Ibstock Group Ltd, R (on the application of) v Rother District Council

Planning permission may lawfully defer detailed landscaping and mitigation measures where the relevant policy has been considered and enforceable conditions require later approval before development proceeds. A planning authority must have regard to relevant development-plan policies, but a failure to give separate effect to one policy will not necessarily justify quashing permission where another applicable policy addresses the same consideration and the decision is otherwise lawful. Conditions must be construed according to their terms. Requirements that are not expressed, or necessarily implied, cannot be added later.

The claimant operated a quarry and brickworks adjoining land allocated for a cemetery extension. The defendant council acted both as burial authority and local planning authority and granted itself planning permission for the cemetery use, subject to conditions requiring later approval of landscaping and layout details.

Permission for judicial review was granted on three grounds: alleged non-compliance with Local Plan Policy BX10, failure to have regard to Waste Local Plan Policy WLP5, and insufficient information to justify permission. The central issue was whether the council could lawfully grant permission while leaving detailed screening, noise mitigation and layout matters for later approval.

1. The judicial review claim was dismissed. The permission could lawfully leave detailed landscaping and mitigation to later decisions because conditions 2 and 5 required approval of a landscaping scheme and layout before development took place.
2. The conditions did not require any part of the site to remain unused, require a bund or earthwork barrier, or prescribe a particular degree or form of planting. Such requirements could not subsequently be implied or imposed if they were not contained in the permission. The conditions nevertheless required the later landscaping proposals to have regard to Policy BX10, including the proximity of the proposed landfill and the need for appropriate screening and noise mitigation. A later approval disregarding that policy would itself be susceptible to judicial review.
3. The relationship between the cemetery extension and the adjoining brickworks, quarry and proposed landfill had been fairly and squarely before the planning committee. The adopted policies and the two local-plan inspectors had not treated the uses as incompatible in principle, nor had they required mitigation on the cemetery land as a precondition of landfill. The committee was therefore entitled to grant permission subject to conditions.
4. Policy WLP5 was relevant and had not been separately taken into account. However, read with WLP10, it added nothing to the specific requirement in Policy BX10 to address the proximity of the landfill site. That error did not justify quashing the permission. The court also recognised the broad latitude afforded to councillors in assessing the weight to be given to planning considerations, referring to R (on the application of Springhall) v Richmond upon Thames London Borough Council [2006] EWCA Civ 19.
5. The defendant was awarded its costs, summarily assessed at £21,472 inclusive of VAT. The court accepted in principle that reasonable costs representing the lost time of salaried planning witnesses assisting with the litigation were recoverable. Permission to appeal was refused.

Permission to apply for judicial review was initially refused on the papers by a Deputy Judge of the Administrative Court. On renewal, Blake J granted permission on three grounds and refused it on the remaining grounds. There was no appeal from that permission decision. The claim was dismissed by the Administrative Court.