Barker & Ors v Waverley Borough Council & Anor

On an application under the Town and Country Planning Act 1990, section 73, a planning authority must assess the conditions in light of current circumstances, the development plan and other material considerations. A long-standing planning condition remains relevant, but its duration does not make retention legally paramount. Judicial review does not permit the court to substitute its view of the planning merits. A decision is irrational only if it falls beyond the range of responses open to a reasonable decision-maker. Local residents may expect proper consideration of amenity, but that expectation cannot override the authority’s statutory duty or require continuation of a particular condition.

British Aerospace Plc applied under section 73 of the Town and Country Planning Act 1990 to remove conditions attached to planning permissions for Dunsfold aerodrome. One condition limited the permissions to BAe; another required the site to be cleared and returned to agriculture when the authorised use ceased. The Council removed both conditions, and local residents sought judicial review of the removal of the reverter condition.

Sir Richard Tucker, sitting as a Deputy High Court Judge in the Administrative Court, quashed the Council’s decision and ordered reconsideration. The Council and BAe appealed. The central issues were whether the Council had considered an immaterial legal concern, whether removal of the condition was irrational, and whether the residents had a legitimate expectation that it would continue.

The appeal was allowed unanimously. Lord Justice Pill delivered the judgment, with Lord Justice Mantell and Mr Justice McKinnon agreeing. The Administrative Court’s order was quashed.

1. Legal concerns. The Planning Officer’s reference to legal concerns about the condition did not create a real possibility that the committee had relied on an immaterial consideration. The report stated the officer’s view that the condition was valid and set out the planning considerations comprehensively. The skeleton argument used below did not establish what had influenced the committee. The court did not need to decide the wider question, but stated provisionally that reasonable doubt about the lawfulness of a course of action might sometimes be a material planning consideration.
2. Irrationality. Section 73 of the Town and Country Planning Act 1990 required the Council to determine the application by considering the conditions appropriate in the circumstances existing when the decision was made. Sections 70 and 54A, together with the development plan and other material considerations, formed part of that assessment. The report identified substantial reasons for removing the reverter condition, including economic considerations, planning policies, marketing constraints, the acceptability of alternative employment use and new controls on the site. The planning history and residents’ concerns were also considered.
3. The court applied the test stated in R v Ministry of Defence ex parte Smith [1996] 1 AllER 257: a decision is irrational only if it is beyond the range of responses open to a reasonable decision-maker. The Council’s decision met that threshold. A misplaced word in one paragraph of the report did not justify quashing the decision. Separate express reasons were unnecessary because the material considerations appeared in the report. Consideration of a section 106 agreement was not obligatory, although its potential had been considered.
4. Legitimate expectation. The residents could expect the Council to consider local amenity, but not that the reverter condition would continue or that the duration of the condition would prevail over the statutory duty to consider all material matters. The expectation therefore did not make removal an abuse of power.

The order below was quashed. The first appellant received its costs in both courts; there was no order for costs concerning the second appellant. Permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division) — [2001] EWCA Civ 566: allowed the appeals and quashed the Administrative Court’s order.
• Administrative Court — On 7 December 2000, Sir Richard Tucker quashed the Council’s decision removing the reverter condition and ordered reconsideration.