Brookhouse Group Ltd, R (on the application of) v Preston City Council

An outline planning permission is construed principally from the permission’s description and conditions. A supporting statement containing hopes, intentions or general policy assertions does not impliedly incorporate an express restriction on the scale or balance of uses unless the permission clearly does so. Illustrative plans do not define or limit the development authorised by outline permission. A limitation cannot ordinarily be inferred from the reason given for a condition, particularly where the relevant policy concerns the area as a whole rather than the individual site.

Preston City Council granted outline planning permission for a mixed-use development including a retail superstore, other town-centre uses and residential units. Reserved matters were later approved for a development in which residential accommodation formed approximately 75 per cent of the total floor space.

Brookhouse Group Ltd challenged the reserved matters approval, contending that the outline permission authorised primarily retail development with only subsidiary residential development. Burton J refused permission to apply for judicial review. The renewed application concerned whether that limitation could be derived from the supporting statement, illustrative plans, policy SS18 or Condition 6.

1. Application refused. The Court of Appeal agreed that an appeal against Burton J’s decision had no real prospect of success.
2. The outline permission contained no express limitation on the size of the residential component in either the description of the development or the conditions. If the council had intended to impose such a limitation, it could and would have done so through the description or an appropriate condition. The supporting statement could not be used to create an implied restriction from hopes or intentions stated in that document. The judge had made no error of law.
3. The illustrative plans did not define or limit the development authorised by the outline permission. Their function was to indicate how the outline permission might later be translated into a detailed proposal.
4. Condition 6, requiring a master plan showing the mix of uses and phasing, did not impose a subsidiary-residential limitation merely because of the reason stated for the condition. Policy SS18 concerned the development of the area as a whole, and it had not been shown that the reserved matters approval was inconsistent with that wider objective.

Lord Justice Buxton agreed with the judgment of Lord Justice Richards. The order was that the application be refused.

1. Court of Appeal (Civil Division): Refused the renewed application for permission to appeal, holding that an appeal would have no real prospect of success.
2. High Court of Justice, Queen’s Bench Division: Burton J refused permission to apply for judicial review.