The court felt able to save a planning permission containing an obvious error by correcting that error as a matter of construction
In appropriate circumstances, it is permissible – as a matter of construction – to read documentary provisions as being subject to addition, omission or even substitution. In terms of substitution, where the document is a unilateral document, Lord Reid in Federal Steam Navigation Co Ltd v Department of Trade and Industry [1974] 1WLR 505 stated that this approach was acceptable where without substitution the provision in question was (a) unintelligible or absurd or totally unreasonable OR (b) unworkable OR (c) totally irreconcilable with the plain intention shown by the rest of the document. This court followed this approach, in respect of a planning permission, in Newark and Sherwood District Council v Secretary of State for Communities and Local Government [2013] EWHC 2162 (Admin).
In that case, the claimant applied to quash planning permission granted on appeal by an inspector for a single wind turbine. The planning application form expressly referred to supporting materials and information, and those clearly demonstrated, as a particular feature of the proposed turbine, its two-bladed design. However, the condition imposed by the inspector dealing with the submission and approval of a detailed specification for the turbine referred to a three-bladed design. It was common ground between the parties that the inspector had made an error, even one possibly resulting from faulty use of the “copy and paste” technique! The crucial issue was the consequences of that error.
One of the claimant’s grounds of challenge was that, as a result, planning permission had been granted for a turbine different from that applied for and assessed. (The condition, on its face, prevented approval of details of a two-bladed turbine.) As the inspector had no power to grant such a permission, it was invalid. The defendants principally submitted that the issue was a matter of construction. The inspector plainly intended to grant planning permission for a two-bladed turbine only; the reference to a three-bladed turbine in the condition in question was a mistake, which could be corrected as a matter of construction under the principles in Federal Steam Navigation.
The court accepted the defendants’ submission, and held that, on its true construction, the condition fell to be read as if the words “two-bladed” were substituted for the words “three-bladed”. Accordingly, this ground of challenge failed, as did the claimant’s other grounds of challenge.
John Martin
