Outline planning permission – Condition purporting to reserve matters particularised in application – Whether permission a nullity – Whether subsequent approval of reserved matters wrongfully disregarding traffic generation – Application allowed in part
On December 14 1992 the Newbury and District Agricultural Society (the society), a promoter since 1985 of annual shows on the Newbury Showground in the parish of Chieveley, made an outline application seeking permission for the erection on the showground of two exhibition halls providing a total floorspace of 5,644 sq m. The siting of the halls and the means of access thereto, as shown on the accompanying drawing, were specifically stated to be part of the application. On February 2 1994 the first respondents, Newbury District Council, granted permission subject to various conditions, notably condition 1 which required that no work should begin before approval of certain reserved matters, these including full details of design and means of access. On November 5 1996 the society submitted an application for approval of the reserved matters. The requisite approval was given on January 8 1997 after the relevant committee had been advised that matters of principle, including traffic generation, were not open to discussion. Chieveley Parish Council sought judicial review contending, inter alia, (i) that the 1994 permission was a nullity by reason of its ambiguity and/or because it purported to reserve matters which could not lawfully be reserved; (ii) that the approval given in January 1997 was unlawful in that NDC had failed to have regard to the effect thereof on traffic generation.
Held The application was allowed in part.
1. Because the permission of 1994 incorporated the application by reference, both documents were determinative of the scope of the permission; there was accordingly some force in the contention that the permission contradicted itself on whether siting and access were matters to be reserved. However a permission should not be avoided for ambiguity unless it could be given no meaning or no sensible meaning: see Hall & Co Ltd v Shoreham-by-Sea Urban District Council [1964] 1 WLR 240. It was accordingly permissible to resolve the uncertainty by finding, as an exercise of construction, that condition 1 was intended to prevail over any contrary indication in the application.
2. The parish council had correctly maintained that the district council had no power to impose condition 1, it being plain both from section 92 of the Town and Country Planing Act 1990 and the 1988 General Development Order then in force that “reserved matters” could not include matters which had been particularised in the application. However, even though that error went to the permission as a whole, it did not undermine it in principle and the court should accordingly exercise its discretionary power not to treat the permission as a nullity. The practical implication for the parish council was the lost opportunity to make representations on the issue of access, a matter largely to be remedied by the order to be made as regards the 1997 approval (post).
3. Given the express reservation in the permission of matters of size and floorspace it was plain that the district council had been wrongly advised that traffic generation – a matter of considerable concern to the parish council – was no longer open to discussion. The resulting failure to have regard to a material consideration required the setting aside of the 1997 approval, the details of which would have to be reconsidered.
Robin Purchas QC and Susan Ornsby (instructed by Berwin Leighton) appeared for the applicants; John Steel QC and Rabinder Singh (instructed by the solicitor to Newbury District Council) appeared for the first respondent; Michael Fitzgerald QC and Christopher Boyle (instructed by Nabarro Nathanson) appeared for the second respondent, Newbury and District Agricultural Society.
