Council granting outline planning permission for development – Reserved matters conditions and ad hoc conditions attached – Whether judge erred in finding a condition precedent to commencement of development not fulfilled and planning permission not implemented – Town and Country Planning Act 1990 section 56 – Appeal dismissed
On 5 June 1990 the respondent council granted outline planning permission for the erection of a new supermarket on a green field site on the edge of North Walsham. The permission included, inter alia, a standard condition requiring the development to begin not later than 5 June 1995. Conditions 1 and 2 related to reserved matters, and condition 4 required that “full details of the means of disposal of foul and surface water drainage. . . shall be submitted to and approved by the local planning authority prior to the commencement of development”. In June 1991 the council approved an application for reserved matters. Although condition 4 was not a reserved matter, it did require a formal application and approval by the council.
On 2 June 1995 certain preliminary works were carried out on the land. In July 1996 the appellant (Tesco) entered into a conditional contract to purchase the land in order to build a supermarket on the site. Tesco sought a declaration that planning permission had begun prior to 5 June 1995, and therefore no further planning permission was required for the rest of the development. The council contended, inter alia, that no application had been made in connection with, and no approval had been granted in respect of, the drainage condition. Thus, a condition precedent to the commencement of development had not been fulfilled prior to commencement of any of the alleged works.
The trial judge found in favour of the council in respect of the drainage condition. Accordingly, it was held that permission had not been implemented by the works of 2 June 1995, and was now out of time. Tesco appealed on the ground that the judge had failed to properly consider whether documents relied upon, namely an application letter and form for approval of reserved matters and plan 302A, constituted an application in respect of the drainage condition.
Held The appeal was dismissed.
In the absence of rules as to the necessary form and content of an application as required by the drainage condition, it was a question of fact and degree for the judge and it was not for the court to interfere with his decision.
The judge’s finding was justified because: (1) the documents relied on were ostensibly an application in relation to reserved matters; (2) the application specifically stated that it was for reserved matters; (3) plan 302A was entitled “Site Layout Plan” and was specifically presented as fulfilling the requirements in relation to reserved matters. That limitation needed to be more specifically removed before the plan could also be treated as an application with regard to the drainage condition. (4) There was no reason why an application under the drainage condition should have been combined with, or be expected to be found, with the reserved matters application. The reserved matters application was subject to a time-limit, whereas the drainage condition only imposed a precondition to the commencement of development.
Patrick Clarkson QC and Richard Harwood (instructed by Berwin Leighton) appeared for the appellant; Robert Griffiths QC and Peter Village (instructed by Eversheds) appeared for the respondents.
Sarah Addenbrooke, barrister
