Orchard (Development) Holdings Plc, R (on the application of) v First Secretary of State & Anor

A planning inspector may impose a negatively worded Grampian condition preventing development until replacement facilities are provided, provided the condition is lawful and satisfies the relevant policy tests. Whether such a condition is sufficiently precise and enforceable is a matter of planning judgment. A court reviewing the decision must not substitute its own assessment of the condition. Where equivalence depends on complex and subjective criteria, the inspector may reasonably conclude that the condition lacks sufficient precision and cannot be enforced.

The claimant sought judicial review of an inspector’s dismissal of its appeal against refusal of outline planning permission. The proposal involved demolishing Boston United’s football stadium and constructing housing. The principal issue was whether a negatively worded condition could prevent development until an equivalent or better replacement stadium and community facility had been provided.

The inspector accepted that replacement provision was necessary but concluded that the proposed condition was insufficiently precise and enforceable under Circular 11/95. The claimant challenged that planning judgment.

1. Lawfulness of a Grampian condition. The power to impose planning conditions derives from sections 70 and 72 of the Town and Country Planning Act 1990. It was open in principle to impose a negatively worded condition preventing development until suitable replacement facilities had been provided. The use of a section 106 obligation was an alternative, not a legal prerequisite.
2. Policy framework. Circular 11/95 required conditions to be necessary, relevant to planning, relevant to the permitted development, enforceable, precise and reasonable. Following British Railways Board v Secretary of State for the Environment and Hounslow London Borough Council [1993] 3 PLR 125 and Merritt v Secretary of State for the Environment [2000] JPL 371, the policy did not require reasonable prospects in the former strict sense. A negative condition should not be imposed only where there were no prospects at all of the third-party action occurring.
3. Inspector’s function. Inspectors are expected to engage proactively with suggested conditions and may improve their wording. However, they are not required to devise a complete condition to overcome difficulties which the parties have been unable to resolve. The principles summarised in R (on the application of) Ayres v Secretary of State for the Environment, Transport and the Regions [2002] EWHC 295, drawing on Top Deck Holdings v Secretary of State for the Environment and approved in Bridewell v Secretary of State for the Environment [1997] 73 PCR 418, were accepted.
4. Application. The inspector was entitled to require replacement facilities of at least equivalent value and to conclude that “equivalent or better” involved complex and subjective judgments concerning matters such as the nature, quality, scale, location and accessibility of the facilities. Without objective criteria, the condition was insufficiently precise and difficult to enforce. The court could not substitute its own planning judgment.
5. The claim was rejected. Judgment was given for the first defendant. Costs were assessed at £4,375, and permission to amend the title was granted.

First-instance judicial review proceedings. The inspector’s decision dated 7 February 2005 was upheld.