Wilkinson v. Rossendale Borough Council

Transcript date:

Thursday, May 30, 2002



High Court

Judgement type:



Sullivan J

Neutral Citation Number: [2002] EWHC 1204 (Admin)




Royal Courts of Justice


London WC2

Thursday, 30 May 2002

B e f o r e:


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Computer-Aided Transcript of the stenograph notes of

Smith Bernal Reporting Limited,

190 Fleet Street, London EC4A 2AG

Telephone No: 020 7404 1400 Fax No: 020 7404 1424

(Official Shorthand Writers to the Court)

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Mr Harwood (Richard Buxton, Cambridge) appeared on behalf of the Claimant

Mr Evans (Rossendale BC) appeared on behalf of the Defendant

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(As Approved by the Court)

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Thursday, 30th May 2002

1. MR JUSTICE SULLIVAN: This is an application for judicial review of a planning permission granted by the defendant Council on 19th November 2001. The permission notice described the particulars and location of development as:

"Removal of Condition No. 2 of Planning Permission 14/76/097, Larkhill Depot, St James Row, Rawtenstall, Rossendale ('the 1976 permission')".

2. Larkhill Depot is at the end of St James Row, which is a narrow residential cul de sac. The claimant lives at number 8 St James Street at its junction with St James Row.

3. The 1976 permission described the proposed development as:

"Use of garage depot for the repair of tarpaulins".

4. The address of the depot was given. Permission was granted subject to a number of conditions. The first was a condition relating to time limits. Conditions 2 to 5 were as follows:

"2. This permission shall not be exercised by any persons other than the applicants, R and M Green.

"3. No machinery shall be operated within, nor commercial activities undertaken from the premises between the hours of 7.00 pm and 7.00 am on weekdays, nor at any time on Sundays.

"4. The premises shall be used solely for the sewing, making up and repairing of tarpaulins and for no other purpose.

"5. Provisions shall be made within the building for the loading and unloading of service vehicles".

5. The reasons given for the imposition of those conditions were:

"2. To effectively control the proper supervision of this commercial enterprise in order to prevent the use becoming a nuisance to the locality.

"3. and 4. In order to preserve the residential amenities of the area.

"5. In order that vehicles visiting the site will not cause an obstruction on St James Row".

6. On 19th June 2001, a planning application was made to the Council by Greens Tarpaulins. The proposed development was described as:

"Removal of Condition 2 of Planning Permission 14/76/97".

7. In answer to question 4f, which deals with the type of application, one finds the following:

"Modification or Removal of a Condition --

"Please give the number of the planning permission and the relevant condition", to which the answer is "yes".

"Permission 14/76/97, Condition 2" is identified.

8. A covering letter from the applicants' planning consultants explained that:

"The original owners and operators of Greens Tarpaulins were Roy and Margo Green who obtained the original planning permission in 1976. They retired from the business in 1995 when ownership of the business and premises passed to one of their three sons, Andrew Green, who is now resident in Australia. The premises are now leased to another son of Roy and Margo Green, Roy Green (Jnr), and to Gary Holt. Mr Green and Mr Holt now jointly run the business ...

"The business remains the selling, making up and repair of tarpaulins, although the application of the tarpaulin has changed to reflect the nature of heavy goods vehicles. In 1976 the tarpaulins were used to cover the backs of lorries, wagons and boats, whereas now the tarpaulins are mainly used for HGV trailer curtains".

9. Neighbouring occupiers were consulted and the claimant wrote a detailed letter of objection to the Council. In that letter, she contended that approval of the application would be an unreasonable decision, and she asked instead that:

"Greens Tarpaulins be required to make a new application so that future operations and continued expansion of this business in a residential area can be properly controlled".

10. A little later on in the letter, she explained that Greens Tarpaulins had become "a major source of nuisance in the locality". She gave details of the kinds of nuisance that local residents had suffered in relation to hours of operation, noise nuisance, problems with loading and unloading, with large vehicles being a safety hazard, and causing congestion and obstruction, smoke pollution, litter and refuse, and so forth. She drew attention to the 1995 Rossendale District Local Plan and to certain policies therein, including the criteria set out in policy DC1.

11. The Officers' report to the Planning Committee on 19th November 2001 recommended:

"That planning permission be granted for the removal of condition no. 2 ... and that a new permission be issued subject to the following conditions:

"1. No machinery shall be operated within, nor commercial activity undertaken from, the premises between the hours of 7.00 pm and 7.00 am on weekdays, nor at any time on Sundays. Reason: in order to preserve the residential amenities of the area.

"2. The premises which are the subject of this permission shall be used only for the purposes of business in accordance with the provisions of the Town and Country Planning (Use Classes) Order 1987 (as amended) (that is with reference to Class B1 of the Schedule to the aforementioned order). Reason: in order to safeguard the residential amenity of the locality".

12. Council members accepted that recommendation and planning permission was granted accordingly. The basis for the Officers' recommendation was explained in their report and was as follows. Having set out the terms of the 1976 permission, the Officers said that, following the complaints, investigations had taken place into whether or not there had been a breach of planning control:

"The Borough Solicitor has advised that condition no. 2 has clearly been breached and is technically enforceable against. Condition no. 3 which restricts hours of operation is also enforceable. Condition no. 4 which sought to restrict the type of business solely to that of sewing, making up and repair of tarpaulins is not enforceable. This is owing to its lack of precision and absence of reference to the Town and Country Planning (Use Classes) Order 1972. Notwithstanding the intention and purpose of the condition, its practical and legal effect was to allow any use within the then Class III (light industrial) which now translates into Class B1 (Business) use. Condition 5, which relates to the provision within the building and loading and unloading of service vehicles is not enforceable as it neither limits loading and unloading solely to within the premises nor requires the retention of the facility for the duration of the business".

13. The report explained that in the light of that advice, the operators had submitted an application for the removal or modification of condition no. 2.

14. The report continues:

"The application is made pursuant to section 73A of the Town and Country Planning Act 1990 ... and seeks the removal of condition no. 2 ... Section 73A of the Act applies to circumstances where planning permission is sought for development already carried out, and subsection 2(C) relates to development carried out without compliance with condition(s) to which planning permission was granted. In determining an application made pursuant to section 73A(2)(C), the decision maker is required to look at the planning circumstances existing at the time of decision, and should not proceed simply on the basis of whether the condition has been inappropriately imposed in the first place and should therefore be discharged. This approach affords the local planning authority the opportunity of a wide view of the merits and drawbacks of the proposal, constrained only by the law and planning guidance".

15. Pausing there, the report is certainly correct in so far as it advised members that the application had been made under section 73A, which is as follows, so far as material:

"73A(1) On an application made to a local planning authority, the planning permission which may be granted includes planning permission for development carried out before the date of the application

"(2) Subsection (1) applies to development carried out --

"(a) without planning permission:

"(b) in accordance with planning permission granted for a limited period; or

"(c) without complying with some condition subject to which planning permission was granted".

16. Moreover, thus far, the advice in the report correctly reflects the notes to section 73A in paragraph P73A.04 of the Encyclopedia of Town and Country Planning:

"When determining an application under this section, the decision-maker is required to look at the planning circumstances existing at the time of his decision, and should not proceed simply on the basis of whether the condition had been inappropriately imposed in the first place and should therefore be discharged: Sevenoaks District Council v Secretary of State for the Environment [1994] 69 P & CR 87".

17. Returning to the report, it then set out the consultation responses, mentioning the claimant's letter of objection, together with a 38 signature petition which had been submitted. Under the heading Primary Legislation and Government Circular Advice, the report repeated the point that the application was made under section 73A(2)(c), and said:

"As stated in the opening section of this report the value and purpose of the condition sought to be removed should be re-assessed and this should be done in the light of current circumstances rather than the circumstances which appertained at the time of the original grant of permission.

"In assessing the need for condition no. 2 ... the Local Planning Authority must have regard for advice contained in circular no. 11/95: The Use of Conditions in Planning Permissions. The circular identifies five tests which planning conditions should comply with. These are:

"1. The need for the condition.

"2. Its relevance to planning.

"3. Its relevance to the development to be permitted.

"4. The ability to enforce the condition.

"5. The precision of the condition.

"6. The reasonableness of the condition.

"Specifically in relation to personal permissions, paragraph 93 of the circular indicates that 'unless the permission otherwise provides, planning permission runs with the land and it is seldom desirable to provide otherwise. There are occasions, however, where it is proposed exceptionally to grant planning permission for the use of a building or land for some purpose which would not normally be allowed at the site, simply because there are strong compassionate or other personal grounds for doing so".

"As a general principle, conditions must be accompanied by fully justified, precise and relevant reasons".

18. There then follows a commentary upon the objections and, commenting on the petition, the report says:

"Section 73A enables a local planning authority to take a wider view of the merits and drawbacks of a proposal, in this instance, facilitating a re-assessment of the value and purpose of all the original conditions, including the personal condition".

19. When looking at the letter of objection, the report said:

"The objector sees the personal condition as being the key to controlling the scale and intensity of use. In reality however this approach demonstrates a misunderstanding of the practical value of the condition which does not have the effect of achieving a real and ongoing control over the characteristics of a business. It simply restricts who operates the business. Many changes could occur in the conduct of a business which might lead to a greater or lesser environmental or amenity impact without change in ownership or operational control. As such the condition does not achieve its stated purpose ...

"Policy DC.1 of the Rossendale District Local Plan is relevant in that it establishes a set of criteria by which all applications for planning permission should be considered. Developments are required to contribute to environmental quality and not be detrimental to existing conditions in the surrounding area. Relevant development criteria include: likely scale and type of traffic generation; level of pollution, including noise nuisance; arrangements for servicing and access; and carparking provision".

20. There is then a response to various matters raised by the objectors. The response includes the following:

"Resident safety issues are noted in relation to vehicular traffic movements. However no aspect of the original permission seeks to regulate or restrict commercial vehicle access to the premises ...

"Parking on an adopted highway is not subject to planning control".

21. When dealing specifically with the allegations of nuisance and detriment to residential amenity in the locality, the Planning Officer commented, inter alia:

"Ancillary storage of staff vehicles et cetera within the premises does not amount to a material change of use of the site or premises. Obstruction of a highway is not a material planning consideration.

"Noise nuisances should be reported to the Environmental Health Department.

"Nuisance and congestion caused by HGV traffic movements outside the premises and on adjoining streets is not capable of being controlled by reference to the original planning permission ...

"The parking difficulties and conflicts may be addressed under highways legislation should this be deemed appropriate ...

"Airborne pollution issues must be dealt with under Environmental Health legislation".

22. Having referred to those matters, the report then added:

"The citing of development plan policies is central to the objectors' argument that the authority should revisit the original 1976 planning permission in its entirety in order to remedy the perceived deficiencies of that decision".

23. There is, however, no further discussion of development plan policies in the Officers' report.

24. The report identified three principal issues:

"1) The statutory basis for the assessment and determination of the application.

"2) The relevance and purpose of condition 2 to present circumstances.

"3) The relevance, purpose and enforceability of the remaining conditions of the 1976 planning permission".

25. Each of those matters was taken in turn and members were advised:

"To consider firstly the purpose and relevance of condition no. 2 to present planning circumstances and the effect of either granting approval to its removal or refusing the current application, and secondly to revisit the other conditions of the permission, principally having regard to their enforceability and relevance to current circumstances".

26. Members were advised that condition no. 2 should be assessed against current advice, as expressed in circular 11/95, in particular with regard to the six tests. Each of the tests was taken in turn.

27. Under Need, it was said:

"The condition was judged to be necessary to ensure proper supervision of the business. However, the impact of the business upon the amenities of neighbouring residents could not be effectively controlled by a personal condition, since the original exercisers of the 1976 permission could just as easily have changed working practices within the scope of the permission, as could the present operators of the business".

28. Under Relevance to Planning, it was said that the reason given for the imposition of the condition -- "to protect amenity and prevent nuisance" -- was a legitimate planning reason:

"... but the condition does not have the effect that the reason seeks".

29. Under Relevance to the Development to be Permitted, it was said:

"The imposition of a personal permission to avoid nuisance would not appear to be relevant to the development which was permitted in 1976".

30. Under Ability to Enforce, it was said that the condition had legal force:

"... but the mismatch of condition and reason lead inevitably to the conclusion that an attempt to enforce it would as likely as not fail".

31. Under Test of Precision, it was said that, whilst the permission was precise and unambiguous:

"The fact that the condition itself fails to have the effect which the accompanying reason suggests means that the condition and reason lack precision when read together".

32. It was concluded that for the same reason the condition failed the test of Reasonableness.

33. The report continued.

"It is difficult to envisage a substitute condition controlling scale and intensity of use and patterns of service provision in the interests of protecting residential amenity. The premises are small, physically constrained and are totally lacking in off-road servicing provision. Consequently the business has remained small and currently employs five personnel".

34. Members were then told that they could look at other conditions. So far as condition 4 was concerned, they were advised:

"To be enforceable, the condition should have made specific reference to the Town and Country Planning (Use Classes) Order operative at the time of decision. This lack of reference effectively made the condition applicable to any use within Class III (light industrial use class) operative at the time, which today translates into Class B1 (Business) use. It should be noted however that the terms of the condition have not been breached to date, but this has not prevented the business becoming the source of complaint. The practical effect of the condition has latterly not served its stated purpose. The Town and Country Planning (Use Classes) Order 1987 (as amended) seeks to provide a high degree of flexibility, particularly in relation to permitted changes of business use. A more appropriate and flexible condition would restrict the use to any business use within Class B1 of the Use Classes Order".

35. So far as condition 5 was concerned, the report said:

"This condition is not enforceable as it fails to limit loading and unloading solely to within the building, nor is there a requirement that the facility be retained for as long as the business remains in the premises".

36. The report continued:

"In practice, the premises lack of any associated off-road service facility means that delivery vehicles are required to discharge their loads whilst parked on the adjacent highway".

37. Various issues raised under the Human Rights Act 1998 were then dealt with. The point was repeated:

"The purpose of condition 2 when related to its accompanying reason have been shown to be flawed and ineffective for the purpose of protecting residential amenity".

38. The overall conclusion was then drawn that of the three options -- refusing the application; approving the application as submitted without further modification beyond deletion of the personal permission; and reviewing the original permission as a whole correcting defects as necessary to achieve an appropriate degree of control in the interests of residential amenity, "without wholly undermining the permission granted in 1976" -- the third option was to be preferred.

39. On behalf of the claimant, Mr Harwood challenges the decision to grant planning permission on six grounds.

Ground One

40. The Council failed to consider whether the use of the site for the repair of tarpaulins, or for unrestricted B1 use, was appropriate in planning terms. The report simply lost sight of this fundamental issue and instead concentrated on the question whether condition 2 of the 1976 planning permission complied with the advice contained in circular 11/95.

41. The Council accepts that it did not:

"Reconsider at large the question of the acceptability of the use of the site in planning terms".

42. On behalf of the Council, Mr Evans submitted that it did not do so because it was not required to do so. He accepted that the application had been made under section 73A of the Act, not section 73, but nevertheless submitted that the Council's powers under section 73A were the same when application was made under section 73A(2)(c) as the powers contained in section 73.

43. So far as material, section 73 provides:

"73(1) This section applies subject to subsection (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted.

"(2) On such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted, and --

"(a) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly, and

"(b) if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application".

44. As I understand the submissions made on behalf of the Council, it considered that because this application for planning permission was an application to remove condition 2, the Council in considering the application was in effect subject to the same constraints as those set out in section 73 subsection (2). Thus, whatever it did, it was not allowed to "wholly undermine" the 1976 permission.

45. The Council accepts that section 73 subsection (2) did not require it to "shut its eyes to" the practical consequences of refusing to remove condition 2. (See the decision of the Court of Appeal in Powergen United Kingdom PLC v Leicester City Council and Safeway Stores [2000] JPL 1037.

46. But having taken the view that condition 2 was not appropriate when it was first imposed, and was not appropriate at the present time, it was believed that it would have been improper to refuse to remove the condition as a means of ensuring that the use was brought to an end:

"If the personal condition was not appropriate when imposed, the Council cannot use the inappropriate condition as a vehicle to bring the use to an end by deciding that permission should be granted on the same inappropriate condition as previously, and thus refuse the section 73A application".

47. It was submitted that the present case could be distinguished from Powergen. When the condition in question was a time limit condition, there was no issue about the appropriateness of imposing such a condition. Mr Evans referred to the passage in the judgment of Mr Christopher Lockhart-Mummery, QC, sitting as a deputy judge in this Division, in Allied London Property Investments Limited v Secretary of State for the Environment [1996] 72 P & CR 327.

48. At page 338, Mr Lockhart-Mummery set out six propositions. The sixth proposition was:

"The decision-maker cannot manipulate the decision as to whether or not the variation of the condition is acceptable in order to achieve purposes which will or will not result from the implementation of the planning permission as a matter of principle".

Conclusions -- Ground 1

49. The underlying approach of the Council to this application for planning permission contains so many misconceptions that it is difficult to know where to begin. Perhaps the best starting point is that an application for planning permission under section 73A is in all respects, save that the development will have been commenced, a conventional planning application. In dealing with such an application, the local planning authority must have regard to the provisions of the development plan, so far as material, and to any other material considerations. (See section 70, subsection (2)). Section 54A of the Act is also applicable.

50. Absent any provision preventing the local planning authority from considering the planning merits of the development proposed in the application, it is bound to consider the planning merits of permitting the development to continue.

51. The short answer to the proposition that the Council's powers under section 73A are the same as those contained in section 73, is that subsection (2) of section 73, whatever its effect may be, is not to be found in section 73A. Thus, although the need for a retrospective application under section 73A may be triggered by the fact that there has been a breach of condition (section 73A(2)(c)), the local planning authority, in considering the planning merits of the application, is not required to confine its attention to the appropriateness of the condition.

52. Consideration of this application appears to have got off on the wrong foot because the applicant sought planning permission for the "removal of condition 2". An application for planning permission may be made for a proposal to carry out (or retrospectively authorise) development, as defined by section 55 of the Act, that is to say, the making of a material change of use, or the carrying out of building, engineering, mining or other operations. It is not possible to make an application for planning permission for the "removal" of a condition, since the removal of a condition does not amount to development.

53. Applications under section 73 are frequently, and inaccurately, referred to as applications to "vary conditions". A decision under section 73(2) leaves the original planning permission (with the offending condition or conditions) unaltered. If a fresh planning permission is granted under section 73(2)(a), it is an entirely new planning permission for development, either unconditional or subject to different conditions. (See paragraph 28 of Powergen, per Schiemann LJ).

54. Notwithstanding the applicants' formulation of their proposal, the application under section 73A was an application for retrospective planning permission to continue the use of Larkhill Depot for the repair of tarpaulins, without complying with condition 2. It was essential for the Council to address the planning merits of the continuance of that use. It signally failed to do so.

55. In Pye v Secretary of State for the Environment [1998] 3 PLR 72, I was unable to accept Mr Lockhart-Mummery's sixth proposition in the Allied London case, saying at page 88:

"I do not believe that references to the decision-maker 'manipulating' his decision or to 'ulterior purpose' are helpful pointers to the interpretation of section 73. The section requires the local planning authority to decide whether to grant planning permission subject to different conditions under paragraph (a), or to maintain existing conditions and refuse the application under paragraph (b)".

56. Although this passage was not expressly approved by Schiemann LJ in paragraphs 28 and 29 of Powergen, the Court of Appeal nevertheless endorsed the approach of Keene J, as he then was, in R v London Docklands Development Corporation ex parte Frost [1996] 73 P & CR 199, rather than the approach set out in the Allied London decision.

57. Those cases were concerned with conditions imposing time limits, but I can see no difference in principle between refusing to grant planning permission under section 73 subject to a different (extended) time limit, because to do so would have the effect of enabling an unacceptable development to be carried out; and refusing to grant a planning permission under section 73A (or section 73) without a personal condition, because to do so would have the effect of enabling an unacceptable development to be continued (or commenced).

58. Was the Council entitled to conclude that condition 2 was inappropriate when it was first imposed? The condition relates to a proposed change of use, not the erection of a permanent building. So it was not, on the face of it, unreasonable to impose a personal condition. Although circular 11/95 advises in general terms against the use of such conditions, it recognises that there may be exceptional cases where they are justified on compassionate or other grounds.

59. There might have been many perfectly sensible reasons why the Council concluded in 1976 that a personal planning permission for R and M Green was appropriate in circumstances where an unrestricted permission for Class III (light industrial) use would have been inappropriate on a site located at the end of a residential cul de sac.

60. The planning permission must be read as a whole. The effect of conditions 2, 3 and 4, read together, was to limit the use of the depot to Mr and Mrs Green's tarpaulin repair business. Of course Mr and Mrs Green might have decided to change their working practices, but the Council in 1976 would have been entitled to conclude that the characteristics of an existing business were unlikely to undergo any radical change, provided it continued to be run by its existing proprietors.

61. There may be many commercial activities which are acceptable because they are run in a particular (low key) way by a particular proprietor in areas where general B1 or retail businesses would be quite unacceptable. The fact that a proprietor may choose to alter the mode of his or her business may make the condition less than 100 per cent effective, but it does not mean that the imposition of such a condition is necessarily unreasonable or inappropriate.

62. More to the point, there was no evidence whatsoever before the Council as to whether the combined effect of conditions 2, 3 and 4 had achieved the objectives set out in the reasons given for their imposition: the protection of residential amenity. There is no indication that there were any significant complaints about harm to residential amenity prior to 1995 when R and M Green retired from the business.

63. The report says that "latterly" condition 4 failed to achieve the objectives set out in the reason, but that misses the point. Condition 4 should not be read in isolation. There was simply no evidence that conditions 2 to 4 had failed to serve their purpose adequately, if not perfectly well, until 1995. Once condition 2 was breached, complaints began. The material set out in the Officers' report does not suggest that the conditions failed to achieve their purpose, rather, the reverse.

64. It follows that the Council's consideration of this application was fatally flawed from the outset, and the decision to grant permission must be quashed. For the sake of completeness, however, I should mention Mr Harwood's five remaining grounds of challenge, all of which I accept.

65. Ground two was that the Council had acted in breach of statutory duty because it had failed to consider and apply the policies set out in the development plan that were relevant to the application, contrary to sections 54A and 70 of the 1990 Act.

66. On behalf of the Council, Mr Evans conceded that this ground of challenge stood or fell with the first ground of challenge. In the light of my earlier observations, it follows that this ground is no less well founded than the first ground.

67. Mr Evans nevertheless submitted that the relevant development control policy, DC1, had been identified in the report to the Committee, and the criteria contained in that policy had been set out in the report. (See above). Moreover, the Officers, in their commentary on the letters of objection, had referred to the various environmental factors. I have set out the Officers' comments above.

68. That much is true, but the manner in which the development plan policies were dealt with in the report was bizarre. It is true that the Officers identified the relevant factors under policy DC1. They included such tests as whether the development would contribute to environmental quality and not be detrimental to existing conditions in the surrounding area; considerations such as the likely scale and type of traffic generation; the level of pollution, including noise nuisance; arrangements for servicing and access; and carparking provision.

69. But far from engaging with these factors, having said that they were indeed relevant, the report then proceeded to dismiss most of them with observations such as: "noise nuisance should be reported to the Environmental Health Department"; "airborne pollution must be dealt with under environmental health legislation"; "parking difficulties and conflicts may be addressed under highways legislation"; "obstruction of a highway is not a material planning consideration".

70. Thus, far from engaging with the relevant policies in the development plan and advising members as to whether or not the proposal was or was not in accordance with policy DC1 for the purposes of section 54A, the report simply side-stepped all of those highly material planning considerations. This was another fatal flaw in the decision-making prose.

71. Ground three of the challenge is that the Council failed to consider whether to impose conditions on nuisance issues that were not covered by the 1976 consent. The proposition is correct, but to a degree it is academic, because the claimant was arguing that the application should be refused on the ground that the use was unacceptable in a residential area. Since members failed to consider that basic issue, it is not surprising that they failed to consider the imposition of appropriate conditions in the round.

72. I have set out the various nuisances that were identified in the letters of objection, and the responses thereto of the report. The response was, for reasons best known to the writer of the report, to dismiss most of them as being immaterial for planning purposes, and to suggest that complaints should be referred to other agencies, such as the Highways Department or the Environmental Health Department.

73. Ground four contends that the Council misunderstood the purpose and effect of a personal condition and erred in concluding that condition 2 in the 1976 permission failed the tests in circular 11/95. For the reasons set out above under ground one, the imposition of condition 2, when coupled with conditions 3 and 4, is readily understandable. Even if it was not 100 per cent effective and, as I have indicated, there is no evidence whatsoever as to the effectiveness of the combined impact of conditions 2 to 4 up to 1995, that would not mean that it was inappropriately imposed.

74. As pointed out by Mr Harwood in his skeleton argument, many conditions fail to achieve their purpose in full measure. It does not follow that they were inappropriately imposed in the first instance.

75. Ground five contends that the Council erred in concluding that condition 4 failed to restrict the operation of the Use Classes order. Although the Council disputed the correctness of this proposition in its summary grounds of resistance to this application, Mr Evans now concedes that the Council did err in concluding that condition 4, owing to its lack of precision and absence of reference to the 1972 Use Classes Order, effectively enabled any use within the Class III (light industrial) use to take place within the site. Notwithstanding this error, it is submitted that it made no difference to the Council's decision. Reference is made to paragraph 87 of circular 11/95, which says:

"Both development orders and the Use Classes Order, however, are designed to give or confirm a freedom from detailed control which will be acceptable in the great majority of cases. Save in exceptional circumstances, conditions should not be imposed which restrict either permitted development rights granted by development orders or future changes of use which the Use Classes Order would otherwise allow. The Secretaries of State would regard such conditions as unreasonable unless there were clear evidence that the uses excluded would have serious adverse effect on amenity or the environment, that there were no other forms of control, and that the condition would serve a clear planning purpose".

76. The reason given for the imposition of condition 4 was to preserve the residential amenities of the area. That is a perfectly proper planning purpose. Plainly, the Council did not address its mind to this policy advice in the circular 11/95, as Mr Evans concedes, because it proceeded on the erroneous premise that condition 4 was not sufficiently precise to be enforceable, or to exclude other business uses within the B1 Class.

77. The short answer to Mr Evans' submission under this heading is that the Council simply failed to consider whether there was any evidence which would have justified the imposition of the condition in 1976. On the face of it, what had been permitted in 1976 was a permission for a very restricted commercial use to be carried out by just two people. No doubt, the Council was satisfied on the material before it at the time that those two people, carrying out that particular commercial use, would be carrying it out in such a way as not to unduly affect residential amenity.

78. It is plain that circumstances have subsequently changed and the question for consideration by the Council was: what are the merits of an unrestricted B1 Use (for that is what was granted in the permission dated 19th November 2001) on this site in 2001, given the objections raised by the residents and the provisions of the current development plan?

79. Ground six contends that the Council erred in considering that the parking of business and staff vehicles on the road could not be the subject of planning control. It was conceded that the report was in error in this respect, but again, it was said that the error would not have been of any consequence.

80. It was submitted that vehicles visiting the site to service it and vehicles of employees, for example, could not be controlled by a condition such as is to be found in Davenport v London Borough of Hammersmith and Fulham [1999] JPL 11.

81. In isolation, this particular error in the report would not have justified quashing the decision, but this error is all of a piece with the Council's fatally flawed approach to this application. It appears to have proceeded under the misapprehension that, whatever it did, it could not "wholly undermine" the permission granted in 1976.

82. Since that personal permission had been granted many years ago as a response to circumstances which on the evidence appeared to have changed, there was no reason why on this application under section 73A the Council should have felt itself so constrained. For these reasons, this application is allowed.

83. Yes.

MR HARWOOD: My Lord, I ask for an order quashing the planning permission?


MR HARWOOD: My Lord, costs have been agreed in the sum of £9,300, including VAT, to be payable by the Council.

MR JUSTICE SULLIVAN: Including, did you say?

MR HARWOOD: Including VAT, my Lord.


Do you confirm that, Mr Evans?

MR EVANS: Yes. I thought we had agreed £9,336, but I am happy at £9,300.

MR JUSTICE SULLIVAN: I would not like to do you out of £36, Mr Harwood.

MR HARWOOD: I will take the £36, my Lord.


Then the application is allowed. The planning permission is quashed. The claimant's costs are to be paid by the defendant Council. It is clearly appropriate to summarily assess them and I do so in the sum of £9,336, which includes VAT.

Anything else?

MR HARWOOD: No, my Lord.