In R (on the application of Midcounties Co-operative Ltd) v Wyre Forest District Council [2010] EWCA Civ 841; [2010] PLSCS 218, the appellant had unsuccessfully sought judicial review of a decision by the local planning authority to grant planning permission to Tesco for a new supermarket.
The permission was expressed to be granted in accordance with the application, with the result that it was accepted that the planning application form, an industrial questionnaire and the site layout plan were incorporated into it. Condition 6 of the permission provided that the permitted supermarket should not exceed 4,209m2 in terms of gross external measurement and 2,919m2 of net retail sales area.
The layout plan referred to those specific measurements but the planning application form made no reference to them. The industrial questionnaire stated that the “floor space for retail trading” would be 2,403m2. On the basis of an apparent discrepancy between the 2,919m2 and 2,403m2 figures, the appellant argued that condition 6 was bad in law. In particular, it contended that condition 6 was unlawful as being uncertain, and subject thereto that the permission granted more than was applied for.
The appeal was dismissed. Laws LJ pointed out that, as a matter of law, a planning condition is void for uncertainty only if it can be given no meaning or no sensible or ascertainable meaning. The judge at first instance had concluded that the 2,403m2 area was not separate or additional to the 2,919m2 area but, rather, was subsumed within it. Without finding it necessary to reach a view as to what the 2,403m2 figure represented, he suggested that it excluded the area on the exit side of the checkouts containing the lobbies, customer services and circulation spaces. The 2,919m2 figure included that area. Laws LJ held that the judge had been entitled to ascribe a sensible meaning to the permission that could readily be ascertained. On this approach, the permission was not bad for uncertainty nor did it grant more than had been specified in the application.
Finally, Laws LJ stated that a section 106 agreement subsequently entered into that limited the area for the display of goods, including the checkouts and the customer counters, to no more than 2,401m2 also supported the judge’s conclusions, even though the section 106 agreement did not have the force of a condition.
John Martin is a freelance writer
