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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Barker & Ors, R (on the application of) v Waverley Borough Council & Anor [2001] EWCA Civ 566 (5 April 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/566.html Cite as: [2002] JPL 87, [2001] EWCA Civ 566, [2002] 1 P & CR 6

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(Sir Richard Tucker)

		Royal Courts of Justice Strand London WC2 Thursday 5 April 2001

Thursday 5 April 2001

1. LORD JUSTICE PILL: This is an appeal against a decision given on 7 December 2000 by Sir Richard Tucker, sitting as a Deputy High Court Judge. It is brought by Waverley Borough Council ("the Council") and British Aerospace Plc ("BAe") and is brought by permission of the judge.
2. The judge quashed a decision of the Council dated 19 April 2000 and ordered the Council to reconsider applications to them by BAe to vary conditions attached to planning permissions. The applicants before the judge (the present respondents) were Mr Peter Barker and other residents of villages near Godalming, Surrey. The dispute is in relation to the use of Dunsfold aerodrome.

Background

3. The aerodrome is in open countryside near the villages of Dunsfold and Alford, and covers 528 acres. It was built during the Second World War, following a requisition of land, for use by the Royal Canadian Air Force. It was formerly agricultural land. Since the war, the aerodrome has been used for the production, repair and flight testing of aircraft. It has been a civilian use, although some of the aircraft have been destined for military use. There has been a series of planning permissions, the first granted in 1951 when the use was already in existence. It is now accepted that, until 1998, the permissions were temporary. For example, a permission was granted in June 1958 "for the erection, repair and flight testing of aircraft". It was provided that the use be discontinued on 30 April 1965. The reason given for that condition was:

"So that the future use of the airfield may be reconsidered by the Local Planning Authority after seven years in the light of the then circumstances."

4. The use was limited to use by the then applicants, Hawker Aircraft Ltd. Further permissions were granted in 1965, 1980 and 1997. In each case, the permissions were temporary and other conditions, not relevant for present purposes, were imposed. In each case, the permission provided for the reinstatement of the site to its former condition when the permission expired, and the return of the land to agricultural use. The restriction to use by a named company was maintained, in more recent years the company being BAe.
5. The grant in March 1997 permitted the continued use of Dunsfold aerodrome for the production, repair and flight testing of aircraft until 30 April 2020. It further provided:

"This permission shall be for a limited period only expiring on 30th April 2020 on or before which date the use(s) hereby permitted shall be discontinued and the site reinstated to its former condition unless a further planning permission is granted before the expiration of such a period."

6. The reason given for the imposition of the condition was:

"To accord with the terms of the application and to ensure that the use of the land by the applicants can be reviewed by the Local Planning Authority at the appropriate time in the light of the circumstances then prevailing."

7. Though there have been differences in wording, it is accepted that the approach there stated has been the approach throughout the post-war period, and it is now approaching half a century since the first permission in 1951. In November 1998, the condition stipulating that consent was temporary was removed but the permission was still stated to be for the benefit of BAe only. It still required that on cessation of the use of the aerodrome and associated buildings by them:

". . . this permission shall cease to have effect and all the buildings and installations including runways, taxiways etc, shall be demolished, equipment and materials removed and the site left in a clean and tidy condition to the reasonable satisfaction of the Local Planning Authority. Within a period of two years from the cession of the use hereby permitted, all the land shall be returned to agriculture and all footpaths and bridleways which crossed the aerodrome prior to the requisition of the land shall be reinstated to the satisfaction of the Local Planning Authority."

8. Over the years there has also been a series of temporary consents for building operations and works. There are at present 54 applications before the Council to have those permissions made permanent. Consideration of the applications has been deferred pending the outcome of the present proceedings.
9. In June 1999, BAe announced that it would cease operations at the aerodrome at the end of the year 2000. By applications made in November 1999 under section 73 of the Town and Country Planning Act 1990 ("the 1990 Act"), they sought to remove, first, the condition that the permission should be for their benefit only and, secondly, the condition requiring the return to agriculture on cessation of the use. That is described by Mr Lockhart-Mummery QC, for the respondents, as "the reverter condition" and I adopt that expression as convenient shorthand. The Planning Officer, Mr Wyborn, reported to Council. A sub-committee met on 5 April 2000 and the Planning Committee on 19 April, and both requirements were removed by the Council. The decision to remove the personal condition is not challenged but it is submitted that the decision to remove the reverter condition was unlawful.

The judge's decision

10. The judge quashed the decision removing the reverter condition. Three points were raised: first, that in making its decision the Council had taken into account an immaterial consideration, namely a doubt as to the validity of the reverter condition; secondly, the removal of the reverter condition was in the circumstances irrational; thirdly, the applicants, in the circumstances, had a legitimate expectation in the continuation of the reverter condition.
11. On the first issue the judge found only that the reverter condition was lawful, a finding not now in dispute. As to the second issue, the judge held:

"In my judgment having regard to the history of this site; to the circumstances in which it was first taken over; to the position which it occupies in open countryside, and to the many years during which the condition has been imposed, it is now unreasonable for it to be removed, and so unreasonable as to amount to an irrational decision within Wednesbury principles." ([1948] 1 KB 233)

12. On the third issue, the judge referred to the submissions of the present appellants and concluded:

"In my judgment that argument gives insufficient weight to the expectations of the claimants that legal, valid and long-standing conditions would be enforced and to the obligation upon the defendants of doing so. In the present case, in my judgment, it is so unfair to frustrate the expectations of the claimants that to take a new and different course such as the [appellants] propose will amount to an abuse of power. There is, in my view, no overriding interest relied upon sufficient to outweigh the requirements of fairness."

The Planning Officer's report

13. Before considering the issues, I refer to the report of the Planning Officer prepared for the meeting of the Council's Environment and Planning Committee on 19 April 2000. The contents of the report are central to the determination of the appeal.
14. It is a comprehensive report and in conventional form. It sets out the applications to be considered and the results of consultations with the County and Parish Councils. It appends a description of the site, a statement of its current use, a list of relevant planning documents and a statement of the main planning considerations, as seen by the Planning Officer. Legal considerations are set out and there is a discussion of the planning merits. The officer notes the sub-committee's opinion on the removal of the conditions and expresses his own opinion that the conditions cannot be sustained. He sets out proposed replacement conditions. These, which were accepted by the committee, are comprehensive and amongst other things place a limit on the number of aircraft movements, the number of people who can be employed at the site, a limit on flying training facilities, a requirement for the provision of mufflers or silencers, a limit on hours of operation and a requirement for a new landscaping scheme.

Ground 1

15. The first ground arise because of a past difference of opinion as to the validity of the reverter condition. The question of the validity of conditions attached to planning permissions will sometimes be a difficult one (Newbury District Council v Secretary of State for the Environment [1981] A C 578). BAe had received advice from leading counsel that the condition was of dubious legality. The respondents, having also obtained advice from leading counsel, took a contrary view. It is now common ground that the condition was valid. The respondents contend that the decision to remove the condition was unlawful because the Council were invited by their Planning Officer to make a decision on the basis that the validity of the condition was in doubt.
16. The respondents' point rests primarily upon the contents of a single, though important, paragraph in that part of the Planning Officer's report headed "Conclusions":

"Given all the information set out above, having particular regard to the representations received, taking into account the long history of employment use on the site, the development plan policies and the legal concerns regarding the conditions, it is concluded that the retention of these two specific conditions cannot be sustained."

17. The respondents have a procedural difficulty in that the judge made no finding on this issue. He merely found that the condition was lawful, a finding which, it is accepted on behalf of the respondents, takes them nowhere. There is nothing to suggest that, in failing to deal with the point, the judge was under the impression that it operated by concession. If there is a point, it is in the Council having regard to an immaterial consideration, an issue not considered by the judge. The respondents' notice was silent on the point. In the course of the hearing before this court application was made to amend the respondents' notice to include the submission now made. Notwithstanding the lateness of the application, permission was granted. It was clear that the appellants were alert to the point and had made submissions on it.
18. The second part of the respondents' case on this ground is that, although the submissions of Mr Macleod QC for the Council before this court are to a different effect, his skeleton argument before the judge was made on the basis that the Council, in making its decision, had taken into account doubts about the validity of the reverter condition. That is a strong indication, it is submitted, of the Council's position and that the committee members had taken the doubt into account.
19. Mr Lockhart-Mummery refers to a heading to a part of Mr Macleod's skeleton argument before the judge: "Did the Council have regard to any doubt as to the uncertainty of condition 1?" Mr Macleod stated in the skeleton argument that "As a matter of fact the Council clearly did have regard to the existence of uncertainty as to the validity of Condition 1". He added that "there was a sound basis for the existence of that uncertainty given that the Council was presented with conflicting opinions as to the validity of Condition 1 from leading counsel who are specialists in their field." Mr Macleod referred to the "further delay" which would have followed from an attempt to resolve the uncertainty by taking High Court proceedings for a declaration. He set out the relevant considerations and concluded (page 441, para 15):

"Although the Applicants allege that the uncertainty as to the legality of Condition 1 was an immaterial consideration and that the Council erred in taking it into account, it is submitted that it was clearly a material consideration albeit that the decision to grant the Permission was entirely and separately justified on an assessment of the 'pure' planning aspects of the applications, namely the development plan policies, government policy and the identification of what harm, if any, would be caused by the removal of Condition 1 and the substitution of a number of other conditions restricting the use of the Aerodrome."

20. By way of procedural retort, Mr Macleod and Mr Katkowski QC (for BAe) point out that the ground was not included in the original form 86A, save by way of a footnote which stated that:

"If in due course the respondent (the Council) clarifies that it did indeed consider the alleged doubts as to the validity of the reversion to agriculture condition to be a material consideration, the applicants [the respondents] reserve the right to amend the grounds of challenge..."

21. Neither had the point been identified in the written opinion of leading counsel for the respondents on 4 May 2000, which on this aspect of the case refers only to a paragraph in the Planning Officer's report in which the validity of the condition is affirmed. Moreover, it is only by way of an amendment to the respondents' notice, made by application in the course of the hearing, that the respondents are permitted to raise this point before the court.
22. Mr Macleod also submits that in his skeleton argument below he was doing no more than setting out the background considerations and possibilities, and was not alleging that doubts about validity were material to the decision which had been taken. He referred to the words in the paragraph from the skeleton argument I have read, that the decision was "entirely and separately justified" on the planning aspect of the application.
23. On this issue, counsel for the appellants rely upon earlier paragraphs in the Planning Officer's report. Under the heading "Main planning considerations", the Planning Officer stated that the relevant conditions "are extant and control the activities on the aerodrome site." Under the heading "Legal considerations", the Planning Officer mentioned leading counsel's opinion to which he had been referred, with its reference to the dubious legality of condition 1, but stated:

"However, your officers are of the opinion that there is justification for viewing the circumstances in which the relevant permissions were granted as having been exceptional, at the time that they were granted. Planning permissions have been granted partly in the national interest for a company making Harriers which are used, inter alia, in defence of the realm. This very well could be considered to be an exceptional circumstance" [thus justifying the condition].

24. Statements from the Planning Officer and a member of the Council have been filed, together with the Council minutes, but I do not find these documents helpful in resolving the present issue.
25. There is no direct evidence as to what material was decisive in influencing members of the committee to decide to remove the reverter condition. Exercising its present jurisdiction, the task of the court is to consider whether the material before members was such that they were in a position to take such a decision on the basis of material considerations, and only material considerations. They made a decision which, subject to grounds 2 and 3, they were in law entitled to make. What has to be decided is whether in doing so there is a real possibility that they were influenced by a consideration which ought not to have influenced them. The suggestion is that they were or may have been influenced by legal concerns about the validity of the reverter condition. It is suggested that concern about its validity, rather than the planning considerations set out in the rest of the paragraph, influenced the decision to remove the condition.
26. It was appropriate for the Planning Officer, in his report, to refer to the legal issue which had arisen. However, he stated his opinion on it plainly and it was his opinion that the members could be expected to follow. Moreover, the relevant planning issues are fully set out in the report and given appropriate consideration. They feature prominently in paragraphs under the heading "Conclusions". In that context I do not consider it a real possibility that the reference in one paragraph to "Legal concerns regarding the conditions" improperly influenced members in the decision they took. It is, on the face of it, unlikely that, in the absence of a plain direction, members would be influenced by a legal concern rather than the planning issues which it was their duty to consider and which had been set out comprehensively in the report. If any legal concern was in their mind, it is most unlikely that they would have failed to refer themselves to the section of the report headed "Legal considerations", in which the opinion of the Planning Officer that the condition was valid was set out. Moreover, I do not consider that the decision on this point can in the circumstances be influenced by the contents of a skeleton argument before the judge hearing the application for judicial review. There is no evidence that the skeleton argument was prepared on the basis of instructions that doubts about the validity of the condition had influenced the Council's decision. Beyond a consideration of the content of the Planning Officer's report, there is no evidence to suggest that members were influenced by concern about the legality of the condition.
27. That being so, I do not find it necessary to go on to consider the more general point as to whether doubts about the lawfulness of a particular course of action can be a material consideration for planning purposes when deciding whether to adopt that course of action. Counsel for the appellants were unwilling to take the court along that track. Provisionally, it appears to me that there could be situations in which reasonable doubt about the lawfulness of a course of action could be a material consideration in deciding whether to adopt it.

Ground 2

28. The respondents' case on grounds 2 and 3 is, in the words of Mr Lockhart-Mummery "more restrained" than the findings of the judge. That I take to be what in my view is an entirely justified acknowledgment that the judge has on these issues, with respect, had regard to his own view of the planning merits. The judge thought it unreasonable that the reverter condition should after very many years be removed. The respondents rely, as did the judge, upon a lack of logic in a paragraph within the report dealing with the condition (page 85):

"The granting of this permission in 1998 acknowledged that if the activities were to continue by British Aerospace in a similar way to the past activities, then the continued use would be acceptable. If the grant of permanent consent for British Aerospace was acceptable in 1998 then it could be argued that the grant of permanent consent for the same activities by a different occupier, with the same or lesser impacts on the environment, is, in itself, no more harmful. Consequently, the view may be taken that the grant of permanent permission (personal to BAE) is inconsistent with a requirement for the site to return to agriculture . . . "

29. I agree that the word "consequently" is misplaced in that paragraph. The words which come after the word "consequently" do not follow from the words which come before it. The view expressed by the Planning Officer that a permanent planning permission for an industrial or commercial use is inconsistent with a reverter condition is, however, a tenable one. In any event I am not prepared to quash this planning decision by reason of an apparent lack of logic in the language of a single paragraph in the report. It is necessary to consider whether, in all the circumstances, the Council were entitled to take the decision they did. Section 73 of the 1990 Act provides a procedure for the determination of applications to develop land without compliance with conditions previously attached. Section 73(2) provides:

"On such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted, and -

(a) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly, and

(b) if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application."

30. In Powergen United Kingdom plc v Leicester City Council and Safeway Stores plc [2000] JPL 1037, Schiemann LJ stated at paragraph 47, when applying the section, that:

". . . the authority must take into account the provisions of the development plan and any other material considerations. If one asks 'material to what?' the answer is material to the application under section 73. Thus, for instance, if the application is to retain a use of land without complying with a condition imposed on a previous permission that the use should cease after five years it must be right to examine that application in the light of facts and policies as they are at the time of the decision on the new application."

31. A consideration of the need for the condition will involve a consideration of section 70 of the 1990 Act, as well as section 54A, and the decision is to be taken on the basis of current considerations. Section 70(2) provides that:

"The authority shall have regard to the provisions of the development plan so far as material to the application and to any other material considerations."

32. On the relevance of the development plan, in these circumstances, see also Allied London Property Investment Company v Secretary of State for the Environment [1997] JPL 199.
33. Mr Lockhart-Mummery refers to the numerous occasions when, over many years, temporary permissions for use and for works have been accompanied by a requirement for removal and reinstatement. Notwithstanding that, use without limit of time is now permitted. The option of removal and reversion to agriculture should be kept open, he submits. That can be done either by maintaining the reverter condition or by imposing an obligation on BAe by deed or by requiring a planning agreement under section 106 of the 1990 Act. It is submitted that there is a lack of logic in removing the reverter condition when only about 18 months earlier it had been retained "to ensure that the site shall revert to agriculture at the cessation of [use] in the interests of proper planning control". The present use had arisen only because of the exceptional national interest in testing military aircraft. It is further submitted that reasons were required to be stated expressly if the removal of the reverter condition was to be justified. It is also submitted that the Council were wrong in law in deciding, as the Planning Officer advised in his post-decision written statement of 3 November 2000, that it was not possible or appropriate simply not to determine the applications.
34. Counsel for all three parties have referred in detail to the planning material which was before the Committee. The respondents' case is based on their understandable concern for what might happen to this large site and the buildings on it if the present use, to which for present purposes they do not object, is discontinued. In the absence of the reverter condition they will be left with an unnecessary eyesore and with buildings which may be put to uses which would be detrimental to the amenity of this attractive rural area.
35. Having considered the material, I do not consider the removal of the reverter condition to be irrational as being "beyond the range of responses open to a reasonable decision-maker", the test approved by Sir Thomas Bingham MR in R v Ministry of Defence ex parte Smith [1996] 1 AllER 257 at 263.
36. In the Planning Officer's report it was stated that:

1.The aerodrome use is the largest single private employer in the borough and is significant to the local economy.

2.Continuation of similar employment use in the future is the approach which most accords with the adopted development planning policies for the borough.

3.Structure Plan Policy DP 9 indicates that the maintenance and renewal of the county's economy will be met primarily by encouraging the re-use of land already in industrial and commercial use.

4.BAe has been generally a good neighbour and there has been a satisfactory balance between the requirements of this employer, the jobs it provides, the benefits to the local economy and the need to protect the landscape and the amenities of adjoining communities.

5.Continuation of use by an alternative employer would also be acceptable [that opinion is not in issue].

6.BAe, who have been marketing the site, have indicated that serious interest has not been forthcoming because of the restrictive conditions, and that relaxation of such conditions would allow a renewed marketing campaign. The reverter condition is seen by the Planning Officer as "a restrictive element" reflecting BAe's case that the condition hampers the finding of a buyer for the site.

7.The opportunity was being taken to impose, in the interests of local amenity, further conditions limiting type and intensity of use on the site.

37. Taken together, these considerations provide a positive case for removing the reverter condition. The report also referred to the beneficial effect of the reverter condition and to the fact that:

". . . it should be noted that the Local Planning Authority has, in the past, recognised that the planning circumstances surrounding the site are exceptional and that temporary planning permissions have been granted for a type and scale of development which would normally be regarded as inappropriate development within the countryside."

38. The planning history was also stated to be a significant material consideration. It is stated that the views of local residents and parish councils needed to be taken into account. They had expectations, it was acknowledged, based on the control which had been exercised on the site. It is also stated that they have a legitimate expectation that future control will allow for similar consideration to be given to the avoidance of adverse environmental impact. There can be no doubt that the Council when making its decision had in mind the respondents' concerns.
39. I add that when he prepared his report, the Planning Officer had the benefit of an impact study prepared by consultants. It is stated in that study that "agricultural use as a single use option is considered unlikely" although "it might well be viable on a smaller scale as part of a mixture of activity". The appellants rely on evidence that return to agricultural use was in any event impracticable. I do not think it necessary for present purposes to consider that question further. No case based on the need for agricultural land is put forward, and rightly so. The merits of the land as agricultural land do not feature prominently in the Planning Officer's reports, nor need they have done so. The reverter condition is put by the respondents as a way of preventing undesirable uses, rather than satisfying a need for agricultural land. In reaching my conclusion, I take the most favourable view I can of such evidence as there is of the agricultural merit of the land.
40. In my judgment there were in the circumstances existing in April 2000 reasonable grounds for the decision. The use commenced at a time of national emergency. Since then the reverter condition has been maintained through a series of temporary consents over many years. To establish that the removal was unlawful, however, it needs to be established that the condition was justified and appropriate in the circumstances existing in April 2000 to the extent that it was irrational to fail to find that its retention was justified and appropriate. The need to reconsider the condition, and other conditions, in the light of the then prevailing circumstances was expressly stated in earlier permissions. On the material available, I am unable to categorise the decision of the Council as irrational. Moreover, this was not a case in which reasons for the decision needed to be expressed by the Council. The relevant considerations are set out in the Planning Officer's report. Moreover, while I am not persuaded that consideration of a section 106 agreement was obligatory, there is in any event evidence that its potential was considered by the committee and an agreement was not thought appropriate.
41. The Council were obliged, by virtue of their statutory obligations, to consider BAe's application under section 73.

Ground 3: legitimate expectation

42. The claim that the respondents have a legitimate expectation has the same basis as the case on irrationality: the reverter condition had lasted so long that it should not be removed. Mr Lockhart-Mummery expresses it in this way in the skeleton argument:

"The Residents have a legitimate expectation that if the Aerodrome is no longer used for the assembly, repair and flight-testing of aircraft in the national interest, the buildings and installations will be removed, the site cleared and the land returned to agriculture."

43. There are 165 dwellings within half a kilometre of the site boundaries. A settled practice, it is submitted, involves a promise to a class of persons, namely the local residents. They have relied and rely on the continuation of the practice. Counsel relies on the statement of Mr Alan Ground, one of the respondents, who has lived in Dunsfold for 27 years and states:

"It has always been my understanding that the planning permission attached to the Aerodrome site, which lies in the heart of the countryside, would revert to agricultural use if it was no longer needed for use by BAe for the purposes of assembly, repair & flight testing of aircraft (serving the national interest)."

44. Reliance is placed on the statement of Lord Woolf MR in R v North and East Devon Health Authority ex parte Coghlan [2000] 2 WLR 622 at 645D-E:

"Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy."

45. I do not consider that a legitimate expectation that the condition would be continued arises in this case. In R v Secretary of State for Education ex parte Begbie [2000] 1 WLR 1115, to which we were also referred, it was common ground, as expressed by Peter Gibson LJ at 1125B, that "any expectation must yield to the terms of the statute under which the Secretary of State is required to act".
46. The local planning authority in this case were under a statutory duty to consider BAe's application under and in accordance with section 73, which involved a consideration of section 70 and section 54A of the 1990 Act. They were under a duty to consider it in the circumstances existing at the time of the decision. The relevant considerations were set out in the Planning Officer's report. The statutory duty would not be discharged lawfully if one consideration, the length of time for which the condition had persisted, could in law be held to prevail over the duty to have regard to the considerations set out in those sections. The local residents had an expectation that consideration would be given, in any decision taken, to local amenity. Failure to have regard to that material consideration would render a decision liable to be quashed. The expectation did not, however, extend to give legal primacy to that expectation over the duty of the Council to take all material considerations into account.
47. For the reasons I have given the judge was in my view wrong on all three points and I would allow this appeal.
48. LORD JUSTICE MANTELL: I agree.
49. MR JUSTICE McKINNON: I also agree.
ORDER: Appeal allowed. Sir Richard Tucker's order of 7 December 2000 quashed. The respondent on the appeal to pay the first appellant's costs both of this court and the court below, on a detailed assessment if not agreed. The second appellant's appeal allowed with no order for costs. Permission to appeal to the House of Lords refused. (Order not part of approved judgment)