Telford and Wrekin Council (Claimant) Secretary of State for Communities and Local Government (Defendant) Growing Enterprises Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson |
| Judgment Date | 29 January 2013 |
| Neutral Citation | [2013] EWHC 79 (Admin) |
| Date | 29 January 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4826/2012 |
[2013] EWHC 79 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BIRMINGHAM
Birmingham Civil Justice Centre
33 Bull Street, Birmingham, B4 6DS
Lord Justice Beatson
Case No: CO/4826/2012
Ian Dove QC and Satnam Choongh (instructed by Telford and Wrekin Council) for the Claimant
James Strachan (instructed by the Treasury Solicitor) for the Defendant
Christopher Lockhart-Mummery QC (instructed by Payne Hicks Beach) for the Interested Party
Hearing date: 14 December 2012
This application under section 288 of the Town and Country Planning Act 1990 ("the Act") concerns Mere Park Garden Centre, part of a complex on land at the junction to the east of the A41 and the A518, south of Stafford Road, Newport, Shropshire. Planning permission for the garden centre was granted by Telford and Wrekin Council ("the Council") to Growing Enterprises Ltd, the Interested Party in these proceedings, on 28 August 2002.
The Council applies for an order quashing a decision of the Secretary of State's Inspector, Mr David Murray, dated 5 April 2012. The Inspector allowed an appeal by Growing Enterprises against a decision of the Council refusing an application by the company under section 192 of the 1990 Act for a certificate that the proposed use of the land and buildings for any purpose within Class A1 of the Town and Country Planning (Use Classes) Order 1987 SI 1987 No 764, as amended ("the UCO"), is lawful. The aim of that application was to obtain a certificate that the site benefits from an unrestricted Class A1 use, i.e. the use as shops, including those for the retail sale of goods. The outcome of the appeal was that the Inspector issued a certificate stating that use to be lawful.
The appeal, under section 195 of the Act and this application concern condition 19, one of 32 conditions of the 28 August 2002 planning permission for the garden centre. Condition 19 stated:
"prior to the garden centre hereby approved opening, details of the proposed types of products to be sold should be submitted to and agreed in writing by the local planning authority".
Although Growing Enterprises supplied a list of products to the Council, the Council did not provide its written agreement. In another planning permission, however, it referred to the products as "previously approved".
In the appeal in this case, the issue before the Inspector was whether condition 19 restricted the products which could be sold to those specified in the list supplied. The Inspector held that it did not.
The grounds upon which the Council seeks an order quashing the Inspector's decision are that the Inspector erred in his application of the law. It principally relies on the statements in the Court of Appeal in Hulme v Secretary of State for Communities and Local Government [2011] EWCA Civ 638 and other cases that conditions in planning permissions should be read in context and be given a sensible and reasonable interpretation. It submitted (see statement of facts and grounds, especially paragraph 24) that the Inspector failed to apply Hulme's case correctly, and indeed ( ibid, paragraph 27) that his approach to it was in part irrational. Mr Dove QC, on behalf of the Council, submitted that a reasonable reader of the grant of planning permission and the reason for condition 19, and in knowledge of the type of development permitted, would know that the condition restricted the products which could be sold to those specified in the list supplied. The grounds also maintain that the Inspector adopted an irrational interpretation of the word "should" in condition 19 and the implications of its use in this context.
In his skeleton argument (see paragraphs 18 – 22) and oral submissions, Mr Dove additionally submitted that the Inspector, in paragraphs 13 and 15 of his decision letter ("DL") either did not regard condition 19 as discharged, or was muddled in relation to whether it had been discharged. He submitted that the Inspector fell into public law error by having regard to an immaterial consideration, perverse reasoning, or by failing to have regard to a material consideration, "namely the correct legal consequences of condition 19 not being discharged".
The evidence on behalf of the Council is in the statement of Jonathan Eatough, the Council's Assistant Director for Law, Democracy and Public Protection, dated 9 May 2012. That on behalf of Growing Enterprises Ltd is in the statement of Clive Roberts, the Principal of Kembertons, a town planning consultancy.
The legal framework:
Background: As is well known, permission is generally required for any development of land or buildings. Subject to specified exceptions, "development" is defined by section 55(1) of the Act as meaning, inter alia "the making of any material change of use of any buildings or … land". When permission is granted the local planning authority has wide power to impose conditions. Unauthorised development and failure to comply with any condition in a grant of permission may result in enforcement action being taken by the local planning authority: section 171A of the Act.
Certificate of Lawful Use: A person contemplating a proposed use of land or buildings, who wishes to ascertain whether it would be lawful may, as Growing Enterprises did in this case, apply to the local planning authority: section 192(1). If the planning authority is satisfied that the use would be lawful it is required to issue a certificate to that effect: section 192(2). By section 191 of the Act:
"(2) For the purposes of this Act uses and operations are lawful at any time if:
(a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and
(b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force."
By section 193(5):
"A certificate under section 191 or 192 shall not affect any matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted unless that matter is described in the certificate."
The Use Classes Order: One of the exceptions to the requirement of planning permission for development concerns uses within the same class of use as the current use of the land. Section 55(2)(f) of the Act deems the following not to involve development:
"In the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section, the use of the buildings or other land or, subject to the provisions of the order, of any part of the buildings or the other land, for any other purpose of the same class."
The Secretary of State has so specified in the Town and Country Planning (Use Classes) Order 1987 SI 1987 No 764, "the UCO", to which I have referred. Article 3 of the UCO provides inter alia:
"(1) Subject to the provisions of this Order, where a building or other land is used for a purpose of any class specified in the Schedule, the use of that building or that other land for any other purpose of the same class shall not be taken to involve development of the land."
One of the classes specified in the Schedule is Class A1, "Shops". Class A1 includes use for all or any of eleven purposes, including:
"(a) for the retail sale of goods other than hot food,
…
where the sale, display or service is to visiting members of the public."
Government guidance: The current guidance is in Circular 11/95, The Use of Conditions in Planning Permissions. This deals with the requirements of necessity, relevance to planning and the development, reasonableness, enforceability, and the need for precision. In this case it is the last of these which is relevant. The guidance on precision is contained in a single paragraph which states:
" Test of Precision
30. The framing of conditions requires care, not least to ensure that a condition is enforceable. A condition, for example, requiring only that "a landscape scheme shall be submitted for the approval of the local planning authority" is incomplete, since if the applicant were to submit the scheme, even if it is approved, the local planning authority is unlikely to be able to require the scheme to be implemented. In such a case the requirement that needs to be imposed is that landscape work shall be carried out in accordance with a scheme to be approved in writing by the local planning authority; and the wording of the condition must clearly require this…"
Two appendices to the guidance contain suggested models of acceptable conditions for use in appropriate circumstances, and conditions which are unacceptable. The guidance refers to the utility of model conditions in improving consistency and efficiency in processing applications, but also to the danger that their existence may encourage the use of conditions as a matter of routine. There are two model conditions on restricting use. Model Condition 48, which was referred to by the Inspector, is:
"This premises shall be used for … and for no other purpose (including any purpose in Class … of the Schedule to the Town and Country Planning (Use Classes) Order 1987, or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order with or without modification."
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