Murray, R (on the application of) v Hampshire County Council

Where an operative planning condition identifies several alternative sites for mitigation, the authority deciding subsequent details may treat the acceptability in principle of a listed site as settled. It need not reopen comparative ecological or accessibility merits unless the condition imposes that exercise. The formal condition controls the legal function; a preference expressed in the reasoning of the permission decision, including a commendation to the developer, is not itself a legal requirement.

Under the Town and Country Planning Act 1990, the three-year period for applying for approval of reserved matters applies only to matters defined by the relevant development order. An off-site ecological mitigation scheme is not a reserved matter, so the general five-year commencement period applies.

The Secretary of State granted outline planning permission in 1998 for a park-and-ride extension at Bar End Meadows. A condition required alternative grassland mitigation on one of five identified sites. Hampshire County Council later approved details selecting site 7 at Magdalen Hill.

Murray challenged the approvals of July 2001 and May 2002. Mr Justice Ouseley quashed both decisions, holding that the council had adopted too narrow a view and should have considered the comparative ecological and accessibility merits of the alternative sites. A separate issue concerned whether the details were submitted outside the three-year period in section 92 of the Town and Country Planning Act 1990. The appeal concerned both issues.

Lord Justice Carnwath gave the lead judgment. Mr Justice Nelson agreed and added guidance concerning publicly funded litigation. Lord Justice Brooke agreed with both judgments. The appeal was allowed unanimously.

1. Planning condition. The Secretary of State’s reference to the inspector’s order of preference was directed to the council in its developer capacity. The word commends was not apt to impose a legal requirement. The formal grant of permission and its conditions defined the council’s function as planning authority. The condition required a mitigation scheme on one of five identified sites and imposed no express or implied hierarchy between them.
2. The purpose of the condition was to avoid overall ecological harm, not to secure additional planning gain beyond the adverse effects of the development. The earlier assessment showed that site 7 was acceptable in principle, although site 11 might be different. The council was therefore entitled to treat site 7 as settled and was not required to reconsider the comparative merits of the other sites. Mr Justice Ouseley’s contrary reasoning was rejected.
3. Time limit. Section 92 of the Town and Country Planning Act 1990 applies its three-year period to applications for approval of reserved matters. Under the Town and Country Planning (General Development Procedure) Order 1995, reserved matters comprise siting, design, external appearance, means of access and landscaping where details were not given in the application. An off-site ecological mitigation condition was not a reserved matter. The permission was therefore subject to the general five-year commencement period under section 91. Mr Justice Burton was correct.
4. Further procedure and funding. The council’s February 2003 reconsideration was not directly before the court, but would have overtaken the original challenge had the lower court’s reasoning been upheld. Failure to challenge that decision promptly could have precluded a later challenge. Mr Justice Nelson stated that publicly funded parties must keep the Legal Services Commission informed of relevant developments, and that solicitors had a specific duty under Regulation 70. The court directed that the judgments be sent to the Commission and the costs judge. The appeal was allowed, with a minute of order to be lodged.

1. Court of Appeal (Civil Division) — In [2003] EWCA Civ 760, the appeal was allowed. The court rejected the reasoning of Mr Justice Ouseley and upheld Mr Justice Burton’s conclusion on the time-limit issue.
2. High Court, Administrative Court — On 21 November 2002, Mr Justice Ouseley quashed the council’s July 2001 and May 2002 decisions concerning approval of mitigation details.
3. High Court, Administrative Court — On 28 June 2002, Mr Justice Burton rejected the argument that the April 2002 submission was out of time under section 92. That issue was pursued by respondents’ notice.