with the letter dated 18 March 1957" from Mr Stables, acting for the land owner, which refers to a "second application". Mr. Cannon for the appellant explicitly did not dissent from this view and I have been given no reason to take a different approach. Accordingly, I accept that both the March and September 1957 permissions were formally valid."

5

The 1957 decision notices did not contain any conditions imposing time limits for the commencement of development. However, section 66 of the Town and Country Planning Act 1968 did impose such time limits. In relation to an outline permission the effect of section 66 was that where development had not been begun before 1968, the permission was deemed to be subject to conditions requiring any application for approval of reserved matters to be made by no later than 31 March 1972, and the development to be begun by 31 March 1974 or the expiration of two years from the final approval of all reserved matters, whichever should be the later. A failure to comply with either of those time limits would result in the permission lapsing. Section 67 defined circumstances in which development would be taken to have begun for the purposes of those conditions.

6

It appears that up until the second redetermination of the Claimant's appeal the Authority had accepted that the permission granted in March 1957 remained extant because it was said that houses had been built in accordance with that permission. The Authority's written representations submitted to the First Defendant in the course of the appeal proceedings also stated that two further dwellings could still be built pursuant to the March 1957 permission, provided that those houses were located within the area the subject of that permission. However, the Authority contended that the geographical extent of the March 1957 permission did not cover all land within the extensive grounds of Keldwith lying to the south of that property, as the Claimant maintains, but only covered a more limited area restricted to the area of the "layout" approved by that permission. On that basis, the authority argued that the site proposed by the Claimant in his section 192 application for two dwellings fell outside the ambit of the March 1957 permission, even if that permission remained extant. The Authority took the same approach in relation to the ambit of the September 1957 decision.

7

However, at the hearing before the Inspector on 16 December 2014 Counsel for the Authority raised for the first time an additional argument that the March 1957 planning permission had not been implemented within the time limits under the 1968 Act and was no longer extant.

8

The Claimant's representatives complained that the Authority had resiled from its earlier clearly stated position and, as a matter of law, they were not entitled to do so. Ultimately this argument was not pursued in the hearing before me. But I should record that there have been changes in position on both sides over time. For example, at an earlier stage in the appeal process the Claimant had argued that he should be granted the certificate sought on the basis of the September 1957 permission. I do have some sympathy with the three Inspectors who have had to resolve historic issues upon the basis of a limited amount of information, and where the arguments on both sides have shifted from time to time and have not always been clear.

The Inspector's Decision

9

In paragraph 1 of his decision letter the Inspector correctly stated that his decision superseded those which had been issued by his colleagues on 21 October 2011 and 15 November 2013.

10

In paragraph 2 the Inspector recorded that he had adjourned the hearing on 16 December 2014 so that the Claimant could deal with the Authority's change of case regarding the status of the March 1957 permission and the bundle of planning permissions between 1958 and 1965 (appeal document 2) which had been produced at the Inspector's request to enable him to examine the planning history in more detail.

11

In paragraphs 7 to 10 of the decision letter the Inspector explained why he considered the decisions taken in March and September 1957 to have been formally valid.

12

In paragraphs 11 to 15 the Inspector addressed the application of the time limits introduced by the 1968 Act and came to the conclusion that neither the March 1957 nor the September 1957 permissions remained extant because development relied upon as an implementation thereof had been referable to subsequent stand-alone planning permissions and not to either of the outline consents granted in 1957. In particular, the Inspector concluded in paragraph 15 that "no 'matters reserved' applications were made [under the 1957 consents] prior to the timetable set out in the 1968 Act."

13

From paragraph 16 of the decision letter onwards the Inspector considered the appeal on an alternative basis in which he assumed that he had been wrong to conclude that the 1957 consents had lapsed for failure to submit applications for approval of reserved matters in time.

14

In paragraph 16 the Inspector addressed the fact that for many years the Authority and its predecessors had regarded the September 1957 consent as having been implemented. He concluded that, even if that basis were assumed to be correct, by the time the dwelling known as "Hope Beck" came to be erected pursuant to an approval in 2009 of reserved matters under the September 1957 permission, the consent for 9 dwellings under that permission had been used up.

15

In paragraph 17...

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