Town and country planning – Planning permission – Conditions – Claimant resident applying for judicial review of decision of defendant local authority granting planning permission for mixed-use development – Whether defendant having power to impose ecological corridor along boundary of site – Whether defendant acting in breach of claimant’s legitimate expectation by failing to visit her property to review impact of proposed development – Application dismissed
The claimant applied for judicial review of the decision of the defendant local authority to grant the interested party developer full planning permission for a substantial mixed-use development at Barrack Road, Christchurch, Bournemouth. The claimant lived in an adjoining street and her property backed on to the site. She objected to some aspects of the application for planning permission.
The site was currently occupied by the former Police Station and Magistrates Court, and a public house. Those buildings were to be demolished, together with two houses in Barrack Road. Full planning permission had been granted for the erection at the site of 130 residential dwellings, 39 units of age-restricted sheltered accommodation, 612 square metres of flexible commercial/community space, a new road, vehicular access, new private and semi-private gardens, public open space, hard and soft landscaping, surface vehicular parking and residential garages.
The claimant contended that: (i) the defendant had erred in law when officers advised the planning committee that it could not impose a condition requiring that the ecological corridor along the north west boundary of the site should be at least 12m in width because it had no power to impose such a condition; and (ii) the defendant acted in breach of the claimant’s legitimate expectation by failing to conduct a visit to her property to review the impact of the proposed development on the outlook towards the site.
Held: The application was dismissed.
(1) A local planning authority had power to grant planning permission on an application subject to conditions under section 70(1)(a) of the Town and Country Planning Act 1990. Such a condition might have the effect of modifying the development applied for, whether by limiting or enlarging it or by changing its nature to some extent. The result of imposing such a condition must not be a development which in substance was not that which was applied for: Bernard Wheatcroft Ltd v Secretary of State for the Environment [1981] 1 EGLR 139 applied.
However, the statutory power of a local planning authority to impose conditions on the grant of planning permission was not unlimited. To be lawful, it had to: (i) be imposed for a planning purpose and not for an ulterior one; (ii) fairly and reasonably relate to the development permitted; and (iii) not be so unreasonable that no reasonable authority could have imposed it: Newbury District Council v Secretary of State for the Environment [1981] AC 578 applied.
(2) The starting point was that the statutory process of development control provided that it was an applicant for planning permission who decided the form of development for which it wished to seek planning consent. The applicant prepared and submitted the planning application. It was the responsibility of a local planning authority to determine the application by approving (conditionally or otherwise) or refusing it: section 70(1) of the 1990 Act.
It was not the function of a local planning authority to reformulate a development proposal. It could offer advice, but it was a matter for the applicant whether to accept that advice and amend the proposals, or to reject it and require the application to be determined.
Planning permission could not be granted for a development that was in substance different from that for which the application was initially made because the planning legislation only gave power to local planning authorities to determine an application for planning permission which had been made in the prescribed form and manner, including a description of the development, with relevant plans and drawings. Where an application was made for full, as opposed to outline, planning permission, the proposed layout of the development had to be shown in detail on a plan submitted with the application: see Article 7(1)(c) of the Town and Country Planning (Development Management Procedure) (England) Order 2015. Absent any formal amendment to that plan by the applicant, any grant of planning permission would require the development to be carried out in accordance with that plan: R (on the application of Holborn Studios Ltd) v Hackney London Borough Council [2017] EWHC 2823 (Admin); [2017] PLSCS 207
(3) On the facts of this case, it was rational for the planning officers to conclude that the result of imposing the condition would be a development which, in substance, was not that which was applied for, and therefore would breach the Wheatcroft principle. It would have been irrational for the planning committee to reach any other conclusion, and so the planning officers were right to advise members that they could not take that course.
Such a condition would also have been Wednesbury unreasonable, and so failed to meet the third limb of the Newbury test, as it conflicted with the description of the development and the layout plan which the interested party was bound to implement if the application for planning permission was granted. The court was not satisfied, on the facts, that it would have failed to meet the second limb of the Newbury test, as it did relate to the development.
(4) The requirement to meet the legitimate expectations of the public flowed from the general public law duty of fairness. A legitimate expectation, whether procedural or substantive, might arise from an express promise or representation made by a public body. In order to found a claim of legitimate expectation, the promise or representation relied upon had to be clear, unambiguous and devoid of relevant qualification. The onus of establishing a clear, unambiguous and unqualified representation rested on the claimant.
The question was how, on a fair reading of the promise, it would have been reasonably understood by those to whom it was made. The test was one of objective intention. The statement had to be considered in the context in which it was made. On the evidence in the present case, the claimant had failed to establish that the defendant made a clear, unambiguous and unqualified representation that the committee would visit the claimant’s property and so no basis for a legitimate expectation arose.
Sam Fowles (instructed by Richard Buxton Solicitors) appeared for the claimant; James Neill (instructed by Bournemouth, Christchurch & Poole Council) appeared for the defendant; Douglas Edwards QC and Mark O’Brien O’Reilly (instructed by Foot Anstey LLP) appeared for the interested party.
Eileen O’Grady, barrister
