The Prudential Assurance Company Ltd, R (on the application of) v Sunderland City Council

A full planning permission is construed from its own terms and incorporated material. A reference to the application identifies it but does not, without suitable wording, incorporate its terms. Approved plans may form part of a full permission for building works. Whether a proposal is development is assessed as a whole. Where permission authorises conversion into retail units without use restrictions, section 75(3) of the Town & Country Planning Act 1990 supports use for the purpose for which the building is designed. A later permission may therefore override an earlier contractual planning restriction where the agreement so provides.

The claimant sought judicial review of certificates of lawfulness issued for proposed retail use at two units in the Peel Centre. Earlier restrictions in a section 52 agreement limited the goods that could be sold, but the agreement contained an exception for development authorised by a later planning permission.

The claimant argued that the later permissions authorised only external works because internal alterations did not themselves constitute development. The central issue was whether the permissions authorised conversion into two unrestricted retail units and thereby engaged the exception in the agreement.

1. Challenge dismissed. The permissions authorised the complete conversion of each existing retail unit into two units, including internal subdivision and associated external works.
2. Under the principles in R v Ashford BC ex parte Shepway DC [1999] P.L.C.R. 12, as explained in Barnett v Secretary of State for Communities and Local Government [2010] 1P&C.R. 8, a reference to a planning application does not incorporate its terms. The reference to application 06/04039/FUL merely identified the application. The approved drawings formed part of the description of the full building works.
3. Whether a proposal constitutes development under sections 55 and 57 of the Town & Country Planning Act 1990 must be determined by considering the proposal as a whole. It was artificial to isolate the internal alterations from the external works and conversion for which permission was sought.
4. The permissions authorised retail units without restricting the goods sold or the categories of retail use. All Class A1 uses were therefore permitted. Section 75(3), read with section 336, supported the same conclusion.
5. Clause 3 of the section 52 agreement meant that it did not prohibit or limit development authorised by a later planning permission. It could not be interpreted as preserving restrictions on a use authorised by that permission. The officer’s subjective intention and extrinsic material from another application were irrelevant.
6. The reasoning in Stevenage Borough Council v Secretary of State for Communities and Local Government and another [2010] EWHC 1289 (Admin) was consistent with the court’s conclusion. A further argument under section 192(4) was left undecided.