Young v Oxford City Council

In reviewing a planning decision, the court determines whether relevant considerations were taken into account and whether the decision was irrational. The weight given to those considerations is ordinarily a matter for the planning authority.

For a large, integrated, multi-use development, its planning use is assessed as a whole by identifying its predominant purpose. Other uses are permitted where they are ancillary to that purpose. The permission is construed within its four corners, including documents incorporated into it, but not merely from supporting application documents. The concept of a planning unit is principally relevant when considering a later change of use or breach of planning control.

Mr Young applied for judicial review of Oxford City Council’s grant of planning permission to Oxford Brookes University for redevelopment of the Headington campus. He alleged that the Council had failed to take account of Local Plan policies concerning noise and retail development, and had applied the wrong approach to the retail element of the scheme.

The development included teaching, student, social and retail facilities. The Council relied on planning conditions and a unilateral undertaking under section 106 of the Town and Country Planning Act 1990. The central issues were whether the Council had lawfully considered noise, and whether the development or its retail facilities constituted retail use requiring consideration of the relevant retail policies.

1. The claim was dismissed. The Council had lawfully considered the relevant noise issues. The omission of Policy CP.21 from the officers’ reports did not establish a failure to have regard to the policy, since the planning permission contained detailed, interlocking conditions addressing noise attenuation, hours of use, movement, monitoring and security. The court would not substitute its own planning judgment for that of the Council. Whether the conditions provided adequate control, and the weight to be given to noise, were matters for the planning authority under the principles stated in Tesco Stores Ltd v Secretary of State for the Environment, [1995] 1 WLR 759.

2. The permitted use of a substantial, integrated and multi-use development is determined by considering the development as a whole and identifying its predominant purpose. Other uses are permitted where ancillary to that predominant purpose. The description supplied by the applicant is material, but the ultimate classification is for the decision-maker.

3. The campus permission was for education use, within Class D1(c). The retail units in the Colonnade were ancillary because of their limited scale, their character and their role in serving the university community. Public access did not alter that conclusion, since members of the Brookes community were expected to predominate.

4. The permission had to be construed within its four corners. Relevant permission documents included the drawings, conditions and incorporated Design and Impact Statement. Supporting application documents which were not incorporated into the permission were excluded from that exercise. This approach was consistent with Wilson v West Sussex County Council, [1963] QBD 764, R v Ashford BC ex parte Shepway DC, [1999] PLCR 12, and Barnett v Secretary of State for Communities and Local Government, [2009] EWCA Civ 476.

5. The planning-unit analysis relied upon by Mr Young did not apply to the grant of this permission. The concept is relevant when considering a subsequent change of use or a possible breach of planning conditions. If the Colonnade later became a general shopping arcade, it could then be assessed as a planning unit to determine whether retail use remained ancillary. The section 106 undertaking reinforced the restriction and provided for monitoring of the customer mix.