Chieveley Parish Council, R (on the application of) v Newbury District Council & Anor

Factual and Procedural Background

This appeal arises from a judgment by Judge Carnwath on 23 June 1997, refusing to grant a declaration that an outline planning permission granted on 8 February 1994 by the District Council to Company B was void. The judge also declined to quash an acknowledgement by the District Council, dated 8 November 1996, of an application for approval of reserved matters made by Company B pursuant to the outline planning permission. The judge found the outline planning permission unlawful and that the District Council acted unlawfully in approving the reserved matters without considering traffic generation. However, the judge declined to make the declaration sought by the Parish Council, instead requiring an undertaking from Company B limiting development to 5,644 square metres floor space or not substantially departing from it.

The District Council challenged the judge’s findings, claiming error in holding the outline permission unlawful and in holding the Council acted unlawfully in approving reserved matters. Company B supported the District Council’s challenge.

The disputed land is approximately 54 hectares within an Area of Outstanding Natural Beauty (AONB), adjacent to a major road interchange. Company B has held an annual show on the site since 1985, initially under permitted development rights, with limited ancillary development permissions granted thereafter. More extensive development proposals were refused in 1988 and 1991.

Company B submitted the outline planning application on 14 December 1992. The District Council negotiated with Company B and consulted the County Council as Highway Authority. The Secretary of State initially prevented determination but lifted this restriction in May 1993. Recreational provision initially included was withdrawn in March 1993. The District Council’s Development Services Committee resolved to grant conditional permission subject to certain conditions and a planning agreement, which was signed in February 1994, and outline permission issued shortly thereafter. A local plan was adopted in December 1993.

In July 1994, Company B submitted an application for approval of reserved matters, which the Parish Council contended was outside the scope of the outline permission and that the outline permission was unlawful. The District Council found the application invalid, leading Company B to withdraw it and submit a full planning application. This full application was called in by the Secretary of State in January 1995, with a public inquiry scheduled for October. Company B withdrew the full application in August 1995 and later submitted a detailed application under the 1994 outline permission in November 1996, which the District Council accepted as valid. The Parish Council challenged this decision by judicial review.

Legal Issues Presented

1. Whether the outline permission was a nullity due to irreconcilable ambiguity and ineffectiveness on its face.
2. Whether the outline permission was a nullity and/or unlawful for purporting to reserve matters particularised in the application, in breach of the Town and Country Planning Act 1990 and the Town and Country Planning General Development Order 1988.
3. Whether the outline planning permission was unlawful for being granted without regard to material considerations, specifically Planning Policy Guidance Note No 7 (PPG 7).
4. Whether the District Council failed to consider a material consideration, namely traffic generation, when approving reserved matters.
5. Discretionary issues:
   1. Having found in favour of the Parish Council on Issue 2, whether the judge erred in declining to exercise discretion to quash the acknowledgement and/or declare the outline planning permission unlawful.
   2. Upon a finding in favour of the Parish Council on Issue 3, whether discretion should be exercised to quash the outline permission.

Arguments of the Parties

Appellant's Arguments (Parish Council)

• The outline permission was null and void due to ambiguity and inconsistency between the condition requiring strict adherence to submitted plans and the reservation of certain matters for later approval.
• The District Council lacked power to reserve matters already detailed in the outline application, rendering the reservation condition unlawful.
• PPG 7 was a material consideration ignored by the District Council, particularly regarding protection of the AONB and lack of national interest justification.
• The District Council failed to consider traffic generation when approving reserved matters.
• The outline permission should be quashed as unlawful and the acknowledgement of reserved matters invalid.
• Delay in seeking judicial review was excused due to complexity, late withdrawal of recreational provision, and financial constraints.

Respondents' Arguments (District Council and Company B)

• The outline permission was valid; the District Council had broad power under section 70(1) of the 1990 Act to impose conditions as they think fit.
• The alleged procedural defect was a technicality causing no prejudice and did not invalidate the permission.
• PPG 7 was considered implicitly; economic and social well-being justified the development despite AONB status.
• The County Council, as Highway Authority, had assessed traffic impact; the District Council was entitled to rely on their advice and was not required to reconsider traffic generation at reserved matters stage.
• The delay in seeking judicial review was undue; the permission should not be quashed now due to interests of good administration and prejudice to rights of others.
• The outline permission committed to a floor space limit, which was not a reserved matter and could not be reconsidered later.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the wording of the outline planning permission and the statutory framework governing outline permissions and reserved matters. It held that the permission could be sensibly construed so that the reserved matters conditions prevailed over the submitted plans, resolving the ambiguity issue (Issue 1).

On Issue 2, the court found that the District Council acted unlawfully in attempting to reserve matters (such as siting and means of access) which had already been detailed in the outline application, contrary to the statutory provisions and Departmental Circular guidance. This rendered Condition 1 unlawful. However, the court rejected the argument that the details should be treated as withdrawn and emphasised the importance of following the correct procedure for reserved matters to maintain clarity and certainty.

The court disagreed with the judge’s conclusion that floor space was a reserved matter, holding that scale of development, including gross floor area, is not a reserved matter and is fixed at the outline permission stage.

Regarding Issue 3, the court considered whether the District Council failed to have regard to PPG 7. It found that although PPG 7 was not explicitly referenced, the council had considered AONB policies and economic and social well-being, and that the guidance did not mandate quashing the permission. The planning system’s plan-led nature and the absence of specific prohibition in development plans supported the council’s discretion.

On Issue 4, relating to traffic generation, the court held that the District Council was entitled to rely on the County Council’s expertise and advice, and was not required to reconsider traffic impact at the reserved matters stage. The power to approve reserved matters cannot be used to modify or revoke the outline permission.

Issue 5 concerned whether the outline permission should be quashed given the unlawful reservation of matters. The court recognised the discretion to refuse relief, especially considering the delay in seeking judicial review approaching three years. The court emphasised the importance of good administration, certainty, and the prejudice to third parties and the public interest in maintaining the permission. It found no bad faith or improper conduct by the District Council, and that the Parish Council had not been significantly prejudiced.

The court concluded that the delay was undue and that the interests of good administration outweighed the grounds for quashing the permission. The acknowledgement of reserved matters application was valid as the outline permission had not been declared invalid. Consequently, the judge’s requirement for an undertaking limiting floor space was unnecessary.

Holding and Implications

The court dismissed the appeal by the Parish Council and allowed the cross-appeal by the District Council and Company B.

The direct effect of this decision is that the outline planning permission granted in 1994 remains valid despite the procedural irregularity in reserving matters already detailed in the application. The application for approval of reserved matters was validly acknowledged and may proceed. The court’s decision emphasises the importance of prompt judicial review in planning matters and the weight given to good administration and certainty in planning permissions. No new precedent altering the substantive law was established; rather, the decision applies established principles of statutory construction, procedural fairness, and discretion in judicial review of planning permissions.