Case No: C1/2007/2343
Neutral Citation Number: [2008] EWCA Civ 351
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
(MR JUSTICE BURTON)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 12th March 2008

Before:

LORD JUSTICE BUXTON
and
LORD JUSTICE RICHARDS

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Between:

	THE QUEEN (on the application of BROOKHOUSE GROUP LTD)	Appellant
	
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PRESTON CITY COUNCIL	
Respondent

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(DAR Transcript of 
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Mr J Barrett (instructed by JMW Solicitors) appeared on behalf of the Appellant.

The Respondent did not appear and was not represented.

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Judgment

Lord Justice Richards:

1.	This is a renewed application for permission to appeal against a decision of Burton J refusing permission to apply for judicial review.  The case arises out of the grant of outline planning permission to EH Booth and Company Ltd, the first interested party, by Preston City Council, the defendant.  The development for which outline planning permission was granted was described in the grant as follows:

“Erection of a 6,735m² Class A1 (Retail) superstore for convenience shopping and other town centre uses comprising Class A2 or B1 (Offices) and residential units together with related works, including enhanced access and car parking.”

2.	There was subsequently an approval of reserved matters which described the development for which such approval was given as follows: 

“Erection of a 6,735 sq m (Class A1) retail superstore with associate servicing area and car parking; erection of 605 no. residential apartments in 4 no. blocks… other town centre use units for A2 and B1 uses in the ground floor, associated car parking and private amenity space…”

3.	The challenge is to the reserved matters approval on the ground that it goes beyond, or is inconsistent with, the outline planning permission in relation to the residential component of the development.   It is said, in summary, that outline permission was granted for a development that was primarily retail but had a subsidiary residential component whereas the reserved matters approval relates to a development that is primarily residential but has a subsidiary retail component.  The residential component represents some 75% of the total floor space to be developed.

4.	The outline permission contains no obvious limitation on the size of the residential components in the development, either in the description of the development itself or in the conditions attached to the permission granted.  Mr Barrett, however, seeks to persuade the court that such a limitation is to be read into the permission.  He has developed his submissions in detail in written materials, all of which have been considered, even though he had, necessarily, only a limited opportunity within the time available to present oral argument in additional support of those submissions. 

5.	The focus of his submissions is that the notice of grant of the outline permission stated that permission was granted for the carrying out of the development “in accordance with the application, plans and documents submitted” and he relies on a supporting statement that was submitted as part of the application.  The supporting statement was by the developers’ chartered town planner and was expressed to be part of the formal planning application.  It explained the proposed scheme.  It referred to recommendations made in 1998 by a local plan inspector in respect of the area in which the site was located.  The inspector had recommended that the council adopt a policy recognising that the area presented a major opportunity to regenerate part of the town centre and containing this paragraph: 

“The Council would consider favourably proposals for the comprehensive development of the area which promote the inclusion of mixed uses, including: Class A1 Retail Uses; and Leisure/Hotel Uses.  Elements of residential and office development may also be acceptable where they are subsidiary to and do not prejudice opportunity for the above forms of development.”

6.	The council has subsequently endorsed that recommendation and included it in the proposed modifications of the local plan as policy SS18.  

7.	It is said that the supporting statement when read as a whole was clearly asserting that the proposed development was compliant with policy and that the incorporation of the statement into the planning permission meant that the policy requirement that residential development be subsidiary and should not prejudice opportunity for other development was imported into the permission granted.  For my part I doubt whether there was any clear assertion in the supporting statement to the effect that the application was in compliance with all relevant aspects of policy but I am prepared to assume for present purposes that there was such an assertion.  

8.	It is right to say that the position is complicated by the fact that at the time when the outline planning application was originally submitted with the supporting statement there was no reference to residential development in the application itself or in the supporting statement and only limited reference to the possibility of some residential development in the illustrative plan that accompanied the application.  The application was subsequently amended to include reference to residential development, and the area upon which residential development might take place was extended at a later stage in a revised illustrative plan, though still not to the extent covered by the subsequent reserved matters.  There was no change to the supporting statement.  It is said that the supporting statement must be taken as encompassing the proposal as it was at the time of grant of the outline permission and was still asserting at that time that the proposal was compliant with the policy so that the policy requirement that residential development be subsidiary was thereby incorporated into the wording of the permission.  

9.	I should say that I very much doubt whether the residential element covered by the reserved matters approval can be said in itself to be contrary to policy SS18 since that policy relates to the mix of development in the area as a whole and is not limited to a specific site, and it has not been shown that the development covered by the reserved matters approval on this site would actually preclude fulfilment of the policy for the area as a whole. 

10.	Nothing ultimately turns on that, however, since in my judgment the entire argument advanced by reference to the supporting statement is misconceived.  It involves an unduly strained and unrealistic approach to the construction of the outline planning permission.  Had the council wished to impose a limitation on the retail component of the development it could and would have done so either by reference to the description of the development permitted or by way of an appropriate condition.  Such a limitation cannot be incorporated through the route urged on this court by Mr Barrett.  Burton J dealt with the point on the basis that the supporting statement no doubt contained an implication that the development had complied with policy but that what is stated as hopes and intentions in such a document cannot possibly amount to an implied incorporation of an express restriction on the permission granted.  I see no error of law in that approach on the judge’s part and I agree with him. 

11.	Before the judge Mr Barrett also sought to rely on the fact that the permission was said to be granted in accordance with the plans submitted and the illustrative plans showed residential development only as a subsidiary component of the proposal.  The judge rejected that contention on the ground that it is well established that plans which are described as illustrative do not define or limit the development for which outline permission is granted; they simply indicate how the outline might be translated later into a more detailed proposal.  I do not understand Mr Barrett to have pursued that point before us but in any event I am satisfied that the judge was right to reject the argument.

12.	One point that is pursued before us but did not form part of the argument before Burton J concerns Condition 6 of the grant of outline permission, which requires a submission of a master plan showing the mixes of uses and phasing programme prior to the commencement of development.  The stated reason for the condition is “to ensure that the development achieves a mixture of uses of the site in accordance with policy SS18…”.  That is said to support the argument that a residential development permitted by the outline permission had to be subsidiary.  I do not think that such a limitation can be read into the grant of permission by reference to one of the reasons given for a condition of the grant, but in any event I come back to the serious reservations I have already expressed about the significance of SS18 for the purposes of the applicant’s argument.  As I have said it is concerned with the development of the area as a whole rather than with the specific site alone and it has not been shown that the proposed development on a specific site is inconsistent with the objective of SS18 as regards the mix of uses in the area as a whole.  

13.	In conclusion I am satisfied that Burton J was right to refuse permission to apply for judicial review.  In my view an appeal against this decision would have no real prospect of success.  I would therefore refuse permission to appeal.

Lord Justice Buxton: 

14.	I agree.  There is nothing that I wish to add.

Order: Application refused