Planning permission — Change of use — Permission ambiguous as to location of development site — Inspector deciding that permission relating to appeal site — Inspector treating stationing of café as operational development — Whether inspector erring in law — Claim allowed in part
In August 1995, the claimant council granted the second defendant planning permission for a picnic area, a car park, a mobile catering unit and ancillary works and alterations to vehicular access (the 1995 permission). In November 1996, they granted a further planning permission to retain a portable catering unit and to install a toilet block and a private sewerage system (the 1996 permission). Both permissions were stated to accord with the application particulars and block plans.
In November 2003, the claimants issued two enforcement notices. These alleged that, without planning permission: (i) there had been a material change of use to “use as a café including the stationing of a mobile catering unit, toilet block and ancillary parking, land for the parking of vehicles unrelated to the site of the café, woodland and highway”; and (ii) hard surfacing had been laid on the site. The second defendant appealed to the first defendant, pursuant to section 174 of the Town and Country Planning Act 1990.
Following a public inquiry, the inspector concluded that the existing café, the toilet block, the parking area that had been laid out under the 1995 permission and part of the hardstanding were lawful. He found that the block plan and site layout had identified the correct area of land by reference to (unspecified) nearby fixed points and that both permissions related to the appeal site. He also found that, the café was a building constituting operational development rather than a change of use. He varied the enforcement notices by requiring a reduction in the hard surfacing available for parking and by refusing permission for overnight lorry parking. Unrestricted use of the building as a café could to continue.
The claimants sought to quash that decision under section 289 of the 1990 Act, contending that the inspector had erred in law: (i) by concluding that both permissions related to the appeal site; and (ii) in treating the stationing of the café as operational development rather than a change of use of land.
Held: The claim was allowed in part.
The inspector’s decision that both planning permissions related to the appeal site was correct. The proper interpretation of the permissions was a matter of law for the court. It had to reach its own view as to their meaning by identifying whether the application for permission or other documents had been expressly incorporated and by considering whether the permission was ambiguous. In the event of ambiguity, regard could be had to extrinsic material: R v Ashford Borough Council, ex parte Shepway District Council [1999] PLCR 12 applied.
In the present case, the inspector had not acted unreasonably in deciding that the block plan and site layout had identified the correct piece of land by nearby fixed points. Extrinsic evidence was admissible in order to resolve the ambiguity as to the extent or location of the application site and the nature and extent of permitted development.
However, the case would be remitted to the inspector for further consideration of the implications arising from his finding that the café unit was a building and therefore constituted operational development rather than change of use. That finding was a matter of fact and degree for the inspector’s judgment. However, having raised the point, it was incumbent upon him to consider the implications of that conclusion.
Simon Bird (instructed by Gotelee & Goldsmith) appeared for the claimants; Jonathan Moffett (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendant did not appear and was not represented.
Eileen O’Grady, barrister
