Owner of nursery granted planning permission for retail use on part of site – Applicant’s business adjoining site – Respondents granting permission for nursery owner to replace old buildings with new structure for growing and retail of plants – Whether respondents breaching statutory duty – Town and Country Planning Act 1990 sections 54A and 70 – Application allowed
The applicant owned a garden centre that adjoined the site of Greenham Nurseries (GN), Smallway, Congresbury. Originally, the lawful use of GN’s site was as an agricultural field. In 1991 GN was granted planning permission in respect of part of its site for “retail sale of plants”. That permission was subject to conditions and a section 52 agreement that restricted, inter alia, the range of goods that could be sold from a defined retail area. GN sought an extension of the range of goods, and in 1993 a supplemental agreement was made. In May 1998, GN applied for planning permission “to replace existing old buildings with a single new structure and build a new canopy for growing and sale of plants”. The respondent district council granted permission on 22 December 1998.
The applicant sought judicial review of the respondents’ decision of 22 December on three grounds: (i) the respondents failed to appreciate or consider that the lawful use of the site was in fact agricultural/horticultural, with retail as an ancillary use; (ii) they failed to consider or failed to appreciate that they were granting permission for a change of the primary use, from agricultural to retail. The applicant submitted that not only did the new structure extend beyond the limited retail area, but the materials used for the structure meant that it could not be used for the growing of plants; and (iii) the respondents failed to consider the relevant policies contained in, inter alia, the development plan. They therefore failed to fulfill their duty pursuant to sections 54A and 70 of the Town and Country Planning Act 1990.
Held: The application was allowed.
The 1991 permission and its agreement had limited retail use to a particular part of the site. The 1993 agreement did not purport to change the use class of the site. Retail use remained ancillary to the main permitted use of the site, which was agricultural/horticultural. The respondents therefore failed to appreciate the lawful use of the site, failed to appreciate that they were changing the main use of the site, and, having been advised that there was no conflict with policy considerations, failed to consider them at all. It was not appropriate for the court to exercise its discretion and refuse relief.
Christopher Lockhart-Mummery QC (instructed by Burges Salmon) appeared for the applicant; Timothy Straker QC (instructed by the solicitor for North Somerset District Council) appeared for the respondents.
Sarah Addenbrooke, barrister
