The Court of Appeal today dismissed the appeal in R (Midcounties Co-Operative Limited v Wyre Forest District Council & Tesco Stores Limited & Others  [2010] EWCA Civ 841.

Midcounties challenged the grant of a planning permission by the respondent District Council on 19 May 2008 to Tesco Stores Limited for a new Class A1 supermarket, customer car park, petrol filling station, new road bridge, footbridge, other highway works, landscaping and further works at the Former Carpets of Worth site, Severn Road, Stourport on Severn.

Ouseley J. had dismissed the claim ([2009] EWHC Admin 964). The appeal was limited to one only of the grounds of challenge pursued at first instance. This concerned the validity of the permission and focussed on condition 6 which was said to be bad in law. That condition provided:

“The food store hereby approved shall not exceed the following floor space allocations (maxima); 
Gross external up to 4209 sq metres measured externally
Nett retail sales up to 2919 sq metres, unless otherwise agreed with the Local Planning Authority.
Reason
In the interest of clarity, in order to define the permission and to ensure that it accords with Policies RT.1 and RT.4 of the Adopted Wyre Forest District Local Plan.”

The Court of Appeal summarised the relevant principles applicable to the interpretation of planning permissions.

The learned Judge below felt able to conclude that condition 6 was not bad in law as being vague or uncertain. Laws LJ (with whom Smith and Rimer LLJ agreed) said that Ouseley J. was “able to do so, with respect, out of his long experience as a distinguished planning lawyer.  He will not mind my saying that he must have seen many supermarket developments in his time.  I am not confident that the ordinary intelligent non-specialist – Arden LJ’s “reasonable reader” [see Carter Commercial Developments Ltd [2002] EWCA Civ 1914] – would be in a position to perform the same exercise. 

Laws LJ said:

“20. On the face of Condition 6, the selling space in the development is controlled by reference to the 2919 sq metres figure, not 2403.  Accordingly there exists the possibility that, consistently with the planning permission, the amount of actual selling space may be increased above 2403 (so long as it remains within 2919), and the non-selling space to which the public have access (customer facilities etc) may be correspondingly reduced.  Given that the clear basis on which the application was put forward was that the actual selling space should be limited to 2403, does this circumstance invalidate the permission?  The nature of the invalidity might be expressed as ... : the planning permission allowed a greater area for actual selling space than had been applied for.
...
[He then set out the way that the learned Judge had disposed of this argument in paras. 45 and 46 in the judgment below and continued:]
...
22. While I appreciate at once the eminent good sense of this reasoning, I confess to some unease in accepting it as a sufficient answer to Mr Holgate’s legal objection that since the actual selling space is not controlled to 2403, the possibility exists – no doubt subject to quite pressing practical constraints – that the intended balance between 2403 and 2919 could in fact be altered by the developer.  Planning permissions go with the land; what they are intended to permit should be clear from what they say”.

The Court of Appeal, however, dismissed the appeal on the basis that as. 106 agreement entered into on 17 February 2009 cured any potential legal difficulty with the permission (see paras. 23 – 26 of the draft judgment). That s. 106 agreement was entered into after the grant of the planning permission in issue and in response to these judicial review proceedings.

The Court of Appeal rejected the arguments advanced by the Appellant as to procedural differences between restrictions being imposed via a s. 106 on the one hand and a condition on the other hand in the event that the landowner at some point in the future sought to remove a restriction imposed on actual selling space: see paras. 25 and 26 of the judgment.

David Holgate QC and James Maurici appeared for the Appellant instructed by Brookstreet Des Roches
Russell Harris QC appeared for Tesco instructed by Berwin Leighton Paisner LLP

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