Proper construction of 1988 permission for retention of established industrial development – Enforcement notice prohibiting independent open storage – Whether extraneous evidence admissible to demonstrate intended scope of grant – Appeal dismissed
Located in the green belt near Basildon, Whitesbridge Farm was a complex of former agricultural buildings which had over many years been turned to a variety of unauthorised industrial and storage uses. In 1988 the council, anxious to regularise the use of the site, granted a number of permissions including a permission (the 1988 permission) for the retention of established industrial development. In 1994, while successfully opposing a proposal to place further buildings on the site (the 1994 appeal), the council expressed the view that the 1988 permission extended to use for independent open storage. In 1996, however, the council revised their opinion and in August 1996 issued an enforcement notice requiring the appellant to cease using a parking area for the unauthorised storage (unrelated to any industrial use) of containers, scrap vehicles and a helicopter. Following an unsuccessful appeal to the Secretary of State, the site owner contended in the High Court that the inspector charged with determining the appeal had construed the 1988 permission too narrowly, having wrongfully disregarded evidence of the council’s intentions at the date of grant.
Held The appeal was dismissed.
1. Since planning permissions were inspected and acted upon by members of the public, there was a compelling reason for excluding extraneous evidence of the intended scope of the grant where that was clear on the face of the permission: see Slough Borough Council v Secretary of State for the Environment (1995) 70 P&CR 560. Resort to the application was permissible where, as here, its wording was incorporated by reference but that did not assist the appellant as there was no material difference between the wording of the two documents.
2. Such evidence could have been admitted if the wording were ambiguous, but it was trite planning law that industrial activity and open storage independent of such activity fell into different classes of use.
3. While consistency of decision making was undoubtedly a material consideration the inspector, who had in any event carefully considered the earlier decision, had correctly concluded that the council’s concession was not central to the issues raised in 1994.
Douglas Edwards (instructed by Wortley Byers, of Brentwood) appeared for the appellant; Timothy Mould (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; the second respondents, Basildon District Council, did not appear and were not represented.
