In Koumis v Secretary of State for Communities and Local Government [2012] EWHC 2686 (Admin) the appellant sought to challenge the decision of an inspector (1) to dismiss his appeal against a refusal by the local planning authority (“LPA”) to grant retrospective planning permission for the construction of a small block of flats and (2) to uphold an enforcement notice issued by the LPA.
In the context of both challenges, the appellant contended that the inspector’s analysis of the impact of the block on the site was flawed in that it was predicated on an incorrect assumption about the height of a scheme that had been approved under an earlier, but lapsed, planning permission. This involved the court in interpreting the planning permission in question, it having been long established that the interpretation of a planning permission is a matter of law for the court. The judge helpfully summarised the relevant principles as follows.
(1) In the case of an outline planning permission that is clear and unambiguous and valid on its face, regard may be had only to the planning permission, including the conditions (if any) and the reasons for imposing them. The underlying rationale is that the public should be able to rely on a document that is plain on its face without having to discover whether there is a discrepancy between the permission and the application.
(2) However, if that outline planning permission incorporates, by reference, the planning application, the application is treated as having become part of the permission. That said, more is required in terms of incorporation wording than mere reference on the face of the permission to the application. The wording must inform a reasonable reader that the application forms part of the permission.
(3) In the case of a full planning permission, the plans and drawings submitted with it may always be referred to, whether or not they are expressly incorporated into the permission. This is because a full planning permission does not purport to be a complete and self-contained description of the development permitted, and the public will know that there will be plans and drawings describing the permitted development.
(4) If a planning permission is ambiguous or is challenged on the ground of absence of authority or mistake it is always permissible to look at extrinsic material.
John Martin