Planning consent — Retail warehouse — Conditions — Whether local planning authority misconstrued planning obligation — Whether planning permissions should be quashed — Application granted
The claimant, as a neighbouring landowner, applied for judicial review of two planning permissions granted in January 2004 by the defendants to the interested party. The permissions were in respect of the appeal site, which housed a former retail warehouse. The interested party had acquired the site and wished to divide the building into six separate warehouses, and to build three further units on what had been a garden centre. The first permission covered the works needed for the division and the second the erection of the new units.
When detailed planning permission was granted to the then applicant in 1993, the use covered by the permission was restricted to “that of a retail warehouse for the sale, storage and distribution of bulky durable goods only…” (the 1993 obligation). In 1996, permission was granted for an extension to the building that imposed no condition to limit the use of the extension or to prevent it from being occupied as a separate unit.
The planning officer’s report to the defendants’ development control committee recommended the approval of both applications. It stated that the two proposed units in what had been the extension were not subject to the 1993 obligation.
The claimant argued, inter alia, that the defendants had misconstrued the 1993 obligation and that they wrongly believed that the restriction in relation to durable goods extended only to the 1992 building. The claimant also asserted that the 1993 obligation limited the use of the permission “solely as a retail warehouse”, so that the subdivision was prohibited and only one unit was permitted.
Both the defendants and the interested party accepted that the extent of the limitation to durable goods had been misunderstood, but argued that the error should not lead to the permissions being quashed.
Held: The application was granted.
If the error could not be considered insubstantial or insignificant, discretion would only be exercised in favour of upholding the decision if it would inevitably have been the same notwithstanding the error. The test was a strict one of reasonable possibility. It was necessary to look at what was said and done at the time and to bear in mind that the decision was taken by the committee and not by the planning officer: Simplex GE (Holdings) Ltd v Secretary of State for the Environment (1988) 57 P&CR 306 considered.
In the present case, planning permissions would probably have been granted despite some real concerns. The conditions to be attached and any benefits contained in an agreement under section 106 of the Town and Country Planning Act 1990 might well have been more onerous for the interested party. That real possibility could not be ruled out, and it could not be said that the defendants would necessarily have reached the same decision. Accordingly, the planning permissions should be quashed.
Christopher Katkowski QC and Tim Buley (instructed by Lawrence Graham) appeared for the claimant; Robert White (instructed by the solicitor to Rushmoor Borough Council) appeared for the defendants; Michael Barnes QC and Edmund Robb (instructed by David Cooper & Co) appeared for the interested party, Pillar (Farnborough) Ltd.
Eileen O’Grady, barrister
