Applicant applying to vary condition attached to outline planning permission – Respondent council refusing – Whether respondents’ decision unlawful – Application dismissed
The applicant (Powergen) owned the site of a former power station south of the centre of Leicester. In January 1995 the respondents, Leicester City Council, granted Powergen outline planning permission for “Redevelopment of site for retail use, business use, petrol filling station, public house/restaurant and open space”. The permission was subject to conditions. Condition 1 required an application to be made for approval of reserved matters before 25 January 1998. Condition 2 required the submission of “Detailed plans and particulars of the siting, design and external appearance and means of access to the development of the site” before development could begin.
Towards the end of November 1997 Powergen submitted an application for approval of reserved matters only for that part of the site to be developed as a foodstore. In January 1998 Powergen sought an amendment to condition 1, under section 73 of the Town and Country Planning Act 1990, to extend the time-limit. Powergen did not submit an application for approval of reserved matters regarding the remainder of the site before 25 January 1998, or at all. Subsequently, Powergen applied under section 73 of the Act to vary condition 2, so as to restrict the condition to those parts of the development for which approval of reserved matters had not been obtained. The council refused both section 73 applications. Powergen sought judicial review of their refusal to vary condition 2.
Three issues arose: (1) whether, upon the true construction of condition 2, it was a requirement that all reserved matters be approved before any part of the development could begin; (2) relying upon letters from the council’s officers, whether Powergen had a legitimate expectation that condition 2 would be interpreted by the council so as to permit development to begin on a part of the site for which approval of reserved matters had been obtained, even if not obtained in respect of the rest of the site; and (3) whether the council’s refusal was unlawful, in that it revisited the question of acceptability of the development when considering a section 73 application.
Held: The application was dismissed.
1. The literal and natural interpretation of condition 2 was that it required all details to be submitted before development could begin. It was reasonable to suppose that the words “development” and “site” bore the same meaning as they did in other parts of the document. There was nothing in the planning permission to indicate that they meant anything other than the whole development or site.
2. The legitimate expectation of Powergen failed, for the fundamental reason that the council’s officers did not have a delegated power to waive or vary the condition, and any undertaking so given by them would not have bound the council. Furthermore, although the principle of legitimate expectation was a public law doctrine, it was analogous to the principle of estoppel: Western Fish Products Ltd v Penwith District Council [1981] 2 All ER 204 applied.
3. It was open to the council to reconsider the principle of the development when considering a section 73 application: R v London Docklands Development Corporation, ex parte Frost (1996) 73 P&CR 199 and Pye v Secretary of State for the Environment, Transport and the Regions [1998] 3 PLR 72 applied.
John Taylor QC and Vincent Fraser (instructed by Wragge & Co, of Birmingham) appeared for the applicant; Tobias Davey (instructed by the solicitor to Leicester City Council) appeared for the respondents.
Sarah Addenbrooke, barrister
