Council granting outline planning permission subject to bulky goods condition – Inspector allowing developer’s appeal and granting permission subject to non-food condition only – Whether inspector failing to take into account material considerations – Application to quash inspector’s decision dismissed
A developer applied for planning permission for an out of centre non-food retail warehouse development at 1 Fishbourne Road and land at Fishbourne Road East, Chichester. The applicant council suggested a specified bulky goods condition should be imposed on the development if permission was to be granted. The inspector allowed the developer’s appeal concluding, inter alia, that the proposal would be in accordance with the emerging development plan policies. He refused to impose the condition recommended by the council on the ground that it would be imprecise and difficult to enforce. Instead he imposed the condition that: “The building, hereby approved, shall not be used for the sale of food for consumption off the premises other than confectionery”. The applicant sought to quash the permission granted with its suggested, or a similar condition, imposed on it. It was submitted that its interests had been substantially prejudiced by the inspector’s failure to comply with the requirements of regulation 18(1) of the Town and Country Planning (Determination by Inspectors) (Inquiries Procedure) Rules 1992 (SI 1992 No 2039); that the inspector had failed properly to apply policy S2 of the West Sussex Structure Plan Third Review Deposit Draft (1996) (the emerging structure plan), and policy S4 of the Chichester District Local Plan First Review Deposit Draft (1995) (the emerging local plan). It was further submitted that the inspector failed properly to apply PPG 6 (1996) and Circular 11/95 when imposing conditions on the permitted development and had failed to take account of the effective imposition of such conditions by the applicant on other non-food out of centre retail developments.
Held The application was dismissed.
1. It was an underlying feature that there was a gross underprovision of shopping facilities in Chichester, an acknowledged need for more shops and no room in Chichester itself for further substantial shopping provision, which accordingly had to be out of Chichester. In those circumstances it was difficult to see how there could be any harm to the policies against inappropriate development which were designed to cover the situation where there was scope for development in the centre and where the centre required protecting.
2. The policies’ requirement for a size of unit restriction and goods restriction, which were to protect the vitality and viability of the town centre, had been clearly understood by the inspector. He had dealt with the question of vitality and viability and it was impossible to see how any damage to vitality and viability could be caused in the light of the situation in Chichester.
Sasha White (instructed by Sharpe Pritchard, London agents for the solicitor to Chichester District Council) appeared for applicant council; Rabinder Singh (instructed by the Treasury Solicitor) appeared for the first respondent, the Secretary of State for the Environment; Keith Lindblom QC (instructed by Hughes Watton) appeared for the second respondent, Chartwell Land Properties Ltd.
