Chieveley Parish Council, R (on the application of) v Newbury District Council & Anor

An outline planning permission may reserve for later approval only matters for which the outline application gives no details. A condition purporting to reserve matters already particularised is unlawful, although that defect does not necessarily require the permission to be quashed.

The scale of development is not itself a reserved matter of siting, design, external appearance, access or landscaping. Where floor space is specified in an outline application, it is fixed subject only to minimal adjustments properly attributable to genuine reserved matters. On a late judicial-review challenge to a planning permission, the court must weigh good administration independently of demonstrated prejudice. It will look to the substantive decision under challenge rather than a later procedural acknowledgement.

The Parish Council challenged a 1994 outline permission for exhibition halls at a showground in an Area of Outstanding Natural Beauty. The permission stated that development must accord with the submitted application and plans, but purported to reserve siting and access although those matters had been identified in the application.

Carnwath J held the condition unlawful and found that traffic generation should have been considered when reserved matters were approved. He nevertheless refused declaratory and quashing relief because of delay, subject to an undertaking limiting floor space. The Parish Council appealed. The District Council and developer cross-appealed on the findings of unlawfulness. The central issues concerned the lawful scope of reserved matters, the status of the specified floor space, traffic considerations, and discretionary relief after delay.

Disposition

Per Pill LJ, with whom Judge and Hobhouse LJJ agreed, the court dismissed the Parish Council’s appeal and allowed the District Council’s cross-appeal.

1. The permission was not void for uncertainty. Planning conditions receive a benevolent construction. The express reservations in the conditions prevailed, where necessary, over inconsistent details in the submitted plans.

2. Condition 1 was unlawful. Under Article 1(1) of the Town and Country Planning General Development Order 1988, an authority could reserve only matters for which details had not been given in the outline application. The applicant’s details of siting and access could not be treated as withdrawn.

3. However, gross floor space was not a reserved matter. It could not be subsumed within siting or design. The stated 5,644 square metres therefore fixed the scale of the permission, subject only to minimal consequential adjustments. The judge was wrong to treat floor space as still open for determination.

4. Consequently, on the later reserved-matters application the District Council was not required to reconsider traffic generation or the scale of the development. Approval of reserved matters could not be used to revoke or modify a permission already granted: [1971] AC 72.

5. The absence of an express reference to PPG 7 did not justify quashing the permission. Read in its plan-led context, the guidance did not dictate the result for this site or remove the authority’s planning discretion.

6. The challenge to the 1994 permission, brought nearly three years later, involved undue delay under section 31(6) of the Supreme Court Act 1981. Good administration was an independent and important consideration. The procedural error did not strike at the heart of the planning decision, there was no allegation of bad faith, and the Parish Council had suffered no significant prejudice. The court therefore refused relief. The later acknowledgement of the reserved-matters application could not revive the challenge.

The undertaking imposed below was unnecessary. The court did not endorse any general proposition that an undertaking can save an invalid administrative decision.

• Court of Appeal (Civil Division): The Parish Council’s appeal was dismissed and the District Council’s cross-appeal was allowed: [1998] EWCA Civ 1279.
• High Court, Queen’s Bench Division (Crown Office List): Carnwath J refused declarations and quashing relief despite finding the reserved-matters condition unlawful and finding fault in the later traffic consideration. The Court of Appeal upheld the refusal of relief but reversed the conclusion that floor space remained a reserved matter and the related traffic conclusion.