Council granting planning permission for development subject to condition – Whether permission permanent or temporary – Whether condition void for uncertainty – Whether condition severable – Permission held to be of no effect – Appeal dismissed
In August 1986 the appellant applied for planning permission for the “permanent siting of a residential caravan” on a site known as Anchor Meadow, Anchor Lane, Harvington. By a decision of October 1986, planning permission was granted for the “Permanent siting of a residential caravan”, with a condition that such use was to be discontinued, and the land reinstated to its former use and condition, “not later than F year(s) from the date of this permission”.
The claimant brought proceedings for a declaration that the planning permission was permanent and that the first condition was ultra vires and void for uncertainty. The council counterclaimed, seeking declarations that the permission was temporary for a period of five years, or, in the alternative, that it was of no effect or should be rectified. The judge held that the claimant had not made out an arguable case that permanent approval had been intended. He concluded that the condition was void and of no effect and that, since it was not severable from the planning permission, the permission itself was of no effect. The claimant appealed.
Held: The appeal was dismissed.
1. The judge had been right to refuse the council’s claim for rectification and to conclude that he could not be certain that what was intended by the notice was a five-year period. In any event, there were grave reservations as to whether the equitable remedy of rectification was, in principle, available in respect of a notification of planning consent. There might well have been substantial objections to the grant of such a remedy, even in the case of the clearest mistakes.
2. Once it was concluded that there was an intention, discernible from the notice itself, that there should only be a temporary grant of planning permission, although it could not be said for how long, it became impossible for the court to strike out all references to a temporary consent so as to leave a permanent consent. The condition that the permission should only be temporary, for the reasons stated in the approval notice, could objectively be seen to be of fundamental importance to the council in making the grant and could not be deleted so as to leave the grant of permanent permission subsisting: Kent County Council v Kingsway Investments (Kent) Ltd [1971] AC 72 applied.
Jeremy Cahill (instructed by Hulme & Co, of Worcester) appeared for the appellant. David Park (instructed by the solicitor to Wychavon District Council) appeared for the respondents.
Thomas Elliott, barrister
