The test for discharging a planning condition

A local authority recently defeated a judicial review challenge in the High Court in relation to discharging planning conditions. Piers Riley-Smith explains how.

In Cathie, R (On the Application Of) v Cheshire West and Chester Borough Council [2022] EWHC 2148 (Admin) Cheshire West and Chester Brough Council had been judicially reviewed by a local resident (‘the claimant’) who lived adjacent to a farm. The farm had obtained retrospective planning permission for a reception pit for slurry. The permission required an Odour Management Plan (‘OMP’) be submitted and approved by the council. The council had approved the OMP and discharged the condition. This was the decision which was subject to challenge.

The central element in dispute was the fact that the OMP did not include an absolute prevention of emptying the pit in certain weathers. It only committed the farmer to endeavouring not to do so if practicable.

The claimant argued under Ground 1 that the council had applied the wrong test in discharging the condition. The appropriate test should have been for the council to consider if the OMP was “the best means” for protecting amenity with reliance placed on Proberun Ltd v Secretary of State for Environment and Medina Borough Council (1991) 61 P & CR 77. The claimant also argued that the council had been wrong to consider the financial/practical circumstances of the farmer when considering the necessary requirements of the OMP (Ground 2) and had acted irrationally (Ground 3).

The council argued that the Proberun was not appropriate as it came from a case concerning an outline planning permission. The proper approach was a question of planning judgment for the local authority as to whether they could be satisfied that the OMP met the terms and purpose of the condition. As part of that process – given the policy requirement when imposing conditions for them to be reasonable – the council could consider the practical and financial effects of a requirement so as not to place an unreasonable burden on the farmer.

HHJ Bird sitting in the High Court dismissed the claim on all three grounds.

There are two points of wider relevance that arise from the case – both relating to the discharge of planning conditions, which is an area the High Court has previously given little direct guidance on.

The first point is confirmation that the appropriate test for discharging a condition is whether the application is “satisfactory” (per [65]) which does not mean “ideal”:

I am satisfied that the test for discharge in the present case is whether the OMP proposed a “satisfactory” solution to the impact of the farming operations on residential amenity at the House. It is plain that a satisfactory solution does not need to be an ideal solution.

The second is that the requirements of a condition “cannot be read in a way that imposes unreasonable requirements on the interested parties.” (per [59]).

Both points will be of use to local authorities wanting guidance on the correct approach, and developers who have the protection that a local authority cannot frustrate a permission at the condition stage through the imposition of unreasonable requirements.

Piers Riley-Smith is a barrister at Kings Chambers. He was instructed by Chrisa Tsompani and Victoria Roberts at Cheshire West and Chester Borough Council.