Tuesday, 22 June 2010

Interpretation of planning permissions


Those who have followed this blog in the past will be aware that the problem of construing the meaning of planning permissions has been before the courts on several occasions, most notably in the cases of Ashford and Barnett.

It was apparently established in Ashford that a planning permission must be construed solely by reference to the decision notice which actually grants permission, and that resort can only be had to the application and submitted drawings if they are expressly incorporated in the permission by clear words set out in the description of the development which the permission authorises, unless the words of the planning permission are ambiguous, in which case resort can then be had to extraneous material, and in particular to the application and submitted drawings.

This approach was refined in Barnett, which established that the approved drawings must be taken to be included in the permission, because in many cases the permission would be meaningless without the approved drawings. In practice, the approved drawings are usually listed in the permission so as to confirm which drawings the permission refers to.

Another case has now reached the High Court - Stevenage BC v. SSCLG [2010] EWHC 1289 (Admin) (in which judgment was given on 3 June) which raises further questions as to the interpretation of a planning permission. In this case, a planning permission which, according to its wording, was for external alterations to a retail unit was found by an Inspector in an LDC appeal also to grant permission for internal alterations to subdivide the retail unit. Normally, internal alterations do not require planning permission but, without going into the detail, the nature of the internal alterations in this case was such as to constitute development requiring planning permission.

Relying on Barnett, the Deputy Judge upheld the Inspector’s decision, and confirmed that because the application drawings clearly showed the internal alterations, they must be taken to have been included in the planning permission for alterations to the building granted in 2006.

The High Court has granted permission to appeal to the Court of Appeal in this case, because the principal point as to the primacy of the planning permission notice is an important one and in a context such as this has not been explicitly dealt with by the Court of Appeal [in Barnett].

So watch this space in a few months time for what will hopefully be a definitive decision from the Court of Appeal on the interpretation of planning permissions, particularly as regards the relationship between the wording of the notice and the approved drawings.

© MARTIN H GOODALL

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