Planning application — Two plans docquetted — Planning permission granted for development ‘in accordance with plans’ — Later plan included additional features — Development carried out omitting additional features — Whether development in breach of planning control — Whether later more detailed plan superseded first plan
On November 25
1986 the owners of 25 The Inches, Dalgety Bay, Dunfermline, were granted
planning permission for works to their dwellinghouse comprising alterations and
extensions ‘in accordance with plans docquetted of this date as approved’. One
plan was originally submitted with the planning application; a second plan was
submitted at a later date, which was labelled ‘screen wall detail to balcony’.
This showed details of a wooden screen but did not show any windows. The owners
carried out the works; they omitted the wooden screen and included a
first-floor window, shown on the first plan but not on the second one. The appellant
local planning authority issued an enforcement notice alleging breach of
planning control. The owners’ appeal was upheld by the reporter, who quashed
the notice.
The appellants
appealed that decision contending that the second plan, being more detailed,
did not supersede the first and that therefore the reporter was wrong in
deciding that the owners had a choice between the two plans in carrying out
their development. Further, the consent notice and the two plans had to be read
together and there must be a presumption against two inconsistent plans
referred to by the permission.
The two plans
in respect of which the owners were simultaneously given planning permission
could be regarded as inconsistent with each other and thus providing the owners
with the option of developing on the basis of one plan or the other, as the
reporter held, or as complementary to each other: see p 4E.
If
complementary to each other, the first plan showed the essentials of the
development and the second plan the optional detailed extras. In view of the
fact that the permission was unconditional, the reporter could legitimately
proceed on either view: see pp 4F and 5.
to in the opinions
Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196;
[1963] 2 WLR 225; [1963] 1 All ER 459; (1963) 61 LGR 152; 14 P&CR 266;
[1963] EGD 572; 185 EG 835; [1963] JPL 151, CA
Slough
Estates Ltd v Slough Borough Council (No
2) [1971] AC 958; [1970] 2 WLR 1187; [1970] 2 All ER 216; (1970) 21
P&CR 573, HL
Watt v Lord Advocate 1979 SLT 137; 1979 SC 120
Wilson v West Sussex County Council [1963] 2 QB 764; [1963] 2 WLR
669; [1963] 1 All ER 751; (1963) 61 LGR 287; 14 P&CR 301; [1963] EGD 565;
185 EG 683, CA
Wivenhoe
Port Ltd v Colchester Borough Council [1985]
JPL 396, CA
Appeal under
section 233 of the Town and Country Planning (Scotland) Act 1972
This was an
appeal by Dunfermline District Council under section 233 of the Town and
Country Planning (Scotland) Act 1972 against a decision of the respondent,
the Secretary of State for Scotland, by his reporter, who had allowed an appeal
against an enforcement notice issued by the appellants.
QC (instructed by McGrigor Donald) appeared for the appellants, Dunfermline
District Council.
Paton (instructed by the solicitor to the Secretary of State for Scotland)
appeared for the respondent.
following opinions were delivered.
LORD BRAND: The appellants are the local planning authority for the area which
includes Dalgety Bay. In that capacity they approved in terms of a consent
dated November 25 1986 works comprising alterations and extensions to the
dwellinghouse at 25 The Inches, Dalgety Bay, ‘in accordance with plans
docquetted of this date as approved’. The said consent was granted in respect
of works to be carried out in accordance with two plans which were docquetted
as relative to the said consent. Only one plan was originally submitted by the
applicant, which was the plan numbered 2687.C.01.A. A further plan was
submitted by those acting for the applicants, which was labelled ‘screen wall
detail to balcony’, which was also docquetted as relative to the said consent.
The latter plan shows details of a wooden-screen wall for the balcony of the
premises. It does not show any windows.
The applicants
for the said consent proceeded to carry out the said works without regard to
the second plan. They omitted the timber-clad screen from the balcony and
included a first-floor window, which is shown on the side elevation in the
first plan but which is not shown in the second plan. The appellants then
served a notice on the applicants requiring them within a month of the notice
taking effect to construct screen fencing on the balcony and to fit the
first-floor window with obscure glass. The applicants appealed against the said
enforcement notice.
The
applicants’ appeal was considered by a reporter appointed by the Secretary of
State for Scotland. The reporter upheld the appeal and quashed the enforcement
notice. The reporter’s decision and reasons were contained in a letter of July
4 1988. The reporter decided that the appeal should succeed under section
85(1)(b) of the Town and Country Planning (Scotland) Act 1972, in that
the matters alleged in the notice did not constitute a breach of planning
control. He reached that decision on the ground that the detail in the original
drawing and that in the second drawing gave the applicants a valid choice as to
whether they carried out the works in conformity with one or the other.
The appellants
have appealed to this court against that decision on the ground that the
reporter acted ultra vires in reaching the decision which he did. It is
averred that he took into account irrelevant considerations and failed to take
account of relevant and material considerations. His decision was one which no
reasonable reporter could have reached. The planning permission consisted of
the consent notice and the two stamped docquetted plans. These documents
required to be read together to establish the extent and content of the
permission. The two plans read together did not present a choice, as the
reporter decided. The second plan and its detail varied, amended or qualified
the first plan, which was more general in nature. The reporter erred in law in
construing the consent ‘as involving a choice to the applicants’. The consent
notice and the two plans had to be read together and, so read, the plans did
not offer a choice to the applicants as to how they might carry out the works.
The reporter reached his decision in part by reason of the fact that the
planning consent did not contain any planning conditions, which was irrelevant
to the
reached the decision which he did and the decision should therefore be quashed.
In reply the
respondent avers that the reporter’s decision was intra vires and
correct in law.
Before us it
was conceded that the correspondence between the applicants and the appellants,
apart from one letter which was of no assistance, all post-dated the granting
of planning permission and is accordingly irrelevant for present purposes.
Counsel for
the appellants submitted that, independent of the surrounding circumstances,
the planning permission must be understood under reference to both plans looked
at together. Mr Brodie QC referred us to the case of Wilson v West
Sussex County Council [1963] 2 QB 764 and the judgments of Wilmer LJ at p
777 and Diplock LJ at p 782. It was proper to refer to the terms of the
application for planning permission. The presumption must be against two
inconsistent alternative developments. In the present case, looking at the two
plans together, one must look at their interrelationship and give effect to the
more detailed plan. A specific provision would always supersede a general
provision, particularly where one plan was more detailed than another.
Accordingly, the plan entitled ‘screen wall detail to balcony’ had to be
regarded as superseding the original drawing.
On a proper
construction of the planning permission there were not two alternatives but one
permitted development, viz what was shown on the detailed plan. The
application for planning permission was registered on October 9 1986. The first
plan was in being at the outset. The detailed plan came after the general
presentation (but see the application for planning permission para 1(d) which
refers to ‘plans’). No windows at all were shown in the plan of ‘screen wall
detail to balcony’, but one window was shown in the original plan. The only
detail that was mentioned both in words and shown on a plan was the screen wall
and balcony.
Mr Brodie
posed the question of whether it was appropriate to construe a planning
permission under reference to anything but the terms of the permission. He
referred us to the speeches of Lords Reid, Pearson and Diplock in Slough
Estates Ltd v Slough Borough Council (No. 2) [1971] AC 958. It is
clear from the speech of Lord Reid, with which Lord Diplock concurred, that he
would not allow extrinsic evidence to qualify the apparent meaning of words
used in a grant of planning permission save in so far as it might be required
to identify a thing or place referred to. Lord Pearson was of the opinion that,
in construing a planning permission, the application could be taken into
account if it had been incorporated by reference in the permission.
Finally, Mr
Brodie submitted that the circumstances in which an applicant for planning
permission obtained it should not be ignored and that such circumstances might
operate as a personal bar against him in obtaining the quashing of an
enforcement notice. In the present case in a question between the applicants
and the planning authority there was no room for a choice of plan. A planning
permission might provide alternative conditions (Wivenhoe Port Ltd v Colchester
Borough Council [1985] JPL 396), but here the planning permission did not
provide alternative conditions. It was granted on the basis of the detailed
drawing, which did not show any window. The reporter had misdirected himself in
concluding that the applicants had a choice in relation to the plans. For these
reasons Mr Brodie submitted the appeal should be allowed.
Counsel for
the respondent, Mrs Paton, submitted that the appeal should be refused. The
measure of the grant of planning permission was to be found
permission and the two plans there was no failure to comply with any conditions
or limitations subject to which the planning permission was granted. Finally,
it could not be said that the reporter failed to ask himself the right question
or acted ultra vires.
All that had
been incorporated in the planning permission were the two docquetted plans. It
was unconditional. Planning permission goes with the land. If unconditional
planning permission is granted and the property is sold, the new owners proceed
on the basis of the planning permission passed on with the titles. Regard must
be had to the planning permission and the plans alone (Wilson v West
Sussex County Council and Wivenhoe Port Ltd v Colchester Borough
Council). In the present case the application was not referred to in the
grant of planning permission. Planning permission could not mean one thing in
the hands of the original applicant and something else in the hands of a
purchaser from him (Slough Estates Ltd per Lords Reid and Diplock).
In the present
case plan A was as detailed, if not more so, than plan B. No conditions or
restrictions were imposed. The applicants were given unqualified permission to
carry out plans A and B. Plan B is entitled ‘Detail’. It is not a revision or
correction. Counsel put it that plan B was an optional extra showing optional
details. It did not deal with windows at all. This demonstrated that what it
showed was purely optional. On a proper construction the applicants were
permitted to carry out plan A and, at their option, to carry out the detail
shown in plan B.
Finally, Mrs
Paton submitted that the reporter had not exceeded his powers or misdirected
himself. She referred to the opinion of the Lord President in Watt v Lord
Advocate 1979 SC 120 at pp 129-131. In the present case the reporter had
applied his mind to the right question.
In my opinion,
the reporter was well entitled to conclude, as he did, that the enforcement
notice should be quashed. The two plans in respect of which the applicants were
simultaneously given planning permission could be regarded as inconsistent with
each other and thus providing the applicants with the option of developing on
the basis of one plan or the other, as the reporter held, or as complementary
to each other. In the latter event plan A showed the essentials of the
development and plan B the optional detailed extras, as Mrs Paton suggested. In
view of the fact that the consent was unconditional, I am of the opinion that
the reporter could legitimately proceed on either view and that his conclusion
is not open to attack. On the basis that the only relevant documents are the
consent granted by the appellants and the relative docquetted plans, there is
no room for the appellants’ contention of personal bar and no justification for
the allegation that the reporter acted ultra vires.
On the whole
matter I am of the opinion that there is no merit in this appeal, which should
be refused.
THE LORD
PRESIDENT (LORD HOPE): I agree with Lord Brand that
this appeal must be dismissed for the reasons which he has given. I would add
only a few words of my own under reference to the observations of Lord Reid in Slough
Estates Ltd v Slough Borough Council (No 2) [1971] AC 958 at p 962
about the use of extrinsic evidence in the construction of a planning
permission. Lord Reid expressed his opinion to the effect that it is not
permissible to alter the apparent meaning of words or phrases in the permission
by reference to facts which are not common knowledge and thus available to
members of the public, who are entitled to rely on what is set out in the
public document. Although Lord Pearson seems to have departed somewhat from
this approach at pp 967-968, where he had regard to certain correspondence as
an aid to the construction of the permission, Lord Reid’s
Borth-y-Gest and Lord Diplock. I think that we may safely take it, therefore,
that they set out the state of the law on this matter: see also Miller-Mead
v Minister of Housing and Local Government [1963] 2 QB 196. Accordingly,
the only material to which we may properly have regard in this case is the
consent and the plans to which it refers, which were docquetted as relative to
the permission.
The basic
principle is that a planning permission is simply a permission and that it does
not oblige the proprietor to carry out the development. But any such
development must be carried out in accordance with the permission, so any
condition attaching to that permission will come into effect if the development
proceeds. The question then in the present case is, what was authorised by the
permission which was given and what were the conditions, if any, which were
attached to it? It was submitted that,
independent of the surrounding circumstances, the planning permission must be
understood by reference to both plans looked at together and that there was a
presumption against a permission which provides for two inconsistent
developments. But it is not at all clear that the two plans are inconsistent
with each other and it is certainly not stated in either of the plans or in the
consent that the plan which contained the detail of the balcony was intended to
supersede the other plan in any way. The consent itself contains no conditions,
limitations or qualifications of any kind. There is nothing here to show which
of the two plans, if either, was to have priority over the other. In this
situation, I find it impossible to say, having regard only to this material,
that it was a condition of the planning permission that the details shown on
the plan labelled ‘screen wall detail to balcony’ had to be included if
development in terms of this consent took place.
LORD
DERVAIRD: I agree with Lord Brand and the Lord
President that this appeal must be dismissed for the reasons which have been
given.
I desire only
to add that Mr Brodie, confronted by the fact that the plan of the relevant
gable wall showed two windows and a new door whereas the plan titled ‘screen
wall detail to balcony’ showed no windows or door in that wall, argued that all
of these had been constructed without planning permission although the
appellants had only taken enforcement action in respect of one of the windows.
That approach appeared to me to be fatal to his appeal, for it involved holding
that the whole detail shown in respect of the west gable wall in the first plan
was quite inconsistent with that shown in the second plan, thus making them
truly alternatives: in which case the reporter was well entitled to hold as he
did.
Mr Brodie’s
narrower argument (which involved jettisoning the claim that there was any
breach of planning control in respect of the window) required both plans to be
looked at together. If one does so, it is clear, exfacie, from the first
plan that the balcony lies behind the screen wall there detailed. In the
absence of a condition to such effect, there is no requirement that a developer
must carry out all of the development for which permission has been granted. So
no breach of planning control was demonstrated merely by the failure of the
developer to erect a screen wall in front of the balcony.
Appeal
dismissed.
