Barbara Laing, R (on the application of) v The Cornwall Council

A planning condition requiring a management plan to comply with specified recommendations must be interpreted by reference to the condition’s wording and the consent as a whole. Where the condition requires compliance with site-specific recommendations, the decision-maker must address all those recommendations; it cannot substitute a looser test of overall acceptability or satisfactory compliance. Generic guidance may leave room for planning judgment, but it does not displace a specific requirement. A decision-maker must also address material aspects of non-compliance, including requirements concerning mitigation and ecological connectivity.

Outline planning permission for nine dwellings included a condition requiring an approved Landscape and Ecological Management Plan to comply with recommendations in a preliminary ecological appraisal. After the reserved matters layout increased the proposed hedgerow loss, the authority approved a plan providing substantially less replacement hedgerow than the appraisal recommended and without showing direct connectivity to retained hedges.

A neighbouring resident sought judicial review of the delegated decision, alleging misinterpretation of the condition, failure to take account of material considerations, and inadequate reasons. The central issue was whether the authority had lawfully assessed compliance with condition 6.

1. Interpretation of condition 6. Planning conditions are interpreted objectively, by asking what a reasonable reader would understand the words to mean in the context of the consent, the other conditions, their natural and ordinary meaning, the purpose of the consent and common sense. The condition required the plan to comply with “the recommendations” of the ecological appraisal, read in light of that appraisal as a whole.
2. The appraisal recommended replacement hedgerow at approximately double the length lost and required new sections to connect directly to retained hedges. The original recommendation of 10 metres could not govern the later loss of approximately 23 metres. The relevant recommended compensation was therefore approximately 46 metres. The generic supplementary document left some room for planning judgment about what was “around” double, but 25 metres could not reasonably be treated as around double 23 metres. The officer’s report also failed to address direct connectivity.
3. R (on the application of Cathie) v Cheshire West and Chester Borough Council [2022] EWHC 2148. That decision accurately supported the principle that a condition should not be interpreted as imposing unreasonable requirements. It did not establish a general test that every condition is discharged whenever the application is satisfactory. Its conclusion was confined to the particular condition before that court. The authority materially misread it.
4. The authority approached the application too loosely by asking whether the plan was acceptable or satisfactory and complied with the general requirements of the appraisal. It failed to ask whether the plan complied with the appraisal’s recommendations. The same failure constituted failure to take account of material considerations concerning hedgerow length and connectivity.
5. There was no general duty to give reasons for an application to discharge a planning condition. However, where reasons are given, an error of law disclosed by those reasons may be reviewed. The error here was sufficiently clear.
6. Relief was not barred by section 31(2A) of the Senior Courts Act 1981. It was not highly likely that the outcome would have been substantially the same had the authority properly addressed the two important respects of non-compliance. The decision was quashed and remitted to the authority for redetermination.