Legal & General Assurance Society Ltd, R (on the application of) v Rushmoor Borough Council Pillar (Farnborough) Ltd

In a planning judicial review, a permission affected by a material error of law should be quashed unless the court can exclude any reasonable possibility that the decision would have been different without the error. The test is strict. It is insufficient that permission would probably have been granted, because the error may have affected conditions, planning obligations or other benefits secured from the developer.

A claimant’s commercial motive is generally irrelevant. Relief may exceptionally be withheld for abusive conduct, but the court should be slow to refuse relief where an ultra vires decision has been established. A restriction that premises are to be used solely as a retail warehouse does not, without clearer language, limit the number of retail units.

The claimant sought judicial review of two planning permissions granted by Rushmoor Borough Council to Pillar (Farnborough) Ltd for the subdivision and redevelopment of a former retail warehouse site, together with a conditional planning obligation under Town and Country Planning Act 1990, section 106.

The Council had misunderstood the extent of an earlier restriction to durable goods and had treated parts of the site as unrestricted. The claimant also argued that the obligation’s requirement that the premises be used solely as a retail warehouse prevented subdivision into multiple units. The issues were whether the errors justified quashing and how the use restriction should be construed.

The claim succeeded on the first ground and failed on the second.

1. Material error and discretion. The Council materially misunderstood the extent of the 1993 planning obligation. The error was not trivial because the absence of the restriction had been treated as significant in assessing the applications, including the applicants’ fallback position and the planning benefits and controls that might be negotiated.
2. Under Simplex G.E. (Holdings) v SSE (1988) 57 P&CR 306, relief may be refused only where the error is insubstantial or insignificant, or where the court can exclude the reasonable possibility that the decision would have been different. It was not enough that permission would probably have been granted. The Council might have required more onerous conditions or benefits. The permissions were therefore quashed.
3. The claimant’s commercial motive did not justify refusing relief. R (Mount Cook Land Ltd) v Westminster City Council [2004] J.P.L. 470 confirmed that motive is generally irrelevant in planning judicial review. Refusal for abuse of process would be exceptional. The conditional section 106 obligation consequently had no effect and did not require formal quashing.
4. Construction of the obligation. The words requiring the premises to be used solely as a retail warehouse regulated use, not the number of units. The indefinite article did not itself imply singularity. Following the approach in Martin v David Wilson Homes Ltd [2004] EWCA Civ 1027, clearer language would have been needed to impose a one-unit restriction. The second ground therefore failed.