Pemberton International Ltd v Lambeth London Borough Council

Change of use – Scheme of delegation – Material consideration – Claimant applying for judicial review of decision to vary condition attached to planning permission – Whether principal planning officer making decision in breach of scheme of delegation – Whether defendants failing to have regard to “in principle” objection to outdoor seating – Whether defendants failing to have regard to complaints about breaches of conditions during temporary planning permission – Application granted The defendant local authority granted planning permission for a material change of use of business premises which were part of a development in Old Town, Clapham, London, to use as a restaurant and café and varied a condition attached to a previous planning permission which also permitted that change of use. The condition originally provided that there was to be no outdoor seating for the premises without the prior written permission of the defendants. The new permission was subject to a condition which permitted outdoor seating, within a specified area, limited to 30 covers and operating only between 9 am and 8 pm. The claimant applied for judicial of the grant of permanent planning permission subject to that condition. It contended that: (i) the decision had been taken in breach of the defendants’ scheme of delegation which was ultra vires; (ii) there had been a failure to have regard to a material consideration, i.e. a previous in principle objection to outdoor seating; (iii) there had been a failure to have regard to complaints about breaches of conditions made during the period of an earlier, temporary planning permission for the change of use. Held: The application was granted.(1) Section 101 of the Local Government Act 1972 permitted a local authority to make arrangements for the discharge of their functions by arranging for the function to be exercised by a committee, a sub-committee or an officer. It was clear from section 101(2) that where a committee or sub-committee was authorised to discharge a function, it might itself decide to arrange for the exercise of the function by an officer. If, however, the local authority had arranged for a function to be exercised by a particular officer or officers, section 101 did not itself permit those officers to sub-delegate the carrying out of the function to other officers. Alternatively, there were occasions when either there was no express power to authorise a particular officer to exercise particular functions, or where the power to exercise such functions had not, in fact, been delegated to a particular officer. Depending on the nature of the function in question, one officer might be regarded as having authority to act on behalf of another officer who was authorised to exercise the function: Provident Mutual Life Assurance v Derby City Council [1981] 1 WLR 173 considered. The scheme of delegation in the present case, properly construed, was one which itself authorised officers such as principal planning officers, to exercise certain functions and did not violate the provision of section 101. So long as the scheme as a whole either identified the officers, or set out the process by which the officers authorised to exercise certain functions could be identified, the scheme would be compatible with section 101. Reading the scheme as a whole, the intention was that a certain group of officers was authorised to exercise planning functions. Here, the principal planning officer was one of the officers authorised by the scheme of delegation to act. As such, she was authorised by the scheme of delegation to take the decision in issue: Cheshire County Council v Secretary of State for the Environment [1988] JPL 30 and R (on the application of Blow up Media UK Ltd) v Lambeth London Borough Council [2008] EWHC 1912 (Admin); [2008] PLSCS 195 considered. Section 73 of the Town and Country planning Act 1990 provided a mechanism for applying for permission to develop land without having to comply with conditions previously attached to a planning permission. The form in which that application was resolved was by the grant of a planning permission with the different conditions attached. In the circumstances of the present case, there was nothing unlawful or unreasonable in the principal planning officer, as the relevant officer, concluding that the matter should be dealt by an officer and not did not need to be referred to the planning applications committee. (2) An individual might apply for planning permission without complying with conditions attached to a previous planning permission and the authority had power to grant such an application under section 73 of the 1990 Act. In the present case, the officer had been entitled to conclude that this application was sufficiently different from earlier applications to justify the grant of a temporary planning permission to enable the impact on residential amenity to be assessed. That was essentially a matter of planning judgment for the defendants: North Wiltshire District Council v Secretary of State for the Environment (1992) 65 P & CR 137 and R (on the application of Fox Strategic Land and Property Ltd) v Secretary of State of State for Communities and Local Government [2012] EWCA Civ 1198 considered. (3) However, in considering the application for permanent planning permission, the defendants’ decision-making process had been flawed as the officer concerned failed to have regard to a material planning consideration, namely the complaints about breaches of the condition relating to external seating made during the currency of the temporary permission which formed part of the planning history of the site. The planning officers had indicated when dealing with an earlier application to vary the condition that there were concerns about the enforceability of conditions relating to external seating and the possibility of controlling the number of customers using the seating area. At that stage, the principal concern was the potential increase in the number of customers using the space. Here, the concerns were about the fact that seating was placed outside the permitted area with more than 30 covers. Both those factors were potentially relevant to the ability to control any impact on residential amenity by enforceable conditions. Further, the permission had initially been granted for a temporary period of 12 months so that the defendants could monitor the effect of the development on residential amenity and make a well-informed decision given the level of complaints received throughout the trial period. The system was intended to ensure that there would be an automatic cross-reference to an enforcement case which would prompt the officer to contact the planning enforcement team: Simplex GE (Holdings) Ltd v Secretary of State for the Environment [1988] 3 PLR 28 and Bolton Metropolitan Borough Council v Secretary of State for the Environment (1990) 61 P & CR 343 considered. Richard Wald (instructed by Gunnercooke LLP) appeared for the claimant; Matthew Reed (instructed by Lambeth London Borough Council) appeared for the defendants. Eileen O’Grady, barrister