Planning permission subject to condition granted for change of use of listed building – Condition varied – Appellant applying for condition to be lifted – Council refusing application – Inspector dismissing appeal – Whether condition lawfully imposed – Whether condition relevant to planning permission – Appeal allowed
In 1991 the second respondent, South Cambridgeshire District Council, granted planning permission to the appellant for the change of use of a grade II listed building, Newton Hall, Cambridgeshire, to be used for research and development. The permission was subject to the condition that a nearby barn was to be demolished within two years. The condition was stated to be imposed in order to enhance the setting of the listed building. The appellant’s application to lift the condition was successful in part in that the condition was varied, to the extent that the barn was to be demolished within four years.
Before the expiry of the four-year period, the appellant sought to retain the barn. The council refused the application and in March 1998 the appellant’s appeal to an inspector was dismissed. The appellant applied, pursuant to section 288 of the Town and Country Planning Act 1990, for the inspector’s decision to be quashed. The judge dismissed the application, finding that the condition related to the development since it was required to achieve the objective of the development plan, namely to preserve the appearance of the listed building. The appellant appealed.
Held: The appeal was allowed.
1. The inspector had failed to consider the central issue of whether the condition fairly and reasonably related to the change of use under the planning permission, and the fact that the appellant’s change of use of the listed building involved no change in the appearance of the property. See Newbury District Council v Secretary of State for the Environment [1981] AC 578.
2. The judge had erred in deciding that any defect in the inspector’s reasoning on the issue of lawfulness of the condition was not fatal, since he could determine the matter himself. The issue of whether or not a condition was lawful was a decision for the relevant inspector and the court could only interfere with the inspector’s conclusion on the grounds identified in Newbury District Council v Secretary of State for the Environment.
3. Circular 11/95 sets out six tests to be applied when considering planning conditions. These go to, inter alia, the necessity of the condition, in that planning permission could not be granted without it, and its relevance to the proposed development and to planning generally. Planning permission could not be arbitrarily refused on the grounds that the council was unwilling to grant it without the condition in question. Accordingly the matter was to be remitted.
Stephen Morgan (instructed by Mills & Reeve, Cambridge) appeared for the appellant; Timothy Corner (instructed by the Treasury Solicitor) appeared for the first respondent.
Thomas Elliott, barrister
