A trail of lawsuits

You don’t have to look far to find an example from Donald Trump’s trail of lawsuits, referred to by President Obama in his farewell address in Philadelphia. An inspector has recently cited Trump International Golf Club Scotland v Scottish Ministers [2015] in declining to issue a lawful development certificate for the retention of a rear extension at a house in east London (DCS Number 400-012-343).

In 2013 planning permission had been granted for the demolition of the existing rear extension and an outbuilding and the erection of a one-bedroom house . The permission had been implemented to the extent that the outbuilding had been demolished and the new house had been built. The rear extension had never been demolished, however. A condition of the permission stated that all works were to be completed in accordance with the approved drawings, one of which showed the demolition of the extension. The council did not, however, impose a condition requiring the demolition of the extension at a specific time, and the appellant argued that the extension was lawful on the basis that he could simply choose to leave the planning permission only partly implemented.

In Trump, permission for an offshore wind farm had been granted subject to a condition which required a design statement but which did not also require the development to be constructed in accordance with the statement. Accordingly, the Trump organisation argued that the aim of the condition was unenforceable and that as a consequence the permission was invalid. The Supreme Court, however, found no reason for a “reasonable reader” to “exclude implication as a technique of interpretation, where it is justified in accordance with the…principles applied to other legal documents”.

The inspector reasoned that demolition of the rear extension was an integral part of the development for which the appellant had sought permission. He found it difficult to imagine any injustice being caused to him by inferring words into the condition which would now secure the removal of that extension. The court ruling cast significant doubt on the extension’s immunity from enforcement action, he decided. Accordingly, he refused to issue a certificate of lawfulness.

Readers will be aware that the Trump decision overturns long-established case law that conditions should be clearly and expressly imposed, with no room for implication (Sevenoaks District Council v First Secretary of State (2004)) and will be alert to the uncertainty which it brings to the planning system.

God save America.

The following DCP chapter is relevant: 4.4112

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