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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
    1. Congreve v Home Office [1976] QB 629; [1976] 1 All ER 697.
    2. R v Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd [1995] 1 All ER 611
    3. Padfield and Others v Minister of Agriculture Fisheries and Food and Others [1968] 1 All ER 694
    4. H Lavender and Son Ltd v Minister of Housing and Local Government [1970] 3 All ER 871
    5. British Oxygen Co Ltd v Minister of Technology [1970] 3 All ER 165
    6. Ministry of Agriculture and Fisheries v Matthews [1949] 2 All ER 724
    7. Robertson v Minister of Pensions [1948] 2 All ER 767
    8. Lever (Finance) Ltd v Westminster Corporation [1970] 3 All ER 496
    9. Western Fish Products Ltd v Penwith District Council and another [1981] 2 All ER 204
    10. R v London Borough of Hillingdon, ex parte Royco Homes Ltd [1974] 2 All ER 643
    11. Brind and others v Secretary of State for the Home Department [1991] 1 All ER 720
    12. R v Ministry of Defence, ex parte Smith [1996] 1 All ER 256; [1996] QB 517
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

R v London Borough of Hillingdon, ex parte Royco Homes Ltd [1974] 2 All ER 643

LORD WIDGERY CJ: In these proceedings counsel moves on behalf of Royco Homes Ltd for an order of certiorari to bring up into this court with a view to its being quashed a purported grant of planning permission by the London Borough of Hillingdon dated 12 December 1973....

The whole matter, as I have said, arises out of the future of a small parcel of land at Hillingdon by the name of Buntings. It is land which on any view of the matter is appropriate for development and appropriate for development by the building of residential homes. The issue between the parties is whether this land should be developed by the planning authority, the borough council, under its duties as a housing authority for the provision of homes for those for whom the housing authority is responsible, or in the alternative whether it should be developed for residential purposes by its present owners, who are the applicants in this case.

The matter began on 18 May 1973 when the applicants made an application for permission to develop the land for residential purposes...The permission is made subject to conditions, many of which are not controversial and raise no sort of issue before us, but within the ambit of the conditions are four which constitute the basis of counsel for the applicants' submission that this grant of permission is a nullity.

Condition 2: The dwellings hereby approved shall be so designed as to provide space and heating standards at least to the standards (a) defined in Appendix I to Circular 36/67 dated 25th April, 1962 issued by the then Ministry of Housing and Local Government, and (b) which shall have been designated as mandatory requirements for local authority housing schemes qualifying for Government subsidy or loan sanction, and the detailed drawings required by condition No. 6 shall show compliance with such standards.

What that comes to is that the planning authority are insisting as a condition of the planning permission that the dwellings shall be designed so as to provide space and heating to the standards required for local authority housing. For myself I would not have thought this condition on its face was a departure from the functions and powers of the planning authority to which reference must later be made, but counsel for the applicants, apart from other arguments designed to show that this permission is invalid, says that it is outside the powers of a planning authority to lay down conditions as to the internal design of houses or flats the erection of which it authorises. He says, as is the fact, that once a house has been built in accordance with planning permission, its internal arrangements can be varied to any degree without further planning permission. He, therefore, contends that it would be wholly illogical if a planning authority when granting planning permission tried to dictate the internal arrangements in the detail which this condition contemplates. For my part I do not find it necessary to reach a conclusion on that argument of counsel for the applicants and I deliberately do not attempt to pursue the matter further on that particular point.

Condition 3: The dwellings hereby approved shall be constructed at a cost per dwelling which shall not exceed the relevant housing cost yardstick (as defined by Circular 36/67).

The condition goes on to further detail but the essence of it is contained in the sentence which I have read. The effect of it, if it is valid, is that the houses to be erected pursuant to this planning permission must be erected to a maximum cost equivalent to that to which local authorities are subject if they seek to obtain normal housing subsidies for development which they have carried out. This is a condition then the effect of which is to restrict the maximum cost per dwellings and in fact the yardstick chosen is the yardstick appropriate to the local authorities who seek, as they naturally would, to obtain the appropriate government subsidies for the houses which they erect.

Condition 4: The dwellings hereby approved shall be first occupied by persons (together with their families and/or dependents) who on the qualifying date shall have been recorded on the Housing Waiting List of the Hillingdon London Borough Council....

Again cutting through the detail of the language, this is a requirement that if the houses are erected pursuant to the permission obtained by the applicants, the occupiers of those houses shall not be occupiers chosen by the developers themselves but shall be persons who are on the local authority's housing waiting list in the terms of the condition which I have read. That is on any view an extremely serious restriction on the character of the occupier who is to go into these houses if they are built pursuant to this permission.

Finally, condition 5: The dwellings hereby approved shall for a period of 10 years from the date of first occupation be occupied as the residence of a person who occupies by virtue of a tenure which would not be excluded from the protection of the Rent Act 1968 by any provision of Section 2 of that Act.

Again the provision with regard to the security of tenure to be enjoyed by the respective tenants is there restricted when compared with the freedom which a developer would normally have in choosing not only the tenants who occupy his property but the terms on which they should so occupy it.

The case for the applicants before us today is that those four conditions are as a matter of law ultra vires as being in excess of the power to impose conditions enjoyed by a planning authority when granting a planning permission. Counsel for the applicants further submits that those conditions being void on that account, they are fundamental to the grant of planning permission, and if they are to be held to be null and void, the whole planning permission must fall with them, hence his application for certiorari. ....

That the planning authority has wide power to impose conditions has been a common feature of this legislation ever since 1947, or indeed it may be before that. The power is presently contained in s 29(1) of the 1971 Act which provides:

Subject to the provisions of sections 26 to 28 of this Act, and to the following provisions of this Act, where an application is made to a local planning authority for planning permission, that authority, in dealing with the application, shall have regard to the provisions of the development plan, so far as material to the application, and to any other material consideration, and((a)...may grant planning permission, either unconditionally or subject to such conditions as they think fit.

Those wide words 'subject to such conditions as they think fit' confer authority for a wide range of conditions to be attached to planning permissions. However, those words are clearly too wide to be given their literal meaning and a number of years ago they were restricted by a dictum of Lord Denning, which is constantly quoted in these matters. The dictum appears in the decisions of the Court of Appeal in Pyx Granite Co Ltd v Ministry of Housing and Local Government ([1958] 1 All ER 625 at 633, [1958] 1 QB 554 at 572), where Lord Denning said this:

"The principles to be applied are not, I think, in doubt. Although the planning authorities are given very wide powers to impose 'such conditions as they think fit', nevertheless the law says that those conditions, to be valid, must fairly and reasonably relate to the permitted development. The planning authority are not at liberty to use their powers for an ulterior object, however, desirable that object may seems to them to be in the public interest".

There, of course, is counsel for the applicants' case in a sentence. He says that these four conditions were imposed to suit an ulterior purpose, a purpose ulterior to the duty of the borough council as planning authority. He says their purpose was to ensure that if a private developer was allowed to develop this land, he should have to use it in such a way as to relieve the local authority of a significant part of its burden as housing authority to provide houses for the homeless, and whether it is put as being a condition which is unreasonable or one not related to the development, or for an ulterior purpose, the argument for the applicants is that, however you look at it, these conditions are ultra vires and that they bring the whole planning permission down.

Of the cases which followed Pyx Granite the one which is nearest to the present is Hall & Co Ltd v Shoreham-by-Sea Urban District Council. The facts of this case are a little complex, but the essential features of it were these. The plaintiffs wanted to develop some industrial land which fronted on a very heavily used highway. The planning authority were concerned at the prospect of this development taking place with its possible addition to the traffic using this already very congested road. In granting permission for the development they made it a condition that the developers should set aside from land in their own ownership a strip of land on the developers which was to be used for what is described as 'an ancillary roadway'. That by itself might not have been objectionable if the ancillary roadway had simply been a service road for the use of traffic coming to the site in question, but the terms on which the council required this ancillary road to be used were such as almost to make it equivalent to a public highway. Thus complaint was made that the conditions requiring the construction of the ancillary road were ultra vires on a great many grounds, including the ground that they were for the ulterior purpose of requiring the developer to take on a part of the local authority's duty as highway authority. The view of the Court of Appeal is well summarised in the headnote in these terms ([1964] 1 WLR at 241):

(2) That although the object sought to be attained by the [planning authority] was a perfectly reasonable one, the terms of the conditions, requiring the plaintiffs to construct an ancillary road at their own expense for the use of persons proceeding to and from adjoining properties and amounting to a requirement that the plaintiffs should in effect dedicate the road to the public without any right to compensation, there being a more regular course available under the Highways Act, 1959, were so unreasonable that they were ultra vires.

Before I leave the headnote I mention, because it is relevant in a moment, a further conclusion in Hall's case, namely ([1964] 1 WLR at 241);

(3) That the ultra vires conditions were fundamental to the whole planning permission which was, accordingly, void.

The position is well set out in the judgment of Willmer LJ.... He said ([1964] 1 All ER at 7, [1964] 1 WLR at 247):

"It is contended that the effect of these conditions is to require the plaintiffs not only to build the ancillary road on their own land, but to give right or passage over it to other persons to an extent that will virtually amount to dedicating it to the public, and all this without acquiring any right to recover any compensation whatsoever. This is said to amount to a violation of the plaintiffs' fundamental rights of ownership which goes far beyond anything authorised by the statute. In the course of the argument for the plaintiffs we were referred to the recent decision of this court in Mixnam's Properties Ltd. v. Chertsey Urban District Council. [He explained how that case arose and he went on:] The members of the court differed as to whether the particular conditions sought to be imposed were ultra vires; but all of us, I think, were agreed as to the principles to be followed. I can summarise the effect of what we said under three heads as follows: (i) The conditions must not be such as to effect a fundamental alteration in the general law relating to the rights of persons on whom they are imposed unless the power to effect such an alteration is expressed in the clearest possible terms. (ii) The conditions imposed must fairly and reasonably relate to the permitted development. (iii) The conditions imposed must not be so unreasonable that it can be said that Parliament clearly cannot have intended that they should be imposed. It has been contended on behalf of the plaintiffs that the conditions sought to be imposed in the present case violate all three of these principles".

Then in a later passage ([1964] 1 All ER at 8, [1964] 1 WLR at 249) he went on to deal with the issues then before the court:

"It appears to me that the object sought to be attained by the [planning authority] in the present case is a perfectly reasonable one. I agree with the view of the learned judge that to require the construction of an ancillary road and to limit the points at which traffic may enter or leave the main road, is (consistent with good traffic engineering(. It is said, however, that the terms of the conditions actually imposed, particularly the requirement that the plaintiffs should give of passage to and from the ancillary roads to be constructed on the adjoining land, are so unreasonable as to go beyond anything that Parliament can have intended or that any reasonable authority could properly have imposed."'

Then he went on to deal with the effect of the conditions then before the court, and he justified the conclusion that the conditions were ultra vires in that case on the basis that they were so unreasonable that no reasonable authority, properly directing itself, could have imposed them. He reached the conclusion ([1964] 1 All ER at 8) having referred to Associated Provincial Picture Houses Ltd v Wednesbury Corpn and the classic judgment of Lord Greene MR in that case. I find Hall's case helpfully similar to the situation which is before us. In Hall's case the local authority, with the best of motives, wanted in effect a new extension to the public highway and thought it right to require the developer to provide it at his own expense as a condition of getting planning permission. That was rejected in the Court of Appeal because it was a fundamental departure from the rights of ownership and it was so unreasonable that no planning authority, appreciating its duty and properly applying itself to the facts, could have reached it. I think exactly the same can be said of the conditions in issue in this case.

Taking nos 4 and 5 first of all, they undoubtedly in my judgment are the equivalent of requiring the private developer to take on at his own expense a significant part of the duty of the local authority as housing authority. However well intentioned and however sensible such a desire on the part of the planning authority may have been, it seems to me that it is unreasonable in the sense in which Willmer LJ was using the word in Hall's case. I, therefore, have no doubt for myself that conditions 4 and 5 are clearly ultra vires, but I have for some time thought that conditions 2 and 3 might be saved. Conditions 2 and 3, however strange and perhaps oppressive, do not by themselves appear to me to have a clear badge of ultra vires on them, although I would expect the Secretary of State on an appeal to him to have something to say about them. By themselves, however, I doubt whether they would have justified the allegation that they were clearly in excess of jurisdiction and clearly ultra vires. But I am persuaded in the end that one must not sever conditions 2 and 3 from conditions 4 and 5 because they are all designed to the single purpose. Conditions 2 and 3, are designed to see that the houses physically should be suitable for local authority tenants and conditions 4 and 5 are designed to see that in fact they should be occupied by the local authority tenants. It think the four being different facets of the single purpose stand or fall together and with that approach they must unquestionably fall in my opinion.

On the authority of Hall's case, the conditions being fundamental to the planning permission, I think they bring the planning permission down with them and that means that the applicants are entitled to the order of certiorari which they seek....