Developer applying for permission to develop site into leisure complex – Outline planning permission granted subject to conditions – Developer submitting reserve matters application – Application allowed – Competing developer seeking leave to apply for judicial review of decision to grant outline permission – Whether conditions were so wide that impact assessment was invalid or unreliable – Application dismissed
In September 1995 Mercury Asset Management/THI plc (“THI”) submitted an application to Sheffield Develoment Council (“SDC”) for outline planning permission for the development of a site in Sheffield into a leisure complex including a multiscreen cinema, bingo, bowling, nightclub, games station, restaurants and carparking. Although the application did not specify the size of the cinema, a drawing which accompanied the application showed the cinema with a floor space of 45,000 sq ft. The property consultants acting for THI, Richard Ellis, submitted a supporting statement with the application which referred to the cinema as a 4,180 sq ft, 2,400-seat cinema. In November 1995 Meadowhall Leisure Ltd (“MHL”) submitted an application to SDC to develop a site, which was situated a short way from THI’s site, into a leisure centre which included a nine-screen cinema. Subsequently, SDC granted full planning permission to MHL. In March 1996 SDC granted outline planning permission to THI in accordance with terms which included, inter alia, condition 16, which stated that the consent was for “a mix of the uses and total floor space of 28,580 sq m . . . unless otherwise authorised . . .”. THI then submitted a reserve matter application to increase the size of the cinema. SDC took the view that the new proposals were not within condition 16 and required further written authority. SDC appointed Town Planning Consultants Ltd to prepare a report on the impact of a larger cinema. On the basis of the report SDC gave its approval to THI’s application.
MHL sought leave to apply for judicial review of SDC’s decision to grant outline planning permission to THI contending that condition 16 on its proper construction failed to provide any adequate restriction on the size and scale of the cinema or other parts of the leisure complex, and therefore invalidated or fundamentally undermined the reliability of the information, in relation to the impact of the development upon the vitality and viability of Sheffield City Centre and other nearby towns, on which SDC’s conclusion had been reached.
Held: The application was dismissed.
1. Since there had been a detailed inter partes hearing which left little to be argued by way of further submissions at any substantive hearing, the test of whether MHL’s case was likely to succeed if leave was granted could have been applied to decide whether to grant leave to apply to move for judicial review. However, the essential point of construction was limited and straightforward and therefore the application could be dealt with by the less stringent test of arguablility.
2. On its proper construction and by reference to the relevant scale drawing condition 16 clearly defined not only the nature of the permitted uses but also the individual extent and size of each component use. As a result the condition did place an effective restriction on the size and scale of the multiplex cinema for which consent had been granted and, thus, SDC’s written authority was required before any proposal for a larger multiplex cinema would be accepted. Therefore SDC had been in a position to take appropriate steps to satisfy itself that the relevant information and conclusions of the original impact assessment were not invalidated by any such proposal before granting the approval sought. Accordingly, MHL did not have an arguable case for challenging the decision of SDC.
3. In any event, as a matter of discretion it was appropriate to reject the application for delay. The outline planning permission in question had been granted in March 1996 and MHL’s application for leave to apply for judicial review was issued in June, nearly three months later.
Richard Phillips QC and Meyric Lewis (instructed by Booth & Co, of Leeds) appeared for the applicant; Lionel Read QC (instructed by Nabarro Nathanson) appeared for the respondent; Michael Barnes QC (instructed by Manches & Co) appeared for Mercury Asset Management/THI plc.
