R Restormel Borough Council ex parte Parkyn R Restormel Borough Council ex parte Corbett

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMR GEORGE BARTLETT QC
Judgment Date13 September 2000
Judgment citation (vLex)[2000] EWHC J0913-1
Date13 September 2000
Docket NumberCase no: CO/1406/2000 & CO/1425/2000

[2000] EWHC J0913-1

IN THE high court of justice

QUEENS BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr George Bartlett QC

(Sitting as a Deputy Judge of the Queen's Bench Division)

Case no: CO/1406/2000 & CO/1425/2000

Regina
and
Restormel Borough Council Ex Parte Parkyn
and
Regina
and
Restormel Borough Council Ex Parte Corbett

MR C KATKOWSKI QC and MR J MAURICI (Instructed by Sharpe Pritchard, London, WC1V 6HG) appeared on behalf of the Applicant Parkyn

MR J LITTON (Instructed by Russel Jones & Walker Solicitors London, WC1X 8NH) appeared on behalf of the Applicant Corbett

MR G ROOTS QC and MR R TAYLOR (Instructed by Stephens & Scown St Austell, Cornwall, PL25 5DR) appeared on behalf of Land and Property Limited, an interested party

(As Approval by the Court)

MR GEORGE BARTLETT QC
1

The claimants in this case, both councillors of Restormel Borough Council, seek by judicial review to challenge four decisions of the council as local planning authority. Councillor Parkyn does so on behalf of the council itself, Councillor Corbett in a private capacity. Three of the decisions are grants of planning permission, and the fourth relates to an agreement under section 106 of the Town and Country Planning Act 1990, on parts of the Victoria Business Park at Roche in Cornwall. The purpose of the challenge is to relieve the council of the obligation to pay compensation to the landowners in consequence of an order made by the Secretary of the State for the Environment Transport and the Regions modifying one of the permissions. Permission to apply for judicial review was granted to Councillor Parkyn by Sullivan J on 19 May 2000 and to Councillor Corbett by Forbes J on 30 June 2000 after Collins J had refused permission on paper.

Victoria Business Park

2

Victoria Business Park comprises about 20 hectares of land lying in otherwise generally open country on the south side of the A30 trunk road 3 kilometres west of the Bodmin bypass and 7 kilometres to the east of the Indian Queens bypass on a single carriageway section of the road. The village of Roche lies about 1.5 kilometres to the south. The nearest town are Bodmin, St Austell, Newquay and Truro. The Business Park has been developed on land formerly known as Penstraze Farm, which was bought by a company called ML Real Estate Ltd in, I think, the 1970s. It has been developed in a piecemeal manner from then onwards. Initially a number of planning permissions were granted for the erection of factory/workshop units. Then in October 1986 permissions were granted for retail (non-food bulky items) and warehouse development on part of the site. It appears that the retail element (50,000 sq ft) was included to give a high value use to make the site more attractive to developers. Overall there have been numerous applications and permissions covering B1 (business), B2 (general industrial) and B8 (storage/distribution) as well as retail and other uses. Four of these permissions (including the three which are the subject of these proceedings) are of particular relevance.

The planning permissions

3

On 12 November 1990 permission ("the 1990 permission") was granted to ML Real Estates Ltd for the "Erection of non-food retail units with associated car parking, etc.". The amount of retail floor space was 195,000 square feet. The site was a roughly square area which formed the central area of the business park and was bounded on three of its sides by what the plan showed as the internal estate road. The permission was a full permission with the standard 5-year time limit on commencement. Among the conditions imposed was the following:

"11. The total floorspace to be used for non food retail shall not exceed 125,000 sq ft comprising a maximum number of five units which shall not be sub-divided but shall be occupied by a single non food retail operator."

4

An agreement made under section 52 of the Town and Country Planning Act 1971 between the council, ML Real Estate Ltd as owners, the mortgagees, and the contracting purchaser of the land, contained a similar provision. The application had been referred to the Secretary of State for the Environment as a departure from the development plan, but it was not called in despite the fact that there was an objection to it by Cornwall County Council.

5

On 5 January 1994 a permission was granted on an application made in 1993 for "Extension of time limit of Decision � dated 12/11/90 for erection of non-food retail units with associated car parking etc." The applicants were Ernst & Young, receivers for ML Real Estate Ltd, which was then in receivership. Although the permission (known, in order to distinguish it from a later permission, as "the 1993 permission") was described as one that extended the time limit of the 1990 permission, it did in fact differ from it in respects other than this. The land to which it related excluded the north- east corner of the 1990 site, and, whereas the 1990 permission had been a full permission, the 1993 permission included the standard outline condition, requiring the approval of details relating to the siting, design and external appearance of the proposed buildings. Condition 11 of the 1990 permission was included as condition 14. The council did not notify the Secretary of State of the application.

6

On 8 August 1994 planning permission ("the 1994 planning permission") was granted to Ernst & Young, as receivers for ML Real Estate Ltd, for "Erection of buildings for uses within classes B1, B2, and B8 of the Town and Country Planning (Use Classes) Order 1987 and for non-food retail use together with associated car parking, services and roads." It related not only to the 1993 permission land but to substantial other areas of the business park as well, including the area fronting the A30. The intention, it appears, was to embrace all the undeveloped areas of the business park in a single consolidating permission. It was an outline permission, and under condition 3 the reserved matters had to be submitted to the council within 3 years, that is, before 8 August 1997. The conditions were the same as in the 1993 permission, except that there were 18 of them as conditions 1 to 4 were in error duplicated as conditions 5 to 8, and there was a small but highly significant alteration to the last condition (condition 18, formerly condition 14 of the 1993 permission). It provided:

"18. The total floor space to be used for non-food retail shall not exceed 125,000 square feet in area comprising a maximum number of five units four of which shall not be subdivided and shall each be occupied by a single non-food retailer."

As with the 1993 permission, the council had not notified the Secretary of State of the 1994 application.

7

On 13 May 1997 planning permission ("the 1997 permission") was granted for "Extension of time of [the permission] dated 8.8.94 for erection of buildings for use within classes B1, B2 and B8 of Town and Country Planning (Use Classes) Order 1978 [sc 1987] and for non-food retail use together with associated car parking, services and roads." It said: "This is a further grant of permission for the development granted by the original permission � dated 8/8/94." The conditions were identical to those in the 1994 permission except that the error in duplicating conditions 1 to 4 was not repeated. The site, however, was not co-terminous with that of the 1994 permission. The application for the 1997 permission was made by Land and Property Ltd through its agent Alan Leather Associates. Since the 1994 permission Land and Property Ltd had become the owners of Victoria Business Park, and its managing director was (and is) Michael Thomas Lott, who had been the principal shareholder in ML Real Estate Ltd. Again the council had not notified the Secretary of State of the application.

8

Shortly after the submission of the 1997 application, David Stewart Associates, acting for Land and Property Ltd, asked the council to agree to modify the section 52 agreement so as to bring it into line with the revised wording contained in the final condition, condition 18 in the 1994 permission. The council accepted that this was appropriate, and a new agreement, under section 106 of the 1990 Act, was made incorporating the revised wording.

Reserved matters applications

9

In July 1997 a reserved matters application pursuant to the 1997 permission was made by Castle Court Retail Ltd and Land and Property Ltd. It referred to what was proposed as "Victoria Shopping Village �the South West Outlet Centre". The details submitted showed one large unit subdivided into 60 smaller units. The application was greeted with consternation by members of the council, by Cornwall County Council and by others, who thought that such a development would do severe damage to the shopping centres of nearby towns. It was drawn to the attention of the Government Office for the South West. The council did not determine the application, and the applicants appealed to the Secretary of State.

10

A second reserved matters application was made in December 1997 for a large unit of 105,000 square feet and four smaller units of 5,000 square feet. It was not expressed to be for a shopping village and it showed no sub-division. It was called in by the Secretary of State.

The modification order

11

On 29 January 1998 the Head of Development in the Government Office for the South West wrote to the council's Chief Executive with reference to discussions that the office had had with the council about the applications for approval of reserved matters. He said that it was the Department's opinion that both the 1993 and the 1997 applications should have...

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