High Court considers correct interpretation of a Planning Permission

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The High Court (Steyn J) has quashed a decision of an Inspector which dismissed an appeal against the refusal of a certificate of lawfulness, on the basis that he misinterpreted a planning permission.

The underlying application was for a certificate of lawfulness for a 188-unit retirement village and associated facilities. This was refused by Torbay Council. The Council’s decision, and the subsequent appeal, turned on the geographic scope of a planning permission granted by the Council in 2008. If this related to the full extent of a previous outline permission granted in 2006, the development had been lawfully implemented; if it did not, and related to a smaller area (as found by the Inspector), it had not.

It was common ground that the 2008 Permission was a free-standing permission. There was no approved site plan listed on the 2008 Permission; a plan was submitted with a covering letter to the application which referred to a smaller area than the 2006 Outline Permission.

In interpreting the 2008 Permission, the court applied the approach set out in R v Ashford Borough Council ex parte Shepway District Council [1999] PLCR 12, namely to first look at the planning permission itself and then any intrinsic application documents, and then and only if there is any ambiguity in the wording of the permission, to look at extrinsic material such as the relevant planning officer’s report.

The Judge concluded that a number of factors pointed to the geographic scope of the 2008 Permission being the same as the 2006 Outline Permission. These included the terms of the permission itself, and the “surprising” consequences were the Council to be correct (meaning that the 2008 Permission permitted major development in a sensitive area without any conditions bar the standard time limit, and also rendered the existing outline permission incapable of implementation).

Whilst there was ambiguity because of the covering letter, the extrinsic evidence taken as a whole, including the Officer’s Report for the 2008 Permission, supported the same conclusion.

The decision letter was therefore quashed.

The judgment can be read here.

Christopher Boyle QC and Andrew Parkinson appeared for the Claimant.

Zack Simons appeared for the Defendant.

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