SUSAN SULIMAN (R on the application of) v BOURNEMOUTH, CHRISTCHURCH

A local planning authority must determine the development described in the planning application. It may impose conditions, but a condition must not result in a development which is, in substance, different from that applied for. Where full planning permission is sought, the submitted layout is material to that assessment.

A condition requiring substantial changes to the approved layout may breach the Wheatcroft principle and be Wednesbury unreasonable under the Newbury tests. If the authority considers that a different scheme is required, the proper course is ordinarily to refuse permission unless the applicant amends the application.

A legitimate expectation requires a representation that is clear, unambiguous and devoid of relevant qualification, assessed objectively and in context.

The claimant sought judicial review of the Council’s decision to grant full planning permission for a substantial mixed-use development adjoining her property. She challenged the decision on two grounds.

1. She argued that officers wrongly advised the Planning Committee that it could not impose a condition requiring a 12-metre ecological corridor along the site boundary.
2. She argued that correspondence had created a legitimate expectation that Committee members would visit her property to assess the development’s effect on its outlook.

The central issues were whether the proposed condition would unlawfully alter the development applied for and whether the Council had made a sufficiently clear representation to found a legitimate expectation.

1. Ground 1 dismissed. Under section 70(1)(a) of the Town and Country Planning Act 1990, the Council’s function was to determine the application submitted by the developer, conditionally or otherwise. It was not entitled to reformulate the proposal without the applicant’s agreement.
2. For an application for full planning permission, the layout shown on the submitted plan was part of the development to be determined. Applying Holborn Studios and the Wheatcroft principle, permission could not lawfully be granted for development which was, in substance, different from that applied for.
3. On the evidence, a condition requiring a 12-metre wildlife corridor would prevent substantial parts of the approved layout from being constructed. It would affect several dwelling blocks, gardens, parking areas and access arrangements. The condition would therefore produce a development materially different from the application.
4. The officers and Chair were entitled, and indeed obliged, to advise that the Committee could not lawfully impose the condition. The advice was not materially misleading. The condition would breach the substantive Wheatcroft restriction and would be Wednesbury unreasonable under the third Newbury limb because it conflicted with the application’s description and layout plan. It did relate to the development, so the second Newbury limb was not breached.
5. If Members considered a wider corridor necessary, the only realistic lawful course on the facts was to refuse the application. An adjournment was unnecessary because the applicant had made clear that it would not revise the scheme.
6. Ground 2 dismissed. A legitimate expectation requires a representation that is clear, unambiguous and devoid of relevant qualification, assessed by how it would reasonably have been understood on a fair reading. The correspondence referred generally to a site visit and left its precise details to be confirmed. It did not clearly promise a visit to the claimant’s property at 9 Twynham Avenue.
7. The judicial review claim was dismissed.