Legal & General Assurance Society Ltd, R (on the application of) v Rushmoor Borough Council Pillar (Farnborough) Ltd

This claim seeks to quash two planning permissions granted by the defendant to the interested party on 14 January 2004 and 26 January 2004 respectively. In addition, the claimants seek to quash a deed of agreement pursuant to s.106 of the Town and Country Planning Act 1990 dated 19 January 2004 which was conditional upon the grant and implementation of the second planning permission.

The permissions relate to a site in Farnborough in Hampshire on which was a substantial building which had been used by B &Q Plc, as a retail warehouse. The interested party (Pillar) had acquired the site and wished to divide the existing building to comprise six separate units, each to be a retail warehouse, and to build three further units on what had been a gardening centre. The first permission covered the works needed for the division of the existing building and the second the erection of the three new units.

I was informed at the hearing on 25 June 2004 that Pillar had already carried out most of the works for which permission had been granted and expedition was essential. Shortly after I had reserved judgment, it came to the notice of the parties that a case had just been decided by the Court of Appeal which was likely to assist on one of the issues before me. I was therefore asked not to give judgment until the Court of Appeal’s decision was available and the parties had had an opportunity to make submissions in writing upon it. Unfortunately, the transcript of the decision was not made available until 27 July. Due to holidays, it was not until mid August that the various submissions were lodged and so there has been a regrettable delay in giving this judgment.

Until the 1980s the site had been occupied by a British Telecom Engineering Centre. In December 1988 outline permission was granted for the erection of a durable goods retail outlet. The application, which was made in early 1987, was for 5,000 square metres of retail warehousing to be in a single storey building. The council’s view was that there must be a limitation to avoid any food sales and the applicants were willing to enter into an agreement restricting the ‘type of use of the site to that which is agreed with the Local Planning Authority’. The council granted outline permission ‘for 5000 sq. metres durable goods retail outlet … in accordance with your application … and the plans and particulars submitted …’ A number of conditions were attached. Condition 18 limited the ‘building hereby permitted’ to ‘a total of 5000 sq. metres in gross floorspace’. Condition 19 restricted the use covered by the permission to ‘that of a retail warehouse for the sale, storage and distribution of bulky durable goods only and not in any event for the sale, storage or distribution of food’. An agreement had been made on 17 October 1988 between the Council and British Telecom under provisions now contained in s.106 of the 1990 Act whereby British Telecom covenanted in a form which bound its successors in title ‘that any buildings to be constructed on the premises or any part thereof shall be used solely as a retail warehouse for the sale, storage and distribution of bulky durable goods …’

Detailed planning permission was granted to B&Q Plc on 10 February 1992. In July 1992 B&Q requested a relaxation of the agreement of 17 October 1988. The limitation of use in that agreement had included not only food but also building materials. It was only the limitation in respect of building materials that concerned B&Q. The officer’s report noted that the purpose behind the restrictive clause had been to prevent the inappropriate use of the site as a builders’ merchant but it had not been intended to preclude a DIY outlet from selling the full range of its products. In recommending approval, the officer commented that adequate safeguards should be imposed to cover the eventuality of B&Q ever vacating the premises. He noted: -

“However, there is some potential for concern in the unlikely event that B&Q should ever vacate the site. In this respect B&Q have suggested that the wording of the agreement be amended to accommodate the eventuality and indeed, have put forward a suggested wording which they believe would still preserve the Council’s objectives but would also allow them to provide their full range of goods. Therefore it is considered that subject to the details of the appropriate rewording being agreed, not only would the Council’s concerns be addressed but the Council’s position would not be prejudiced in the future”.

This led to a Planning Obligation between the Council and B&Q dated 20 May 1993 pursuant to s.106 of the 1990 Act which rescinded and revoked the agreement of 17 October 1988. So far as material, it provided as follows: -

“The Premises shall be used solely as a retail warehouse for the site storage and distribution of durable goods …”

The Premises were defined in the Schedule to the Obligation to mean: -

“All that piece of land adjoining the Sulzer Roundabout and Solartron Road at Westmead in Farnborough in the County of Hampshire which said piece of land is for the purpose of identification only delineated and edged red on the plan annexed hereto”

In 1995/6 the building was extended so that the gross external floor area was increased to 7,208 sq. metres. In addition, the garden centre and compound for bulky materials, which was uncovered, had an area of 2,295 sq. metres.

B&Q moved to new premises in May 2003. In July, the two applications, permission for which has resulted in this claim, were lodged. The first was for partial demolition of the existing building and reconstruction to produce six separate self-contained retail units, the total floorspace of which would amount to 6,070 sq. metres and so 1,130 sq. metres less than that which existed. The applicants claimed that the restriction to durable goods only covered the original building before it was extended in 1995/6 and so the two units (which were numbered 5 & 6) to be created in what had been the extension would not need to be limited to durable goods. The second application was to construct 3 units on what had been the garden centre and compound. Some highway improvements and a reconfiguration of the existing car parking were proposed. The total floorspace would amount to 2,495 sq. metres, an increase of 200 sq, metres over the existing uncovered area. The two applications taken together would reduce the existing area in respect of which trading could take place by some 1,000 sq. metres.

In addition to their claim that the restriction to durable goods only extended to the original 1992 building, the applicants contended that they were entitled to subdivide the building to create a number of separate units and also to insert a mezzanine floor which would extend the floorspace. Internal works would not require planning permission: external works and any reconstruction of course would. Accordingly they offered the Council a Section 106 agreement which would limit the use of the new retail units and the extent of floorspace permitted for trading purposes. Mezzanine floorspace would be limited overall to 3,000 sq. metres, a durable goods restriction would be accepted and no further subdivision would take place which reduced any individual unit to an area of less than 545 sq. metres. It was said that such an agreement would be ‘the only mechanism that could apply these controls across the retail units of both the applications’.

The officer’s reports to the defendant’s development control committee recommended approval of both applications, in the case of the second subject to a satisfactory section 106 agreement. The applicants were naturally using what they said they could in any event do without the need for planning permission as a bargaining factor to enable them to develop the whole site. While it may very well be that they would in any event have obtained permission, what they could in any event do was likely to affect the conditions that the council might otherwise want to impose. The council might have negotiated for additional benefits, such as highway improvements which were not regarded as necessary but would be desirable or for additional limitations, for example on floorspace or the extent of any subdivisions, if the applicants’ contentions were wrong.

The report on the first application (that relating to the subdivision of the existing building) noted that there was no condition preventing subdivision in the original planning permission and no bar to the installation of mezzanine flooring. The permission in 1996 which allowed the extension imposed no condition to limit the use in the extension or to prevent it being occupied as a separate self-contained unit. Under the heading ‘Main determining Issues’ the officer said this: -

“The purpose of the proposals the subject of this report is to establish the applicant’s ‘fallback’ position without changing the use or the extent of planning controls relating to the site as the basis for the Council then proceeding to consider the second application ref.03/00511/FUL (Application 2) which follows. To this end, the works that require planning permission are for only relatively modest development to enable the fall-back position, representing what the applicant is already entitled to do without planning permission, to be implemented.

The proposals relate to existing vacant and unused retail floorspace on the edge of Farnborough town centre. The proposals do not propose any additional retail floorspace and relate solely to the proposed alterations to the existing building, provision of the enlarged rear service area and the relocation of disabled parking spaces. As such, there is no issue in respect of retail impact as set out in the guidance in PPG6 and the Council’s shopping policies to consider. With the sole exception of the proposed external alterations to the building to provide new entrances etc, the actual subdivision of the existing building into separate self-contained retail units does not require planning permission. There is no existing restriction on the installation of mezzanine floorspace throughout the existing building. Proposed Units 1-4 would remain subject to an existing planning condition (Condition No. 19 of planning permission ref.RSH04989/1) and a legal agreement restricting the sale of durable bulky goods. However proposed Units 5 and 6 are not subject to this condition and can, as such, be used for unrestricted retail purposes without the need for planning permission.

In these circumstances, the main determining issues in respect of this application are therefore the visual impact of the proposals, highway considerations (in respect of the rear service area and the minor consequential alterations to the parking layout), impact on nearby residential property, and facilities for people with disabilities”.

After discussing the various issues, the officer concluded: -

“The proposals relate to existing vacant and unused retail floorspace on the edge of Farnborough town centre and result in a net reduction in retail floorspace. Planning permission is not required for the sub-division of the altered building into separate self-contained retail units. Proposed Units 1-4 would remain subject to an existing planning condition (Condition No.19 of planning permission ref. RSH04989/1) and a legal agreement restricting them to the sale of durable bulky goods. However proposed Units 5 and 6 are not subject to this condition and can, as such, be used for unrestricted retail purpose without the need for planning permission. In terms of those matters that require planning permission the subject of the application, the proposals are considered acceptable in visual terms, to give rise to no highways objections, to have no material adverse impact on the amenities of nearby residents and to provide acceptable facilities for people with disabilities”.

The report on the second application is in similar terms. It is said that the restrictions offered by way of a Section 106 agreement were ‘the only mechanism that could apply these controls across the retail units of both the Application 1 and 2 schemes’. In his commentary, the officer says: -

“This is not a new retail site on the edge of Farnborough town centre and it is an important material consideration to take into account both the existing singular retail use of the overall site and the limited extent of the planning controls that apply to this existing use. When this is done the proposals, which merely seek to subdivide an existing retail use to create a number of separate retail units are considered to be acceptable in principle. This is, however, subject to the proposals being found acceptable in respect of normal development control considerations, which both are set out later in this report”.

There then follows a discussion of retail issues. In the course of it, the officer says: -

“The Council’s retail consultants in this case (DJ) have advised that, on the basis of the existing limited controls on the future use of the existing site, the capacity for the proposed new retail floorspace proposed is supported by the applicants retail assessment. However, DJ are not convinced that the applicants have submitted adequate information in respect of the sequential test. This, however, must be balanced against the applicants’ existing opportunities to provide more mezzanine floorspace, to sub-divide the existing retail warehouse into smaller units and the unrestricted retail use that already exists in respect of the extension portion of the existing building – all of which currently fall outside the control of the Council. In this regard, DJ advises that the benefits proposed by the applicant via a s106 legal agreement are worth securing. DJ then proceed to advise on the controls that ought to be secured through a s106 agreement as has been proposed by the applicants. In this regard it is recommended that a modified ‘Hampshire Condition’ would be the most robust approach to limiting retail sales from the site to bulky durable goods. DJ advises that the applicant’s proposed restrictions on future mezzanine provision and the limitation on unit sub-division should also be secured”.

He concludes thus: -

“… on balance and having regard to the specific package of proposals and other qualitative benefits to the site and its surroundings put forward by the applicants, the proposals are acceptable in terms of the retail issues and, as such, there is no retail policy objection to the proposals”.

In discussing highways considerations, generation of extra traffic was an obvious concern and one raised by a number of objectors. The officer notes that the floorspace of the existing building could be substantially increased by the installation of mezzanine flooring without the need for planning permission. He states: -

“The Application 2 proposals alone would result in a relatively modest net increase of retail floorspace of only 200 sqm over the existing retail space comprising the ‘garden centre’ compound at the site. Furthermore, through the applicant’s proposal that the overall development comprising Applications 1 and 2 be restricted to having the facility for no more than 3000sqm of mezzanine floorspace, the applicants are, in effect, also proposing to forego the potential to provide a further 3070 sqm of mezzanine floorspace in the Application 1 units. The applicants ‘fall-back’ position in this regard is considered to be implementable and, as such, has to be considered a likely outcome of the Application 2 proposals not being permitted. Accordingly, this aspect of the package of proposals put forward with Application 2 is considered to be a significant concession on the part of the applicants. It would serve, if permission were granted and implemented for the Application 2 proposals with this proposed restriction, to reduce the potential traffic volumes generated by the site. Objectors have criticised the assumptions made by SW in their evidence on the grounds that they serve to minimise the contrast between the existing and proposed situations. However, in reality, it is considered that these would have little impact on the conclusions reached having regard to the scale of the potential retail floorspace being conceded by the applicants.

As a result of the above considerations, it is considered that there is no justification for the Council requiring the applicants to dual Solartron Road south-bound. Indeed, bearing in mind that the applicants are, in any event, proposing substantial dualling improvements to Solartron Road north-bound, improving pedestrian and cycle links to and from the site with the town centre an are prepared to make, at the request of the Highways development Control Co-Ordinator, an additional contribution of £200,000 towards the NEHTS, such an additional requirement is considered to be both inappropriate and unreasonable”.

After discussing other relevant planning considerations, he concludes as follows: -

“The proposals relate to the limited re-development of an existing single-user retail warehouse development on the edge of Farnborough town centre and, as such, no change of use of the site is involved in the proposed continuation of retail use. As a result of the proposals there would be only a small net increase in retail floorspace at the site and the applicants also propose that the existing potential for creation of additional retail floorspace in the form of mezzanine flooring be limited and controlled. The applicants also propose the introduction of comprehensive controls across the whole proposed retail park limiting the retail units to the sale of bulky durable goods and the sub-division of the proposed retail units into units of less than 545 sqm. Without a legal agreement none of these controls can be applied to the applicant’s Application 1 scheme (Ref.03/00502/FUL refers), which sets out a clear fall-back position for the applicant which is an important material consideration in the determination of this application. As a consequence it is considered that the retail impact of the proposals on the vitality and viability of the town centre, having regard to both qualitative and quantitative need and the sequential test as set out in PPG6, would be acceptable. The proposals are further considered acceptable in visual terms, to give rise to no highways objections, to have no material adverse impact on the amenities of nearby residents and to provide acceptable facilities for people with disabilities”.

The Council’s reasons for granting the permissions reflect, as one might expect, the officer’s approach. In the first permission, this is said: -

“The proposals relate to existing vacant and unused retail floorspace on the edge of Farnborough town centre and result in a net reduction in retail floorspace. Planning permission is not required for the sub-division of the altered building into separate self-contained retail units. Proposed Units 1-4 would remain subject to an existing planning condition (Condition No.19 of planning permission ref. RSH04989/1) restricting them to the sale of durable bulky goods. However proposed Units 5 and 6 are not subject to this condition and can, as such, be used for unrestricted retail purposes without the need for planning permission. In terms of those matters that require planning permission the subject of the application, the proposals are considered acceptable in visual terms, to give rise to no highways objections, to have no material adverse impact on the amenities of nearby residents and to provide acceptable facilities for people with disabilities”.

In the second, the following reasons are given: -

“The proposals relate to the limited re-development of an existing single-user retail warehouse development on the edge of Farnborough town centre and, as such, no change of use of the site is involved in the proposed continuation of retail use. As a result of the proposals there would be only a small net increase in retail floorspace at the site and the applicants also propose that the existing potential for creation of additional retail floorspace in the form of mezzanine flooring be limited and controlled. The applicants also propose the introduction of comprehensive controls across the whole proposed retail park limiting the retail units to the sale of bulky durable goods and the sub-division of the proposed retail units into units of less than 545 sqm. Without a legal agreement none of these controls can be applied to the applicant’s Application 1 scheme (Ref.03/00502/FUL refers), which sets out a clear fall-back position for the applicant which is an important material consideration in the determination of this application. As a consequence it is considered that the retail impact of the proposals on the vitality and viability of the town centre, having regard to both qualitative and quantitative need and the sequential test as set out in PPG6, would be acceptable. The proposals are further considered acceptable in visual terms, to give rise to no highways objections, to have no material adverse impact on the amenities of nearby residents and to provide acceptable facilities for people with disabilities”.

It is plain from both the officer’s reports and the reasons set out in the grants of permission that the existing ability to sub-divide and to introduce mezzanine flooring and the lack of any control over the nature of goods to be sold in the 1995 extension were all regarded as material considerations.

The claimants relied on three grounds in their claim. The third, which was undoubtedly a good point, was that the 2004 Obligation purported to discharge Condition 19 of the original 1988 permission and that it was not possible to do that. However, since then the council has issued a consent under s.73 of the 1990 Act and so has lawfully done what it tried to do unlawfully. The third ground has therefore fallen away and has not been pursued. The other two grounds have been pursued. The first is that the Council misconstrued the 1993 obligation and wrongly believed that the restriction in relation to durable goods extended only to the 1992 building. It in fact extended to the premises as defined in the schedule which included not only Units 5 and 6 in the extension to the original building but also the whole of one and a small part of another of the three units to be constructed pursuant to the second planning application. The second ground asserts that the 1993 obligation also limited the use of the permission to use ‘solely as a retail warehouse’. It is submitted that that means that subdivision was prohibited and that only one unit was permitted.

The Council and Pillar accept that the extent of the limitation to durable goods was misunderstood and the officer has accepted that he was wrong. Both the council and Pillar contend that the error was not one which should lead to the quashing of the permissions since the benefits resulting from the overall development with the restrictions contained in the Obligation are such as would have in any event produced the same result. Mr. White submitted that the error made ‘not a jot of material difference to the way in which the application was determined’. Mr. Barnes, Q.C. identified the range of benefits which the Council was getting from the overall development. He accepted, inevitably and in my view properly, that the error could not be described as trivial, but submitted that there was no real possibility that the council’s decision would have been any different had the true extent of the limitation been appreciated.

It was also submitted, primarily by Mr. White, that the claimant’s conduct and motives were such as to justify rejection of the claim. The claimants, as neighbouring landowners, were concerned about traffic generation and wanted improvements to Solartron Road which would benefit them. No doubt the claimants are driven by commercial considerations and look to possible advantages to themselves. It may be that they are not so concerned about more general benefits or detriments to the public. But, as the Court of Appeal made clear in R(Mount Cook Land Ltd) v Westminster City Council [2004] J.P.L. 470, motive is generally speaking irrelevant in judicial reviews of planning permissions and should not lead to the exercise of discretion not to grant relief where an error of law has been established. Auld, LJ, with whose judgment Clarke and Jonathan Parker, LJJ agreed, said this at paragraphs 45 and 46 of the judgment at p.486: -

“45.

If I am right in my conclusion that Mount cook’s claim is unarguable on the law and facts, the question of refusal or relief in the exercise of the Court’s discretion does not arise. However, in view of the conflicting submissions of counsel on this issue, I should make plain that, if it had been necessary to consider the point, I would not have refused relief in the exercise of my discretion in reliance on the motive of Mount Cook in seeking it, namely to put pressure on Redevco to sell its lease to Mount Cook rather than – or in addition to – a genuine concern about future loss of retail use in the upper parts of the Building.

46.

The essential question for a decision-maker in planning matters is whether representations one way or the other, whatever the motives of those advancing them, are valid in planning terms. A collateral motive may have relevance to the reasonableness of a landlord’s refusal to consent to alterations, as Mr. Paul Morgan held in his judgment in the leasehold dispute between the parties that I have mentioned in Paragraph [5] of this judgment. But judicial review applications by would-be developers or objectors to development in planning cases are by their very nature driven primarily by commercial or private motive rather than a high-minded concern for the public weal. I do not say that considerations of a claimant’s motive in claiming judicial review could never be relevant to a court’s decision whether to refuse relief in its discretion; for example, where the pursuance of the motive in question goes so far beyond the advancement of a collateral purpose as to amount to an abuse of process. The court should, at the very least, be slow to have recourse to that species of conduct as a basis for discretionary refusal of relief. In any event, it would, as Mr Steel pointed out, be exceptional for a court to exercise discretion not to quash a decision which it found to be ultra vires; see Berkeley v Secretary of State [2001] 1 A.C.603(HL), per Lord Hoffmann at 616D-G, approving an observation of Glidewell LJ in Bolton v Secretary of State [1991] 61P&CR 343,at 343.

Mr White tried to argue that the claimants’ conduct had been such as could properly be regarded as abusive [He relied in particular on the failure to raise the error in relation to the extent of the limitation at an earlier stage]. Suffice it to say that there is no foundation for that submission which was not supported by Mr. Barnes. It is true that the County Council as highway authority was satisfied that the additional works which the claimants wanted were not necessary. This has led to submissions that there can be no benefit to the claimants and no benefit to the public in granting relief since there is no prospect that the Council will reach any different conclusion. Necessary is not the same as desirable and the weakening of Pillar’s ‘fall back’ position might well have enabled the Council to require more substantial limitations and benefits than those which they obtained.

The correct approach to the exercise of discretion not to grant relief in planning cases has been considered by the Court of Appeal Simplex G.E. (Holdings) v SSE (1988) 57 P&CR 306. If the error cannot be considered to be insubstantial or insignificant, discretion will only be exercised in favour of upholding the decision if it would inevitably have been the same notwithstanding the error. The test is a strict one. It has always been applied in this court and can equally well be formulated by saying that such a decision will be quashed if it might have been different had the error not occurred. The test is one of reasonable possibility. As Purchas LJ said towards the end of his judgment on p.327 of the report: -

“It is not necessary for Mr Barnes [who was appearing for the appellants] to show that the Minister would, or even probably would, have come to a different conclusion. He has to exclude only the contrary contention, namely that the Minister necessarily would still have made the same decision”.

The officer, Mr. Stevens, says in his statement in these proceedings that the limitation in question represented a relatively minor part of the planning balance and that his recommendation, had he realised the true extent of it, would have been no different. In any event, he says, the use overall is now limited by the new obligation. Assertions from those who have made material mistakes that they would not have affected the result must be regarded with some reservation not because the individual may not genuinely believe that what he says is right but because it is said in the context of a desire to uphold the decision under attack. It is necessary to look at what was said and done at the time and to bear in mind that the decision was that of the committee and not of the officer. I have cited the relevant passages from his reports and it is plain that he did regard the lack of limitation to durable goods as of some significance. Hence Mr Barnes was correct to concede that the error could not be said to be trivial. I accept that planning permissions would probably have been granted, although the report in respect of the second application makes it clear that there were some real concerns. But the conditions to be attached and any benefits which would be contained in a s.106 agreement might well have been more onerous for Pillar. I certainly cannot rule out the real possibility that they might have been and so it cannot be said that the council would necessarily have reached the same decision. It follows that this ground of itself must result in the quashing of the planning permissions. The Obligation was conditional on the grant of the second planning permission and therefore will be of no effect. It does not require to be formally quashed.

The second ground is based on what is submitted by Mr Katkowski Q.C. to be the true construction of the restriction in the 1993 obligation which requires that ‘the Premises shall be used solely as a retail warehouse’. That language must mean, it is submitted, that only one retail warehouse can be operated on the premises. It is to that issue that the Court of Appeal decision, Martin v David Wilson Homes Ltd [2004] EWCA Civ 1027 given on 28 June 2004 is relevant.

That case was not concerned with planning matters but with a restrictive covenant affecting an estate which was to be and had been developed. The claimant wanted to build 12 homes on the plots he owned and the issue was whether the covenant limited development to one dwelling house on each plot. The relevant clause read so far as material as follows: -

“… not to use or permit or suffer any buildings erected thereon or on any part thereof to be used for any other purpose than as a private dwelling house either with or without garages and other necessary outbuildings”.

The question was whether the use of the indefinite article should be construed as a limitation of number. Buxton LJ pointed out that the clause in question was a user clause and that the first part of it contained a prohibition against the carrying on of any trade or business. Since, in context, the words restricted the use to which any building on the site could be put, the indefinite article did not mean that there could be only one such dwelling house on each plot. It simply meant that any building or any part thereof had to be used as a dwelling house. The previous sentence is in my view a proper use of the English language which demonstrates that the inclusion of the indefinite article does not necessarily bear the meaning that was claimed. In paragraph 22, Buxton LJ continues: -

“Contrary to the view expressed in one of the authorities … I do not think that the expression ‘a’ does carry any necessary implication of singularity. ‘A’ is an article not a number. When, as here, one is concerned with how any particular building shall be used, a natural way of expressing that is ‘use as a private dwelling house’”.

The restriction in question here is in respect of the use, not of the building but of the premises which are defined as extending beyond the existing building. A restriction on use will, I suspect, normally be drafted in this way since the omission of the indefinite article will not be grammatical. I do not think the draftsman of such a provision would believe he was limiting not only the use but the number of units to be permitted to operate that use. If that had been intended, one would expect much clearer language and in all probability a separate clause making it plain that one unit only was to be permitted.

It is relevant to consider the factual matrix. The 1988 agreement, which was superseded by the 1993 obligation, was entered into when there had been no development of the site. The relevant words in it were: -

“… any buildings to be constructed on the premises or any part thereof shall be used solely as a retail warehouse …”.

It is apparent that there was then no suggestion that there should be only one building and the natural meaning of those words was that no outlets other than retail warehouse units should be allowed. The council was not then concerned with the number of units but with the need to limit any units (which in total could not exceed the 5000 sq. metres floorspace) to retail warehousing. It is clear from the report which led to the 1993 Obligation that no change was intended to that part of the restriction. All that the 1993 Obligation was intended to do was to ensure that B&Q could sell the full range of their DIY products. But by then B&Q had erected a building and so the wording of the Obligation reflected that. Certainly the draftsman cannot have believed he was varying or have intended to vary the effect of the restriction. The reality is, I suspect, that no one thought that subdivision was likely or that further units would be constructed, even though the officer reporting was concerned that B&Q might leave.

Mr Katkowski is, of course, right to point out that the Court of Appeal made it clear that questions of construction of agreements will always be fact sensitive and that one case can very rarely if ever be regarded as authority for another. But the Court can indicate how particular provisions should be approached and it is obviously desirable that the same expressions used in different agreements should be approached for the purpose of construction in the same way. The factual matrix may show that a particular use of the same language must bear a different meaning. Here the general approach shows that the indefinite article does not of itself bear an implication of singularity. And I think that Martin’s case shows that in the context of a provision restricting use it is less likely to bear that implication.

In the circumstances, I am satisfied that the words in the 1993 Obligation do not limit the number of units to be permitted on the premises but only limit the use of any such units to retail warehousing. The second ground therefore fails.

I appreciate that the units covered by the permissions may by now have been all but completed. I would be surprised if any enforcement action requiring that the work be undone were considered appropriate and I do not doubt that permissions will be granted. But there can be reconsideration of the terms and conditions. Whether there should be any changes will be a matter for the Council in due course and by quashing the permissions I am not saying that there must necessarily be changes. I am aware of the inconvenience created by this decision, but it is important that planning permissions are not tainted by any errors and that full and proper consideration is given to all material matters.