Sienkiewicz, R (On the Application Of) v South Somerset District Council & Anor

A planning authority may grant permission contrary to development-plan policies where material considerations, including more recent national policy, indicate that permission should be granted. National policy cannot amend or replace the development plan, but may reduce the practical weight of outdated policies.

A planning condition must serve a planning purpose, fairly and reasonably relate to the permitted development, and not be irrational. A condition restricting a permission to a particular company is invalid where it controls only the identity of the user and has no rational planning justification. Planning conditions should be construed benevolently and in context.

The claimant sought judicial review of South Somerset District Council’s decision to grant Probiotics International Limited planning permission for a building for B1, B2 and B8 uses outside land allocated for employment use. The challenge concerned the relationship between the development plan and the National Planning Policy Framework, the validity of an occupier-specific condition, the adequacy of reasons, environmental impact assessment, and procedural fairness.

The permission was subject to condition 8, which restricted construction or occupation to Probiotics or a successor company. The claimant argued that the condition was uncertain, irrational and unrelated to the development. The central issue was whether the Council had acted lawfully in granting permission and imposing that condition.

1. Outcome. Permission to apply for judicial review was granted on all five grounds. Grounds 2, 3, 4 and 5 failed. Ground 1 succeeded. Condition 8 was invalid and could not be severed, so the planning permission was quashed.
2. Under section 38(6) of the Planning and Compulsory Purchase Act 2004, the application had to be determined in accordance with the development plan unless material considerations indicated otherwise. The officer’s report and committee understood that the proposal conflicted with the development plan because it involved large-scale business expansion outside the allocated employment area. The Framework was a material consideration capable of justifying permission despite that conflict. It could not amend the development plan, but more recent national policy could make an existing policy outdated or less relevant.
3. The Council was not required to consult the Secretary of State under Article 5 of the Town and Country Planning (Consultation) (England) Direction 2009. For the relevant calculation, existing floor space was at least required to be floor space actually used for retail, leisure or office purposes. The necessary threshold was not shown to have been met.
4. Applying the principles in Hulme v Secretary of State for Communities and Local Government [2011] EWCA Civ 638, condition 8 was to be interpreted in context and benevolently. It concerned use of the building, not its erection. The phrase “successor company” could not sensibly extend to a mere change of name or share ownership, and no other workable meaning had been established.
5. Applying Newbury District Council v Secretary of State for the Environment [1981] A.C. 578, condition 8 did not serve a planning purpose, did not fairly and reasonably relate to the development, and was irrational. The permission authorised B1, B2 and B8 uses, and no planning reason justified excluding an unconnected company from those uses.
6. The summary reasons complied with Article 31 of the Town and Country Planning (Development Management Procedure) (England) Order 2010. The EIA challenge and the challenges under section 100B of the Local Government Act 1972 and procedural fairness principles also failed.