Planning permission — Condition requiring provision of open land on one of five alternative sites — Whether any of five sites acceptable — Whether appellant council’s planning committee required to have regard to planning merits of all sites — Appeal allowed
In 1996, the appellant council applied to themselves for planning permission to build a 428-space car park on the Bar End wildflower meadows as part of the Winchester park-and-ride scheme. The Secretary of State called in the council’s application and a public inquiry was held. The Secretary of State accepted his inspector’s recommendation to grant the application, subject to a condition requiring the council to seek the approval of the local planning authority for a scheme to provide and manage replacement open land on one of five possible sites, in order to minimise any harm to the ecology of the area. The planning permission was dated October 1998. In his decision, the Secretary of State endorsed the inspector’s order of preference for the sites. In April 2002, the council submitted a scheme to their planning committee that related to the site listed by the inspector as the third alternative. The planning committee approved the scheme.
The decision was quashed in proceedings brought by the respondent, a local resident, on the ground that the planning committee had erred in proceeding on the basis that any of the five alternative sites were satisfactory in principle, instead of considering whether one of the other four might be preferable to that proposed. In separate proceedings, the April 2002 submission of details for the scheme was held to have been made outside the three-year time limit laid down by section 92 of the Town and Country Planning Act 1990 for approval of reserved matters under an outline planning permission. The council appealed both decisions.
Held: The appeal was allowed.
1. Although the Secretary of State’s decision showed that he was expecting the council, in their capacity as developers, to take note of the inspector’s preferences, no legal requirement was imposed. The parameters of the council’s function in their capacity as planning authority were defined by that part of the decision containing the formal grant of permission and the imposition of a condition. The condition was clear: it required a scheme on one of the identified sites, but did not impose, expressly or implicitly, any preference between them. The Secretary of State made it clear that the purpose of the condition was to ensure that no overall harm would be done to the ecology of the area. On the basis of the inspector’s earlier conclusion, it was clear that this objective could be achieved by any one of the sites. It was not the normal function of a planning condition to seek to achieve a planning gain going beyond what was necessary to offset the adverse effects of the development. In those circumstances, the planning committee had been right not to consider the respective planning merits of the other sites.
2. The condition did not relate to reserved matters, as defined in article 1 of the Town and Country Planning (General Development Procedure) Order 1995. That definition showed that reserved matters were essential components of a building scheme that, as a concession, did not need to be particularised at the time of the original application. The condition, on the other hand, was concerned with an off-site mitigation measure imposed by the Secretary of State. Accordingly, the permission was subject only to the five-year time limit under section 91 of the 1990 Act.
Elizabeth Appleby QC and Gillian Carrington (instructed by Sharpe Pritchard, acting as agent for the solicitor to Hampshire County Council) appeared for the appellants; Stephen Hockman QC and William Upton (instructed by Richard Buxton, of Cambridge) appeared for the respondent.
Sally Dobson, barrister
