An example of a condition intended to render a planning permission personal failing the Newbury test for legal validity

The House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578, having pointed out that the statutory power of a local planning authority (“LPA”) to impose conditions on the grant of planning permission is not unlimited, went on to set out the following test for the legal validity of a planning condition. To be lawful, it must (1) be imposed for a planning purpose and not for an ulterior one, (2) fairly and reasonably relate to the development permitted, ……and (3) not be so unreasonable that no reasonable authority could have imposed it. In R (on the application of Sienkiewicz) v South Somerset District Council [2013] EWHC 4090 (Admin) the claimant sought to quash the grant of planning permission by the LPA to a company named Probiotics International Ltd for the erection of a building for B1, B2 and B8 uses. The LPA imposed, inter alia, the following condition: “The building hereby permitted shall only be carried out by Probiotics International Ltd (or any successor company) during its occupation of the land subject to this permission.” The reason stated for the condition was: “The [LPA] wishes to control the uses on this site to accord with the NPPF.” The claimant’s principal ground was that the condition was invalid, in that it did not meet the Newbury tests. She also contended that it was so ambiguous, in terms of the use of the phrase “or any successor company”, as to be unenforceable. While being prepared to accept, as a matter of construction, that the condition was concerned with the use to be made of the building, rather than its erection, the court allowed the claim and quashed the grant of planning permission. (All parties had agreed that the condition was not capable of being severed.) The court concluded that the condition had not been imposed for a planning purpose. As worded, the condition would not enable the LPA to control the use of the land. It simply sought to control the identity of the person carrying on the permitted use. Similarly, no planning reason had been put forward to explain why an unconnected company should not be allowed to use the building and land. It went on to hold further that the condition could not be said fairly and reasonably to relate to the development permitted, and that it was also irrational. John Martin