Moore v Secretary of State for Communities & Local Government & Ors

A planning permission may incorporate the application and plans where its operative terms clearly do so. Once incorporated, the plans may define the authorised limits of the development, so a further express condition is unnecessary if it would merely repeat those limits. A planning inspector must take a policy-supported future use of waterways into account, but the weight given to that consideration is for the inspector, subject to public law constraints. An inspector may conclude that potential future freight use is not a compelling reason to refuse permission where the evidence does not show when or to what extent that use will increase, and does not establish that the development would inevitably become objectionable.

The claimant brought proceedings under section 288 of the Town and Country Planning Act 1990 to quash planning permission granted by an inspector. The permission authorised fully serviced leisure and visitor moorings on the River Brent at Brentford, following the local planning authority’s failure to determine the developer’s application.

The challenge concerned two matters: whether the inspector should have imposed an express condition limiting encroachment into the navigational channel, and whether she had failed to give adequate reasons for her treatment of possible increased waterborne freight traffic.

1. The appeal was dismissed. The permission expressly granted development in accordance with the application and plans. Applying the principles stated in R (Shepway District Council) v Ashford Borough Council [1998] EWHC Admin 488, the application and accompanying plans were incorporated into the permission. The plans therefore defined the limits of the authorised moorings. In any event, for a grant of full planning permission it was inconceivable that the submitted plans had not become part of the permission, consistently with Barnett v Secretary of State for Communities and Local Government [2010] 1 P and C.R. 8.

2. There was consequently no irrational failure to impose a further condition limiting encroachment into the navigational channel. Condition 10 also required operation in accordance with the operational management plan, whose reference to the authorised limits of the marina referred to the limits shown on the incorporated plans.

3. The inspector was required to consider the potential future use of the waterways by freight traffic because that use was supported by national policy. However, the weight given to that material consideration was for her judgment. She was entitled to find that the evidence did not permit a sensible prediction of whether, or when, freight traffic would increase by more than a negligible amount.

4. The expert evidence did not establish that the moorings combined with increased freight traffic would inevitably be objectionable. It indicated only that additional precautionary measures might become necessary if traffic increased. The inspector was therefore entitled to conclude that potential future freight use was not a compelling reason to refuse permission. Her reasons were rational and sufficiently clear, and the court declined to adjudicate on regulatory powers which had not influenced her reasoning.

The proceedings were brought in the Administrative Court under section 288 of the Town and Country Planning Act 1990 to challenge planning permission granted by a planning inspector on appeal from the local planning authority’s failure to determine the application.