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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Redrow Homes Limited, R (On the Application Of) v First Secretary of State & Anor [2003] EWHC 3094 (Admin) (03 December 2003) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2003/3094.html Cite as: [2003] EWHC 3094 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		3rd December 2003

Wednesday, 3rd December 2003

1. MR JUSTICE SULLIVAN:
2. Introduction: This is an application under section 288 of the Town and Country Planning Act 1990 ("the Act") to quash a decision of the first defendant to allow an appeal by the claimant against the failure of the second defendant to determine, within the specified time limit, an application for approval of details required by condition 5 in an outline planning permission dated 27th November 1957 ("the 1957 permission").
3. The Secretary of State's decision is contained in a decision letter dated 6th May 2003. Although the Secretary of State allowed the claimant's appeal and approved the details submitted, he did so subject to five conditions. The claimant and the second defendant contend that the Secretary of State had no power to impose two of those conditions, conditions (i) and (ii) upon the approval of details.
4. Background:
5. The 1957 planning permission was granted by the Gloucestershire County Council (the County Council) to Imperial Chemical Industries Limited (ICI) and related to an area extending to no less than 2,645 acres. The permission described the land, the subject of the application, as follows:

"An area lying roughly between Severn Beach and Chittening Trading Estate, in the parishes of Redwick and Northwick and Almondsbury in Thornbury Rural District, as shown upon the amended application plan. The total area comprising: Area No 1. Approx. 1000 acres, Area No. 2. approx. 545 acres and Area No. 3. approx. 1,100 acres."

6. To the west the site is bounded by the Severn Estuary, area No 3 extended out into the estuary. To the north the site adjoins the former Great Western Railway mainline to the Severn Tunnel. The B4055 runs along the north eastern boundary of the site. In 1957 the site was a large expanse of agricultural land containing a few isolated farmsteads.
7. The 1957 planning permission described the permitted development as follows:

"This outline application for planning permission is for:

(i) the development of an area of 1,000 acres (outlined in dark purple on the attached plan "B" and thereon marked "1") -

(a) for the construction and operation of factories for the production of chemical and allied products (including non-ferrous metals) and

(b) for the development mentioned in sub-paragraphs (ii) and (iii) hereof

(ii) the development within an area of 545 acres (outlined in green on the attached plan "B" and thereon marked "2") consisting of

(a) the construction and operation of offices, warehouses, stores, reservoirs, pumphouses, canteens, clubs, hostels, training establishments, amenity and welfare buildings, sports pavilion and sports and playing fields, and

(b) the development mentioned in sub-paragraph (iii) hereof

(iii) the development within an area of 1,100 acres (outlined in light purple on the attached plan "B" and thereon marked "3") consisting of the construction and operation of any buildings, structures, erections or engineering works expedient for and ancillary to the construction and operation of the factories mentioned in paragraph (i) above, other than buildings, structures or erections in which actual processes of manufacture are carried on.

"(iv) the change of use of Hook Farm and Severn Farm (coloured in yellow on the attached plan "B" and thereon marked "5") to office and/or residential hostel and club purposes.

(v) permission to construct accesses to existing public highways (such accesses being outlined in brown on the attached plan "B" and thereon marked respectively 6A, 6B and 6C".

8. Pausing there, accesses 6A, 6B and 6C were marked in brown on plan B attached to the planning permission. They led on to the B4055 to the north (6C), to Vimpennys Lane to the east (6B) and to Severn Road to the south (6A). The planning permission was subject to ten conditions. Conditions 5 and 6 were as follows:

"5. The proposed accesses shown on the application plan shall not be constructed until their precise location has been agreed with the local planning authority or in default of agreement determined by the Minister of Housing and Local Government and until detailed plans therefore have been approved by the local planning authority or by the Minister of Housing and Local Government on appeal.

"6. The access proposed to be constructed at point 6B shall not be used as a principal access for the reception and dispatch of goods".

9. The reasons given for the imposition of these two conditions were as follows:

"5. In order to ensure safe and satisfactory means of access to existing highways and to ensure that these means of access shall conform to any improvements to the existing highways which may be proposed.

"6. This access opens out on to a very narrow country highway and its use as a principal access for the reception and despatch of goods would involve heavy traffic using roads which are unsuitable for that purpose and would necessitate such traffic travelling through Compton Greenfield which would be undesirable."

10. It is common ground that since 1957 both the character of the area and the highway network have been transformed. To the north the M4 approaches the southernmost of the two Severn crossings. To the south the M5 has been constructed, and the M49 linking the M4 and the M5 runs roughly north/south through the site. The B4055 crosses the M5 at junction 17. As envisaged in the 1957 planning permission a new road, the A403, has been constructed to the west of the site, alongside the estuary. A very large chemical works has been constructed in Area 1, and pursuant to a separate planning permission, a substantial warehousing development (Western Approaches 1 or WAP 1) has been constructed mostly within, but partly outside Area 1, to the southwest of the M49. WAP 1 is served by a new access which links with an overbridge across the M49. A gas liquification plant has been constructed at the southern end of Area 2. Various other developments have also taken place.
11. The claimant acquired that part of Area 2 (and part of Area 1) which lies to the north and east of the M49, and between it and the 4055. On 20th January 2000 it applied for approval of the matters reserved by condition 5. The detailed drawings showed the proposed access joining the B4055 at a signalised T-junction at a location which abutted and was immediately to the south of the precise junction C location shown on plan B accompanying the 1957 planning permission. One of the submitted drawings, SK01/D, was, by agreement with the second defendants, replaced with drawing SK01/E.
12. Although the second defendant was minded to approve the application as amended it failed to do so within the prescribed period and so the claimant appealed to the first defendant. The first defendant recovered jurisdiction on the basis that the proposals raised significant legal difficulties.
13. A public inquiry was held by an inspector, Mr Christopher Jarvis, a solicitor, assisted by Mr Peter Burden, an engineer, between the 23rd to 27th April and on the 1st and 2nd August 2001. The "legal difficulties" referred to by the Secretary of State were principally submissions made by an adjoining land owner, The Burford Group PLC (Burfords), that the 1957 planning permission was no longer capable of implementation. Burfords also submitted that condition 5 in the 1957 planning permission enabled access 6C to be located elsewhere within the site than on the B4055.
14. In his report dated 13th November 2001 the Inspector rejected the first of Burford's submissions but accepted the second. Because he considered that a location for access 6C on to the B4055 was not the best that could be achieved within the site, he recommended that the appeal should be dismissed. In an interim decision letter dated 26th June 2002 the first defendant accepted that:

"The 1957 planning permission remains operable and capable of further implementation."

15. He did not accept the inspector's conclusion that condition 5 could be construed so as to permit access 6C to be located at a more advantageous position within the site away from the B4055.
16. In paragraph 22 of the interim decision letter the first defendant said:

"The Secretary of State considers that clause (v) of the 1957 planning permission and condition 5 are not ambiguous and therefore do not allow the admission of extrinsic evidence. In his view, they clearly grant planning permission for an access at Point 6C."

17. Paragraph 23 continued:

"Paragraph (v) of the 1957 permission has already granted planning permission for an access in the location indicated by Point 6C on the attached plan B. In the Secretary of State's view, to adopt an approach whereby the proposed access is rejected in favour of a more satisfactory alternative access elsewhere within the whole site, for which no planning permission has been granted, would be to derogate from the 1957 outline permission... In considering whether the proposed access meets the requirements of Condition 5 and the reasons for its imposition, the Secretary of State has accordingly proceeded on the basis that the access must be at Point C as shown on plan B".

18. In paragraph 24 the first defendant said this:

"In assessing whether the proposed access provides a safe and satisfactory connection to the existing highway network, the Secretary of State has had regard to the differing views of the parties as to whether he may lawfully take into account the effect on highways beyond the boundary of the 1957 site. The Secretary of State does not accept that Proberun Limited v the Secretary of State for the Environment [1990] 3 PLR 79 restricts the matters that he may take into account in relation to the impact at either Point 6C alone or on the application site as a whole. He is supported in this view by R v Newbury District Council, ex parte Chieveley Parish Council [1997] JPL 1137. It is not disputed that the surrounding highway network is very different today from that in 1957, when the B4055 was the principal highway serving the site. The WAP 1 development has introduced a new spine road designed for heavy traffic through the site with access onto the A403 and to comprehensively serve the land in the vicinity of Access 6C via the M49 overbridges, which are in place. It is therefore difficult to conclude otherwise than it has had an impact on the 1957 site in respect of its highway infrastructure and access pattern. Taking all these factors into account and the need to ensure that the proposed connection to the B4055 will have no materially adverse effects, the Secretary of State considers that he is entitled to have regard to the safety of the surrounding highway network, as it currently exists, including Junction 17 of the M5 Motorway. He has accordingly taken into account the evidence of the Highways Agency which is highly relevant to this issue".

19. The letter then dealt with prematurity, and under the heading "Highway Considerations", at paragraph 26, said this:

"In considering the design of the junction in isolation, he [the Secretary of State] accepts the Inspector's assessment and conclusions that the final junction design SK/01E, although of significantly greater capacity (17%) than the originally submitted drawing SK/01A, would be adequately safe and would not itself give rise to a material increase in accidents. However, he agrees with the Inspector that the lack of provision of bus priority lanes, especially in view of the likely congestion on the B4055, conflicts with national and development plan policy objectives and is therefore less than satisfactory in this respect."

20. In paragraph 27 the first defendant, having considered the proposed access in the wider context of its impact on the local highway network, agreed with the Inspector's conclusions:

"That the use of the proposed access would adversely affect safety on the M5, causing harmful impact at junction 17 and along the B4055 through excessive traffic flows, contrary to Structure Plan Policy TR19 and to the objectives of national policy guidance".

21. In paragraph 28 under "Other Considerations" the first defendant accepted that:

"The proposed location of access 6C is the least obtrusive, given the very limited options available within the constraints of the 1957 permission".

22. Paragraph 29 of the decision letter continues:

"Taking all of the foregoing into account, the Secretary of State does not consider that the proposal provides safe and satisfactory means of access to the existing highways, as set out in the reasons for Condition 5. In paragraph 23 above, the Secretary of State rejected the Inspector's conclusion that if not found to be safe and satisfactory, the access should be the best that can be achieved within the whole of the site. He has found that by virtue of the express permission granted for access 6C in paragraph (v) of the 1957 permission, the access location is necessarily confined to Point 6C. On this basis, he shares the Inspector's view... that if limited to the B4055, then the proposed location would be the best achievable. Since this represents the most satisfactory access that can be achieved within the limits of that permitted by the still extant and operable outline permission, the Secretary of State is reluctantly drawn to conclude that refusal of approval of this reserved matters application cannot be justified, as to do so would remove the benefit of the planning permission already granted. However, in view of the adverse effects and particularly the harm to highway safety that would result from unrestricted traffic use of the proposed access, the Secretary of State has carefully considered whether there is any scope to mitigate the harm either through the imposition of planning conditions or by means of a s.106 planning obligation".

23. Under the heading "Conditions and Section 106 Agreement", paragraph 30 of the decision letter said this:

"In his consideration of this matter, the Secretary of State has had regard to R v Newbury DC ex parte Stevens and Partridge [1992] 65 P&CR 438, which holds that conditional approval of a reserved matter was a creature known to law and that conditions could be imposed provided that they did not materially derogate from the permission that had been granted".

24. In paragraph 31 the first defendant considered and dismissed a unilateral undertaking offered by the claimant. Paragraph 32 is in these terms:

"The Secretary of State has therefore carefully considered the alternative condition proposed by the Pilning and Severn Beach Parish Council that use of access 6C should be restricted to public transport vehicles only. Redrow and South Gloucestershire Council consider that the 1957 permission did not restrict access 6C to certain types of traffic and therefore the imposition of this condition would materially derogate from the permission that had been granted. The Inspector acknowledges that such a condition would reflect the WAP strategy embodied in the s.106 agreement and would successfully ameliorate the significant adverse impacts of the proposed access if it can be lawfully imposed. The Secretary of State takes the view that restricting the use of access 6C to public transport only would not remove the benefit of the planning permission, as other accesses onto existing highways can be used, nor would it frustrate condition 5 of the permission, because an access would be provided. He agrees with the Inspector that the imposition of a public transport only condition would ameliorate the adverse traffic impacts of the proposed access on the surrounding highway network, thereby meeting the requirements of condition 5 and complying with development plan policies SP TR 19... as well as with relevant national policy. The Secretary of State is therefore minded to impose a condition restricting use of the proposed access 6C to public transport vehicles."

25. Paragraph 34 of the decision letter says:

"For all the reasons set out above, the Secretary of State is disposed to reject the Inspector's recommendation to dismiss your client's appeal and is minded to grant approval for this reserved matters application subject to the satisfactory resolution of the harmful impacts he has identified in paragraph 27 above. The Secretary of State accordingly invites further representations on the condition proposed in paragraph 32 above, restricting the access solely to public transport use and on whether the parties wish to suggest any alternative mechanism to achieve the same result."

26. Representations had to be submitted to the first defendant within 21 days of the date of his interim decision. Representations were made. Both the claimant and the second defendant submitted that the imposition of the proposed condition would be unlawful. The second defendant said, "The short point is that permission was granted for access, not for public service vehicles only."
27. After considering the representations, which had been made in July and August of 2002, for a period of some nine months, the first defendant issued his decision letter dated 6th May 2003. Under the heading, "Secretary of State's Further Considerations," the decision letter said this in paragraphs 9, 10 and 11:

"9. The wording of condition 5 of the 1957 permission states... 'the proposed accesses shown on the application plan shall not be constructed until their precise location has been agreed with the local planning authority or in default of agreement determined by the Minister of Housing and Local Government and until detailed plans therefore have been approved by the Local Planning Authority or by the Minister of Housing and Local Government on appeal.' The Secretary of State takes the view that the design of the access must be a material consideration and that the wording of the condition and the reason given for its imposition shows that the design of the access was a consideration for the local authority even in 1957. He considers that the design of the proposed junction is a material consideration in his determination of this reserved matters appeal and agrees with Burford that as currently designed the proposed junction is inappropriate for a PSV only access and furthermore would result in unnecessary land take and the loss of existing landscape contrary to policy RP1 of the adopted local plan. He further considers that if the junction were built to its current design there is real risk that there would be pressure for it to revert to unrestricted use because of its size and current design.

"10. The Secretary of State maintains the conclusions set out in paragraph 27 of his interim decision letter as to the harmful impacts that would flow from unrestricted use of the access on the surrounding highway network. He further maintains the view set out in paragraph 29 of his letter of 26th June 2002, that the proposed location of the access at point 6C is the best achievable and the most satisfactory within the limits of that permitted by the still extant and operable outline permission. In these circumstances he remains of the opinion that refusal of this reserved matters application cannot be justified, as to do so would remove the benefit of the planning permission already granted. In the absence of any indication of willingness by the principal parties to enter into a Section 106 planning obligation as an alternative mechanism for mitigating the identified harm, the Secretary of State remains of the view that he should grant approval subject to the PSV restriction on the use of access but that the detailed design needs to be the subject of further consideration to achieve a layout more appropriate to PSV use.

"11. The Secretary of State has already indicated in paragraph 30 of his letter of 26th June 2002 his view that, having regard to the judgment in R v Newbury DC ex parte Stevens and Partridge [1992] 65 P&CR 438, further conditions may be attached to an approval of reserved matters provided that they do not materially derogate from the permission that had been granted. He has accordingly decided to impose a further condition requiring approval of the re-design including measures to ensure compliance with the PSV restriction".

28. In paragraph 12 of the decision letter the first defendant allowed the appeal and approved the claimant's application subject to conditions. Conditions 1 and 2 were as follows:

"(i) The access shall be used by public service vehicles only.

(ii) Prior to the commencement of the construction of the access further details of the design shall be submitted to and approved in writing by the local planning authority in accordance with a timescale to be agreed; such details to include methods to ensure compliance with condition (i). The access shall be constructed in accordance with the approved details and the approved method of enforcement shall be maintained thereafter."

29. Burfords made an application under section 288 to quash the first defendant's decision, but its claim was withdrawn on 8th August 2003. Accordingly, these proceedings are simply concerned with the claimant's challenge (supported by the second defendant) to the lawfulness of conditions (i) and (ii). It is common ground that since condition (ii) is ancillary to condition (i) the two conditions must stand or fall together.
30. Submissions:
31. Mr Barnes QC, on behalf of the claimant, and Mr Straker QC, on behalf of the second defendant, submitted that upon the proper construction of the 1957 planning permission the Secretary of State had no power to impose conditions (i) and (ii) and that their imposition amounted, in effect, to a revocation or modification of the 1957 permission. They relied upon the following passage in the speech of Lord Morris in Kingsway Investments v Kent County Council [1971] A.C. 72 at page 96 A:

"So if permission is granted after an outline application the applicant clearly knows that that permission is conditional and that it will not be of use to him until he is able to submit details as to siting and design and the like which are acceptable. It must, of course, be assumed that the authority will act in good faith. They must not misuse their functions so as indirectly and without paying compensation to achieve what would amount to a revocation or modification of a permission already given."

That statement of principle has been applied in many subsequent cases, including those referred to by the Secretary of State, Proberun, Partridge and Chieveley, in the Court of Appeal (see [1999] PLCR 51 per Pill LJ at page 64).

32. I do not propose to summarise the submissions made on behalf of the claimant and the second defendant since I accept them and have incorporated them into my own conclusions (see below).
33. For completeness I should mention that Mr Barnes advanced two subsidiary submissions in his skeleton argument:

(a) that there was a breach of Article 6 of the European Convention on Human Rights because the Inspector had allowed evidence to be given by the Highways Agency, notwithstanding the fact that both the inspectorate and the Highways Agency were agencies of the first defendant. Both the Inspector and the first defendant had relied upon that evidence in concluding that there would be an adverse effect on the B4055 and on junction 17 on the M5, and

(b) that depriving the claimant of its rights under the 1957 permission, without compensation, would be in breach of Article 1 of the First Protocol to the Convention.

34. Mr Barnes accepted that submission (b) merely reinforced his primary submission, based upon Kingsway. Since I accept that primary submission it is unnecessary for me to consider submission (a).
35. On behalf of the first defendant, Miss Lieven submitted that the Secretary of State had correctly appreciated that approval had to be given for some form of access at location 6C and that to refuse approval for any access whatsoever at that junction would derogate from the 1957 permission. However, the 1957 permission did not prescribe the form of the access at location 6C. The reasons given for the imposition of condition 5 made it plain that improvements to the highway network since 1957 could be taken into consideration when deciding what was a safe and satisfactory access to the B4055 in 2003.
36. In considering that question the Secretary of State was not confined to the B4055, but could have regard to conditions on the wider highway network, including junction 17 on the M5.
37. The Secretary of State accepted that he was not entitled to use his decision on the application for approval of details to revoke or modify the 1957 planning permission, but he had not done so.
38. Looking at the 1957 permission as a whole there was no question of the permission for industrial or commercial development, or for the construction of the other accesses being revoked or modified. Even the planning permission for the construction of access 6C was not revoked since an access was approved. The type of access to be provided at location 6C was not defined in the planning permission.
39. Miss Lieven accepted that there had to be some limit to the Secretary of State's proposition that if some form of access for whatever purpose was approved there would be no derogation from the permission. She accepted that where planning permission had been granted for a substantial industrial or commercial development, limiting an access to pedestrians or cyclists only would amount to a modification of the permission, as would a limit to public service vehicles only if the access was to be the sole access to a substantial industrial or commercial development.
40. However, it was lawful to impose condition (i) in the circumstances of the present case, because an access limited to PSV's would still serve a "very useful" purpose. Moreover, the permission site could be accessed from other locations, including accesses 6A and 6B in the permission, together with other accesses that had been constructed since 1957. Because of the existence of these other means of access there was no derogation from the principle of the development permitted in 1957. Unlike the Chieveley case the scale of the industrial/commercial development in the present case was not fixed. Planning permission had not been granted for any particular quantum of industrial or commercial floor space.
41. Miss Lieven submitted that condition 6 did not tell one anything about the breadth of control that could be exercised under condition 5. The fact that means of access in condition 6 included access where user by heavy goods vehicles was limited, showed that the reference to access in condition 5 was apt to include an access where use was also limited to particular types of vehicle.
42. In answer to a question from me she submitted that including a condition along the lines of condition 6, but relating to access 6C, in the 1957 permission, would not amount to a modification of that permission.
43. Conclusions:
44. A condition may lawfully be imposed upon an approval of details, but its effect must not be such as to amount to a revocation or modification of the "parent" outline planning permission. In order to decide whether conditions 1 and 2 did amount to a modification (revocation is not really in issue) of the 1957 planning permission, the starting point must be to ascertain what was permitted by the 1957 planning permission.
45. It is common ground between the parties that the interpretation of the permission is a question of law for the court to determine. There has been no suggestion that the court should have regard to extrinsic evidence. The planning permission must be construed as a whole, having regard, not merely to the operative parts of the permission, but also to the conditions, and to the reasons given for imposing those conditions.
46. I have set out the material parts of the 1957 permission above. It will be noted that unlike a modern planning permission, where means of access would normally be a reserved matter, paragraph (v) in the operative part of the 1957 permission specifically grants planning permission for the construction of three accesses, 6A, 6B and 6C, to existing public highways. That permission is granted in addition to the permission granted for the industrial and commercial developments that are described in paragraphs (i) to (iv).
47. The meaning of paragraph (v) has to be considered in the context of the other paragraphs in the operative part of the permission. The permission did not specify any particular amount of industrial or commercial floor space, but, given the acreages involved, the three accesses were clearly intended to serve a very substantial area of industrial/commercial development.
48. Pausing there, it is plain in that context that the permission to construct accesses is a permission to construct accesses suitable for use by all the types of traffic that would be generated by a very substantial area of industrial or commercial development. For convenience I will refer to these accesses as "all-purpose" accesses.
49. Accesses 6A, 6B and 6C are to connect with public highways upon which (subject to physical constraints, such as the width of the carriageway) all types of vehicular traffic are permitted. In the absence of any express words of limitation, one would therefore expect such accesses to be all-purpose accesses.
50. Turning to condition 5, the first limb of the condition provides that the local planning authority (or in default, the Secretary of State) must agree the precise location of the proposed accesses: ie the all-purpose accesses that have been permitted in paragraph 5. The Secretary of State correctly concluded that planning permission was granted for three accesses at locations 6A, 6B and 6C shown on plan B and that the reference in condition 5 to the "precise location" meant the precise location at or in the immediate vicinity of locations 6A, 6B and 6C.
51. The second limb of the condition provides that detailed plans of the proposed accesses at the agreed precise location must be approved by the local planning authority or the Secretary of State. When this second limb of condition 5 is read in the context of the remainder of the planning permission, in particular paragraph (v) of the operative part of the permission, it is plain that the detailed plans of the proposed access at 6C are to be detailed plans of the permitted all-purpose access at that location.
52. The second limb of condition 5 does not enable the local planning authority or the Secretary of State to restrict the use of accesses 6A, 6B or 6C to particular types of traffic.
53. That this is the proper interpretation of condition 5 is made clear beyond any possible doubt by the terms of condition 6, which would be otiose upon the Secretary of State's approach to the ambit of the powers conferred by condition 5. Condition 6 is not mere surplusage. It was imposed upon the grant of planning permission because the County Council considered that it was necessary. It was necessary because the permitted access at 6B was an all-purpose access and its use by or for particular types of vehicle could not be restricted when approving detailed plans (for an all-purpose access) under condition 5. When the County Council wished to restrict the use of any one of the accesses, 6A, 6B or 6C, by a particular type of traffic, it did so in express terms.
54. Turning to the reasons given for imposing condition 5, on behalf of the Secretary of State great stress was laid upon the words, "to ensure safe and satisfactory means of access," but the Secretary of State's approach effectively elevates the reasons given for the imposition of condition 5 and treats them as though they were a separate condition in their own right. The "safe and satisfactory means of access" referred to in the reasons for condition 5 is simply the proposed all-purpose access referred to in paragraph (v) and condition 5.
55. If confirmation is required for this proposition it is to be found in the reasons given for the imposition of condition 6. Where the County Council did consider that one of the permitted accesses should not be used by a particular type of traffic, it took some care to explain in the reasons for condition 6 why that was so.
56. For these reasons I conclude that the 1957 planning permission granted permission for, inter alia, all-purpose accesses at locations 6A and 6C and an access for limited purposes (largely but not wholly excluding heavy goods vehicles) at location 6B.
57. Condition (i) imposed upon the approval of details by the Secretary of State is even more restrictive, in relation to access 6C, than is condition 6 in relation to access 6B. If the Secretary of State wished to impose a further condition upon the 1957 planning permission, that "The access proposed to be constructed at point 6C shall be used by PSV's only," he could do so only by way of making a modification order under section 100 of the Act for which compensation would be payable under section 107 of the Act. He was not entitled to achieve the same result without enabling the claimant to claim compensation by imposing condition (i) on the approval of detailed matters. Since one of the elements of the 1957 planning permission was the grant of permission for an all-purpose access at location 6C, condition (i) does amount to an unlawful modification of the 1957 planning permission.
58. I accept that the latter part of the reasons given for the imposition of condition 5 make it clear that it was envisaged that improvements might be made to the existing highways, including the B4055. I further accept that in considering whether the detailed drawings showed a "safe and satisfactory means of access" on to the B4055 at location 6C, the Secretary of State was entitled to have regard to the traffic conditions on the B4055 and the wider highway network in 2003. Thus, the access must be designed to cope, so far as is reasonably practicable, with the many changes in traffic conditions that have occurred since 1957, by reason of such factors as, for example, the increased number of cars, the increase in the size and number of heavy goods vehicles, increased speeds, modern standards relating to such matters as sight lines, et cetera.
59. The provision of bus priority lanes in modern junction design is another example of changes in transport policy and practice since 1957, which the Secretary of State was entitled to take into consideration when deciding whether the detailed drawings submitted pursuant to condition 5 showed a safe and satisfactory access to the B4055.
60. The Secretary of State rightly accepted, in paragraph 32 of his interim decision, that his ability to have regard to present-day traffic conditions on the B4055 and beyond did not enable him to refuse approval of the detailed application, "as to do so would remove the benefit of the planning permission already granted."
61. For precisely the same reason his ability to have regard to present-day traffic conditions did not entitle him to impose a condition which had the effect of modifying the permission already granted, to the detriment of the claimant. As in Proberun, the Secretary of State's power was limited to securing the best (or the least worst) form of all-purpose access onto the B4055 that could be achieved within the limits imposed by the 1957 planning permission. It would appear from the interim decision that the Secretary of State accepted (subject to the lack of a bus priority lane being described as "less than satisfactory") that this had been achieved in the submitted drawings. If, in the light of changed traffic conditions since 1957, the best all-purpose access that could be achieved at location 6C was simply unacceptable to the Secretary of State, then his only remedy was to make a revocation or modification order under section 100.
62. As Mr Barnes pointed out in his submissions, the circumstances in the present case, where traffic conditions have significantly altered over a period of nearly 50 years before details come to be approved, is very unusual. There will be time limits imposed upon a modern outline planning permission and modern permissions tend to be far more prescriptive than the very general permission for development over a huge area of land that was granted in 1957.
63. The submission advanced on behalf of the Secretary of State, that because the approval permits an access at location 6C (albeit one limited to PSV's) his decision does not derogate from the 1957 permission, is untenable. Once the all-purpose nature of the permitted accesses (limited in the case of access 6B by condition 6) is acknowledged, the fact that some form of vehicular traffic is permitted to use the access is beside the point. The fact that there are other accesses is also beside the point. Planning permission was granted for three accesses, only one of which was, by reason of condition 6, not an all-purpose access.
64. If a modification order limiting the use of access 6C to PSV's would not create any significant problems in practice for the claimant as landowner, because of, for example, the availability of other accesses, that would be a factor that might be reflected in the compensation that would be payable under section 107 of the Act. If planning permission is granted for the construction of three accesses to a substantial development, restricting or even eliminating the landowner's ability to construct one of those accesses might not cause any significant depreciation in the value of the land which has the benefit of the permission because, for example, that particular access might be inconvenient or unnecessary in any event. But it would still be necessary to make a modification order, if the landowner was to be prevented from constructing the permitted access.
65. Thus, the submission advanced on behalf of the Secretary of State, that the access at location 6C would still be useful, even if limited to PSV's, entirely misses the point. It is, in any event, a disingenuous argument since the Secretary of State's reason for imposing condition (i) was precisely because he accepted the Inspector's conclusion that an access at that location on the B4055 would be so attractive to non-PSV traffic, principally cars, that it would have an adverse effect on junction 17 on the M5. Thus, upon the Secretary of State's own case, the imposition of condition (i) is a very significant restriction upon the use of the all-purpose junction that was permitted at location 6C in 1957.
66. For all of these reasons this application must be allowed and the Secretary of State's decision must be quashed.
67. MR BARNES: My Lord, I ask for the costs of the application in the usual way.
68. MR JUSTICE SULLIVAN: Can you resist those Mr Kolinsky?
69. MR KOLINSKY: My Lord, I certainly cannot resist a general order for costs. May I just make a comment in relation to the specific form of the order?
70. MR JUSTICE SULLIVAN: Yes.
71. MR KOLINSKY: Plainly, all of the trial costs were concerned with the issues to which my Lord has found in favour of the claimants and certainly I would not be in a position to resist those. My Lord will be aware there was a further issue which was not necessary to be dealt with for today's purposes, but during the course of, effectively preparation, and possibly advising, it may well be that time was expended on that that could be separated. Therefore I would invite your Lordship to make an order that the costs be assessed on a detailed basis, if not agreed, in relation to the issues for which my Lord has found in their favour.
72. MR JUSTICE SULLIVAN: The trouble is, you have not actually won on the other issue because I have not decided it.
73. MR KOLINSKY: My Lord, that is why I am not asking for any costs. It seems to me there is no outcome as to it, in my respectful submission. It may be that this is a non-issue, but in the absence of a schedule one cannot take a view, and, in my respectful submission, the logical consequence of your Lordship's judgment is that the claimants succeed on their issues, but effectively there is no order as to the Article 6 costs.
74. MR JUSTICE SULLIVAN: Thank you. I do not need to trouble you on that Mr Barnes. I am not satisfied that there are sufficient reasons to, as it were, disaggregate the costs as between the subsidiary issues and the principal issue. I do not consider that they added significantly to the costs of the proceedings and, in any event, it is entirely open as to who would have succeeded on them had they been argued out. So, it is not suggested it goes to summary assessment, is it, Mr Barnes, because it was a two-day case?
75. MR BARNES: No, my Lord, it was to be a two-day case.
76. MR JUSTICE SULLIVAN: Yes, right, thank you very much. You are keeping your head down, Mr Humphreys?
77. MR HUMPHREYS: In the light of the Bolton case there is no application.
78. MR JUSTICE SULLIVAN: Yes, I quite understand that. Thank you very much. Right, then the application is allowed, the decision is quashed, the first defendant is to pay the claimant's costs, those costs are to go for detailed assessment unless otherwise agreed.
79. MR KOLINSKY: My Lord, I do have an application.
80. MR JUSTICE SULLIVAN: Yes.
81. MR KOLINSKY: My Lord, I have an application for permission to appeal and also an administrative application after that in relation to the time for any notice of appeal, whichever way my Lord goes on it. But if I can come back to that and make my primary application for permission to appeal?
82. MR JUSTICE SULLIVAN: Yes.
83. MR KOLINSKY: My Lord, the fundamental heart of your Lordship's judgment is a matter of construction of the 1957 planning permission. It was common ground, as my Lord acknowledged in the judgment, that that is a question of law. I cannot escape from the fact that my Lord has come to have a very clear view on what the answer to the construction of the 1957 planning permission is. But that said, that is a view based on my Lord's reading of the 1957 planning permission, and I would respectfully submit that this is a matter of construction and interpretation of a document. It is by no means unheard of for different judges to come to a different view, possibly that they both agree that the construction is clear, but have a different view as to what that is.
84. The fundamental starting point of my Lord's judgment, when one gets to that obviously the Secretary of State's case is in grave difficulties, is that the planning permission properly construed granting what my Lord has called an "all-purpose access". In my respectful submission, there is a real prospect that the Court of Appeal, construing the 1957 planning permission, will come to a different view and will come to the view that it grants an access based on the construction of that. In particular I would emphasise the reason for condition 5 and also the fact that the word "access" is contemplated in the face of condition 5 and condition 6 as including, I would respectfully say, both a restricted and an unrestricted access in terms of class of usage of that. But there is a real prospect that the Court of Appeal may come to a different view on what is a matter of law and to a great extent a matter of impression based on reading the planning permission as a whole and the reasons for the conditions.
85. So, my Lord, that is my fundamental submission: there is a real prospect the Court of Appeal may take a different view on that matter of construction.
86. MR JUSTICE SULLIVAN: Do you want me to deal with that now, because then the administrative point is time for appeal, is it not?
87. MR KOLINSKY: My Lord, that is right. I have two short supplementary submissions in relation to that. I would also submit that my Lord comes to a clear view that is based, effectively, on that characterisation of it as an all-purpose access, but it is plain that there has been a modification. I would simply point out that, effectively, that view is a judgment parasitic upon the construction of the 1957 planning permission, and, effectively, in my respectful submission, has a real prospect of succeeding on a different construction. Then there has to be a real prospect in relation to the other matters that follow on from that.
88. My Lord, the final limb of the application is: I would also base it, insofar as I need to, on some other substantial reason. Simply to draw attention to the fact that on the basis of the Inspector's analysis, which formed the basis of the Secretary of State's decision letter as well, the implications of what my Lord has characterised as an all-purpose access in this location, is to raise real matters of public importance in relation to highway safety, both on the B4055 and also junction 17 of the motorway.
89. My Lord, I respectfully say that those safety issues are of very considerable importance and if the question of whether my Lord's judgment is right, given the consequences of that, is a matter of very real importance. Therefore, in addition to the real prospect of success, I do rely on the other limb of the substantive reason.
90. MR JUSTICE SULLIVAN: If I am right, the safety issues can be addressed by a modification order.
91. MR KOLINSKY: My Lord, that is right, but the mere existence --
92. MR JUSTICE SULLIVAN: Someone just gets out their cheque book, that is the point.
93. MR KOLINSKY: My Lord, I do not positively rely on the financial implications of that for a reason, but the declared implications of the extant planning permission are, effectively, to authorise what is known to be an unsafe position. I do rely on that to show that these reasons effectively all flow from the 1957 planning permission and are of very real public importance.
94. MR JUSTICE SULLIVAN: Thank you. Yes, Mr Barnes, I do not need to trouble you, thank you very much.
95. Approaching the question of construction with due humility, and I accept Mr Kolinsky's point that views may differ, particularly on matters of construction, I do not consider that there is real prospect of an appeal by the Secretary of State succeeding on the facts of this case. Nor do I consider that there are wider issues. I think this is very much a one-off case, based upon the terms of this particular permission. Insofar as there are safety implications, they will have to be dealt with by a modification order. So, I refuse permission to appeal.
96. But, Mr Kolinsky, what I would be minded to do, if it would help, would be to extend the time within which you can apply to the Court of Appeal for permission to appeal, to give you, and particularly give the Secretary of State and his legal advisers and those instructing you, time to consider the terms of this judgment. You are here, you have been noting it down, but sometimes it is helpful, rather than almost inviting people to put in a pre-emptive application simply to preserve their position, if they are given a bit of time to think about it. Sometimes it actually means that they do not actually appeal. That has been my experience. Would that be helpful to you?
97. MR KOLINSKY: My Lord, it would. The application that I had in mind -- my Lord has power under Part 52, Rule 4, to effectively specify. I just invite my Lord, first, to specify that period, starting from the availability of the transcript rather than today's date, for the reason that my Lord has characterised. Also, I think, if one guesses that say it may take two weeks to get the transcript, 14 days from that period would then lead us into Christmas, in addition to the matters of the Secretary of State, and those advising me, taking a firm view of it. So I would invite my Lord to make an order extending time to 28 days after the date on which the transcript is available.
98. MR JUSTICE SULLIVAN: I think you are slightly pessimistic, in fact, Mr Kolinsky, as to when these transcripts are generally turned around. They usually come to me within a week and I turn them round pretty much on that day or the day after. So what I am going to do -- yes, if I give you 21 days from today that takes you up to Christmas Eve. So I will extend that indulgence to the Secretary of State, unless, Mr Barnes you have any objection, or Mr Humphreys you have any --
99. MR BARNES: No.
100. MR HUMPHREYS: Not at all.
101. MR JUSTICE SULLIVAN: I would not be happy to give it from the date of the receipt of the transcript, because that is an uncertain date. I think it is important that the claimant and the second defendant know where things stand after 21 days. Obviously, if you want any more time you will have to go to the Court of Appeal. So I extend that time to 21 days rather than 14.
102. MR HUMPHREYS: My Lord, may I just mention one thing?
103. MR JUSTICE SULLIVAN: Yes, of course.
104. MR HUMPHREYS: When you do come to revise the judgment, I believe, and it may be my error, I believe your Lordship referred to the M42 as linking the M4 and the M5.
105. MR JUSTICE SULLIVAN: I should not have done.
106. MR HUMPHREYS: It was the M49. As a South Midlander I thought it my duty to mention it.
107. MR JUSTICE SULLIVAN: If I did so it would be because I promoted the M42 on behalf of the department. Clearly old associations die hard.
108. MR BARNES: I think your Lordship only mentioned it once wrongly.
109. MR JUSTICE SULLIVAN: I am sure the shorthand writer will note that and we will rewrite history. It is the M49 not the M42. Thank you all very much.