On a reasonable reading

The question of how planning permissions ought to be read comes up every so often, as it did in a recent appeal against the refusal of an LDC relating to a dwelling on a farm in Cheshire (DCS Number 400-033-432). In this case the appellants argued that the dwelling had been erected unlawfully, as a result of not being constructed on the approved site. It was also claimed that the dwelling had become lawful due to the passage of time and was not subject to any of the planning conditions imposed on the original permissions. In considering the appeal the inspector helpfully set out the relevant case law so you might wish to file this away for future use. Here goes:-

In Trump International Golf Club Scotland Ltd v the Scottish Ministers [2015], the inspector recorded, Lord Carnwath held that the process of interpreting a planning permission should not be regarded as differing materially from that appropriate to other legal documents, which must be interpreted in a particular legal and factual context. A planning permission is a public document which may be relied on by parties unrelated to those originally involved. The approach is to consider what the reasonable reader would understand the words to mean in the context of the overall purpose of the planning permission and with common sense. 

The basic rule, the inspector continued, is that a planning permission should stand by itself and the meaning should be clear within the four corners of the document. If something is not clear but the planning permission clearly incorporates the application and plans, they may be used as aids to interpretation or to understanding of the scope of what is permitted – Slough Estates v Slough BC (No 2) [1970]. 

The inspector added that in Barnett v SSCLG & East Hampshire DC [2009], it was noted by the Court of Appeal that the general rule in interpreting a grant of planning permission that, on its face, was unambiguous, was that regard could only be had to the permission itself, including the conditions in it and the express reasons for those conditions. No regard could be given to the planning application or other extrinsic evidence unless the permission incorporated the application (by reference to R v Ashford BC ex parte Shepway BC [1998], which related to an outline planning permission). However, plans were an essential part of any grant of planning permission, and it could not be said that such a grant was to be interpreted without having regard to the plans that accompanied it. The extent to which those plans would matter would vary from case to case. On its face, therefore, a full planning permission for building operations does not purport to be a complete and self-contained description of the development that has been permitted. The public, reading the decision notice, would realise that it was incomplete, indeed useless, without the approved plans and drawings. 

The interpretation of planning permissions was further considered, the inspector noted, in Wood v SSCLG & the Broads Authority [2015]. The judge in Wood held that the inspector, in seeking to identify the lawful use of the relevant planning unit, was entitled to consider all of the public documents and drawings comprised in the relevant planning applications, as well as the decision notices. He was also entitled to have regard to the development which had in fact been carried out. 

The ‘pragmatic’ approach described in Wood was endorsed in Kemball v SSCLG [2015]. The High Court held in Kemball that, in order to resolve ambiguity, it is permissible to look at extrinsic evidence including but not limited to the application form and other documents, depending on the circumstances of the individual case. 

The inspector reasoned that, ultimately, it was necessary to consider what a reasonable reader would understand in the context of the overall purpose of the planning permission and with common sense. Reading the outline and reserved matters permissions together, alongside the approved plans and drawings, she found that the approved plans showed a dwelling of the same type, form and construction as had been erected. Further, examination of physical features relative to the dwelling showed that it had been built as intended in relation to those features. A reasonable reader, she decided, would more than likely conclude that the dwelling had been sited within the plot in a location that was not wholly dissimilar to that approved. 

The inspector concluded that the appellants had not shown, on the balance of probability, that the dwelling had been erected contrary to the terms and conditions of its planning permission. As such, it was not an unlawful development that had gained immunity from enforcement action due to the passage of time. 

Further appeal cases where similar considerations applied can be found at section 9.413 of DCP Online.