Midcounties Co-Operative Ltd, R (on the application of) v Wyre Forest District Council & Ors

A planning permission is a public document. It must be construed as a reasonable reader would understand it, using the permission and documents incorporated into it. Extrinsic material may be used to resolve an ambiguity or address a challenge based on want of authority or mistake.

An apparent discrepancy between floor-space figures does not invalidate a permission where the documents provide a sensible and ascertainable distinction. A planning condition may be read with a section 106 agreement to provide sufficient control of the development, even though the agreement has different variation and discharge mechanisms. Costs remain discretionary.

Midcounties challenged the grant by Wyre Forest District Council of outline planning permission for a supermarket development at the former Carpets of Worth site. Ouseley J dismissed the claim for judicial review: [2009] EWHC Admin 964.

The appeal concerned Condition 6, which referred to a gross external area of 4209 square metres and net retail sales of 2919 square metres. The application and supporting assessments referred to 2403 square metres of retail trading or selling space. Midcounties argued that the permission was unlawful for uncertainty, granted more than had been applied for, and was unsupported by the retail and environmental assessments. The central issue was whether the permission, considered with a later section 106 agreement, sufficiently controlled the actual selling space.

1. Disposition. The appeal was dismissed. Permission to appeal the costs order was refused. Laws LJ gave the leading judgment, with Smith LJ and Rimer LJ agreeing.
2. Construction. A planning permission is a public document affecting third-party rights. It is construed as a reasonable reader would understand it, using the permission and documents incorporated by reference. Carter Commercial Developments Ltd [2002] EWCA Civ 1914 and R v Ashford BC ex p. Shepway DC [1998] JPL 1073 supported that approach. Extrinsic material may be used to resolve ambiguity or address a challenge based on absence of authority or mistake. A mere ambiguity does not make a planning condition void. Under Fawcett Properties v Buckingham CC [1961] AC 636 at 678, invalidity requires that the condition have no sensible or ascertainable meaning.
3. Meaning and control of the floor space. The 4209 square metres represented the gross external area. The 2919 square metres represented the area to which the public had access, including lobbies, circulation space and customer facilities. The 2403 square metres, within that larger area, represented the space used for the sale and display of goods, including checkouts and customer counters. Although Condition 6 was badly drafted, that interpretation was sensible and ascertainable.
4. Section 106 agreement. On its face, Condition 6 allowed the actual selling space to increase within the 2919-square-metre public-access area. The court was uneasy about relying only on practical constraints. The agreement made under section 106 of the Town and Country Planning Act 1990 restricted the sale and display of goods to no more than 2401 square metres. Taken together, the permission and agreement provided sufficiently clear control of the intended actual selling space. The different mechanisms for varying or discharging a section 106 agreement, compared with an application under section 73, were theoretical on these facts. The retail and environmental-assessment arguments therefore had no independent force. A declaration about Condition 6 was unnecessary, although technical difficulties could arise: Reprotech (Pebsham) Ltd [2003] 1 WLR 348 at paras 37–38.
5. Costs. Bolton MDC [1995] 1 WLR 1176 stated a general approach, not an inflexible rule. The lower court was entitled to award the respondents their costs and one third of the interested parties’ costs because issues had required a response from the developers.

1. Court of Appeal (Civil Division) dismissed the appeal and refused permission to appeal the costs order.
2. High Court of Justice, Administrative Court Ouseley J dismissed the judicial review claim concerning the planning permission on 27 March 2009: [2009] EWHC Admin 964.