*27 Main v Swansea City Council and Others

Transcription

1 Page 1 Status: Judicial Consideration or Case History Available *27 Main v Swansea City Council and Others Court of Appeal 27 July 1984 (1985) 49 P. & C.R. 26 Cumming-Bruce and Parker L.JJ. and Sir John Megaw June 12, 13, 14 and 15 and July 27, 1984 Town and Country Planning Planning permission Validity Application for outline permission Certificate under s.27 of Act of 1971 wrongly stating that requisite notice given to all owners of land in question Small area owned by unidentified person Not proposed to be developed Failure of certificate to state that requisite notice published in local newspaper Site including land within 67 metres of middle of highway Failure of local planning authority to notify Secretary of State Outline planning permission granted Approval of reserved matters granted over three years later Application for judicial review to quash grant of outline permission Whether defects in certificate or failure to notify Secretary of State rendering grant complete nullity whether mere irregularity Whether grant of outline planning permission liable to be set aside in discretion of court Whether application for judicial review made too late Whether only Secretary of State entitled to apply for relief in respect of failure to notify him underart. 11 Town and Country Planning Act 1971 (c.78), s.27 Town and Country Planning General Development Order 1973 (S.I No. 31), art. 11(2). 1 2 In October 1976, an application was made for outline planning permission for the residential development of certain land. A certificate under section 27 of the Town and Country Planning Act 1971 stated that the requisite notice of the application had been given to all other owners of the land and specified the local planning authority as being the only other owner. A small, but not de minimis, part of the land was in fact owned by another person who was not specified and whose identity was, and subsequently remained, unknown. The land included land within 67 metres of the middle of a highway to which article 11 of the Town and Country Planning General Development Order 1973 applied, but no notice of the application was given to the Secretary of State by the local planning authority as required by article 11. The certificate did not state that the requisite notice had been published in a local newspaper as required by section 27(2) of the Act of In January 1977, the local planning authority granted outline planning permission. Approval of reserved matters was granted on April 24, The scheme approved did not involve development of the land owned by the unspecified person. On June 12, 1980, leave was given to the applicant to apply for judicial review. The application was dismissed by Woolf J. The applicant appealed. Held, dismissing the appeal, (1) that, while a factual error in a certificate under section 27 of the Act of 1971 might be no more than an irregularity that did not go to the jurisdiction of the local planning authority to entertain the application for planning permission, a factual error that was not so gross as to make the certificate no certificate at all was not necessarily a mere irregularity in respect of which an applicant was not entitled to relief; that in the present case the defects in the certificate had been sufficient to entitle the court to strike down the subsequent grant of outline planning permission in certain circumstances; but that it was not a complete nullity and the matter was one for the discretion of the court. Co-operative Retail Services Ltd. v. Taff-Ely Borough Council (1980) 39 P. & C.R. 223, C.A. and London & Clydesdale Estates Ltd. v. Aberdeen District Council [1980] 1 W.L.R. 182; [1979] 3 All E.R. 876; (1979) 39 P & C.R. 549, H.L., applied. R. v. Bradford-on-Avon Urban District Council, ex p. Boulton [1964] 1 W.L.R. 1136; [1964] 2 All E.R. 492; 15 P. & C.R. 304, D.C., considered. (2) That, where the local planning authority had not merely failed to comply with the statutory

2 Page 2 requirement directly imposed on them by article 11 of the Order of 1973 but had also acted in breach of an express prohibition contained in that article, the court could act at the instance not only of the Secretary of State but of anyone with sufficient interest, including a user of the highway concerned. (3) That, however, since throughout the period between the grant of outline planning permission and the approval of reserved matters the applicant had not objected to the outline permission and the Secretary of State had known of the position with regard to article 11 for a long time and not sought relief, and since the scheme approved did not involve development of the land owned by the unidentified person, it was too late, at any rate at the suit of the applicant, to quash the grant of outline planning permission and thereby the approval of reserved matters. APPEAL from Woolf J. 3 The facts are sufficiently stated in the judgment of the court. Representation The applicant, Percival Henry Main, in person. Jeremy Sullivan, Q.C. and Nicholas Huskinson for the first respondent, the Swansea City Council. Nicholas Huskinson for the fourth respondent, the Gwalia Housing Society Ltd. The second respondent, Maurice Howell, the third respondent, John Anthony Lewis, and the fifth respondents, Geoffrey Gill Fry, David Anthony Hughes and Robert Royston Willdig, did not appear and were not represented. Parker L.J. July 27. This is the judgment of the court. Cur. adv. vult. On January 27, 1977, the Swansea City Council, which is the local planning authority for the City of Swansea, granted or purported to grant outline planning permission for the residential development of certain land in their area. That grant was expressed to be made pursuant to an outline application dated October 4, 1976, made by Messrs. Fry & Hughes on behalf of the Gwalia Housing Society Ltd. As is usual, certain matters were reserved for later approval. After a number of unsuccessful attempts to obtain approval of reserved matters, approval was ultimately obtained on April 24, 1980, pursuant to an application made on January 9, 1980, for a scheme that related to only part of the land. On June 12, 1980, the appellant, Mr. Main, was given leave to apply for judicial review, the principal relief sought being the *28 quashing of the approval of April 24, The grounds for that application appearing in Mr. Main's statement included, however, the contention that the original outline planning permission was invalid and that, that being so, so also was the subsequent approval of reserved matters. Mr. Main's application was heard by Woolf J. in December 1981, and on December 18, 1981, was dismissed. From that judgment Mr. Main appeals to this court. In addition, he applies for leave to adduce certain further evidence. We have thus far referred only to Mr. Main personally, but it should be mentioned that both before Woolf J. and in this court he has claimed to appear also, in person, on behalf of the Ynysforgan Residents' Association. No point was taken on behalf of any of the respondents who were represented that he had no right so to do, either on the ground that he had never obtained leave to apply for judicial review on behalf of the association or on the ground that he could not in any event appear in person on their behalf. Nor was any point taken that the proper applicant should have been the Attorney-General. As a result, both before Woolf J. and in this court the matter has proceeded on the basis that Mr. Main is entitled to appear in person both on his own behalf and on behalf of the association.

3 Page 3 We should, however, make it plain that the fact that this has happened should not be taken as indicating even the most tentative view on our part that the proceedings are procedurally in order. Before moving to the substance of the appeal, it is necessary to state also that no objection was taken by any of the respondents to the application for leave to adduce further evidence. They were content that the court should look at and take into account the further evidence sought to be adduced. Accordingly, this court has done so as a matter of consent, without considering whether the application is well-founded. So much for preliminary matters. In support of the appeal, Mr. Main submitted a document that is entitled Skeleton of the Appellant Applicant's Case but that in fact consists of his full arguments on the appeal. It is skeleton only in the sense that it is cross-referenced to the relevant documents in the bundles before the court and to the authorities and does not set out in full the passages in the documents and authorities to which attention is drawn. Mr. Main stated at the outset of the appeal that, if the court read the document and the material to which it referred, he would wish to add nothing in opening by way of oral argument, and accordingly the court adjourned for two days to do so. The document submitted can only command admiration for the industry involved in its preparation and the very thorough way in which Mr. Main has developed the very numerous grounds on which he attacks the approval of April 24, It is no criticism of Mr. Main to say that his document and the related material *29 presented his various points so clearly as to convince us that, with certain exceptions, they were of insufficient substance to warrant calluing on the respondents. We shall mention the exceptions shortly. About the remaining points we find it unnecessary to say anything save that they were in our view wholly without substance. This applies particularly to certain charges of dishonesty made principally against the council's planning officer, the respondent Howell. Having studied the evidence and Mr. Main's arguments on it with care, we can find nothing that comes near to establishing any charge of dishonesty. We now turn to those matters that did appear to be of sufficient substance to call for argument on the part of the respondents. There were three such matters, to which we shall refer as the section 27 point, the article 11 point and the discretion point. We shall deal with them in that order. The section 27 point Section 27 of the Town and Country Planning Act 1971 as originally enacted and in force in 1976 provided, so far as immediately material: (1) Without prejudice to section 26 of this Act, a local planning authority shall not entertain any application for planning permission unless it is accompanied by one or other of the following certificates signed by or on behalf of the applicant, that is to say (a) a certificate stating that, in respect of every part of the land to which the application relates, the applicant is either the estate owner in respect of the fee simple or is entitled to a tenancy thereof; (b) a certificate stating that the applicant has given the requisite notice of the application to all the persons (other than the applicant) who, at the beginning of the period of 21 days ending with the date of the application, were owners of any of the land to which the application relates, and setting out the names of those persons, the addresses at which notice of the application was given to them respectively, and the date of service of each such notice; (c) a certificate stating that the applicant is unable to issue a certificate in accordance with either of the preceding paragraphs, that he has given the requisite notice of the application to such one or more of the persons mentioned in the last preceding paragraph as are specified in the certificate (setting out their names, the addresses at which notice of the application was given to them respectively, and the date of the service of each such notice), that he has taken such steps as are reasonably open to him (specifying them) to ascertain the names and addresses of the remainder of those persons and that he has been unable to do so; (2) Any such certificate as is mentioned in paragraph (c), paragraph (cc) or paragraph (d) of subsection (1) of this section shall also contain a statement that the requisite notice of the application, as set out in the certificate, has on a date specified in the certificate (being a *30 date not earlier than the beginning of the period mentioned in paragraph (b) of that subsection) been published in a local newspaper circulating in the

4 Page 4 locality in which the land in question is situated (4) Where an application for planning permission is accompanied by such a certificate as is mentioned in subsection (1)(b), (c) or (d) of this section, or by a certificate containing a statement in accordance with subsection (3)(b) of this section, the local planning authority shall not determine the application before the end of the period of 21 days beginning with the date appearing from the certificate to be the latest of the dates of service of notices as mentioned in the certificate, or the date of publication of a notice as therein mentioned, whichever is the later (6) Any certificate issued for the purposes of this section shall be in such form as may be prescribed by a development order; and any reference in any provision of this section to the requisite notice, where a form of notice is prescribed by a development order for the purposes of that provision, is a reference to a notice in that form. The outline application made on behalf of the association is dated September 28, 1976, and is stamped as having been received by the council on October 4, It is made on a printed form at the foot of which appear the printed words AN APPROPRIATE CERTIFICATE MUST ACCOMPANY THIS APPLICATION. No certificate accompanied the original application, but a certificate signed by Fry & Hughes dated October 13, 1976, was produced by the council. So far as material, this is in the following terms: I hereby certify that: 1. I have given the requisite notice to all the persons other than myself who 20 days before the date of the accompanying application were owners of any of the land to which the application relates; viz: NAME OF OWNER ADDRESS< DATE OF SERVICE OF THE NOTICE Swansea City Council The Guildhall Swansea 13the October 1976 There is no date-stamp on this certificate showing the date on which it was received by the council; there is nothing on its face to show to what application or land it relates, and the notice that it states was given to the council was not in evidence. However, it appears that on October 4, 1976, the council, having received the original outline application on that date, wrote to Fry & Hughes making some comment on the application, as a result of which that firm on October 19 wrote to the council a letter in the following terms: Further to your letter dated October 4, 1976, we enclose for your attention an amended outline planning application on the above site. If you require any further information please contact the writer. Neither the letter dated October 4 nor any letter in *31 response to that of October 19, nor any apparently amended application, was in evidence. The letter of October 19 is, however, stamped as having been received on October 22, and the original outline application, although stamped as having been received on October 4, states in manuscript at the top right-hand corner the reference number given to it and the fact that it was received on October 22. The only reasonable inference appears to us to be that the council, having observed that the original application was unaccompanied by a certificate of any kind as required by section 27, returned it with a request that it should be re-submitted with an appropriate certificate and that, under cover of the letter of October 19, it was so re-submitted with the certificate that was in evidence. Hence we conclude that, at the time when the council considered and determined or entertained the outline application, it was accompanied by a certificate that in form was, on its face, as required by section 27. That certificate, however, was not the certificate that, on the facts, was required by section 27. The outline planning application related to land that, although almost wholly owned by the council, was owned as to a small, but not de minimis, part, by some person or persons whose

5 Page 5 identity was at the time, and still remains, unknown. Accordingly, the certificate that should have been given was that required by section 27(1)(c). It should have stated that the requisite notice had been given to the council and given the date of the service of the notice on them and stated that the applicants had taken such steps (specifying them) as were reasonably open to them to ascertain the names and addresses of the owners of the part of the land not owned by the council but had been unable to do so. It should also, by virtue of section 27(2), have stated that the requisite notice had, on a date specified in the notice, been published in a local newspaper circulating in the district. It follows, of course, that, as well as being in the wrong form, (a) the certificate was inaccurate in what it did state, for notice had not been given to all the owners; and (b) that the newspaper publication designed to ensure that the application should come to the notice of unidentifiable owners had not been effected. Mr. Main contends that those defects invalidate the outline planning permission that was subsequently granted in January 1977 and that was, he said, granted without jurisdiction. He also contends that the certificate was known to be false both by the council and by the association's agents who submitted it. The judge, on the evidence, rejected this last contention. So also do we. It is of course clear that, had the council carefully checked the certificate against the plan of the site and their own title deeds, it would have become apparent that the certificate was inaccurate. It is also apparent that, within a relatively short period after the grant of outline permission, the applicant's agents were aware that *32 part of the site was not owned by the council. There is, however, no evidence to establish that, either when the certificate was submitted or when the outline permission was granted, it was known to the council or the applicants or their agents that it was false. The judge so held. We agree. The judge held that, in the absence of dishonesty, the incorrectness of the certificate did not invalidate the grant of outline permission, reaching such conclusion on the basis of the judgment of Widgery J. in R. v. Bradford-on-Avon Urban District Council, ex p. Boulton. 4 In that case, one Francis entered into negotiations with a builder for the purchase from him of land on which he desired to have a home built for himself. The builder applied for outline permission, submitting a certificate stating correctly that he was the owner of the land. No objection was or could be taken to that certificate. Outline permission was granted. At that stage, Francis employed an architect to prepare detailed plans that involved, inter alia, setting back a party wall between the site and adjoining land owned by a Mrs. Luke. The detailed plans were submitted for approval and were accompanied by a further certificate. That application was made on behalf of Francis, and the certificate stated that he was the owner of every part of the land to which the application related. That was not accurate. Francis was still negotiating to acquire the land, which was still owned by the builder, and no reference was made to the fact that the party wall (and an attached pillar) were parts of land in which Mrs. Luke had an interest. Final approval was granted. The applicant for certiorari was a user of the highway on to which the land fronted. His status to apply was assumed but doubted. Like Mr. Main, he sought only to have the final approval quashed. Like Mr. Main, he sought but failed to establish dishonesty. Like Mr. Main, he relied as an alternative on the inaccuracy of a certificate. However, unlike Mr. Main, he did not and could not attack the certificate submitted with the original application. With regard to this, section 37(7) of the Town and Country Planning Act 1959 was the then relevant provision, but so far as material it was in the same form as section 27, and the certificate, like that in the present case, was inaccurate as to ownership. Widgery J., whilst recognising the force of the submission that the words shall not entertain were apt words to limit the jurisdiction of the planning authority, rejected the application on two grounds, of which one, not here relevant, was that no certificate was required on an application for approval of details after the grant of outline permission. The other ground, which is immediately in point, was that the planning authority did not lose jurisdiction merely because there was some factual error in the contents of the certificate. The *33 relevant passage of his judgment, with which Lord Parker C.J. and John Stephenson J. agreed, reads as follows 5 :: First, I do not think that a planning authority loses jurisdiction to deal with an application for planning permission if the application is accompanied by a genuine certificate signed by or on behalf of a genuine applicant merely because there is some factual error in the

6 Page 6 contents of the certificate. I think, as has been urged upon us by Mr. Bridge and Mr. Drake, that to hold otherwise would give rise to very serious complications in the way of those who have to buy and sell property, because amongst other things it must be remembered that a purchaser buying land is often very much influenced by the presence or absence of a planning permission obtained by his seller. If purchasers have to investigate not only whether a certificate was submitted when the application for permission was made but also whether the certificate was correct in its own factual averments, a very grave complication would be put in their way. But I am content to go to the actual words of the section and on those plain words jurisdiction is conferred on the authority if the application is accompanied by a genuine certificate in the approved terms, in the terms prescribed by the section, signed by the actual applicant, and I do not think given that, that a factual error in the certificate deprives the authority of jurisdiction under the section. Mr. Main accepts that the defect in the certificate in the present case is indistinguishable from the defect in that case but submits that that case was wrongly decided and, not being binding on this court, should not be followed. For the respondents, it is submitted: (i) that, although the requirement for a certificate is mandatory and goes to jurisdiction, a mere factual inaccuracy does not do so unless the inaccuracy is so gross that the certificate cannot truly he said to be a certificate within the section at all; (ii) the Bradford-on-Avon case was rightly decided and should be followed; (iii) even if the Bradford-on-Avon case was wrong and the defect in the certificate does in the present case go to jurisdiction, the grant of January 1977 remains good unless and until the court in its discretion declares it to be a nullity or quashes it. We accept that a factual error in a certificate may be no more than an irregularity that does not go to jurisdiction or anywhere like it, but we are unable to accept that all factual errors can be categorised as mere irregularities unless so gross as to make the certificate no certificate at all. It so happens that, in the present case, the land not owned by the council was only about 2 per cent. of the whole site to which the application related, but, even so, the provisions of the Act are designed to ensure that owners of land are given notice of applications affecting their land. It is the responsibility of the applicant to ascertain, and give notice to, all *34 owners if he can do so and, if he cannot do so, then to advertise the application in the local paper. There must then be an interval of time before the application is determined. If an applicant, honestly but negligently, fails to discharge his responsibilities so that an application is granted without an owner being notified or advertisement made and that owner shortly afterwards seeks to have the grant quashed, we see no reason why he should not succeed or why the applicant should be entitled to say: Oh, it was no more than a factual error. As will presently appear, however, whether a defect can be described as a mere irregularity or as something that goes to jurisdiction is not in our judgment of crucial importance. In Co-operative Retail Services Ltd. v. Taff-Ely Borough Council 6 the clerk to a district council took it on himself, without any sort of authority so to do, to issue a formal grant of planning permission. It was held that, where the issue was whether a planning permission had ever validly been granted, the court was entitled to go behind the grant and look at the true facts and that the purported grant was a nullity. A declaration to that effect was made. There are certain passages from the judgments that indicate that, even in such a case, the grant may nevertheless be effective, at least for some purposes. Lord Denning M.R. said 7 : In all these cases, the purported grant is ultra vires and void and of no legal effect whatever. It is true that, until the reason for its invalidity is discovered and pronounced on by the courts people may in good faith have acted on it. The courts may in their discretion allow these actions to stand as between innocent third persons, but that does not serve to validate the invalidity, or to resurrect the nullity: see the discussion by Professor Wade in his book on Administrative Law. 8 Underlying this case there is an important principle of planning law. It is that a grant of planning permission is made in the public interest so as to ensure that the amenities of our countryside are preserved for the good of all. The protection of the public interest is entrusted to the representative

7 Page 7 bodies and to the ministers. It would be quite wrong that it should be preempted by a mistaken issue by a clerk of a printed form without any authority in that behalf. When such a mistake is brought to the attention of the court by the Attorney-General, or anyone else with a sufficient interest, the court can and should declare the grant to be void and of no effect. It does not follow that all the consequences that follow from it are void also. Ormrod L.J. said 9 : The jurisdiction to pronounce declaratory judgments is discretionary, and in a proper case the court can, in its *35 discretion, decline to grant the relief claimed, just as it can and will refuse to grant an injunction when it would be inequitable to do so. An order of a competent court that is valid on its face must be treated as valid until it is declared to be void by an order of a competent court:per Diplock J. in O'Connor v. Isaacs. 10 Except in those cases where an applicant is entitled ex debito justitiae (for example, where the proceedings are a nullity for want of service), or the order is declared void by statute (for example, the Matrimonial Causes Act 1973, s.41(3), in relation to decrees absolute), the court is not obliged to declare such an order void if it would be unjust to do so. So, in the case of a permission for development, if it is valid on its face it can and must be acted on until it is declared to be void by a competent court. Such orders can be said to be voidable, but the option to avoid lies with the court, not with the parties. On the facts of this case, however, I have no doubt that the court should act. The reasons for doing so seem to be very powerful indeed. Browne L.J. said 11 : If I am right in my view that the resolution of July 6 was not a resolution to grant permission and that Mr. Hockin's action on November 4 was ultra vires, it could not be ratified and the resolution of December 14 was of no effect. If this conclusion is right, I have no doubt that the court should exercise its discretion to grant the declarations claimed. The question of the effect of a defective certificate, in another context, was also considered in the House of Lords in London & Clydeside Estates Ltd. v. Aberdeen District Council. 12 In that case the relevant legislation provided that, in the event that the local planning authority issued a certificate, they should, in the certificate, include a statement in writing of the rights of appeal to the Secretary of State given by statute, which rights limited the time for appeal to one month. A certificate was issued but omitted the required statement. The applicant for the certificate appealed, but out of time, and its appeal was rejected as incompetent. It then raised an action for (a) a reduction of the certificate and (b) a declaration that the local planning authority was bound to issue a fresh certificate. The Lord Ordinary 13 granted both. On appeal, the Second Division of the Court of Session 14 granted the reduction but refused the declaration. The applicant appealed to the House of Lords, and the authority cross-appealed. The appeal was allowed and the cross-appeal dismissed. Thus, in the end, the applicant obtained both forms of relief. The argument turned principally on the question whether the requirement to state the rights of appeal was mandatory or directory *36 and, if the former, whether the result of failure to do so was to render the certificate a complete nullity. It was held that the requirement was mandatory and that the omission of the statement vitiated the certificate but that that did not render the certificate a complete nullity. Lord Hailsham of St. Marylebone L.C., having stated that the requirement was clearly mandatory,15 that failure to comply was fatal to the certificate 16 and that, the validity of the certificate itself being in question, the certificate fell, 17 went on to say that such conclusions did not dispose of the matter in the appellant's favour. 18 He said 19 : The respondents attempted, as I thought, at one time, to argue that it thereupon became a nullity, and that therefore a decree of reduction was inappropriate because there was nothing upon which it could operate. But I do not accept this argument. The certificate was effective until it was struck down by a competent authority (cf. Brayhead

8 Page 8 (Ascot) Ltd. v. Berkshire County Council; 20 ; James v. Minister of Housing and Local Government. 21 In the course of argument I ventured to draw attention to the passage [in] the opinion of the Judicial Committee in Calvin v. Carr, 22 in which Lord Wilberforce says of a contention that a decision of the stewards of the Australian Jockey Club was void for breach of natural justice 23 : This argument led necessarily into the difficult area of what is void and what is voidable, as to which some confusion exists in the authorities. Their Lordships' opinion would be, if it became necessary to fix on one or other of these expressions, that a decision made contrary to natural justice is void, but that, until it is so declared by a competent body or court, it may have some effect, or existence, in law. This condition might be better expressed by saying that the decision is invalid or vitiated. In the present context, where the question is whether an appeal lies, the impugned decision cannot be considered as totally void, in the sense of being legally non-existent. So to hold would be wholly unreal. The subject-matter of that case was wholly different from the present, but my opinion is that the thinking behind it is applicable. The certificate was vitiated in the sense that it failed to comply with a mandatory requirement. But the subject could not safely disregard it as not having been issued. Had he done so, he might well have fallen into the very trap of losing his right to complain of the vitiating factor which has caught other subjects in the reported *37 decisions, and, in my view, he was not only wise but bound to seek a decree of reduction or some other appropriate remedy striking down the offending certificate. Later, Lord Hailsham considered generally the effect of non-compliance with statutory requirements in a passage much stressed by the respondents. 24 In our view, although the passage does not deal in terms with the distinction between procedural and jurisdictional requirements so much canvassed in this case, it may be applied as well to such a distinction, which is of the same character as, if not identical with, the distinction between a mandatory and directory requirement. We do not find it necessary to cite the passage in full. It is a warning against trying to fit either failures to comply with requirements, or the consequences of such failures, into rigid classes and a clear expression of the view that the task of the court, which is inherently discretionary, is to determine the legal consequences of a failure in the light of a concrete state of facts and a continuing chain of events. It is true that, in the course of his general considerations, Lord Hailsham said 25 that in that case the question did not really arise because there had been total non-compliance with a mandatory requirement and that that observation, if it stood alone, might be taken to indicate that in such a case the court had no option but to strike down the certificate, but the observation does not stand alone and in the light of the remainder of Lord Hailsham's speech and the speeches of Lord Fraser of Tullybelton and Lord Keith of Kinkel, we have no doubt that the discretion remains in the court save in such cases as instanced by Ormrod L.J. in the passage already cited from Co-operative Retail Services Ltd. v. Taff-Ely Borough Council. 26 In our judgment, the most significant observation in Lord Hailsham's speech, indeed in the whole of the Clydesdale case, is that the court must consider the consequences in the light of a concrete state of facts and a continuing chain of events. This recognises that the court looks not only at the nature of the failure but also at such matters as the identity of the applicant for relief, the lapse of time, the effect on other parties and on the public and so on. An instance of the importance attached to the identity of the applicant is to be found in Durayappah v. Fernando, 27 where it was held that, although there had been a breach of natural justice through failure to comply with the audi alteram partem principle, the order in question was not a complete nullity but voidable only at the instance of the party affected. In the present case, we have no doubt that the defect in the certificate was sufficient to enable a court to strike down the *38 subsequent grant in certain circumstances, for example on a prompt application by the owner of the non-council land or even perhaps the Ynysforgan Association or even on a much later application by the owner of the non-council land, We have equally no doubt that the defects were not such as to render the grant a complete nullity. The matter is, therefore, one of discretion, which we shall consider hereafter. The article 11 point Article 11(2) of the Town and Country Planning General Development Order 1973 provided that,

9 Page 9 on receipt of an application for planning permission for development that included land within 67 metres from the middle of a highway to which the article applied, the planning authority should notify the Secretary of State. It further provided: the local planning authority shall not determine the application until they have received either: (i) a direction under article 10 of this Order; or (ii) notification by or on behalf of the Secretary of State that he does not propose to give such a direction on grounds relating to any highway or proposed highway to which this article applies. It is common ground that the application for outline permission was such as to require notice to be given to the Secretary of State, that no such notice was given and that consequently the council, when they determined the application and granted outline permission, were in breach of an express statutory prohibition. Mr. Main contends that for that reason the grant is bad and must be struck down. For the respondents, it is contended principally, and on the basis of Durayappah v. Fernando, 28 that although the grant might have been quashed at the instance of the Secretary of State, at all events if he had acted timeously, no one else could obtain such relief. As to the respondent's contention that only the Secretary of State could obtain relief, we are unable to accept it. It appears to us that, where the planning authority have not merely failed to comply with a statutory requirement directly imposed on them but have also acted in breach of an express prohibition, the court can act at the instance of anyone with sufficient interest, and for this purpose a user of the highway concerned seems to us to have a sufficient interest. Had such a user, on learning of the failure shortly after the grant, promptly moved the court, it would in our judgment have been no answer to say that only the Secretary of State was entitled to apply. The discretion point Assuming that Mr. Main has a sufficient interest both on his own behalf and on behalf of the association to obtain relief, both the defect *39 in the certificate and the failure to notify the Secretary of State are in our judgment such as to vitiate the grant of outline permission in the sense of enabling the court in the exercise of its discretion to strike it and the subsequent approval of reserved matters down but the question remains whether it should do so. We have no doubt that it should not. The grant was made in January 1977, and throughout the subsequent period when unsuccessful attempts to obtain approval of reserved matters were being made neither Mr. Main nor the association objected to the outline permission. The scheme approved does not involve development of the land that was not owned by the council. It is clear that the Secretary of State has had, for a very long time, knowledge of the position and has not sought relief. The condition imposed by the council with regard to the highway position accords with what were the known requirements of the Secretary of State. It is in our view much too late, at any rate at the suit of the appellants, to quash the outline grant and thereby the approval of reserved matters. Since, as we have already said, none of the other points raised by Mr. Main is of substance, it follows that the appeal must be dismissed. After the foregoing judgment had been written, the Registrar of Civil Appeals received communications from Mr. Main dated July 3 and (in reply to a letter from the registrar dated July 10) July 13. By such communications, Mr. Main objected to the raising by the respondent of certain contentions on the hearing of the appeal. We have carefully considered those communications. Having done so, we have found nothing in them that justifies further argument or calls for any amendment to our judgment. This is for these reasons: First, to a large extent Mr. Main's objections are misconceived, being objections to new arguments or further authorities rather than to the raising of new grounds. Secondly, much of what is objected to is no more than answers advanced by the respondents to points raised by Mr. Main on his appeal. Thirdly, and most importantly, Mr. Main's appeal has finally failed because this court has upheld the exercise of the discretion by the judge. In a further communication to the registrar dated July 17, Mr. Main requests that our decision on ground 6 of his amended notice of appeal be reviewed. This also we have studied. Nothing in it calls for further argument or causes us to change our decision on ground 6.

10 Page 10 Representation Solicitors A. N. F. Rees, Chief Executive, Swansea City Council, Swansea; Smith, Spring & Co., Swansea. [Reported by Michael Gardner, Barrister.] Appeal dismissed with costs; fourth respondent to recover its costs of appeal against appellant up to and including second day of hearing in Court of Appeal. Leave to appeal refused. *40 1. See post, pp See post, p Unreported. 4. [1964] 1 W.L.R. 1136; [1964] 2 All E.R. 492; (1964) 15 P. & C.R. 304 D.C. 5. [1964] 1 W.L.R. 1136, 1147; (1964) 15 P. & C.R. 304, (1980) 39 P. & C.R. 223, C.A. 7. Ibid. at pp.238, (4th ed., 1977), pp (1980) 39 P. & C.R. 223, [1956] 2 W.L.R. 585; [1956] 1 All E.R (1980) 39 P. & C.R. 223, [1980] 1 W.L.R. 182; [1979] 3 All E.R. 876; (1980) 39 P. & C.R. 549, H.L S.L.T S.L.T [1980] 1 W.L.R. 182, 186; (1980) 39 P. & C.R. 549, Ibid. 17. Ibid. 18. [1980] 1 W.L.R. 182, 187; (1980) 39 P. & C.R. 549, [1980] 1 W.L.R. 182, 187; (1980) 39 P. & C.R. 549, [1964] 2 Q.B. 303; [1964] 2 W.L.R. 507; [1964] 1 All E.R. 149; (1964) 15 P. & C.R. 423, D.C. 21. [1968] A.C. 409; [1967] 1 W.L.R. 171; [1966] 3 All E.R. 964; (sub nom. James v. Secretary of State for Wales) (1967) 18 P. & C.R. 165, H.L. 22. [1979] 2 W.L.R. 755; [1979] 2 All E.R. 440, P.C. 23. [1979] 2 W.L.R. 755, [1980] 1 W.L.R. 182, ; (1980) 39 P. & C.R. 549, [1980] 1 W.L.R. 182, 190; (1980) 39 P. & C.R. 549, (1980) 39 P. & C.R. 223, [1967] 2 A.C. 337; [1967] 3 W.L.R. 289; [1967] 2 All E.R. 152, P.C. 28. Ibid Sweet & Maxwell Ltd