Conditions can only be imposed if found to be necessary

Gregory Jones KC analyses a recent case involving the application of the Blue Pencil Rule on a consent order.

Willoughby (610) Limited v Secretary of State for Levelling Up Housing and Communities and Harborough District Council and Willoughby (608) Limited and Bybrook Finance Solutions Ltd [2023] EWHC 2553 (Admin).

Mr Griffin LLB, an Inspector appointed by the Secretary of State for Levelling Up, Housing and Communities (Secretary of State) issued a decision letter on 15 May 2023 which authorised development for the purposes of a conjoined appeal against: the non-determination of planning application 20/01884/FUL (APP/F2415/W/21/3272912 (Appeal B); and an appeal against an enforcement notice that had required its demolition (APP/F2415/C/21/3276444) (Appeal A).

The decision letter made the retention of the permitted development under both appeals conditional on the laying out of a car parking area (the Car Park) shown on Plan No L316-BRP-00-00-DR-A- 0402-P06 (the Drawing) failing which the development must be demolished in its entirety. A planning condition was imposed on each grant of planning permission pursuant to Appeal A (namely condition 1 a) (i)) and Appeal B (namely condition 2 a) (i)) respectively.

The Claimant challenged the decision. It was refused permission at first instance but granted permission following a contested oral hearing on 13 October 2023 before Karen Ridge, Deputy High Court Judge.  

Following the grant of permission, the Secretary of State consented to judgment. The Secretary of State accepted that the Inspector wrongly imposed a condition in relation to the provision of a Car Park in both Appeal A and Appeal B. The Inspector had made findings of fact and planning judgment including a finding that the Inspector was not satisfied that the proposed development would “generate a significant increase in parking demand or trip generation”. The Secretary of State acknowledged the Claimant's central argument that the imposition of such a condition was irreconcilable with such a finding. The Defendant accepted that the said condition, may in respect of each such planning permission, be excised such that the planning permission shall in each case remain extant and all the other planning conditions thereof shall remain enforceable accordingly. The Secretary of State accepted that the Claimant may, in the Claimant’s discretion, elect to rely upon the planning permission granted pursuant to Appeal A or the planning permission granted pursuant to Appeal B subject to the quashing and excision of the said conditions accordingly. The Secretary of State agreed to an order dated 30 January 2024 allowing the permission to remain in force but quashing the condition.

Gregory Jones KC is a barrister at Francis Taylor Building. Instructed by Robert Waite of Gateley, he acted for Willougby (610) Limited.