Council granting planning permission to build structure for growing and retail of plants – Nearby garden centre applying for judicial review – Whether council breaching statutory duty – Application allowed – Council’s appeal allowed
G was the owner of a site known as Greenham Nurseries, Smallway, Congresbury. Originally, the lawful use of the site was as an agricultural field, but in 1991 G was granted planning permission in respect of part of the site for the “retail sale of plants”. That permission was subject to conditions and a section 52 agreement that restricted, inter alia, the range of goods that could be sold from a defined retail area. In 1993 a supplemental agreement was made to extend the range of goods. In May 1998 G applied for planning permission “to replace existing old buildings with a single new structure and build a new canopy for growing and sale of plants”. The appellant council granted permission in December 1998.
The respondent, a garden centre with a business nearby, sought judicial review of the council’s decision to grant permission on the grounds that they had failed to consider: (i) that the lawful use of the site was agricultural/horticultural, with retail as an ancillary use; (ii) that the permission involved a change of the primary use from agricultural to retail; and (iii) the relevant policies contained in, inter alia, the development plan. The judge allowed the application and quashed the council’s decision. The council appealed.
Held: The appeal was allowed.
1. There was nothing in the 1991 planning permission, or any subsequent agreements, to prevent G from using the sales area exclusively for the sale of plants that had been grown on the site. Accordingly, the judge had erred in holding that the sales area of the site was limited to agricultural/horticultural use.
2. Where an administrative decision was reached by a body that had taken into account a factual error, the decision would normally be quashed. However, the court had a discretion to refuse that remedy: see Wade & Forsyth’s Administrative Law (8th ed) at pp688-690 and Simplex GE (Holdings) Ltd v Secretary of State for the Environment (1988) 57 P&CR 306. The reason for the normal rule was that the administrative authority had been given the task of evaluating the significant facts and reaching a conclusion in the light of that evaluation, and, accordingly, the court had to beware of substituting itself for the decision taker. Even assuming that the council had been wrongly advised, to the effect that the proposal did not conflict with a condition in the 1991 planning permission, it was, none the less, not appropriate for the court to quash the council’s decision, since it could be concluded that they would have reached the same decision had they been aware of the true facts.
Timothy Straker QC (instructed by the solicitor to North Somerset District Council) appeared for the council; Christopher Lockhart-Mummery QC (instructed by Burges Salmon, of Bristol) appeared for the respondent.
Thomas Elliott, barrister
