In R (on the application of Menston Action Group) v City of Bradford Metropolitan District Council [2015] EWHC 2292 (Admin), one of the main issues for the court was whether the local planning authority (“LPA”) had misdirected itself as to the meaning of a condition that it had imposed on the grant of planning permission for the erection of 173 houses. The condition related to surface water drainage.
The practical benefit of the case is that it contains a useful summary of the principles governing the construction of a condition imposed by a LPA. This summary, in turn, relies upon the comments of Beatson LJ in Telford & Wrekin Council v Secretary of State for Communities and Local Government [2013] EWHC 79 (see PP 2013/167). Those principles are as follows:
(1) As a general rule, a planning permission is to be construed within the four corners of the consent itself, i.e. including the conditions in it, and the express reasons for those conditions, unless another document is incorporated by reference or it is necessary to resolve an ambiguity in the permission or condition.
(2) The reason for the strict approach to the use of extrinsic material is that a planning permission is a public document which runs with the land. Save where it is clear on its face that it does not purport to be complete and self-contained, it should be capable of being relied on by later landowners and members of the public reading it who may not have access to extrinsic material.
(3) It follows from (2) that in construing a planning permission: (a) the question is not what the parties intended but what a reasonable reader would understand was permitted by the local planning authority, and (b) conditions must be clearly and expressly imposed, so that they are plain for all to read.
(4) Conditions should be interpreted benevolently, and not narrowly or strictly.
(5) A condition will be void for uncertainty only if it can be given no meaning or no sensible or ascertainable meaning, and not merely because it is ambiguous or leads to absurd results.
(6) If there is ambiguity in a condition it has to be resolved in a common sense way, having regard to the underlying planning purpose for it as evidenced by the reasons given for its imposition.
(7) There is no room for an implied condition in a planning permission. This principle also precludes implying an obligation by way of an addition to an existing condition.
John Martin is a planning law consultant
