Claimant intending to build additional storey on existing property — Whether erection of parapet wall a material operation under section 56 of Town and Country Planning Act 1990 — Certificate of lawful development refused — Application under section 288 of 1990 Act — Inspector’s decision quashed
In 1983, the claimant was granted conditional planning permission to construct an additional storey on a property that it owned. It initially built a high parapet wall and applied, under section 191 of the Town and Country Planning Act 1990, for a certificate of lawful development. The second defendant council refused the certificate on the grounds that: (i) the work had been implemented solely to maintain the planning permission; and (ii) the claimant had not complied with the conditions attached to the planning permission. An inspector dismissed the claimant’s appeal because the works did not comply with the plans that the claimant had submitted in 1983; for example, a door opening was positioned differently to that shown in the plans.
The claimant applied, under section 288 of the 1990 Act, to have this decision quashed on the grounds that the inspector had: (i) adopted the wrong approach in considering whether the works were a material operation under section 56 of the 1990 Act; and (ii) acted with procedural unfairness. His conclusions regarding the positioning of the door were based upon a site visit; neither party had relied upon this point in their submissions, and they had not been given the opportunity to make representations.
Held: The appeal was allowed.
The inspector should have taken into account how much work had been carried out when considering whether it comprised a material operation for the purposes of section 56. He should only have decided whether these works were sufficient to constitute a material consideration for the purpose of the planning permission. Relatively little work had to be done in order to comply with section 56. Work that contained rectifiable errors could implement planning permission. Spackman v Wiltshire Country Council (1976) 33 P&CR 430 demonstrated that, as a matter of law, differences between plans and operations need not be fatal to the implementation of planning permission. The inspector should have considered similarities to the plans, not merely departures from them. Regarding the siting of the door, neither party had raised the issue, and the inspector was under a duty to point out problems that the parties had not addressed: see Castleford Homes Ltd v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 77; [2001] PLCR 29. Having done so, he should then have given the parties the opportunity to make representations upon the issue. The inspector was wrong to rely only upon the submitted plans and his own inspection.
John Hobson QC (instructed by Denton Wilde Sapte) appeared for the claimant; Timothy Mould (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants did not appear and were not represented.
Vivienne Lane, barrister
