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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 >> Redrow Homes Ltd. v First Secretary of State & Anor  EWCA Civ 1375 (05 October 2004)
Cite as:  EWCA Civ 1375
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT LIST
(MR JUSTICE SULLIVAN)
B e f o r e :
LORD JUSTICE MAURICE KAY
LORD SLYNN OF HADLEY
|REDROW HOMES LIMITED||Claimants/1st Respondents|
|THE FIRST SECRETARY OF STATE||Defendant/Appellant|
|SOUTH GLOUCESTERSHIRE COUNCIL||2nd Defendants/2nd Respondents|
(Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
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(Official Shorthand Writers to the Court)
MR M BARNES QC AND MR E CAWS (instructed by Redrow Group Services Limited) appeared on behalf of the Respondents
MR T STRAKER QC AND MR R HUMPHREYS (instructed by South Gloucestershire County Council) appeared on behalf of the 2nd Respondents
Crown Copyright ©
(2) Neither side relies on any extrinsic material as an aid to construction. As stated by Keene J (as he then was) in R v Ashford Borough Council ex parte Shepway District Council  PLCR 12 at 19C-D:
"The general rule is that in construing a planning permission which is clear, unambiguous and valid on its face, regard may only be had to the planning permission itself, including the conditions (if any) on it and the express reasons for those conditions."
(3) As stated by Lord Morris of Borth-y-Gest in Kent County Council v Kingsway Investments  AC 72 at 96A-B, in respect of a permission granted, as this was, subject to a condition of later approval of specified observed matters, it is obligatory to:
" ... obtain the approval of the authority with respect to the reserved matters before any development is commenced. So if permission is granted after an outline application the applicant clearly knows 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. Any refusal by them to give approval of details submitted to them can be the subject of an appeal to the Minister. The Minister can overrule the authority."
(4) If the construction of condition 5 of the 1957 planning permission proposed by the Secretary of State is rejected, as it was by Sullivan J, then it is accepted by the Secretary of State that the imposition of the 2003 conditions on approving the detailed plans for the construction of the access at point 6C was an impermissible modification of the 1957 planning permission, and that his decision on this point should be quashed.
" ... 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."
"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 therefor have been approved by the local planning authority or by the Minister of Housing and Local Government on appeal."
It is noted that, contrary to the current practice, no time limit was imposed in the 1957 planning permission on the making of the application for official approval of the detailed plans.
"The access proposed to be constructed at point 6B shall not be used as a principal access for the reception and despatch of goods."
"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."
"12(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."
"In the absence of any express words of limitation, one would therefore expect such accesses to be all-purpose accesses."
"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 conditions why that was so."
" ... 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."
He accordingly made the order to which I have referred.
Order: Appeal dismissed with costs.