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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 >> Nunn, R (on the application of) v First Secretary of State & Ors  EWCA Civ 101 (08 February 2005)
Cite as:  2 All ER 987,  7 EG 143 (CS),  2 PLR 61,  BLGR 224,  EWCA Civ 101,  NPC 16,  Env LR 32
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COURT OF APPEAL (CIVIL DIVISION)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWS
LORD JUSTICE WALL
| The Queen on the Application of Christine Nunn
|- and -
|First Secretary of State
T-Mobile (UK) Ltd
Leeds City Council
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Crown Copyright ©
Lord Justice Waller :
"(3) Before beginning the development, the developer shall apply to the local planning authority for a determination as to whether the prior approval of the authority will be required to the siting and appearance of the development."
(4) [. . . ]
(5) The local planning authority shall:-
(a) for development which, in their opinion, falls within a category set out in the table of article 10 of the Procedure Order, consult the authority or person mentioned in relation to that category, except where:-
(i) the local planning authority are the authority so mentioned; or
(ii) the authority or person so mentioned has advised the local planning authority that they do not wish to be consulted.
and shall give the consultees at least 14 days within which to comment.
(b) in the case of development which does not accord with the provisions of the development plan in force in the area in which the land to which the application relates is situated or which would affect a right of way to which Part III of the Wildlife and Countryside Act 1981 (public rights of way) applies, shall give notice of the proposed development, in the appropriate form set out in Schedule 3 of the Procedure Order:-
(i) (aa) by site display in at least one place on or near the land to which the application relates for not less than 21 days; and
(ii) (bb) by local advertisement.
(6) The local planning authority shall take into account any representations made to them as a result of consultations or notices given under A.3, when determining the application made under paragraph (3).
(7) The development shall not be begun before the occurrence of one of the following:-
(a) the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required;
(b) where the local planning authority gives the applicant written notice that such prior approval is required, the giving of that approval to the applicant, in writing, within a period of 56 days beginning with the date on which they received his application;
(c) where the local planning authority gives the applicant written notice that such prior approval is required, the expiry of a period of 56 days beginning with the date on which the local planning authority received his application without the local planning authority notifying the applicant, in writing, that such approval is given or refused; or
(d) the expiry of a period of 56 days beginning with the date on which the local planning authority received the application without the local planning authority notifying the applicant, in writing, of their determination as to whether such prior approval is required."
(a) receipt of notice that prior approval is not required; or
(b) where the decision is that prior approval is required, the giving of that approval within 56 days; or
(c) where the decision is that prior approval is required the expiry of 56 days from the date of receipt of the application, without notice either that approval is given or that approval is refused; or
(d) the expiry of 56 days from the date of receipt of the application without the local authority notifying the developer in writing of their determination whether such prior approval is required.
"174(2)(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged;
174(2)(c) that those matters (if they occurred) do not constitute a breach of planning control."
"In the determination of his civil rights . . . everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly . . ."
"(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. "
(1) An appeal against an enforcement notice can be brought (here by T-Mobile) on the grounds set out in section 174(2) of the Town and Country Planning Act 1990.
(2) The Secretary of State has a wide discretion under section 176 in determining such an appeal.
(3) The statute certainly does not say (as some do) that if one or other of the statutory grounds of appeal is made out, then the appeal must be allowed.
(4) Thus, even where (as here) the Inspector considered that Ground C was made out (and assuming that to be correct for these purposes), he was not obliged to allow the appeal.
(5) Construing section 176 to allow the Inspector thus to consider the Ground A appeal even though the Ground C appeal was made out (and then require him, pursuant to his obligations under section 6(1) of the 1998 Act, to consider the merits of Dr Nunn's objection and, if persuaded by it, refuse approval), is perfectly possible within the statutory language without (for example) during violence to the existing language.
Even if that were wrong, then secondly,
(1) The Ground C appeal asks whether the matters complained of (here the erection of the mast) "constitute a breach of planning control" 174(2)(c)
(2) Section 171A explains that carrying out development without the required planning permission or failing to comply with a condition or limitation on a planning permission "constitutes a breach of planning control".
(3) But section 171A does not preclude "breach of planning control" arising in other ways including – as here – development in breach of Article 6(1) rights.
(4) There is certainly nothing in the statutory language which prevents it being read and applied that way; and so it must be read and applied that way.
(5) Nor is that result prevented by the section 173(1) obligation that an enforcement notice shall state the matters which appear to constitute a breach of planning control and the paragraph of section 171A(1) within which the breach fails.
(6) Construing those provisions to allow the Inspector to reject the Ground C appeal because of the Article 6(1) incompatibility (and then require him, pursuant to his obligations under section 6(1) of the 1998 Act), to consider the merits of Dr Nunn's objections and, if persuaded, reject the appeal and refuse planning permission, is perfectly possible within the statutory language without (for example) doing violence to the existing language.
Even if that were wrong, then thirdly:-
(1) Carrying out development without necessary planning permission is undoubtedly a "breach of planning control".
(2) The planning permission in the present case arose from the operation of the "56-day rule" within the GPDO (as to which see para A.3(7) of Part 24 of the GPDO at page 163 of the permission bundle).
(3) A.3(7)(c) imposes a condition on the deemed planning condition to the effect that "development cannot be begun until . . . where the local planning authority gives the applicant written notice that such prior approval is required, the expiry of 56 days beginning with the date on which the local planning authority received his application without the local planning authority having notified the applicant, in writing, that such approval is given or refused.
(4) In order to secure compatibility with Convention rights, pursuant to section 3(1) of the 1998 Act, that provision needed to be read, and could be read, subject to the additional requirement that development could only be commenced at the end of the 56 days if (as well as silence from the LPA) the deeming of consent and the commencement of development would not be in violation of (here) Dr Nunn's Article 6(1) rights."
Lord Justice Laws:
Lord Justice Wall:
ORDER: Application dismissed. Order for costs as per the order drawn up by the parties. Permission to appeal to the House of Lords refused.