Salford Estates (No. 2) Ltd, R (On the Application Of) v Salford City Council

A planning committee need not be reminded that it may reject its planning officer’s advice where that is legally obvious and the committee has been given the relevant reasons. A resolution to facilitate a possible future highway closure does not necessarily require the closure to be secured as a condition. Flexibility in a planning condition may permit adjustment of ancillary highway works, but it must be construed narrowly and with sufficient precision. A drafting defect need not result in quashing where an undertaking lawfully confines the condition to the committee’s intention. A judicial review claim may be prompt even when issued near the three-month period, having regard to when the challenged decision notice and relevant documents became available.

Salford Estates (No. 2) Ltd sought judicial review of Salford City Council’s decision to grant Tesco Stores Limited planning permission for a superstore near Salford Shopping City. The challenge concerned condition 32, which required highway works near Pendleton Way and allowed the details and phasing to be varied with the council’s written agreement.

The claimant advanced four grounds. It alleged that the planning committee had been misdirected about imposing a condition requiring closure of Pendleton Way; that the decision notice did not reflect the committee’s resolution; that condition 32 unlawfully permitted a later variation of a central planning matter; and that the condition was impermissibly imprecise. Delay was also raised. The central issues were the meaning and legal effect of “facilitate” and the appropriate remedy for any defect in the condition.

1. Permission and delay. Permission was granted at the rolled-up hearing. The claim was brought promptly. The relevant challenge focused on the wording of condition 32 in the decision notice, which was not immediately available to the claimant, and further time was reasonably taken to obtain the associated section 106 agreement and complete pre-action correspondence.
2. Planning committee advice. The committee was not materially misled. The planning officer’s reasons for advising that closure of Pendleton Way should not be imposed as a Grampian condition were before the committee. In those circumstances, it was unnecessary to remind members of the obvious fact that they could reject the advice. The committee’s decision showed that it was capable of differing from the officer where it considered that appropriate.
3. Meaning of “facilitate”. The resolution did not require closure of Pendleton Way to be secured. In context, “facilitate” meant that the highway works should allow for, assist, and not prejudice a possible later partial or complete closure. It permitted flexibility in the timing and detail of the crossings and other works, without making closure a precondition of the permission.
4. Scope of condition 32. The rider permitting alternative details applied to the designated highway works as illustrated in the transport documents. It did not authorise an entirely different scheme. The case was distinguishable from R (Midcounties Cooperative) v Wyre Forest District Council, [2009] EWHC 964, because condition 32 concerned ancillary highway works and did not permit alteration of a central element of the permitted development.
5. Imprecision and remedy. The condition should have explained the reason for the additional flexibility, namely its connection with possible closure of Pendleton Way. The court could neither rewrite the condition nor sever the rider. However, quashing the permission would have been disproportionate. Tesco’s unilateral undertaking under section 106 adequately confined any departure from the illustrated works to a submission made for the purpose of partial or complete closure. The permission was therefore not quashed.

First-instance judicial review claim determined by the High Court (Administrative Court). No appellate history is stated in the judgment.