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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 >> Orchard (Development) Holdings Plc, R (on the application of) v First Secretary of State & Anor [2005] EWHC 1665 (Admin) (01 July 2005) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/1665.html Cite as: [2005] EWHC 1665 (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
		1st July 2005

1. JUDGE GILBART: The claimants in this action seek to have quashed a decision of the Inspector of 7th February 2005 in which he dismissed the claimants' appeal against the refusal of the second defendant, the local planning authority, Boston Borough Council, to grant outline planning permission for the demolition of the Boston United football stadium and associated facilities, and the construction of new residential development on the site. The appeal was conducted by way of an informal hearing after the parties had exchanged representations.
2. The claimants allege that the Inspector did not correctly interpret or correctly apply the policy of the First Secretary of State on the imposition of conditions set out in Circular 11/95. There is a witness statement of Mr Iain Johnston, a solicitor, which sets out neatly and succinctly the history of the matter. I take the history largely from his witness statement for which I am grateful.
3. The application had been refused in October 2003. An appeal was submitted to the Inspectorate. The Council's reasons for refusal were, firstly, that the proposed development would lead to the loss of an important community facility without the provision of an equivalent or better provision elsewhere. It alleged as a result that there was a breach of the policy of the development plan. There were other objections which I need not refer to in this judgment.
4. The claimant's planning consultant, the very experienced Mr Alyn Nicholls, during the application and following refusal had discussions with the Council concerning its concerns for ensuring that a replacement football stadium came forward in the short term to replace the current old one, and some discussion took place.
5. Following the submission of the appeal, it appeared to all the parties that the principal issue raised by the appeal concerned the question of the provision of an alternative stadium for Boston United. The view of the local planning authority was that that could only be dealt with by means of an agreement or unilateral obligation under section 106 of the Town and Country Planning Act 1990. During the course of their submissions they set out their concerns about this. I encapsulate them by saying that they expressed the view that this had to be dealt with by section 106 obligation. They also doubted whether or not there was a genuine intention to make provision. The Council expressed at paragraph 211 of their submissions that it would not be reasonable or prudent to grant conditional planning permission because they doubted the commitment of the claimants.
6. As the parties are encouraged to do, and sensibly so, they submitted a Statement of Common Ground to the Inspector. The Statement of Common Ground included these passages: Paragraph 20:

"It is agreed that the main issue raised by the proposed development is the potential loss of an important recreational facility within Boston. It recorded that the Council objected to the development of housing on the ground because there were no alternative community or recreational facilities of equal or better quality available . . . If there were, then the principle of housing development on the site would be satisfactory subject to a number of conditions."

7. The planning consultant for the claimant, Mr Alyn Nicholls, identified as three issues in this appeal, firstly, the suitability of the site for residential development; secondly, development plan policies protecting existing recreational and community facilities; and thirdly, whether the imposition of conditions could overcome the Council's objections to the development.
8. In his submissions in the third section dealing with the third issue, he put before the Inspector a proposal that there should be a Grampian condition. In other words, a negative condition as approved by the House of Lords in Grampian Regional Council v The City of Aberdeen [1984] JPL 590, known to everybody as "a Grampian". He suggested the use of a Grampian condition to prevent the commencement of development until a new stadium was available to the football club, and to meet the terms of the development plan policies to provide alternative facilities of at least equivalent value. He referred to the question of whether there was a reasonable prospect of an alternative stadium coming forward in the short term and gave reasons as to why, in his contention, there was.
9. He referred the Inspector to proposals for a new stadium that had been announced. He referred to the two well-known authorities in recent years of British Railways Board v Secretary of State for the Environment and Hounslow London Borough Council [1993] 3 PLR 125 and Merritt v Secretary of State for the Environment [2000] JPL 371.
10. He then suggested a condition which read as follows:

"No demolition or development shall commence until an alternative football ground is available for use which provides equivalent or better recreation facilities and community facilities to those presently available at the appeal site. Prior to the commencement of development, a scheme should be submitted and approved by the local planning authority which sets out a programme for the transfer of uses from the appeal site to the alternative site."

Mr Nicholls then went on:

"The condition ensures that, first, an alternative ground is available which meets the key policy objective of providing equal or better facilities. Secondly, it requires a scheme for the transfer of activity to the new ground and provides a direct link between the appeal site and the new ground."

The local planning authority suggested conditions. I need not read them out, save that they conclude with this observation:

"The Inspector is reminded that should he be so minded to grant permission, he should also consider the best means to secure the development of a new ground and facilities for Boston United Football Club before any demolition and redevelopment of the appeal site starts. A further condition may also be necessary."

11. The power to impose conditions on a planning permission is derived from sections 70 and 72 of the Town and Country Planning Act 1990. They do not require recitation in this judgment. The Secretary of State has issued a policy on the application of conditions in Circular 11/95 entitled "The use of conditions in planning permissions". It is, of course, the normal habit at hearings and public inquiries that the parties have exchanged views on conditions in advance, or certainly during the inquiry or hearing, within it or without it, and at the conclusion of the hearing, before hearing final submissions, the Inspector will have a discussion in which the position on conditions is explored by each party, and indeed by the Inspector. I shall have more to say about that in a minute.
12. Circular 11/95, at paragraph 14, sets six tests for conditions:

"On a number of occasions the courts have laid down the general criteria for the validity of planning conditions. In addition to satisfying the court's criteria for validity, the Secretaries of State take the view that conditions should not be imposed unless they are both necessary and effective and do not place unjustifiable burdens on applicants. As a matter of policy, conditions should only be imposed where they satisfy all of the tests described in paragraphs 14 to 42. In brief, these explain the conditions should be --

(1) necessary;

(2) relevant to planning;

(3) relevant to the development to be permitted;

(4) enforceable;

(5) precise; and

(6) reasonable in all other respects."

If one goes now to paragraph 26, from paragraphs 26 to 29 the Secretary of State addresses the question of the enforceability of conditions. At paragraph 27 he refers to the practicality of enforcement and at 28 to whether compliance is reasonable. But enforceability is also relevant to the next section which starts at paragraph 30 and deals with the test of precision. I am going to read into the judgment the following paragraphs of the circular. Paragraph 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 should be submitted for the approval of the local planning authority' is incomplete. So 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 should be carried out in accordance with the scheme to be approved in writing by the local planning authority, and the wording of the conditions clearly require this. A condition of this kind also sets no requirement as to the time or the stage of development by which the landscape work must be done, which can similarly lead to enforcement difficulties. Conditions which require specific works to be carried out should state clearly when this must be done.

(31) Vague Conditions.

A condition which is not sufficiently precise for the applicant to be able to ascertain what must be done to comply with it is ultra vires and cannot be imposed. Vague expressions which sometimes appear in conditions, for example, such as 'to keep the buildings in a tidy state' or 'so as not to cause annoyance to nearby residents' give applicants little idea of what is expected of them. Conditions should not be made subject to qualifications such as 'if called upon to do so' or 'if the growth of traffic make it desirable' which do not provide any objective and certain criteria by which the applicant can ascertain what is required.

(32) Discretionary or vetting conditions.

Conditions which attempt to provide for an arbiter to interpret such expressions or qualifications do not avoid this difficulty. Conditions requiring that tidiness, for example, shall be 'to the satisfaction of the local planning authority' make the applicant no more certain of just what is required. Conditions which are imprecise or unreasonable cannot be made acceptable by phrases such as 'except with the prior approval of the local planning authority' which purport to provide an informal procedure to waive or modify their effect. [It then deals with occupancy conditions. I need not read that]. Conditions which raise these difficulties, however, are not to be confused with conditions which require the submission of a scheme or details for approval which will, when granted, provide the precise guidelines to be followed by the developer. Nor should they be confused with occupancy conditions ...

(33) Clarity.

Conditions should be not only precise but also clear. Where a precise condition may be difficult to follow it may be helpful to attach to the position an illustrative plan, eg, describing sight-lines required at the entrance to an access road."

At paragraph 38 which is in the section dealing with reasonableness, the Secretary of State goes on:

"It is unreasonable to impose a condition worded in a positive form which developers would be unable to comply with themselves or which they could comply with only with the consent or authorisation of a third party . . .

(39) Although it would be ultra vires, however, to require works which the developer has no power to carry out or which would need the consent or authorisation of a third party, it may be possible to achieve a similar result by conditions worded in a negative form prohibiting development until the specified action has been taken.

(40) [I will read it in its unamended form] It is the policy of the Secretaries of State that such a condition should only be imposed on a planning permission if there are at least reasonable prospects of the action in question being performed within the time limit imposed by this permission."

13. That was the understanding at the date of the publication of the Circular, but in the light of the British Railways Board and Merritt cases to which I referred, that no longer holds good in that form. The Secretary of State, the Deputy Prime Minister wrote to chief planning officers on 25th November 2002 and said that it should be amended to read as follows:

"It is the policy of the Secretary of State that such a condition may be imposed on a planning permission. However, when there are no prospects at all of the action in question being performed within the time limit imposed by the permission negative conditions should not be imposed. In other words, when the interested third party has said that they have no intention of carrying out the action or allowing it to be carried out, conditions prohibiting development until the specified action has been taken by the third party should not be imposed."

At paragraph 41 the Secretary of State gives examples of the types of conditions he expects, such as holding up completion of a housing development under sewerage is in place. Of course, the use of Grampian conditions is far wider than suggested in the Circular. I accept, both as consistent with law and as consistent with extensive experience in practice, that it is open to an applicant to put forward a lawful Grampian condition which does hold up Development A until Development B has been completed or, in some cases, approved.

14. It is clear that the Inspector had power in this case to impose a condition which prevented development occurring until suitable replacement facilities had been provided; both power in law and he had the backing of policy if he chose to use it. He chose to use it. It was a matter for planning judgment whether he did impose such a condition. It may be that the more usual way was to obtain permission for the replacement and tie the two together by a section 106 obligation, or to apply for both simultaneously. Those alternative options might well have been advisable, but there is nothing wrong in principle with the use of a Grampian condition in such circumstances, provided, of course, that it is acceptable in planning terms. It is agreed between Mr Richards for the claimants and Mr Maurici for the defendant First Secretary of State that it is then a matter for the planning judgment of the decision-maker whether he or she considers that the condition meets the policy tests. That is, of course, whether the condition meets the test as applied to the circumstances of the case before the Inspector.
15. The Inspector, Mr Bruce Barnett, BA, MRTPI, issued his decision letter on 7th February of this year. It reads from paragraph 2 as follows:

"Main issue: I was advised at the hearing of the Council's view that were it not for its effect on the present use of the site, the proposed development would be consistent with development plan policies favouring the re-use for housing of accessible windfall sites within urban areas. I have no reason to take a different view."

He then goes on to refer to housing design. He concludes paragraph 2 as follows:

"I consider that the main issue in this appeal is whether the proposal will be consistent with planning policies which seek to protect recreational and community facilities.

(3) Reasons: It is not disputed that as the home of the local football team, the appeal site is a valuable recreational and community facility for which there is a continuing need, and that loss of this facility would be consistent with Policies R1 and CF2 [that is in the Boston Borough local plan] and that advice in Planning Policy Guidance Note 17 called 'Planning for open space, sport and recreation' unless an acceptable equivalent replacement is provided. No replacement facility is before me. Discussions have been going on for some time about continuing without developing a new ground elsewhere. Although a possible site has been identified, planning permission has not been sought for its development. There can be no certainty that this or any other replacement ground will be provided.

(4) The appellants consider that this is a situation where a negatively worded condition would be sufficient to secure the continued provision of the recreational community facility. A draft condition was suggested to the effect that the housing development should not begin until 'an alternative football ground is available for use at Boston which provides equivalent or better recreational facilities and community facilities to those presently available at the appeal site'.

(5) It is government policy that such a negative condition may be imposed unless there are no prospects at all of the replacement ground being provided, which is clearly not the case here, or there are planning reasons not to do so.

(6) I attach little weight to the Council's concern that granting permission with such a condition will create uncertainty in planning for the provision of housing as housing policies provide for windfall sites such as this [I interpose for those who may be less familiar with planning decision letters, a windfall housing site is a housing site not previously identified which comes forward adventitiously].

(7) Circular 11/95, the use of conditions in planning permissions, sets out six tests which all planning conditions should meet. I consider that if permission were given, it would be necessary to tie the housing development to the provision of a replacement facility and that a condition to that effect would be relevant to the housing development and to planning and that it would be generally reasonable. I am concerned, however, about the precision and enforceability of the suggested condition.

(8) A planning condition must be sufficiently precise and clear for a prospective developer to know what must be done and to be able to ascertain whether or not he has complied with it. In this case a judgment would have to be made as to whether a future replacement facility was equivalent or better. It seems to me that this judgment would be a complex and subjective matter involving a wide range of issues including the nature, quality and scale of activities to be provided for, and the extent to which such facilities would be accessible to the community. There will be considerable scope and differences of opinion as to whether or not the test has been met. Circumstances may well arise where a developer and the Council disagree as to whether a facility which has been provided is of equivalent or better standard. This would result in uncertainty and make it difficult for the Council to enforce the condition. Because of this I consider that the suggested condition would fail the tests of provision and enforceability in the Circular.

(9) I have considered amending the condition to require that before the development commences details of the replacement provision should have been provided to the Council and the Council should have certified that it was equivalent or better. However, I consider that in the absence of a clear indication as to what would comprise equivalent facilities, this would still leave too much uncertainty. It would not be a relatively minor matter like the submission and approval of the landscaping scheme where a developer would have a reasonable understanding of what would be likely to be acceptable. In my judgment, the issues involved in deciding whether or not a proposed new facility would be an acceptable replacement are likely to be so complex that a condition along these lines would fail the test of provision in the Circular.

(10) I conclude that on the basis of the evidence before me it would not be possible to secure the provision of appropriate replacement recreational and community facilities by means of a condition which meets the test in Circular 11/95. Consequently, the development would be likely to lead to a loss of facilities contrary to policies which seek to protect them.

(11) Conclusion: For the reasons given above and having regard to all of the matters raised, I conclude that outline planning permission should not be granted."

He then dismissed the appeal.

16. In my judgment the Inspector was quite entitled to find that planning permission could not be granted unless at least equivalent facilities were provided. I add that Mr Richards has not suggested otherwise. In my judgment, the Inspector was entitled to look for a condition which would achieve that end and Mr Richards has not suggested otherwise.
17. In my judgment, it is important to identify the duties of Inspectors when dealing with conditions. There is no disagreement between counsel on this matter. Mr Richards has very properly accepted the principles which are usefully summarised in R (on the application of) Ayres v Secretary of State for the Environment, Transport and the Regions [2002] EWHC 295, a decision of Silber J. In that, Silber J recites the authorities on the role of Inspectors when dealing with conditions. Of course, the principle source of this is to be found in a case called Top Deck Holdings v Secretary of State for the Environment, cited with approval by Lord Woolf MR in Bridewell v Secretary of State for the Environment [1997] 73 PCR 418 at page 426. I quote from Lord Woolf:

"So far as that is concerned, I fully accept that this has been made clear in the case of Top Deck Holdings Limited v Secretary of State that there is no obligation on an Inspector in the absence of any reference to an appropriate condition to search for a condition which might be used to assist an applicant who is appealing against the decision of a planning authority."

18. In my judgment it is quite correct that one expects Inspectors, as a specialist Tribunal, to be more proactive than a judge. Indeed, in what I confess is a fairly lengthy experience of public inquiries, Inspectors, and especially experienced ones, would hone and improve upon any condition suggested by the parties and even make suggestions for deletion or addition, both to the wording and to the topics dealt with by condition. But what they are not required to do is to draft conditions for the parties to overcome difficulties which the parties have been unable to overcome for themselves. If the parties have been unable to come up with a way of dealing with the matter which is suggested in requiring a condition, it is not for the Inspector to do their job for them. Mr Richards has not suggested that there is such a duty. His contentions before me are that the Inspector, in dealing with the condition which was before him, failed to apply the right tests.
19. I remind myself, of course, and it is trite law, that it is not my task to decide whether or not I would have approved or disapproved the suggested condition or suggested another one. My task is to determine only whether or not the Inspector interpreted and applied the policy correctly in the exercise of his planning judgment.
20. The position he had was this. It was common ground that the provision of replacement facilities had to be of equivalent value at least. That obviously presented a potential source of disagreement which may or may not be capable of being addressed. The central question was: How is it to be decided what the value is of what is lost and what the value is of what is being provided? In my view, the Inspector was entirely entitled to reach the planning judgment he did that the condition was insufficiently precise. It did not specify what the criteria were by which the comparison was to be made. Mr Richards, in argument, suggested, or in some cases accepted, some possible criteria: the size of the pitch, the number of seats, what facilities were to be provided and so on. It is obviously right also that one may have to consider location and accessibility by public transport, if one is to look at the value of the proposed alternative to the community. If an Inspector considers in his planning judgment that any Grampian condition is insufficiently precise without it containing a set of criteria against which a replacement facility should be judged, then in my judgment his decision is not challengeable in law and certainly not on the facts of this case.
21. Mr Richards submitted to me that the Inspector was in error in his, the Inspector's, finding that the guidelines for provision should be established in the condition. Mr Richards submitted that if a local planning authority do not "sign it off" then the housing on the site cannot be built. I reject that argument. It is an argument on planning merits and it was a matter for the planning judgment of the Inspector whether he thought that the condition was sufficiently precise. He expressed his reasons succinctly and clearly at paragraphs 8 and 9 of the decision letter and I can find no flaw in his reasoning. He there identified the problems which he found, in his planning judgment, would flow from the condition imposed.
22. I therefore reject this application. I give judgment for the first defendant Secretary of State.
23. MR MAURICI: My Lord, two things. First of all, my Lord, costs.
24. JUDGE GILBART: I have received a schedule. I must confess, Mr Maurici, that I have not read it.
25. MR MAURICI: The figure in the schedule, the Secretary of State's costs is £4,535.
26. MR RICHARDS: My Lord, one very minor observation --
27. JUDGE GILBART: I have one. This enables me to compare the fees between different members of Mr Maurici's chambers.
28. MR RICHARDS: My Lord, I do not seek to raise a point on that matter. Just one minor matter. This schedule has been drawn up on the basis that there would be four hours in court today.
29. JUDGE GILBART: Would the fees be any less for the fact that counsel and the judge were all swift and succinct?
30. MR RICHARDS: No, my Lord. It is only on the basis of attendance. The Treasury Solicitor claim the costs on the basis that they would be here for four hours today.
31. JUDGE GILBART: Where do I find that? Attendance at hearing. You say that that should be knocked down by two hours?
32. MR RICHARDS: No, we are now into the third hour. I would not be so churlish as to say --
33. JUDGE GILBART: You want to knock it down by £160.
34. MR RICHARDS: That is what I am instructed to ask for.
35. MR MAURICI: I am not going to object to that, my Lord.
36. JUDGE GILBART: I make an award of costs which I assess in the sum of £4,375.
37. MR MAURICI: My Lord, the only other thing, for the benefit of the transcript writer and for the associate drawing up the order, the order needs to record your Lordship's permission for the change in the title.
38. JUDGE GILBART: I give leave for the amendment of the title of the action. The new title of the claimant, Mr Richards, is?
39. MR RICHARDS: Orchard (Developments) Holdings Plc. My Lord, I am instructed to ask for leave to appeal.
40. JUDGE GILBART: You mean permission to appeal.
41. MR RICHARDS: I mean permission. Your Lordship will know that CPR 52.3 says that permission will only be given where the court considers that the appeal will have a real prospect of success or there is some other compelling reason why the appeal should be heard. My Lord, I say that your Lordship failed to understand the proper application of the policy in the same way that the Inspector did. I put my application on that basis.
42. MR MAURICI: My Lord, your Lordship's judgment is very clear. I see no point of public importance nor any realistic prospect of success.
43. JUDGE GILBART: I do not think there is any realistic prospect in this case. It is a straight forward simple point to which the answer was obvious. Thank you.