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

The Court of Appeal allowed the council's appeal against the High Court's quashing of two local authority decisions approving details required by a planning condition attached to Secretary of State planning permission. The central legal principles were (i) the proper scope of a planning authority's task when considering details required by a condition which specified a choice of off-site mitigation sites, and (ii) the correct temporal limit for submission of details under the statutory scheme of outline planning permission.

The court held that the Secretary of State's condition required approval of a scheme for mitigation on one of five identified sites but did not impose a hierarchy which the planning authority was bound to re-open; the planning authority was entitled to treat the acceptability in principle of the selected site as settled by the Secretary of State and to consider only whether the submitted details complied with the condition. The court also held that the condition did not relate to "reserved matters" as defined in the Development Procedure Order and so the three-year submission limit in section 92 of the Town and Country Planning Act 1990 did not apply; the usual five-year commencement limit under section 91 was the relevant temporal constraint.

The claimant, a local resident, challenged two council committee decisions approving details submitted pursuant to a condition attached to a Secretary of State grant of outline planning permission for an extension to the Bar End Park and Ride site. The permission (dated 21 October 1998) included a condition requiring provision and management of alternative grassland on one of five identified sites as mitigation for the ecological loss. The claimant contended that the council, as planning authority, had adopted an unduly narrow approach to its task by treating the choice of mitigation site as settled and failing to reconsider the comparative merits and public accessibility of the other sites; the High Court (Ouseley J) quashed the two decisions. The council appealed.

Nature of the claim / relief sought: judicial review of local authority decisions approving details required by a planning condition; quashing orders had been made at first instance and were under appeal.

Issues framed by the court:

• whether the planning authority was bound, when considering approval of details under the condition, to re-open and reassess the comparative merits (including accessibility and ecological potential) of the five sites identified in the condition;
• whether the submission of amended details in April 2002 was out of time under section 92 of the Town and Country Planning Act 1990 (the three-year reserved matters rule) or whether the twenty-one October 1998 permission was subject only to the five-year commencement limit under section 91; and
• procedural objections concerning delay and the conduct of publicly funded litigation raised in the course of the appeal.

Court's reasoning: The court distinguished between the Secretary of State's commentary on the councils' proposals as developer and the operative grant of planning permission and condition. The condition required approval of a mitigation scheme on one of the five listed sites but did not impose the inspector's preference ranking as a binding constraint on the planning authority. On the facts, the inspector had concluded any of the listed sites (other than possibly site 11) could provide the necessary ecological equivalence, and the Secretary of State's condition reflected that conclusion. Accordingly the planning authority was entitled to treat the principle of use of the selected site as settled and to confine its consideration to whether the submitted scheme complied with the condition. On the time limit issue the court held that the condition did not concern "reserved matters" (siting, design, appearance, access or landscaping) as defined in the Town and Country Planning (General Development Procedure) Order 1995, and so the three-year requirement in section 92 did not apply; the five-year limit under section 91 remained the relevant constraint. The court allowed the appeal and commented on the claimant's delay in challenging a subsequent reconsideration of the decision, and on obligations of publicly funded parties to keep funding authorities informed.

Appeal allowed. The court held that the Secretary of State's condition required approval of a mitigation scheme on one of five identified sites but did not impose a binding preference hierarchy that the planning authority was required to re-open; the planning authority was entitled to treat acceptability in principle of the council's chosen site as settled and to decide only whether the submitted details complied with the condition. The court also held that the condition did not constitute a "reserved matter" for the purposes of section 92 of the Town and Country Planning Act 1990 and that the three-year reserved matters limit did not apply; the five-year commencement limit under section 91 applied instead.

The decision under challenge was a High Court Administrative Court decision of Mr Justice Ouseley (quashing two council committee approvals) (quashed by this Court). An earlier hearing before Mr Justice Burton on 28 June 2002 rejected a timeliness objection under section 92 of the Town and Country Planning Act 1990. This Court (Court of Appeal) allowed the council's appeal in this judgment [2003] EWCA Civ 760. The judgment also notes a further reconsideration by the Regulatory Committee on 26 February 2003 (not directly before the court).