Pemberton International Ltd v London Borough of Lambeth & Anor

A planning authority may determine an application under section 73 of the Town and Country Planning Act 1990 by reference to the particular conditions proposed. Earlier refusals do not create an immutable in-principle objection to a different proposal. A decision may be taken by an officer where the authority’s scheme of delegation identifies the authorised officers and the relevant objection can be addressed by conditions.

Complaints about breaches of conditions imposed for a temporary permission may be material planning considerations, particularly where the temporary permission was granted to monitor residential amenity and the enforceability of controls. Failure to consider such complaints is a material error where the court cannot conclude that the decision would inevitably have been the same.

The claimant sought judicial review of Lambeth’s decision to grant permanent planning permission for Unit 2, a restaurant and café, with a condition permitting outdoor seating for up to 30 covers between 9 am and 8 pm.

The challenge alleged that the decision was made outside the Council’s scheme of delegation, that earlier decisions created an in-principle objection to outdoor seating, and that the decision-maker failed to consider complaints about breaches of the conditions attached to an earlier temporary permission.

1. Authorisation. Section 101 of the Local Government Act 1972 permits a local authority to arrange for functions to be discharged by committees, sub-committees or officers. Where the scheme itself identifies the authorised group of officers, it does not unlawfully sub-delegate merely because nomination or approval by a senior officer is required. The principal planning officer was therefore authorised to determine the application.
2. The application was substantively concerned with varying conditions under section 73 of the Town and Country Planning Act 1990. It was not an application whose substantive issue was whether a new Class A3 use should be permitted. It therefore did not fall within the constitutional provision requiring applications for a change of use to Class A3 to be determined by the planning applications committee.
3. The earlier refusals did not establish an immutable in-principle objection to all outdoor seating. The later proposal involved materially reduced hours and fewer covers. The authority was entitled to consider it on its particular facts and to use a temporary permission to monitor residential amenity.
4. The complaints made during the temporary permission about excess covers and seating outside the permitted area were material planning considerations. They formed part of the planning history, related to the enforceability of the proposed controls, and were particularly relevant because the temporary permission had been granted as a trial to inform the permanent decision.
5. The officer’s failure to consider those complaints was a material and significant error. The court could not conclude that the authority would inevitably have reached the same decision. The issue of enforceability required a fact-sensitive assessment, including the nature of the development, potential noise, proximity to residential areas, and whether the condition could be effectively policed.

The planning permission was quashed. The application had to be reconsidered in light of the development plan and all material planning considerations, including the complaints about breaches of condition.