British Railways Board v Secretary of State for the Environment and Another: HL 29 Oct 1993

Permission had been given for residential development of land provided that access was provided. The access specified was to be over land owned by the council. It was known that the Council would not allow such access. The land owner sought an order that the permission should stand but without the condition. The Secretary had dismissed the appeal on the ground that the proposed Grampian condition in respect of access did not have a reasonable prospect of being fulfilled within the period for commencing development under the permission.
Held: The fact alone that a planning permission was subject to a condition which was unlikely to be satisfied did not mean that the permission was ineffective. The Secretary of State may however maintain as a matter of policy that there should be at least reasonable prospects of the action in question being performed within the time limit imposed by the permission. Referring to section 29(3) ‘The owner of the land to which the application related might object to the grant of planning permission for reasons which might or not be sound on planning grounds. If his reasons were sound on planning grounds no doubt the application would be refused. But if they were unsound, the mere fact that the owner objected and was unwilling that the development should go ahead could not in itself necessarily lead to a refusal. The function of the planning authority was to decide whether or not the proposed development was desirable in the public interest. The answer to that question was not to be affected by the consideration that the owner of the land was determined not to allow the development so that permission for it, if granted, would not have reasonable prospects of being implemented. That did not mean that the planning authority, if it decided that the proposed development was in the public interest, was absolutely disentitled from taking into account the improbability of permission for it, if granted, being implemented. For example, if there were a competition between two alternative sites for a desirable development, difficulties of bringing about implementation on one site which were not present in relation to the other might very properly lead to the refusal of planning permission for the site affected by the difficulties and the grant of it for the other. But there was no absolute rule that the existence of difficulties, even if apparently insuperable, had to necessarily lead to refusal of planning permission for a desirable development. A would-be developer might be faced with difficulties of many different kinds, in the way of site assembly or securing the discharge of restricted covenants. If he considered that it was in his interests to secure planning permission notwithstanding the existence of such difficulties, it was not for the planning authority to refuse it simply on their view of how serious the difficulties were.
In the present case British Rail had applied for a planning permission which would cover their own land and also land belonging to Hounslow. Hounslow’s land was to be the site of the access road which they sought. The proposed condition related simply to the stage which construction of the access road had to have reached before the construction of the houses started and before the houses were occupied. The condition, if imposed, would not derogate from the planning permission if granted. So the position is British Rail had applied for planning permission affecting land not in their ownership, a common state of affairs specifically contemplated by the Act. The proposed condition did not relate to land outside the ambit of the permission applied for. Even if it had done, the relevant considerations would be the same as those to be applied where an application for planning permission relates to land not in ownership of the applicant. If the condition was of a negative character and appropriate in the light of sound planning principles, the fact that it appeared to have no reasonable prospects of being implemented did not mean that the grant of planning permission subject to it would be irrational in the Wednesbury sense so that it would be unlawful to grant it. If it was irrational to grant planning permission subject to a condition which had no reasonable prospects of being implemented then it had to be no less irrational to refuse planning permission on the ground that a desirable condition had no reasonable prospects of implementation and therefore could not be imposed. In truth, neither course was irrational. What was appropriate depended on the circumstances and was to be determined in the exercise of the discretion of the planning authority. But the mere fact that a desirable condition appeared to have no reasonable prospects of fulfilment did not mean that planning permission must necessarily be refused. Something more is required before that could be the correct result.’


Lord Keith


Times 29-Oct-1993, [1994] JPL 32


Town and Country Planning Act 1971 29(3)


CitedNewbury District Council v Secretary of State for the Environment HL 1981
The grant of a temporary planning permission did not operate to cancel an existing established use. A planning condition requiring removal of hangars was invalid because it did not fairly or reasonably relate to the permitted development. The grant . .
CitedJones v Secretary of State for Wales and Ogwr District Council CA 1990
The court adopted as a principle that a Grampian condition could only be imposed if there was a reasonable prospect of compliance within the time limit imposed on the permission. . .
CitedGrampian Regional Council v City of Aberdeen District Council 1984
The extinguishment of a private right is not a proper matter for a condition attached to a planning permission, even though a negative condition preventing development until a highway has been stopped up is unobjectionable. . .
CitedGrampian Regional Council v Secretary of State for Scotland HL 1983
The House endorsed the practice of imposing negative conditions in planning consents, upholding the validity of a condition that the development of the site could not commence until the road on the western boundary of the site had been closed by a . .

Cited by:

CitedDouglas John Merritt v Secretary of State for Environment, Transport and Regions and Mendip District Council Admn 5-Aug-1999
The applicant appealed refusal of planning permission for residential development of a small plot of land. The said that the inspector had wrongly rejected the application of a Grampian condition on the basis that it would not be fulfilled and also . .
Lists of cited by and citing cases may be incomplete.


Updated: 18 May 2022; Ref: scu.78631