Inadequate fact sensitive assessment applied determining lawful development certificate

08 Nov 2023

In quashing an inspector’s decision relating to a proposed housing development in Powys, the High Court ruled that there had been a failure to explain why a condition requiring landscaping to be approved went to the heart of a planning permission.

Permission had granted two outline planning permissions in 1988 for the development of 20 dwellings, which were subject to various conditions. Sixteen dwellings had been constructed but the remaining four were put on hold. The claimant desired to build the remaining four dwellings and following the submission of a lawful development certificate (LDC), the main parties were agreed that the remaining planning permission could lawfully be implemented unless the material operations, which included constructing an access, had been rendered unlawful by a failure to comply with a condition.

The relevant condition stated that further approval of reserved matters were required before any development commenced which included the external appearance of the dwellings and landscaping. The council determined in the absence of the approval of landscaping for the four dwellings, their construction was not lawful. The LDC was refused.

At appeal the inspector agreed with the local authority ruling following a site visit, that the landscaping details went to the heart of the permission. The claimant argued that insufficient reasons had been provided by the inspector explaining why there was a need to secure details of the landscaping when all other matters had been approved.

Mr Justice Jarman confirmed that the interpretation of a planning condition was a matter for the courts. The judge laid out the general legal principles which applied. These included what was meant by the words of the condition and if it prohibited something this had to be spelt out in clear terms. The court also confirmed that whether a breach of such a condition meant simply that enforcement action could be taken to remedy the breach or whether it rendered any commencement of development unlawful depended on whether the condition went to the heart of the consent which could only be answered only by a fact-sensitive enquiry.

The judge noted that in the present case the inspector carried out a site view but did not record in his decision letter what he saw at the visit. Although the inspector confirmed that in his opinion as a matter of fact or degree, the condition went to the heart of the permission, he did not consider this in the context of the remaining landscaping matters and did not give any further indication that the necessary fact sensitive enquiry had been carried out, the judge decided. If, for example, all that remained was for the size and species of six proposed new trees shown on a reserved matters application plan in 1990 to be specified, that might well inform the conclusion whether or not that went to the heart of the permission and the outcome after such an enquiry could be different. Whether it did or not was a matter for the decision maker and not for the court, he opined.

However the judge held it was not clear that the necessary fact sensitive assessment had been undertaken and on this basis the decision could not stand. It was remitted back to the Welsh Minister’s for re-determination by another inspector.

The Welsh Ministers v Malcom Jeffrey Barrett & Powys County Council

Date: 13 October 2023

Ref: [2023] EWHC 2503 (Admin)