Wednesday, 11 August 2010

Interpreting planning permissions again

In this blog on 22 June I commented on the judgment in Stevenage BC v SSCLG [2010] EWHC 1289 (Admin). Another case on the interpretation of a planning permission has subsequently come before the High Court in R (Prudential Assurance Co Ltd) v Sunderland City Council [2010] EWHC 1771 (Admin), in which judgment was given by Wyn Williams J on 15 July.

In this more recent case, a previous planning permission for retail development had been subject to a planning agreement under what was then Section 52 of the 1971 Act containing detailed restrictions as to the types of goods which could be sold from the retail units which the permission authorised. However, that agreement contained a clause (which is commonly found in such agreements) to the effect that the agreement would not prohibit or limit the use or development of the land in any way which was authorised by a planning permission granted subsequent to that agreement.

The subsequent planning permission the subject of the current proceedings authorised the subdivision of one of the retail units into two units. It seems that the LPA in issuing the permission for the conversion of one of the retail units into two units simply did not consider the possibility that this would have the effect of releasing the two units authorised by the new permission from the constraints imposed by the section 52 agreement. Nevertheless, it was plain from the terms of the Section 52 agreement that that is exactly what it did.

An attempt was made by the claimant (a rival developer) to construe the true intention of the planning permission by reference to extrinsic evidence, but the judge held that no extrinsic material was properly admissible to interpret the planning permission so as to achieve an interpretation of that permission which would mean that the use of the two units remained subject to the Section 52 agreement. In particular, the terms of the planning application in respect of another unit together with the material which supported that application could not be used as an aid to the construction of the planning permission in respect of the unit the subject of this dispute.

Wyn Williams J stressed that he had reached this conclusion quite independently of the decision of HHJ Waksman QC in the recent Stevenage case (cited above). Nonetheless the conclusions reached in that case were entirely consistent with his own and, obviously, he was fortified in his own view as a consequence. In the earlier case, the Deputy Judge had noted that if the Inspector in that case (in determining a Section 195 appeal) was correct to determine that the permission in question in that appeal did indeed encompass internal sub-division works, the resultant building was a new chapter in the planning history and/or section 75(3) of the Act applied, thereby having the effect of removing an earlier restrictive use condition and justifying the LDC granted. Essentially the Deputy Judge had reached the conclusion that the internal sub-division objectively formed part of the proposed works which were authorised by the planning permission. He reached that conclusion by a process of reasoning which was similar to that expressed by Wyn Williams J in this case.


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