Markets South West (Holdings) Ltd. v First Secretary of State & Anor

A planning condition may lawfully restrict an existing user right where it is imposed for a planning purpose, fairly and reasonably relates to the permitted development, and is not so unreasonable that no reasonable planning authority would impose it. Implementing a later permission does not necessarily extinguish earlier rights merely because it creates a further stage in the planning history. A condition may nevertheless regulate the whole site where the permission is intended to do so and has been implemented in a material respect. A planning decision letter need address only the principal important controversial issues. An imperfect explanation will not justify quashing unless substantial prejudice is shown.

The applicant appealed under section 289 of the Town and Country Planning Act 1990 against an inspector’s dismissal of its appeal against an enforcement notice issued by Restormel Borough Council. The notice alleged breach of a condition limiting an indoor market to Saturdays, Sundays and ten additional weekdays each year.

The inspector held that earlier restrictive conditions were invalid in relation to the original building but valid in relation to a later extension. He further held that a later permission imposed a valid condition governing the whole market and had been implemented. The central issues were the continuing effect of earlier user rights, the validity and implementation of the later permission, and the adequacy of the inspector’s reasons.

1. Appeal dismissed. The enforcement notice was upheld. The agreed order awarded the second respondent costs of £13,145, and the applicant was given 28 days to seek permission to appeal.
2. The inspector’s identification of the main issues did not itself disclose an error of law. The question was whether the decision letter adequately dealt with the issues that actually arose.
3. The phrase “a new chapter in the planning history” did not necessarily mean that earlier user rights had been swept away. Read as a whole, the inspector’s decision showed that the unrestricted rights relating to the original L-shaped building were treated as continuing after implementation of the extension permission.
4. The conditions attached to the extension permission were valid. Applying Newbury DC v Secretary of State for the Environment [1981] AC 578, they were imposed for a planning purpose, fairly and reasonably related to the development permitted, and were not so unreasonable that no reasonable planning authority could have imposed them. The council’s mistaken understanding of the earlier conditions did not invalidate them.
5. The later permission was properly treated as applying to both the original building and the extension. Although the permission was clumsily worded, its context and the parties’ common understanding established that scope. The condition limiting use to ten additional weekdays was valid and could curtail existing unrestricted user rights. The permission had been implemented because continued trading after its grant gave effect to a material relaxation of restrictions affecting the extension. It then governed the days of operation for the whole Phase 2 site.
6. The challenge to the inspector’s planning merits assessment did not arise because the conclusions on the earlier permissions were upheld.
7. The reasons challenge failed. Applying South Bucks District Council & anr v Porter (No 2) [2004] UKHL 33, the decision letter was intelligible and adequately addressed the principal issues. Any infelicitous wording caused no substantial prejudice.

This was a first-instance statutory appeal in the Administrative Court under section 289 of the Town and Country Planning Act 1990. The judgment does not state any subsequent appellate decision.