ArcelorMittal Kent Wire Limited, R (on the application of) v Medway Council

A planning permission must be construed as a whole, but the operative grant identifies the development permitted and conditions ordinarily regulate how that development may be carried out. A condition cannot enlarge the extent or nature of the development authorised by the grant.

Where an application is expressly incorporated into the permission, the permission is limited to the development sought in the application. Planning officers’ reports and oral advice are read with reasonable benevolence. The question is whether the committee was materially misled, judged in context and against the committee’s specialist knowledge.

A complaint that a proposal is not in strict accordance with policy is ordinarily a complaint about planning judgment, not policy interpretation. A remote possibility of later permitted development is not necessarily a mandatory material consideration.

ArcelorMittal challenged Medway Council’s decision to grant outline planning permission to Peel L&P Ports No.3 Ltd for demolition and redevelopment at Chatham Docks. The proposed campus included flexible employment uses within classes E(g)(ii), E(g)(iii), B2 and B8.

The claim alleged that the permission unlawfully authorised primary office use, that officers materially misled the Planning Committee about the effect of a condition intended to control the mix of uses, and that the Council misinterpreted Policy ED1 of the Medway Local Plan 2003. Permission was also sought on a ground concerning the possibility of future residential conversion under the Town and Country Planning (General Permitted Development) (England) Order 2015.

The central issues were the proper construction of the permission, the adequacy of officers’ advice, the distinction between policy interpretation and planning judgment, and whether future residential conversion was a mandatory material consideration.

1. Ground 1 dismissed. The operative part of the permission granted development as described in accordance with the application. The application was expressly incorporated into the permission and was limited to uses within classes E(g)(ii), E(g)(iii), B2 and B8. The permission therefore did not authorise primary E(g)(i) office use.
2. Condition 4, requiring development to be carried out in accordance with the Parameters Plan, was consistent with that limitation. The expression “in accordance with” did not require exact or strict conformity, but that principle did not assist the claimant because the application supplied the principal textual limitation.
3. Conditions 26 and 27 could regulate the permitted development but could not expand it. References to B2, B8 and E(g) in those conditions did not authorise primary E(g)(i) use. Any scheme under condition 27 containing uses outside the scope of the grant would have to be rejected.
4. Ground 2 dismissed. Officers’ written and oral advice was to be read with reasonable benevolence and in the context of advice given to a specialist planning committee. The committee members had the plain text of condition 27 and its reason before them. The advice that the condition sought to maintain the existing B2/B8 floorspace was not materially misleading. The absence of detailed parameters or restrictions on later changes of use was not shown to be irrational.
5. Ground 3 dismissed. The officers accurately stated that Policy ED1 permitted only B2 and B8 uses at Chatham Port. Their description of the proposal as in “broad accordance” with, or within the “spirit” of, the policy signalled that it was not in strict accordance with the policy’s wording but was considered consistent with its aims. That was a planning judgment, challengeable only on irrationality, rather than a misinterpretation of policy.
6. Ground 6(1) refused permission. The possibility of later residential conversion under the GPDO was remote and subject to implementation, time limits, limitations, conditions and prior approval. It was not reasonably arguable that the possibility was a mandatory material consideration.
7. The claim was dismissed on grounds 1–3 and permission was refused on ground 6(1). The proposed unilateral undertaking under section 106 was otiose.

This was a first-instance judicial review. Mould J granted permission on grounds 1–3 and directed that the renewed application on ground 6(1) be heard on a rolled-up basis. The present court dismissed the claim on grounds 1–3 and refused permission on ground 6(1).