Malcom Jeffrey Barrett v The Welsh Ministers

A planning condition requiring approval of specified matters before development commences may be prohibitive in substance. The use of such wording does not, however, determine whether breach makes the whole development unlawful. That depends on whether the condition goes to the heart of the permission. The issue requires a fact-sensitive enquiry into the condition, the permission and its planning context. It is a matter of planning judgment for the inspector, subject to public law review. A court may construe the condition, but should not itself make the planning judgment.

The claimant sought review under section 288 of the Town and Country Planning Act 1990 of an inspector’s dismissal of his appeal under section 195 against refusal of a certificate of lawful development under section 192(1)(b). The proposed development comprised four dwellings authorised by outline permission and reserved matters approval.

The inspector concluded that a condition requiring approval of siting, design, access and landscaping before development was prohibitive and went to the heart of the permission. The central issues were whether that construction was correct and whether the inspector had carried out the required fact-sensitive planning assessment.

1. Ground 1 dismissed. Condition 2 was prohibitive in substance. Its wording required approval of the specified matters before any development commenced. There was no material distinction between a condition stating that no development should commence until approval and one requiring approval before development commenced. The court could construe that wording as a matter of law.
2. The fact that a condition is prohibitive does not itself mean that breach renders the entire development unlawful. The relevant question is whether the condition goes to the heart of the planning permission. That question must be answered by examining the condition in the context of the permission and the permission in its planning context. It is a fact-sensitive matter of planning judgment for the inspector, not the court.
3. The matters in conditions 2(a) and 2(b), including siting, design, external appearance, access, parking and turning areas, had been approved by the reserved matters decision. The remaining issue concerned the landscaping matters in condition 2(c). The inspector did not assess those matters in the context of the permission for the four dwellings, whose siting, design and appearance had already been approved.
4. The inspector had undertaken a site visit but did not record what he had seen or demonstrate that the necessary fact-sensitive enquiry had been carried out. For example, if the only outstanding matters concerned the size and species of six proposed trees, that could materially affect whether the condition went to the heart of the permission. The court could not decide that planning question itself.
5. Ground 2 succeeded. The inspector’s decision was to be reconsidered by a different inspector, with the necessary fact-sensitive enquiry undertaken. Any consequential matters not agreed were to be dealt with by written submissions.

First-instance judicial review. The inspector’s decision was challenged under section 288 of the Town and Country Planning Act 1990. Ground 1 failed and ground 2 succeeded. The matter was remitted to a different inspector.