Planning permission – Enforcement notice – Permitted development – Appellant constructing swimming pool and tennis courts adjacent to existing dwelling – Whether permitted development within curtilage of existing dwelling – Previous planning permission allowing extension to dwelling – Whether plans submitted with previous application forming part of permission – Whether defining extent of curtilage – Appeal dismissed
In 1995, the second respondent council granted planning permission to the appellant to erect a residential dwelling on agricultural land in accordance with approved drawings and plans, which showed the application site outlined in red. In 1998, the appellant was granted a further planning permission to build an extension to the original dwelling. Drawings submitted with that application also showed the site outlined in red, although the delineated area was more extensive than that shown in the 1995 plans. The appellant subsequently carried out further development on the site, including the construction of a swimming pool, pool house and tennis court. The second respondents served enforcement notices alleging a breach of planning control and requiring the removal of those structures. The appellant appealed to the first respondent secretary of state.
The appellant argued that such development was permitted within the curtilage of the existing dwelling, which had implicitly been extended by the 1998 permission to cover the area outlined in red on the submitted plans. Rejecting that argument, the inspector found that the curtilage was defined by the 1995 permission. He considered that the 1998 permission had to be construed alone and without reference to the application plans, since they were not expressly incorporated into the permission by reference. He found that the change of use and related development conflicted with planning policy. Accordingly, he upheld the enforcement notices and refused to grant retrospective planning permission for the development.
The High Court dismissed the appellant’s challenge to the inspector’s decision under sections 288 and 289 of the Town and Country Planning Act 1990. It upheld the inspector’s conclusion that the planning permission granted by the second respondent did not extend the residential curtilage of the dwelling-house, as defined by the site plan approved by the 1995 planning permission: see [2008] EWHC 1601 (Admin); [2008] PLSCS 176. The appellant appealed
Held: The appeal was dismissed.
The general rule established in R v Ashford Borough Council, ex parte Shepway District Council [1999] PLCR 12, namely that, when construing a planning permission which was clear and unambiguous the court had to have regard only to the permission unless the planning application had been expressly incorporated, applied to outline planning permission alone. Where a full planning permission had been granted for the construction of buildings, approved plans and drawings formed part of the full planning permission unless expressly excluded.
One had to distinguish between outline and full planning permission with regard to the use of documents when construing planning permission. Every application, whether for outline or full planning permission for building works, had to be accompanied by a site plan that identified the land to which it related. However, whereas an application for outline planning permission might not be accompanied by plans and drawings, an application for full planning permission had to be accompanied by the plans and drawings that were necessary to describe the subject of the application so that, were full planning permission to be granted, any member of the public would know that there were in existence plans and drawings describing what had been permitted.
What the court had said in Ashford had not been intended to apply to full detailed planning permissions. It did not purport to be a complete and self-contained description of the permitted development. Any member of the public who read a decision notice for full planning permission would realise that it was incomplete without the approved plans and drawings, which were a vital part of the application.
Furthermore, the 1998 planning permission did not grant permission for new use beyond the residential site. The curtilage as defined by the 1995 site plan had not changed. The 1995 planning permission was for a change of use from agricultural to residential use so there was previously no curtilage. The extent of the land included in the permission was therefore established by the site plan on the original planning permission. When the application for alteration and extension was made, a building already existed with a curtilage. Since there had been no application for a change of use, the site plan for the original planning permission still defined the extent of the curtilage, which was not extended merely by putting in a site plan covering a wider area.
Clive Newberry QC and Douglas Edwards (instructed by Sharpe Pritchard) appeared for the appellant; Andrew Sharland (instructed by the Treasury Solicitor) appeared for the first respondent; the second respondents did not appear and was nor represented.
Eileen O’Grady, barrister
