Bedford Park Developments v Secretary of State for Levelling Up, Housing and Communities & Anor
[2024] EWHC 2337 (Admin)
Malcom Jeffrey Barrett v The Welsh Ministers
13 October 2023
[2023] EWHC 2503 (Admin)
High Court
Someone wanted permission to build houses but hadn't fully completed all the initial requirements (like agreeing on the landscaping). A planning official said no. The court agreed about the initial requirements, but said the official hadn't properly checked if the *remaining* landscaping issues were really important enough to stop the building. So, the court sent it back to a different official to make that decision properly.
Key Facts
- •Claimant seeks judicial review of an inspector's decision dismissing his appeal against refusal of a certificate of lawful development for four dwellings.
- •The dwellings are part of a larger development with outline planning permission granted in 1988 and reserved matters decided in 1990.
- •The key issue is whether condition 2, requiring approval of various matters (including landscaping) before development commenced, was prohibitive and went to the heart of the planning permission.
- •The inspector dismissed the appeal, finding condition 2 prohibitive and that its landscaping aspect went to the heart of the permission.
- •The claimant challenges the inspector's findings on the grounds that the inspector was wrong in law to find condition 2 prohibitive and that he failed to conduct a fact-sensitive enquiry into whether the remaining landscaping requirements went to the heart of the permission.
Legal Principles
Interpretation of planning conditions is a matter for the courts.
Various cases, including Hillside Parks Ltd v Snowdonia National Park Authority [2022] UKSC 30 at [26]-[27]
A condition prohibiting development until approval is given should be clearly expressed.
Various cases, including R (Hart Aggregates) v Hartlepool Borough Council [2005] EWHC 840 (Admin)
Whether a condition breach renders development unlawful depends on whether the condition goes to the heart of the permission.
Whitley & Sons v Secretary of State for Wales (1992) 64 P&CR 296
Determining whether a condition goes to the heart of the permission requires a fact-sensitive enquiry considering the condition's terms, the permission's context, and the planning context.
Various cases, including Meisels v SSHCLG and LBHackney [2019] EWHC 1987
This fact-sensitive enquiry is a matter of planning judgment for the inspector, not the court.
Meisels v SSHCLG and LBHackney [2019] EWHC 1987
Outcomes
Ground 1 (inspector wrongly found condition 2 prohibitive) fails.
Condition 2's wording is substantially prohibitive, and aspects like building design could reasonably be considered central to the permission.
Ground 2 (inspector failed to conduct a fact-sensitive enquiry into whether remaining landscaping requirements went to the heart of the permission) succeeds.
The inspector's site visit wasn't recorded in the decision letter, and there's no evidence of a proper fact-sensitive enquiry into the remaining landscaping matters. The court can't be confident that such an enquiry was conducted.
The case is remitted to a different inspector for a fact-sensitive enquiry into whether the remaining landscaping requirements went to the heart of the planning permission.
The court found insufficient evidence of such an enquiry having been carried out by the original inspector.
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