Taken out of context

The planning application process demands that information is provided about the context in which a development site is located. Given that that context might comprise land which is outside the control of the applicant, it can be problematic to provide information that is totally accurate. Nevertheless, providing inaccurate information has resulted in an unfortunate outcome for a would-be developer in north London.

The background to this appeal case (DCS Number 400-025-495) is that planning permission had been granted for the redevelopment of a plot between two existing properties with a three-storey building accommodating six flats. The permission was subject to a condition stating that the development should be carried out in accordance with the approved plans, which were then listed. The appeal was against the refusal of a certificate of lawfulness to confirm that the planning permission could be implemented in accordance with all the approved drawings.

The problem, as articulated by the inspector, was that while the proposed building was shown drawn to its correct height in all of the plans, in the streetscene plan, where the proposed building was shown sitting between its neighbours, the neighbouring buildings were shown as too large. With the slope of the ground the proposal appeared to be slightly taller than one neighbouring property, which looked as if it was downhill, but lower than the other, which was uphill. The effect of the errors in scale, however, were that the proposal would actually be taller than the uphill property and significantly taller than the downhill property.

The question before the inspector, he reasoned, was whether the planning permission could be implemented lawfully. There was no doubt, he acknowledged, that the planning permission referred solely to the building to be erected, and it seemed that the building to be erected was shown accurately on all the plans. However, the condition required the development to be carried out in accordance with the approved plans. The issue, he judged, was therefore whether the council could enforce against a breach of that condition if the development were to go ahead.

The inspector was presented with legal opinions on behalf of both the council and the appellant. The council was advised that it could enforce because the meaning of the condition could only be ascertained by considering extrinsic evidence. It was clear that the relationship of the proposal to its neighbours was of considerable importance to the council when reaching its decision and so the street scene drawing was a “dominant drawing”. The development would be contrary to that drawing and so in breach of the condition. For the appellant, on the other hand, the advice was that the proposed building was shown accurately on all the drawings, the streetscene drawings were illustrative, and the neighbouring buildings were outside the control of the appellant.

Citing Trump International Golf Club Scotland Ltd v The Scottish Ministers [2015],  the inspector took the view that the starting point was that when interpreting a condition it should be asked what a reasonable reader would understand the words to mean. It was clear to him that the development should be built in accordance with the plans. At its simplest this was impossible because to build it in accordance with two of the drawings the building would not look like the building shown in the third drawing. In other words the plans were inconsistent. The condition did not require the development to be in accord with some of the plans, or parts of the plans, but with the approved plans, and he thought it reasonable to infer the word “all” there, again on the basis that that was what an ordinary reading of the condition implied.

The inspector recognised that it could be argued that the drawing of the streetscene was merely illustrative and the buildings either side could change shape or size or even be demolished, but it seemed to him that that was rather missing the point. Firstly, the drawing was clearly not illustrative, it was not a simple sketch purporting to show a view, but was an allegedly scale drawing. Secondly, whether the neighbours could change, he held to be irrelevant. He pointed out that the drawing showed the proposed building in a relationship to the neighbours at the time the application was made regardless of any theoretical future changes. That relationship should have been replicable on site on the date the permission was granted, he ruled, and it was not. In addition, the streetscene drawing was important in the determination of the application, which was only allowed by the committee by a narrow margin. Furthermore, it was only by detailed analysis of various spot heights across several of the drawings that the errors were revealed. The council, he ruled, should have been able to rely on accurately scaled drawings, especially when the drawing in question was important to determining the acceptability of the proposal.

Dismissing the appeal, the inspector determined that the planning permission could not be implemented in accordance with all the approved drawings.

Section 4.423 of DCP Online discusses conditions which are aimed at ensuring that development is completed as presented.