Lloyds Pharmacy Ltd, R (On the Application Of) v Leeds City Council

In a planning judicial review, a decision-maker may adopt a twofold approach where compliance with a sequential planning policy is uncertain. It may conclude that there is no breach, or alternatively find a breach and decide that other material considerations outweigh it. A planning condition must be construed benevolently and sensibly, but its requirements must remain clear and enforceable. A condition requiring a pharmacy to operate as ancillary and complementary to a surgery can restrict the sale of general retail goods, even where enforcement may require monitoring. Different opening hours do not necessarily make the pharmacy condition unlawful.

Lloyds Pharmacy challenged Leeds City Council’s grant of planning permission for the extension and redevelopment of Manor Park Surgery, including a pharmacy and optician. Lloyds’ adjoining pharmacy argued that the proposal conflicted with the development plan’s sequential approach to out-of-centre retail development, relied on immaterial or false premises, and was subject to an unlawful condition. The central issues were whether the Council had properly applied section 38(6) of the Planning and Compulsory Purchase Act 2004, whether the Panel had been materially misled, and whether condition 9 was lawful and enforceable.

The application for judicial review was dismissed.

1. Planning policy. A fair reading of the Panel Report showed that the planning officer considered policy S9 to be breached because its sequential criterion was not satisfied. The report also recognised an argument to the contrary. The Council was entitled to adopt a twofold approach: if the sequential test was satisfied, permission could be granted; alternatively, if it was not satisfied, other material considerations could outweigh the breach.
2. The logic that compliance with the sequential test was necessarily binary depended on the analysis of the burden of proof. Some cases may be clear, while others may involve doubt. The approach adopted in the report was lawful. Grounds 1 and 2 therefore failed.
3. Evidence. The Panel Report was not materially misleading in stating that integration of the pharmacy and surgery assisted the funding of the proposed expansion. The Council was entitled to rely on the surgery’s email and was not required to obtain corroborative evidence. Grounds 3 and 4 failed.
4. Condition 9. Planning conditions must be construed benevolently and given a common-sense meaning. There was no inconsistency between the different opening hours in conditions 3 and 9. A pharmacy could be ancillary to the surgery even when open while the surgery was closed.
5. The requirement that the pharmacy be ancillary and complementary to the surgery prevented the sale of general A1 retail goods. Although enforcement might be difficult, records of prescriptions and other sales, together with information from rival retailers, could make enforcement possible. The condition was therefore neither void for uncertainty nor otherwise unlawful.
6. The references to operation in accordance with the approved plans and full integration with the surgery were capable of a sensible interpretation. Any drafting deficiencies did not invalidate the condition.