Wednesday, 18 January 2012
[WARNING: This article must now be read in light of the decision of the Court of Appeal in Williams v SSCLG  EWCA Civ 958. See the updates at the foot of this article for other decisions that have significantly changed the legal position since this article was written.]
Regular readers who have been following this blog for some time will recall the item I posted here on 15 July last year under the title of “More Development in Wonderland”. Alice and the Cheshire Cat were trying to help Humpty-Dumpty after the demolition of the barn for which he had obtained planning permission for a barn conversion. Tweedledum, the planning officer, was convinced that Humpty-Dumpty had lost his planning permission, but the Cheshire Cat pointed out that Humpty-Dumpty’s planning permission was not merely for a change of use; it authorised operational development, and so Humpty-Dumpty had not lost his planning permission after all. The Cheshire Cat helpfully cited the relevant High Court decisions (which you will find in my earlier article).
Tweedledum wasn’t having any of that. So far as he was concerned the planning permission was for a barn conversion, so there had to be a barn which could still be converted. As he pointed out, the Council had insisted on a structural survey to prove the original structure was sound before they granted planning permission. The Council’s policies did not permit the erection of new houses or other buildings in the open countryside, so they certainly wouldn’t have granted permission at all if they had thought the barn was going to fall down or be demolished and rebuilt anew. So far as Tweedledum was concerned, retention of the pre-existing structure of the barn was fundamental to the development.
As we left the scene, Tweedledum was striding off to consult the Gryphon, who was the head of the Council’s legal section. Actually, the Gryphon turned out not to be much help, because he wasn’t all that familiar with planning law, but Tweedledum wasn’t going to give up that easily, and so when the Cheshire Cat wrote in on behalf of Humpty-Dumpty as he said he would, Tweedledum pointed out that retention of the barn structure had been specifically referred to in the planning application, and also in the Design and Access Statement. It had been the subject of detailed discussions between Tweedledum and the Mock Turtle, who (as you may recall) was Humpty-Dumpty’s architect, and it had been specifically mentioned in the officers’ report to committee. Retention of the existing barn structure had clearly been a material consideration in the committee’s decision to grant planning permission. In fact, Tweedledum argued, the planning application, and the Design & Access Statement had to be read with the planning permission; they were in effect incorporated in the permission.
One can have some sympathy with Tweedledum. Retention of the barn clearly had been a material consideration in the determination of the planning application, and the Council’s policies would certainly not have permitted a development which would in practice produce an entirely new building in the countryside, even if it was an exact replica of the barn it replaced. In fairness to Humpty-Dumpty, though, he genuinely intended to convert the existing barn; demolition was not part of his plans, and the collapse of most of the barn and the demolition of the remainder of the building was as much of a shock to him as was to everyone else.
So was Tweedledum right after all? Well, despite what might be thought to be a perfectly common-sense approach to the issue on his part, the law does not support Tweedledum’s view. The development described in the planning permission was “Conversion works, alterations and extension of barn to form a dwelling”. (Actually, your humble scribe made a mistake in his original account, because the permission did not contain the words “in accordance with the application and approved drawings”.) And, as the Cheshire Cat pointed out when he first looked at the planning permission, there was no condition requiring retention of the barn structure. So could Tweedledum call in aid the planning application and other documents in construing or interpreting the planning permission?
In his judgment in the High Court in R v Ashford Borough Council ex parte Shepway District Council  PLCR 12, Keene J (as he then was) summarised the legal principles to be applied as follows:
"(1) The general rule is that in construing a planning permission which is clear, unambiguous and valid on its face, regard may only be had to the planning permission itself, including the conditions (if any) on it and the express reasons for those conditions: see Slough Borough Council v Secretary of State for the Environment (1995) JPL 1128, and Miller-Mead v Minister of Housing and Local Government  2 QB 196.
(2) This rule excludes reference to the planning application as well as to other extrinsic evidence, unless the planning permission incorporates the application by reference. In that situation the application is treated as having become part of the permission. The reason for normally not having regard to the application is that the public should be able to rely on a document which is plain on its face without having to consider whether there is any discrepancy between the permission and the application: see Slough Borough Council v Secretary of State (ante); Wilson v West Sussex County Council  2 QB 764; and Slough Estates Limited v Slough Borough Council  AC 958.
(3) For incorporation of the application in the permission to be achieved, more is required than a mere reference to the application on the face of the permission. While there is no magic formula, some words sufficient to inform a reasonable reader that the application forms part of the permission are needed, such as '... in accordance with the plans and application ...' or '... on the terms of the application ..., ' and in either case those words appearing in the operative part of the permission dealing with the development and the terms in which permission is granted. These words need to govern the description of the development permitted: see Wilson (ante); Slough Borough Council v Secretary of State for the Environment (ante).
(4) If there is an ambiguity in the wording of the permission, it is permissible to look at extrinsic material, including the application, to resolve that ambiguity: see Staffordshire Moorlands District Council v Cartwright (1992) JPL 138 at 139; Slough Estates Limited v Slough Borough Council (ante); Creighton Estates Limited v London County Council, The Times, March 10, 1958.
(5) If a planning permission is challenged on the ground of absence of authority or mistake, it is permissible to look at extrinsic evidence to resolve that issue: see Slough Borough Council v Secretary of State (ante); Co-operative Retail Services v Taff-Ely Borough Council (1979) 39 P&CR 223 affirmed (1981) 42 P&CR 1."
This judicial approach to construing a planning permission did not take account of the approved drawings and their status in relation to the planning permission. However, any doubt which there might have been on that score was removed by the judgment of Sullivan J (as he then was) in Barnett v. SSCLG  EWHC 1601 (Admin), where he explained that:
“If it is plain on the face of a permission that it is a full permission for the construction, erection or alteration of the building, the public will know that, in addition to the plan which identifies the site, there will be plans and drawings which will describe the building works which have been permitted precisely because the permission is not, on its face, an outline planning permission. In such a case those plans and drawings describing the building works were as much a part of the description of what has been permitted as the permission notice itself. It is not a question of resolving an "ambiguity". On its face, a grant of full planning permission for building operations is incomplete without the approved plans and drawings showing the detail of what has been permitted. In the absence of any indication to the contrary, those plans and drawings will be the plans listed in the application for permission. If the local planning authority does not wish to approve the plans submitted with the application and wishes to approve amended plans, then it can include a statement to that effect in the decision notice. Absent any such statement, the reasonable inference, against the statutory background provided by Section 62 of the Act and the 1988 Regulations, is that a grant of full planning permission approves the application drawings.”
This judgment was subsequently approved by the Court of Appeal (see  EWCA Civ 476).
That, in a nutshell, is why Tweedledum was wrong in assuming that the planning application itself and other background facts leading to the grant of planning permission could be called in aid in construing or interpreting the permission. A differently worded planning permission which expressly incorporated in the description of the development which the permiison authorised a reference to retention of the existing barn structure and/or which contained an express condition requiring retention of the existing structure might well have produced a different result, but as in Humpty-Dumpty’s case, Councils often fail to do this.
There are no prizes for guessing who played the part of the Cheshire Cat in our little excursion to Wonderland, and I am in fact dealing with two such cases at the moment, both of which are remarkably similar to Humpty-Dumpty’s case, even though they did not come across my desk until some time after my original piece was published. Neither of them has yet been finally resolved, and it seems that Tweedledum and his colleagues are still casting around for some excuse to avoid accepting that demolition and reconstruction of the barns in those two cases was entirely within the scope of the planning permission, but I am sure they will reach that inevitable conclusion in the end.
[UPDATE: In view of two more recent appeal decisions, and the decision of the Court of Appeal in Williams v SSCLG  EWCA Civ 958, the article above should be read in light of the series of 5 posts in this blog starting with “Barn Conversions again” posted on 5 March 2013, and in particular Barn Conversions again (Part 3)” posted on 7 March 2013, plus and a sixth article in this series posted on 1 December 2014 dealing with Williams.
Basildon appeared to be authority for the proposition that complete demolition is not ruled out where the approved drawings show that no element of the pre-existing structure would be visible if the development is carried out in the form authorised by the permission. In light of the Court of Appeal decision in Williams, it would appear that this proposition can no longer be relied upon. It is clear that if the description of the development in a planning permission shows that what it is intended to authorise is the conversion or alteration of the pre-existing building, then it is not permissible construe the planning permission as authorising (or as not ruling out) complete demolition and reconstruction of the pre-existing building.]
© MARTIN H GOODALL