Lloyds Pharmacy Ltd, R (On the Application Of) v Leeds City Council [2013] EWHC 4031 (Admin)

Neutral Citation Number: 2013 EWHC 4031 (Admin)Case No CO/5512/2013
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
The Court House
Oxford Row
Venue Leeds LS1 3BGDate 19 th December 2013
Before
His Honour Judge Behrens sitting as a Judge of the High Court in Leeds
Between
THE QUEENClaimant(on the application of LLOYDS PHARMACY LIMITED)ClaimantLEEDS CITY COUNCILDefendantMANOR PARK SURGERYInterested Party
Anthony Crean QC and Anthony Gill (instructed by Pinsent Masons LLP) for ClaimantHugh Richards (instructed by Catherine Witham, Leeds City Council) for DefendantHearing Hearing dates: 4, 5 December 2013
Approved JudgmentI direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic..............................
[1]Introduction In this application for judicial review Lloyds Pharmacy Ltd (“Lloyds”) seeks to challenge the decision of the Defendant Council (“the Council”) dated 28th March 2013 to grant planning permission to Manor Park Surgery. The grant related to an extension and redevelopment of the Surgery and for a change of use to incorporate a pharmacy and optician.[2]Lloyds operates a national chain of pharmacy shops. One such shop is next door to the Surgery. Due to its proximity to the Surgery the Lloyds’ pharmacy has always been the main pharmacy serving the Surgery. Lloyds’ pharmacy processed 152,830 prescriptions in the last twelve months up to May 2013, 99% of which were issued by the Surgery. It is thus unsurprising that the application was opposed by Lloyds.[3]The permission that was granted was subject to 12 conditions. Conditions 3 and 9 are relevant to these proceedings: 3. The opening hours of the extended surgery shall be restricted to 0800 – 1900 Mon – Fri only. The opening hours of the proposed pharmacy shall be restricted to 0600 – 2200 Mon – Fri, 0900 – 2100 Saturday and 1200 – 2000 on Sundays. In the interests of local residents. 9. The proposed pharmacy shall operate as indicated on the approved plans and shall be limited to no more than 110 square metres in floor area and be fully integrated as part of the surgery and shall be used to retail medical and healthcare products (including the dispensing of medicines and prescription related products) as an ancillary and complementary use to the use of the premises as a doctors surgery. For the avoidance of doubt and to retain control of any retail uses within the building as ancillary and complementary to the main use and to accord with national and local retail policy.[4]As already noted Lloyds seeks an order quashing the planning permission. There are 8 grounds upon which the order is sought. It will, of course, be necessary to consider those grounds later in this judgment. In his helpful submissions Mr Crean QC divided the grounds into three groups. Grounds 1 and 2 relate to planning policy. He asserts that the Council misunderstood s 38(6) of the Planning and Compulsory Purchase Act 2004 and misapplied UDP policy S9. Grounds 3 and 4 relate to evidence. He asserts that the Council granted the permission on two false premises and thus took into account immaterial considerations in granting permission. Grounds 5 to 8 relate to Condition 9 when read with Condition 3. A number of complaints are made. It is said that the condition is unenforceable, that it nullifies the effect of the planning permission and that it failed to limit the use of the pharmacy to medical and healthcare products.[5]On behalf of the Council Mr Richards contends that the permission was a valid exercise of a planning judgment by the Planning Panel (“the Panel”). He contends that when the Panel Report is read as a whole all relevant policy matters (including s 38(6), the breach of Policy S9, and paragraphs 24 and 27 of the NPPF) were drawn to the Panel’s attention. He does not accept that the decision was based on any false factual premise. He contends that Condition 9 is perfectly lawful and workable. Accordingly he submits that the Panel made a decision (which was in accordance with the planning officer’s recommendation) which was lawful.[6]Manor Park Surgery has taken no part in the application. I was told during the course of the hearing that apart from some preparatory work no steps have been taken to implement the permission pending the decision of the Court.[7]Permission to apply for judicial review was granted on the papers by Vincent Fraser QC on 24th July 2013.[8]Before turning to the matter in detail I must record my gratitude for the extremely clear and helpful skeleton arguments and oral submissions that were presented by all three Counsel. The conciseness of the submissions was much appreciated and enabled me to focus on the real issues between the parties. 2. The Background Facts[9]There was no dispute as to the background facts. Accordingly much of this section is taken from the summary in Mr Crean QC and Mr Gill’s skeleton argument. The Surgery[10]Manor Park Surgery is a nine doctor (with associated staff) practice based in the Bramley area in the north west of Leeds city centre. It consists of the surgery building and an integrated pharmacy building which shares an entrance hall. The pharmacy was added as an extension to the original surgery building in the late 1990s. Lloyds’ pharmacy shares an entrance hall with the Surgery and operates under complementary hours.[11]The Surgery lies behind a row of terraced houses off of Bellmount Close, a small cul-de-sac in Bramley. The Surgery is not within any of the designated ‘Town Centres’ for the purposes of Policy S2 of the Local Plan or Local Centre for the purposes of Policy S9. The nearest designated ‘Town Centre’ and high street is Bramley District Centre some 460m from the Surgery and pharmacy. The Planning Application[12]On 28 May 2012 Manor Park Surgery sought permission from the Council for an extension and redevelopment of the Surgery and for a change of use to operate a pharmacy and optician.[13]The Planning Application was the subject of considerable local interest which included a letter of objection written by agents acting on behalf of Lloyds.[14]According to Mr Butler, the Area Planning Manager, the Council received 20 individual letters of objection and 292 standard letters of objection. The objectors alleged lack of need, that the pharmacy should be in the town centre, and that the methadone needle exchange was not appropriate for a residential area. The letter sent on behalf of Lloyds raised the policy objections relied on in this application.[15]There was also considerable support for the application. The Council received a petition with 1089 signatures which said that the proposal would bring a much needed extension of medical facilities to the local community and patients of the surgery. It was supported by the local MP.[16]On 29th August 2012 a public meeting was called by the Ward Members for Bramley Ward. It was well attended.[17]On 30th August 2012 Dr Fuller sent an email to Cllr Gruen dealing with concerns expressed at the meeting. It included sections on traffic congestion, extended opening hours and methadone dispensing. It also contained a paragraph relevant to grounds 3 and 4: Over the years it has become very apparent that the practice is running at capacity. There is currently no room to offer the patients an improved or additional service. As a result we have to turn away new medical services as we are unable to accommodate these due to lack of space. Early this year the practice received a letter from our local MP … after she had received a complaint for a patient who was unable to get an appointment at the surgery. The practice then went on to develop plans that would allow us to employ 6 more doctors and provide additional medical services. Historically the PCT (Primary Care Trust) has helped finance new developments but now due to the state of the economy practices need to come with the finance themselves. As a result we have taken on a pharmacy and opticians to help finance the extension and provide the additional space that is crucial to being able to provide a better medical service.[18]The Council granted planning permission on 16 October 2012. Lloyds challenged the legality of the grant in a letter dated 20 November 2012. Following receipt of that letter the Council consented to judgment and the permission was quashed.[19]The Planning Application was returned to the Council for redetermination. The Planning Application came before the Panel on 28 March 2013 with a new Panel Report. It will be necessary to refer to the Panel Report in more detail later in this judgment. The Report recommended that the Planning Application should be approved subject to conditions. The Panel granted planning permission in line with the planning officer’s recommendation in a Decision Notice dated 28 March 2013. 3. Planning Policy 3.1 The Law[20]There was no dispute between the parties as to the relevant law. Much of this section is taken from the skeleton arguments. Statute[21]S 38(6) of the Planning and Compulsory Purchase Act 2004 provides:
"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise"
Local Policy[22]The Development Plan for the area comprises the Leeds UDP (Review 2006) and supporting Supplementary Planning Guidance (SPGs) and Supplementary Planning Documents (SPDs).[23]I was referred to policies S2 and S9. Policy S2 outlines the town centres first approach to be used for retail development. It is plain that Bramley qualifies as a town for the purpose of S2[24]Policy S9 follows on from S2 and deals with smaller, non major retail developments such as this application. It provides: RETAIL DEVELOPMENTS, SMALLER THAN THOSE DEALT WITH IN POLICY S5 OUTSIDE THE DEFINED S1 AND S2 CENTRES OR LOCAL CENTRES WILL NOT NORMALLY BE PERMITTED UNLESS: i. THE TYPE OF DEVELOPMENT CANNOT SATISFACTORILY BE ACCOMMODATED WITHIN AN EXISTING S1, S2 OR LOCAL CENTRE(OR IN THE ABSENCE OF AN IN-CENTRE SITE, ON A SITE ADJACENT AND WELL RELATED TO AN S2 OR LOCAL CENTRE; AND ii. … iii. … iv. … v. … DEVELOPMENT WHICH PREJUDICES THE LOCAL PROVISION OF ESSENTIAL DAILY NEEDS SHOPPING SERVICE LEVELS WILL NOT GENERALLY BE PERMITTED …[25]It will be seen that S9 sets out 5 conditions that need to be satisfied. If they are not all satisfied a retail development outside the relevant centres will not normally be permitted. It is now common ground in this case that the development is outside the relevant centre and that conditions (ii) to (v) are satisfied. At one time Lloyds suggested that (iv) was not satisfied. Mr Crean QC did not pursue that allegation at the hearing. NPPF[26]I was referred to paragraphs 24 and 27 of NPPF. Paragraph 24 explains the sequential test. Paragraph 27 deals with the consequences of the sequential test: 24. Local planning authorities should apply a sequential test to planning applications for main town centre uses that are not in an existing centre and are not in accordance with an up-to-date Local Plan. They should require applications for main town centre uses to be located in town centres, then in edge of centre locations and only if suitable sites are not available should out of centre sites be considered. When considering edge of centre and out of centre proposals, preference should be given to accessible sites that are well connected to the town centre. Applicants and local planning authorities should demonstrate flexibility on issues such as format and scale. 27. Where an application fails to satisfy the sequential test or is likely to have significant adverse impact on one or more of the above factors, it should be refused. Authorities[27]I was referred to a number of authorities setting out the relevant legal principles. None of these was controversial. In the circumstances I shall summarise the principles to which I was referred. The Panel report[1]It is a reasonable inference that members of the planning committee follow the reasoning of the report, particularly where a recommendation is adopted.[2]The officer’s report must be read in good faith, in a common-sense manner, and without excessive legalism. An application for judicial review based on criticisms on the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting.[3]The purpose of an officer’s report is not to decide the issue, but to inform the members of the relevant considerations relating to the application. It is not addressed to the world at large but to council members, who, by virtue of that membership, may be expected to have substantial local and background knowledge.[4]Clear mindedness and clarity of expression are obviously important. However that is not to say that a report is to be construed as if it were a statute or that defects of presentation can often render a decision made following its submission to the Council liable to be quashed. The overall fairness of the report, in the context of a statutory test, must be considered Policies[5]The policies in the NPPF and the UDP are material considerations to which the Panel is required to have regard. It need not follow such guidance or plan, if other material considerations outweigh them.[6]The Panel should have regard to the provisions of the development plan as a whole, that is to say, to all of the provisions which are relevant to the application under consideration for the purpose of deciding whether a permission or refusal would be “in accordance with the plan”[7]If the Panel is going to depart from the policy, it must give clear reasons for not doing so in order that the recipient of its decision will know why the decision is being made as an exception to the policy and the grounds upon which the decision is taken.[8]Where a planning committee has agreed with the recommendation of its officers a relatively brief summary of the reasons for the grant of permission may be adequate. 3.2 The Panel Report[28]The Panel Report starts with a recommendation that planning permission be granted subject to conditions. At point 13 it sets out a summary of the reasons that the planning officer considers ought to be included. They include: On balance the City Council considers the development should be supported and will give rise to improved health facilities for local people. Whilst the additional pharmacy is not in accordance with criterion i) of policy S9 it is considered that the overall benefits of the scheme as a whole outweigh this policy breach and that the proposal represents sustainable development and will not adversely impact on the vitality and viability of Bramley Town Centre or give rise to any unacceptable consequences for the environment … which outweigh the presumption in favour of sustainable development.[29]After dealing with a detailed description of the history, the site the planning history and the responses, Section 8 of the Report concerned planning policies. In paragraph 8.1 the planning officer set out s 38(6). In the remainder of the section he summarised the local policies. In paragraphs 10.6 and 10.7 the planning officer sets out in full policies S2 and S9. In paragraph 10.9 the planning officer sets out the relevant parts of paragraphs 24 and 27 of NPPF. Thus all of the relevant policies and statutory provisions are set out in the Panel Report.[30]In section 9 the planning officer identifies the main issues. The first such issue is the Principle of Development and Retail Policy. This is considered in detail in Section 10 of the Report.[31]Paragraph 10.7 has been the subject of criticism by Mr Crean QC. The relevant part reads: … Policy S9 indicates that smaller retail proposals out of centre will not normally be permitted unless 5 conditions are met. Criterion i) requires a sequential approach. There are currently vacant units within Bramley Town Centre that could accommodate an additional pharmacy and based on this information it is clear the application would fail a sequential test and so the applicant has not been asked to undertake the exercise... Overall it is considered that the proposal satisfies all but criterion i) of Policy S9. However it can also be argued that because of the close functional relationship between the surgery and a 100 hour pharmacy in terms of providing integrated local healthcare facilities, that the pharmacy could not be adequately located in the S2 centre given the need to be integrated with the surgery. It is now common practice fo0r larger surgeries to have a pharmacy as part of the same building offering a service to patients. In these circumstances the sequential test is not failed"[32]Mr Crean QC referred to the speaking notes of the officer who made the presentation to the Panel. Those notes follow closely the wording in the Panel Report. However the last sentence in paragraph 10.7 is crossed out. There is no evidence as to precisely what the officer said at the meeting.[33]There is a further reference to the sequential test in paragraph 10.10 where the following appears: It should be remembered that in this case the additional pharmacy is part of a much larger package of improvements to the surgery … The pharmacy is an integral part of the proposals and part of the submission sets out the needs and benefits which will be met if the extension goes ahead. Taken on its own the pharmacy would clearly fail the sequential element of the policy but it is considered in this case the particular circumstances should be recognised.[34]Paragraph 10.11 refers to the NPPF and the presumption in favour of sustainable development. It concludes: Overall it is considered on balance that the development in principle should still be supported as it is sustainable development which will not lead to an adverse impact on the adjoining local centre and will bring substantial benefits to local people through improved facilities on the site close to the town centre. Due to the close functional relationship between the extended hours pharmacy and the surgery it can be argued that policy S9 is not breached and even if strictly criterion i) is not met there are other weightier material considerations which outweigh this technical breach of policy in terms of improved health facilities for local people.[35]Paragraph 11 contains the planning officer’s conclusions. They include: “… The proposal has therefore being considered in accord with Section 38(6) Planning and Compensation Act 2004 in that the application must be determined in accordance with the plan unless material considerations indicate otherwise. On balance it is questionable whether policy S9 is breached and the sequential test is failed but even if it is that needs to be weighed against the other material considerations ….. it is not considered that the proposal will adversely affect the vitality and viability of Bramley S2 centre. Weighing these matters it is considered that the benefits to health care for the local population by allowing the surgery to extend should be accorded greater weight than any technical non compliance of the pharmacy element with policy S9 of the adopted UDP and permission is therefore recommended subject to conditions. …” 3.3 Ground 1 The Defendant failed to understand or apply s.38(6) of the Planning and Compulsory Purchase Act 2004[36]Mr Crean QC’s submissions are summarised in paragraphs 4.1.1 to 4.1.6 of his skeleton argument:[1]Section 38(6) requires the Council to be aware whether the Planning Application was in accordance with the plan or not. This is necessary to enable the decision maker to determine whether other material considerations outweigh that failure.[2]However, in the Report the officer equivocates as to the status of the Application in relation to the development plan. He refers to the passages in paragraphs 10.7 and 11.1 of the report cited above.[3]As the Panel Report is equivocal the Panel was unable to make an informed judgement as to whether they were being advised to approve the Application on the basis of compliance with the Development Plan or contrary to the Development Plan but taking into account other material considerations.[4]In any event Mr Richards has conceded that the Panel Report does not ‘expressly’ consider compliance with the Development Plan. The Council claims that the Panel was given multiple ‘routes’ to approval. In fact the Panel was given an equivocal report which was a direct route to confusion as to this fundamental test.[37]Mr Richards’s submissions are contained in paragraphs 10 – 16 of his skeleton argument. After taking me through the initial recommendation, the relevant sections of paragraphs 10 and 11 of the Panel Report he submitted the recommendation is clear that:[1]The application is not in accordance with criterion i) of UDP policy S9; it was otherwise compliant with development plan policy; but this policy breach is outweighed by other considerations which are then set out: 1) The broader package of improvements being brought forward on the site 2) As a whole the package was ‘sustainable development’ 3) The enhanced range of health facilities that would be on offer to local people 4) There would be no adverse effect on the vitality and viability of the local District Centre.[2]It is clear reading the Permission and the PR together is that the Panel concluded 1) UDP policies S2 and S9 were the key policies under consideration. 2) The requirements of these policies, save criterion i of S9, were satisfied. 3) The failure to satisfy S9(i) in this case was not significant. 4) The benefits to local people outweighed any non-compliance with S9(i).[3]As the Panel followed the recommendation of the Panel Report the reasons for departing from policy S9 appear clearly in the report and the summary of reasons given in the decision is adequate. Conclusion[38]I prefer the submissions of Mr Richards. I remind myself of the principles of law relating to the reading of the Panel Report. To my mind the report made it clear in the initial recommendation, and in paragraphs 10.7, 10.10 and 10.11 that it was the planning officer’s view that policy S9 was breached because criterion i) was not met. It is true that he recognised that there was an argument (set out in paragraph 10.7 and repeated in paragraph 10.11) that policy S9 was not breached. However that was presented as an argument. In my view a fair reading of the report as a whole shows that it was not the planning officer’s view. His view, as expressed in the Panel Report was that there was a breach.[39]Even if I am wrong about this I do not accept Mr Crean QC’s submission that in order to comply with section 38(6) the Council has to decide whether there is in fact a breach of Policy S9 and/or the sequential test. I do not, for my part, see anything wrong with a twofold approach:[1]If there is no breach of the sequential test there is no obstacle to the granting of permission.[2]If there is a breach then there are other material considerations which outweigh the breach and justify the granting of permission.[40]Mr Crean QC sought to rely on paragraph 22 of the judgment of Hickinbottom J in R (Zurich Assurance) v North Lincs Council [2012] EWHC 3708. In that paragraph Hickinbottom J pointed out that the question of whether the applicant had demonstrated compliance with the sequential approach was logically binary. It was capable of on only one of two answers.[41]Hickinbottom J’s logic depends on his analysis of the burden of proof. Some cases will obviously be black or white. The test is either demonstrated or not. Other cases may be more grey. There may be a doubt as to whether the sequential test is demonstrated or not. In such a case Hickinbottom J’s logic is correct if it can be said that the applicant has not demonstrated compliance with the sequential test.[42]However in a case such as this where the planning officer’s view is that the sequential test has not been met but he recognises an argument to the contrary I see nothing wrong with the approach taken in this case.[43]I also do not agree that the concession made by Mr Richards makes any significant difference. In my view the planning officer has treated the breach of policy S9 as if it were a breach of the development plan as a whole. It is for that reason he has gone onto consider whether there were other material considerations which outweighed that breach. I reject ground 1 3.4. Ground 2 The Defendant failed in misapplying UDP policy S9: the Application was in conflict with policy S9 which the Report failed to bring to the attention of the Defendant’s Panel[44]I can deal with ground 2 quite shortly. At one time Mr Crean QC sought to argue that there was a breach of criterion iv) as well as criterion i). That assertion was abandoned by Mr Crean QC.[45]The allegations in relation to criterion i) have been fully canvassed and dealt with in relation to the discussion on Ground 1. In my view the Panel were told that the Application was in conflict with S9. I reject ground 2 3.5. Grounds 3 and 4 The Defendant took account of an immaterial consideration when granting permission on the false premise that the Interested Party was required to have the pharmacy component of the Application co-located with the Surgery The Defendant took account of an immaterial consideration when granting permission on the false premise that the Interested Party required the pharmacy component of the Application co-located with the Surgery in order to fund improvements to the Surgery[46]It is convenient to deal with these two grounds together. It will be seen that it is alleged that the Panel was informed that Manor Park Surgery needed to have the pharmacy co-located with the surgery in order to fund the improvements to the surgery.[47]The matter is dealt with in paragraph 10.3 and 10.4 of the Panel Report which contains the following: 10.3. "Concerns were initially raised regarding the proposed additional pharmacy unit, since this would be in addition to an established pharmacy operated by Lloyds and due to its extended operating hours and arrangement could become an independent A1 unit in an out-of-centre location. Additional information was therefore sought from the surgery regarding the need for a second pharmacy on the site. 10.4. The applicant responded explaining that the extended operating hours and additional services (i.e. consultations and advice) were requirements of the Primary Care Trust. In addition the expansion of the surgery would in part be funded by leasing the pharmacy to an outside operator. The existing Lloyds Pharmacy had been approached with a view to fulfilling this role, occupying the proposed new pharmacy and providing these enhanced services/extended opening hours, but an agreement has not been reached to do so. … The provision of a ‘100 hour’ pharmacy within the locality would benefit working patients and those reliant on public transport, whilst the need for integration between the GP surgery and pharmacy rendered alternative in-centre options impracticable"[48]It is Lloyds’s case that there was no material before the Panel to substantiate the need to have the pharmacy co-located with the surgery or to co-locate in order to fund the improvements.[49]On 20 September 2013 Lloyds’ solicitors wrote to the Council inviting it to agree that there was no such material or to provide such evidence. On 23 September 2013 the Council replied. In summary it did not accept the proposition and sought to rely on the Summary Grounds of Defence and the email from Manor Park Surgery referred to above.[50]In paragraph 4.3.4 of his skeleton argument Mr Crean QC suggests that the Panel Report implies that there is an operational healthcare need in the locality for a ‘100-hour’ pharmacy which the PCT requires to be serviced. He submits that this is false and puts the chain of causation relating to the Application out of order.[51]I do not accept that submission. As Mr Richards points out the Panel Report referred to the benefit to working patients and those reliant on public transport to justify the extended hours.[52]I think a fair reading of paragraphs 10.3 and 10.4 is that the need for integration was to assist in the funding of the expansion. To my mind this is not misleading. Furthermore I think the Council was entitled to rely on the evidence in the email. It was not an error of law not to require corroborative evidence.[53]Even if I am wrong in my interpretation I do not think that the effect of paragraphs 10.3 and 10.4 was such as to mislead the Panel significantly about material matters.[54]I reject Grounds 3 and 4. 4. Grounds 5 – 8 GROUND 5: The Defendant took account of an immaterial consideration when giving weight to an ineffectual, and therefore irrelevant, condition. Specifically Condition 9 to the Permission which seeks but fails to limit the pharmacy use to an ancillary use to the Surgery GROUND 6: The Defendant Council took account of an immaterial consideration when giving weight to a planning condition which unlawfully sought to nullify the benefit of planning permission (Condition 9) GROUND 7: The Defendant took account of an immaterial consideration when giving weight to an unenforceable condition (Condition 9). GROUND 8: The Defendant took account of an immaterial consideration when giving weight to an ineffectual, and therefore irrelevant, condition. Specifically Condition 9 to the Permission which seeks but fails to limit the pharmacy use to only medical and healthcare products excluding other A1 retail.[55]As can be seen all four grounds relate to Condition 9. It is challenged on 4 grounds:(a) it fails to limit the pharmacy use to an ancillary use to the Surgery,(b) it seeks to nullify the effect of the planning permission(c) it is unenforceable and(d) it seeks but fails to limit the pharmacy use to only medical and healthcare products excluding other A1 retail. The law[56]In the course of his submissions Mr Crean QC helpfully referred me to the judgment in R (Royal London Insurance) v Sec of State [2013] EWHC 3597. In that case Patterson J cited as uncontroversial the summary of the law contained in paragraph 33 of the judgment of Beatson LJ in Telford and Wrekin Council v Secretary of State for Communities and Local Government and Growing Enterprises Ltd [2013] EWHC 79: "33. Although the submissions focused on the Sevenoaks and Hulme cases, a number of other authorities were put before me, including some that were not considered in Hulme's case, and which Mr Lockhart-Mummery said he had been informed by counsel in that case had not been cited to the court. I first summarise my understanding of the effect of the authorities put before me on the construction of a planning permission (and of the conditions in it): -(1) As a general rule a planning permission is to be construed within the four corners of the consent itself, i.e. including the conditions in it and the express reasons for those conditions, unless another document is incorporated by reference or it is necessary to resolve an ambiguity in the permission or condition: R v Ashford DC, ex p Shepway DC [1998] PLCR 12 at 19 (Keene J); Carter Commercial Developments v Secretary of State [2002] EWCA Civ. 1994 at [13] and [27] (Buxton and Arden LJJ);Sevenoaks DC v First Secretary of State[2004] EWHC 771 (Admin) at [24] and [38](Sullivan J); R (Bleaklow Industries) v Secretary of State for Communities and Local Government [2009] EWCA Civ. 206 at [27] (Keene LJ); R (Midcounties Co-operative Limited) v Wyre Forest DC[2010] EWCA Civ. 841 at [10] (Laws LJ).(2) The reason for the strict approach to the use of extrinsic material is that a planning permission is a public document which runs with the land. Save where it is clear on its face that it does not purport to be complete and self-contained, it should be capable of being relied on by later landowners and members of the public reading it who may not have access to extrinsic material: Slough Estates v Slough Borough Council [1971] AC 958 at 962 (Lord Reid); Carter Commercial Developments v Secretary of State at [28] (Arden LJ); R (Bleaklow Industries) v Secretary of State for Communities and Local Government [2009] EWCA Civ. 206 at [27] (Keene LJ); Barnet v Secretary of State[2009] EWCA Civ 476 at [16] - [21] (Keene LJ, approving Sullivan J at first instance); R (Midcounties Co-operative Limited) v Wyre Forest DC [2010] EWCA Civ. 841 at [10] (Laws LJ).(3) It follows from (2) that in construing a planning permission: -a. A. The question is not what the parties intended but what a reasonable reader would understand was permitted by the local planning authority, andb. B. Conditions must be clearly and expressly imposed, so that they are plain for all to read. As well as the cases cited at (2), see Sevenoaks DC v First Secretary of State [2004] EWHC 771 (Admin) at [38] and [45] (Sullivan J).(4) Conditions should be interpreted benevolently and not narrowly or strictly (SeeCarter Commercial Development Ltd v Secretary of State for the Environment[2002] EWHC 1200 (Admin) at [49], per Sullivan J) and given a common-sense meaning: see Northampton BC v First Secretary of State [2005] EWHC 168 (Admin) at [22](Sullivan J).(5) A condition will be void for uncertainty only 'if it can be given no meaning or no sensible or ascertainable meaning, and not merely because it is ambiguous or leads to absurd results': Fawcett Properties v Buckingham County Council [1961] AC 636, 678 per Lord Denning. In Hulme's case Elias LJ stated this was an application of the benevolent construction principle.(6) If there is ambiguity in a condition it has to be resolved in a common sense way, having regard to the underlying planning purpose for it as evidenced by the reasons given for its imposition: Sevenoaks DC v First Secretary of State[2004] EWHC 771 (Admin) per Sullivan J at [38] accepting the submission at [34].(7) There is no room for an implied condition in a planning permission. This principle was enunciated in Trustees of Walton on Thames Charities v Walton and Weighbridge District Council(1970) 21 P & C R 411 at 497 (Widgery LJ), in the following terms: 'I have never heard of an implied condition in a planning permission and I believe no such creature exists. Planning permission enures for the benefit of the land. It is not simply a matter of contract between the parties. There is no place, in my judgment, within the law relating to planning permission for an implied condition. Conditions should be express, they should be clear, they should be in the document containing the permission.'. This principle also precludes implying an obligation by way of an addition to an existing condition: Sevenoaks DC v First Secretary of State [2004] EWHC 771 (Admin) at [45] (Sullivan J).(8) Where planning permission containing conditions has been granted in a decision by an Inspector allowing an appeal, and a condition is ambiguous, it is possible to construe it in the context of the decision letter as a whole: Hulme case at [13(a)]. Doing this does not involve impermissible 'implication' from an extrinsic source, but is best described as a question of 'construction': Hulme's case at [37]. In Hulme's case, Elias LJ stated at (at [37]) that even 'if it can be described as an implied condition it is very different in nature from that envisaged in the Trustees of Waltoncase.'[57]I was also referred to the decision of the House of Lords in Kent County Council v Kingsway Investments [1971] A C 72 as authority for the proposition that an unlawful condition can be severed unless it goes to the root of the permission.[58]In his skeleton argument Mr Crean QC referred me to paragraphs 14, 26 and 27 of Circular 11/95 and to paragraph 206 of the NPPF which provides: "Planning conditions should only be imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects".[59]Mr Richards also referred me to paragraphs 98 and 99 of Circular 11/95 which makes express reference to the use of planning permissions for ancillary purposes. He particularly drew my attention to Model condition 47:
“47. The extension (building) hereby permitted shall not be occupied at any time other than for purposes ancillary to the residential use of the dwelling known as [ ] (paragraphs 98-99).”
[60]Mr Crean QC challenged condition 9 on a number of grounds in his skeleton argument. In paragraphs 4.5.5 and 4.5.7 he suggested that conditions 3 and 9 are contradictory because of the difference in the opening hours for the surgery and the pharmacy. He submitted that the “100 hour pharmacy” cannot be ancillary to the 55 hour surgery. In paragraph 4.6.5 he suggested the condition was unlawful because the application was not for an ancillary use. He repeats the assertion that the 100 hour pharmacy cannot be ancillary to the 55 hour surgery. In paragraph 4.7.4 he submits that condition 9 is vague and unenforceable. He puts the matter thus: Condition 9 is vaguely drafted to require that the proposed pharmacy operate as an ancillary and complementary use. The monitoring and enforcement of such a condition would be impracticable. The terms are so vague and uncertain in their meaning that the ability to determine whether the pharmacy use has breached the condition is impossible to determine. Further, the monitoring and enforcement of the condition would be impracticable when a breach of condition 9 could and would lawfully fall within the terms of condition 3 (…). In this case Condition 9 is applied for the protection of national and local retail policy and as such it is unlikely that the Defendant Council in enforcing the control would have the benefit of local intelligence.[61]In paragraph 4.8.4 he submits that the condition is ineffective in restricting the sale of A1 retail sales which are not medical and healthcare products.[62]In approaching these submissions I bear in mind the legal principles set out above. Conditions are to be construed benevolently and given a common sense meaning. To my mind there is no inconsistency between Condition 3 and Condition 9. A patient of the surgery might wish to pick up his medical or health care products at a time when the surgery itself is closed. That would be the use of the pharmacy as ancillary to the surgery. Equally I do not accept that as a matter of construction Condition 9 should be interpreted as permitting the sale of any A1 retail goods.[63]The use of the pharmacy has to be “ancillary and complementary to the use of the premises as a surgery”. Thus there cannot be the sale of any product that does not meet this proviso. Complementary is defined as “combining in such a way as to enhance or emphasize the qualities of each other or another”. Ancillary is defined as “Subservient, subordinate, ministering (to)” or “Designating activities and services that provide essential support to the functioning of a central service or industry”. Thus the sales from the pharmacy must satisfy each of these conditions. To my mind this would clearly be sufficient to prevent the sale of general A1 retail goods.[64]I accept that there could be difficulties in enforcing the condition in that it would not be straightforward to police the sales from the pharmacy. However it would not be impossible. Records would be available as to prescriptions dispensed by the pharmacy and the identity of the patients. Equally there would be records of other goods sold by the pharmacy. Furthermore intelligence might well be available from rival retailers.[65]In all the circumstances I do not consider any of the above matters render the condition unlawful.[66]In the course of his oral argument and his skeleton argument Mr Crean QC made a number of other less fundamental criticisms of Condition 9. He criticised the phrases “shall operate as indicated on the approved plans” and “be fully integrated as part of the surgery”. He accepted that these were not fundamental parts of Condition 9 and that they could, if necessary, be severed from the condition.[67]It may be that these phrases could have been better drafted. However the approved plan clearly shows where the pharmacy is to be situated and that it is within the same building as the surgery. There is a single entrance for patients. After entering the patient passes the pharmacy in order to reach the reception area for the surgery.[68]Using the benevolent construction advocated in the authorities I would have little difficulty in interpreting the phrases as meaning that the pharmacy shall be constructed as indicated on the plans and be an integral part of the surgery.[69]In my view therefore Condition 9 is lawful. 5. Conclusion[70]In my view none of the challenges to the grant of planning permission succeeds. I would dismiss this application for judicial review.