Willoughby (610) Limited v Secretary of State for Levelling Up, Housing and Communities & Ors

Planning conditions must have a planning purpose, fairly and reasonably relate to the development permitted, and satisfy the requirement of rationality. A condition requiring on-site parking may be unlawful where the inspector’s findings disclose no material increase in parking demand or highway harm requiring mitigation. Permission to challenge may be granted where the claimant obtained planning permission but alleges that it was granted on legally erroneous or materially less favourable terms than sought. The court must compare the condition with the development permitted and, in an enforcement appeal, with the matters specified in the enforcement notice.

The claimant operated a public house in a conservation area. It challenged two conjoined decisions of a planning inspector: one allowing an appeal against an enforcement notice under section 174 of the Town and Country Planning Act 1990, and one allowing an appeal against the Council’s non-determination of a planning application under section 78.

Both decisions granted planning permission for structures providing covered external seating. The permissions required six on-site car-parking spaces and cycle storage. The claimant sought permission to bring statutory challenges under sections 288 and 289, contending that the parking conditions were unsupported by the inspector’s findings, failed the legal tests for planning conditions, and were outside the scope of the enforcement appeal. The court first considered justiciability and then whether the proposed grounds were arguable.

1. Justiciability. The claimant was aggrieved despite the appeals having succeeded. It had sought planning permission without an on-site parking condition and obtained permission on less favourable terms. An alleged legal error affecting those terms was therefore justiciable.
2. Scope of the enforcement appeal. Section 177(1)(a) of the Town and Country Planning Act 1990 confers wide powers to grant planning permission in respect of matters stated in the enforcement notice, but the power is not unfettered. The proposed scheme must be compared with the matters enforced against. The claimant’s argument that the parking requirement was not part of the unauthorised development was plainly arguable.
3. Planning-condition test. Applying the principles in Newbury District Council v Secretary of State for the Environment [1981] AC 578, a condition must be imposed for a planning purpose, fairly and reasonably relate to the development permitted, and not be so unreasonable that no reasonable decision-maker would impose it. The same tests appeared in the National Planning Policy Framework and National Planning Policy Guidance.
4. The inspector had found no substantiated evidence contradicting the transport assessment, sufficient on-street parking capacity, and no material intensification generating significant additional parking demand or trips. Her later conclusion that on-site parking was necessary to make the development acceptable was arguably irreconcilable with those findings.
5. Permission was granted on Grounds 1a and 2a of the section 288 challenge, and on both limbs of Grounds 1 and 2 of the section 289 challenge. Ground 3 was academic at the permission stage.

The judgment concerned conjoined applications for permission to bring statutory challenges under sections 288 and 289 of the Town and Country Planning Act 1990. By order dated 3 July 2023, Holgate J directed that the permission applications be heard together. Permission was granted on specified grounds; the substantive challenges were to proceed to a later hearing.