Guernsey Law Reports 2007–08 GLR 272
BIRD v. MINISTER OF THE ENVIRONMENT DEPARTMENT
ROYAL COURT (Collas, Deputy Bailiff): February 8th, 2008
Planning Law—planning permission—development—permission to “re-erect” structure not inherent in permission to “erect” under Island Development (Guernsey) Law 1966, s.14(1)(b)—separate and distinct operations requiring separate and new planning permissions, even if original erection demolished, destroyed or taken down
Planning Law—planning permission—permitted period for works—by Island Development (Guernsey) Law 1966, s.16(3), works to be carried out within permitted period—Department’s practice of allowing later completion of works commenced within permitted period merely concession to enable completion—not intended to permit commencement of new work without permission
The appellant appealed against the decision of the respondent Department refusing planning permission to replace a radio mast on his property and also sought a declaration that planning permission granted in respect of the original erection of the mast remained valid.
Development permission was granted to the previous occupiers of the appellant’s property in 1968 to allow the erection of a radio communications mast. The permit was valid for 12 months and required the authorized work to be commenced within that period. In fact, the mast was erected in the course of 1968 and remained standing, after the appellant acquired the land, until it was taken down in 2005 by the original applicants. The Department refused the appellant’s application to replace the mast.
On appeal, the appellant submitted that the Department had been wrong to refuse his application since (a) planning permission enured for the benefit of the land despite the change of ownership, had a permanent quality and, once granted, remained valid notwithstanding that the authorized work had been completed; (b) in principle, a valid permission which could be implemented according to its terms could not be (and in this case had not been) abandoned; (c) as neither the Law nor the 1968 permission specified a time limit within which the permitted work had to be completed (provided that it was commenced within 12 months), it was therefore possible to continue the development even 40 years later, and it was in any case the Department’s practice to allow the later completion of
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works commenced during the permitted period; and (d) the 1968 permission to “erect” the mast impliedly included permission to “re-erect” it if it had been demolished, destroyed or taken down, since it was possible to envisage circumstances in which it would be unfair not to allow an owner to rebuild his property under the original planning permission.
The Department submitted in reply that (a) it was correct that planning permission ran with the land but a new permission was now required to re-erect the mast under both the Island Development (Guernsey) Law 1966, s.14(1)(a) as “development” (defined in s.40 as “carrying out . . . [a] building, engineering . . . or other operation” on land), and under s.14(1)(b) since it would “place, erect or re-erect on any site . . . [an] immovable structure”; (b) the 1968 permission had certainly not been abandoned but it had been fully implemented when the mast had been completed in the same year; (c) the Department’s practice of allowing a development to be completed outside the initial period of permission did not extend to authorizing the start of new work but was merely a concession to enable incomplete works to be completed; (d) permission to “erect” did not encompass permission to “re-erect,” since the two concepts were treated separately in s.14(1) of the Law and each required distinct planning permission; and (e) the only power the Department had to derogate from a detailed development plan was in the case of “a departure of a minor nature” (Island Development (Guernsey) Law 1966, s.18(1)), any departure of a more substantial nature needing to be the subject of a planning inquiry (s.18(2)).
Held, dismissing the appeal and refusing the declaration sought:
(1) The appellant could not re-erect the mast in reliance on the 1968 planning permission, since that permission had only limited validity and the works had been fully implemented during its period of validity. New planning permission was necessary before another mast could be erected (para. 32).
(2) Although planning permission enured for the benefit of the land, despite any change of ownership, both s.16(3) of the Island Development (Guernsey) Law 1966 (before its amendment in 1990) and the wording of the permit itself in this case, specified that the permission was valid for 12 months only; it therefore did not authorize any work to be carried out after the expiry of that period and the Department’s practice of allowing the later completion of works commenced within the permitted period could only be seen as a concession to enable the completion of incomplete works. It did not enable new works to be commenced outside the permitted period (para. 26).
(3) Moreover, it was clear from the phrasing of s.14(1) of the Law that permission for “erection” did not automatically imply permission for “re-erection,” even if, for example, the works were completely demolished or destroyed by fire or otherwise. “Erect” and “re-erect” were separate and distinct operations each requiring their own planning permission. And the Department only had an inherent power to authorize departures from a
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Cases cited:
(1) I’m Your Man Ltd. v. Environment Secy., [1998] 4 PLR 107; (1998), 77 P. & C.R. 251; [1999] PLCR 109; [1998] All E.R. (D.) 418, distinguished.
(2) La Cloche v. La Cloche (1870), L.R. 3 P.C. 125, referred to.
(3) Pioneer Aggregates (U.K.) Ltd. v. Environment Secy., [1985] A.C. 132; [1984] 3 W.L.R. 32; [1984] 2 All E.R. 358; [1984] 2 E.G.L.R. 183; (1984), 82 L.G.R. 488, considered.
(4) R. v. Rochdale Metrop. B.C., ex p. Tew, [1999] 3 PLR 74, referred to.
(5) Vaudin v. Hamon, [1974] A.C. 569; [1973] 3 W.L.R. 257; (1974), 117 Sol. Jo. 601, dicta of Lord Wilberforce applied.
Legislation construed:
Island Development (Guernsey) Law 1966, as amended, s.14(1): The relevant terms of this sub-section are set out at para. 13.
s.16(3), as amended: “Any permission granted in pursuance of the provisions of this section shall remain valid for three years from the date on which it was granted.”
s.18: “(1) . . . [T]he [Minister] may grant permission to carry out development or work involving a departure from a Detailed Development Plan if . . . it is a departure of a minor nature not warranting specific reference to the States . . .
(2) Where the [Minister] is disposed to approve of an application for permission to carry out development or work involving a departure from a Detailed Development Plan which may not be granted under the preceding provisions of this section the [Minister] may request the States . . . to appoint an Inspector to hold a Planning Inquiry . . .”
s.40: The relevant terms of this section are set out at para. 13.
N.J. Barnes for the appellant;
Ms. K.E. Walder for the respondent.
1 COLLAS, DEPUTY BAILIFF:
Introduction
From 1968 until 2005, a radio mast stood on a site at Rue des Pointes, St. Andrew’s and supported the communications system of the Island’s ambulance service. In September 2005 it was taken down. Richard Anthony Bird, the appellant, who had acquired the site of the mast, applied to the States Environment Department to replace it. The Department decided to refuse the application and the appellant has appealed against that decision. He has also applied for a declaration “that the
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permission granted on November 13th, 1968 is still in force and that no further permission is required to re-erect the radio mast.” This is my judgment on his application for that declaration.
Background
2 By letter dated November 13th, 1968, development permission was issued by the then States Housing Authority and the States Island Development Committee in favour of St. John Ambulance Brigade. (I will refer to St. John Ambulance Brigade and to St. John Ambulance and Rescue Service as “St. John.”) The permission was in the following terms:
“By virtue of the Building (Guernsey) Law 1956 and the Building Regulations 1957 made thereunder, and the Island Development (Guernsey) Law 1966, permission is hereby accorded you to re-site your aerial tower and construct a R.C. base at Pointes Lane, St. Andrew’s, as indicated on Plan No. K260Pla.”
3 The letter was signed by the Secretary to States Committees. The following condition was printed at the foot of the notepaper:
“This permit is valid for 12 months from the date of issue. If the work authorized by this permit is not commenced within 12 months, then an application for the issue of a new permit should be made.”
There was no delay in erecting the mast and I am told (in para. 2 of the appellant’s cause) that it was constructed by November 29th, 1968.
4 It is to be noted that permission was given to “re-site” the aerial. It is not now known why that was so. In an affidavit sworn on behalf of the Department, Faith Helen Rose, the Director of Planning Policy, said (in para. 5 of her affidavit) that—
“I infer that there was a mast positioned elsewhere previously but it is possible that it could have been a replacement mast on the same site. I cannot confirm from the Department’s files any further information, including whether or not this was the first application for a radio mast in respect of the site, as the documents date from 1968 and the files from that period do not appear to be comprehensive.”
5 Advocate Barnes, on behalf of the appellant, submitted that radio communications may have been something of an innovation in 1968 and hence it was quite likely that there was no existing aerial to be relocated. He suggested it was possible there had been a previous application, to erect a mast on a different site, which had been replaced by the application to re-site the proposed mast on this site.
6 In this judgment, I do not have to decide which explanation is correct. In fact, neither counsel has attached any significance to the word “re-site.” Both have treated the permission as if it read to “erect” a radio mast.
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7 Although the permission was issued to St. John, St. John has never owned the site of the mast. There have been several conveyances of the horticultural property of which it formed part and then, on November 27th, 2003, the owners of the horticultural property conveyed the site of the radio mast to the appellant. The premises thereby conveyed were described as two items. The first was an area of land identified by reference to a plan, attached to the conveyance, on which is marked the “Position of existing aerial system.” The second item was “all such right title and interest in the existing aerial system as the vendors have or may have”—wording which suggests the parties were not sure who owned the aerial system. The question of who does own the aerial system is one of several factual issues I cannot resolve but, fortunately, I do not need to do so.
8 In 2003 and 2004 the Island Development Committee (the predecessor of the Department) received four separate applications for the erection of telecommunications masts in St. Andrew’s.
9 On April 26th, 2004, planning permission was issued to St. John to erect a communications tower at St. Andrew’s Reservoir. The permission was conditional upon St. John removing the existing mast at Rue des Pointes. That condition was imposed in reliance upon a joint letter, from St. John and the then States Water Board (as owner of St. Andrew’s Reservoir), in which they agreed to be bound by any reasonable conditions that might be imposed in respect of the removal of the existing mast. (The letter was not dated but was stamped as having been received on April 23rd, 2004.)
10 In his cause, the appellant pleaded (at para. 5) that, at some time prior to March 2005, he had explained to officers of the Department that he would not give permission (to St. John) for access to his land for the existing mast to be removed. The Department says that, when it issued the permission for the new communications tower at St. Andrew’s Reservoir, they believed that St. John had the authority needed to remove the mast at Rue des Pointes. For my part, I do not have to resolve this issue in this judgment. In any event, factual issues are for the Jurats to resolve.
11 Advocate Barnes argues that the issue might be, or might have been, significant because if the condition was unenforceable then it was illegal. In support of that proposition, he produced a decision of Sullivan, J. in the Queen’s Bench Division, namely R. v. Rochdale Metrop. B.C., ex p. Tew (4). I do not need to consider the issue further in this judgment as counsel agree that I can accept that the old aerial was removed on September 10th, 2005 and that, in this judgment, it does not matter for what reason, or by whom, it was taken down, nor does it matter whether it was done lawfully or without lawful authority.
12 The appellant applied to the Department to erect a replacement radio
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mast on his site at Rue des Pointes. His application, or applications, has, or have, been refused. Advocate Walder sought to attach some significance to the fact that the appellant believed permission was needed to replace the mast. In my view, it does not matter, for the purpose of this judgment, what he believed. What he believed cannot alter the legal position as to whether planning permission is needed to replace the mast.
The parties’ submissions
13 The Department submits that planning permission to re-erect the mast is required under at least two paragraphs of s.14(1) of the Island Development (Guernsey) Law 1966, as amended. First, it would amount to “development,” under s.14(1)(a) and the definition of “development” in s.40, because it would involve “the carrying out of [a] building, engineering . . . or other operation.” Secondly, s.14(1)(b) requires permission to “place, erect or re-erect on any site [an] . . . immovable structure . . .” The proposal does not fall within any of the exceptions which, under s.40, are deemed not to involve development.
14 Advocate Barnes relies upon a sentence which appeared in the then-current issue of 1 Butterworth’s Planning Law Service, at Division C/15A4: “It is therefore unclear whether a building which is erected pursuant to planning permission and then demolished may be re-erected under the original permission.” As this issue had not been decided in either Guernsey or England, he sought to persuade me to decide it in favour of the appellant.
15 He submitted that the Island Development Law is substantially based upon English planning legislation and he contends that it is therefore appropriate to regard decisions of the English courts in planning cases, as having persuasive authority in the interpretation of the Guernsey legislation. On the other hand, Advocate Walder submitted that the Guernsey legislation is distinct from the English planning regime and, consequently, we should be slow to import English principles and authorities. She drew my attention to the judgment of Lord Wilberforce in Vaudin v. Hamon (5) following the decision of the Privy Council in La Cloche v. La Cloche (2). Lord Wilberforce recognized ([1974] A.C. at 582) that “it is proper to look at related systems of law . . . in order to elucidate the meaning of [a] particular legal provision” but, he said, in the end Guernsey law “must . . . be interpreted in the light of its own terminology, context and history.”
16 Advocate Barnes sought to persuade me that a planning permission has a permanent quality and remains valid notwithstanding that the work authorized by it has been completed. He relied upon I’m Your Man Ltd. v. Environment Secy. (1), where a planning permission was deemed to be permanent. In summarizing the facts at the start of his judgment, Mr. Robin Purchas, Q.C. (sitting as a Deputy Judge of the Queen’s Bench Division) said ([1998] 4 PLR at 108):
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“Put shortly, on February 15, 1995 an inspector, on appeal, granted planning permission for the use of the buildings [at Weston Business Park, Weston-Super-Mare] for ‘sales, exhibitions and leisure activities for a temporary period of seven years’. No condition was imposed requiring cessation of that use at the end of seven years.”
The Deputy Judge then posed the following question (ibid.): “Would continuance of the use beyond seven years constitute a breach of planning control? In other words, was the permission in effect permanent or temporary?”
17 In deciding that question, he said (ibid., at 116, under the heading “Use for a limited period”):
“In the present case, the relevant application was for a temporary period, thus effectively volunteering a condition in accordance with what is now para. 110 of the annex to Circular 11/95. The imposition of a temporary condition was plainly open to the 1995 inspector. His failure to impose such a condition might well have been open to criticism. His decision, however, became immune from challenge after six weeks by virtue of section 284 of the 1990 Act. That does not provide grounds for implying a condition to that effect in what is a public document, conferring rights in connection with the use of land. In my judgment, accordingly, the permission as granted became effectively a permanent permission.”
18 I conclude that his decision was based upon the powers of an English planning inspector and the specific provisions of the relevant statute—powers and provisions which are not replicated in the Island Development Law. The case is therefore of no assistance to me.
19 In further support of his submission that planning permissions have a permanent quality, Advocate Barnes relied upon Pioneer Aggregates (U.K.) Ltd. v. Environment Secy. (3). The case concerned a limestone quarry which had been worked from 1950 to 1966 under a planning permission granted in 1950 (and extended in 1962). Quarrying ceased in 1966 but in 1978 a new owner of the site wanted to resume quarrying. The question arose as to whether it could rely upon the 1950 planning permission. Or, had that planning permission been abandoned by the previous owner, such that a fresh planning permission was required before quarrying could resume?
20 On appeal, Lord Scarman delivered the judgment of the House of Lords in a speech with which their other Lordships agreed. He said there were two questions to be considered. The first of those questions was one of legal principle, namely ([1985] A.C. at 136) “whether a planning permission for the development of land can be abandoned by act of a party entitled to its benefit.” He concluded (ibid., at 145): “There is no principle
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in the planning law that a valid permission capable of being implemented according to its terms can be abandoned.”
21 The key words are, in my view, “a valid permission capable of being implemented according to its terms.” In that case, there was a possibility of reopening the quarry in order to resume operations that had been authorized under the permission granted in 1950. Advocate Walder submits that the facts of the present case are different in two significant respects: the 1968 permission was fully implemented when construction of the radio mast was completed in November 1968; and the 1968 permission was expressed to be valid for one year only. It cannot be suggested that the 1968 permission has been abandoned.
22 Advocate Walder accepted Advocate Barnes’ submission that planning permission enures for the benefit of the land concerned, notwithstanding a change of ownership in the land. I therefore also accept that submission, even though there is no express statutory provision to that effect in the Island Development Law, unlike s.33(1) of the Town and Country Planning Act 1971 (referred to in Pioneer Aggregates (3)) and unlike s.18(2) of the Land Planning and Development (Guernsey) Law, 2005, which is not yet in force.
23 Section 16(3) of the Island Development Law originally specified that a planning permission is valid for a period of one year. (The period of one year was amended and replaced by a term of three years under the Island Development (Amendment) (Guernsey) Law 1990.) The interpretation given to that section by the Department is that development work does not have to be completed within one year (or three years) provided that it is commenced within such period. That interpretation is clear from the condition printed on the letter of November 13th, 1968 quoted above.
24 Advocate Barnes points out that there is no other provision in the Island Development Law specifying when permitted work must be completed and there is no power for the Department to revoke a permit if work has ground to a halt or is progressing slowly. That defect, if it is a defect, in the Island Development Law, will be corrected by s.19 of the 2005 Law, which contains provisions for the issue of a completion notice.
25 Advocate Barnes argues that the absence of any express power under the Island Development Law to require a development to be completed within a specified period of time means that if St. John had commenced the work by, for example, building the reinforced concrete base for the mast within the 12-month period, there was no time limit within which they needed to complete the erection of the aerial. Such work, he says, could have been completed even now, nearly 40 years later, under the terms of the original permission.
26 I do not agree. Section 16(3) of the Development Law, and the
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condition printed on the letter of November 13th, 1968 (quoted in para. 3 above), specified that the permission was valid for one year only. That means the permission did not authorize the carrying out of any work after the expiry of that one-year period. It does not permit the erection, or re-erection, of a radio mast nearly 40 years later. The Department may interpret s.16(3), and it may be the Department’s practice, to allow a development which has commenced within the specified period to continue and be completed thereafter, but that, in my view, is a concession to enable incomplete works to be completed. It does not authorize fresh work to be started nearly 40 years later.
27 I also reject the submission that a permit to erect, for example, a dwelling would automatically include permission to re-erect that dwelling if it were completely destroyed by fire or otherwise. Section 14 of the Island Development Law uses the words “erect” and “re-erect” as separate and distinct operations each requiring planning permission. It would be wrong, in my view, to interpret “erect” as including the term “re-erect.”
28 Advocate Barnes points to the hardship that could be caused to the owner of a dwelling which has burned down, if it is located in an area of high landscape value where the approved planning policies do not permit the construction or re-construction of dwellings. He says the owner’s insurance policy could be largely ineffective as it would cover the rebuilding cost of the property but not the value of the site, which would be seriously devalued if the building could not be replaced. He argues that could not have been the intention of the legislature. So, he submits, the owner must be permitted to rebuild the dwelling under the permission which authorized its original construction and without requiring a fresh planning application.
29 In my view, that is not a complete answer, because it does not assist the owner of a dwelling constructed in the days before the enactment of planning legislation. Many fine old buildings are located in areas of high landscape value, where new building would not be permitted, and were constructed without planning permission because they pre-date planning legislation.
30 Advocate Walder replied that the Department could grant permission under s.18(1) of the Island Development Law as long as it was satisfied the work involved “a departure [from a detailed development plan] of a minor nature,” not warranting specific reference to the States. If the work were considered to involve a departure from the plan of more than a minor nature, the States could be asked to establish a planning inquiry to consider an alteration to the detailed development plan. That may seem less than wholly satisfactory from the point of view of the person whose house has been destroyed, but it is, in my view, the correct analysis.
31 Advocate Barnes also referred to quarrying and mining operations,
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involving continuing works of development which may not be completed within one year, or three years, of the grant of planning permission and where it must be assumed the permission continues to be valid. I do not know whether the Department requires such permissions to be renewed. Even if they do not, I regard them as a special case as, by their very nature, quarrying and mining operations have a longer lasting, or more permanent, quality than other developments.
Conclusion
32 The permission granted to “re-site” the radio mast at Rue des Pointes in November 1968 was valid for 12 months only and was fully implemented in November 1968. Consequently, it is no longer valid. Planning permission must be obtained before the appellant can re-erect the mast. As he cannot rely upon the 1968 permission, further permission is required. Therefore, I will not grant the declaration sought by the appellant.
Declaration refused.
2009
Law Report
None
Guernsey Law Reports 2007–08 GLR 272