Planning permission — Construction — Whether permissible to construe application
In October
1989 the appellant council granted outline planning permission to themselves
pursuant to their powers under regulation 5 of the Town and Country Planning
General Regulations 1976 for office development. Although the permission was
silent on the floor area permitted, the application and supporting report
referred to 1,055 m2. The second respondent acquired the subject site and sought
approval of reserved matters; the submitted details included a floor area of
1,530 m2. Following an appeal against the non-determination by the council,
the Secretary of State, by his inspector, concluded that the application for
approval of reserved matters fell within the terms of the planning permission.
The council appealed against the decision of Schiemann J dismissing their
application for judicial review, contending that it was necessary to consider
the terms of the original application in construing the planning permission.
The rule in Miller-Mead
v Minister of Housing and Local Government [1963] 2 QB 196 is well
established, namely that in construing a planning permission regard may be had
only to the permission itself, including the reason stated for it. The
exceptions to that rule do not apply in the instant case: see p32D. The mere
inclusion of the reference number of the application on the permission is not
sufficient to inform a reasonable reader that the application forms part of the
permission: see p36B.
to in the judgments
Clwyd
County Council v Secretary of State for Wales
[1982] JPL 696
Co-operative
Retail Services v Taff-Ely Borough Council
(1979) 39 P&CR 233; sub nom Attorney General, ex rel
Co-operative Retail Services [1979] 1 EGLR 158; (1979) 250 EG 757; [1979]
JPL 466, CA; (1981) 42 P&CR 1, HL
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
Staffordshire
Moorlands District Council v Cartwright
(1991) 63 P&CR 285, [1992] JPL 138, CA
Wheatcroft
(Bernard) Ltd v Secretary of State for the
Environment (1980) 43 P&CR 233; [1981] 1 EGLR 139; 257 EG 934; [1982]
JPL 37, CA
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; [1963] RVR 278, CA
Wivenhoe
Port Ltd v Colchester Borough Council [1985]
JPL 396, CA
Appeal against
decision of Schiemann J
This is an
appeal against the decision of Schiemann J (on March 25 1994) dismissing an
application for judicial review of the decision of the Secretary of State for
the Environment to allow an appeal by the second respondent, Mr R A Oury.
and Paul Stinchcombe (instructed by the solicitor to Slough Borough Council)
appeared for the appellants.
Singh (instructed by the Treasury Solicitor) appeared for the first respondent,
the Secretary of State for the Environment.
respondent, Mr R A Oury, did not attend and was not represented.
following judgments were delivered.
STUART-SMITH
LJ: By this appeal the appellants invite this court
to resolve an important but controversial point of planning practice, namely
the extent to which it is permissible to have regard to the application in
order to construe the scope of the planning permission which is granted.
The old petrol
station site in Hershel Street, Slough, was vested in the borough council. It
was considered to be ripe for development. The council did not desire to carry
out any development themselves and preferred to sell the land with the benefit
of such planning permission as might be obtained. On March 10 1989 the council
resolved pursuant to regulation 5 (2) of the Town and Country Planning General
Regulations 1976 (SI 1976 No 1419)
To seek
permission for the following development in accordance with the accompanying
particulars and plans.
The
particulars there referred to were those contained in the borough’s planning
application and the plans referred to were a site plan and a layout plan which
was marked to be illustrative only. The planning application form required all
questions to be answered. It was in two parts. Part 1 had a space at the top of
the form which was for office use only upon which the planning office entered
the application number which was S/328 and the Berks ref no 513334 and other
administrative details. In answer to the question, ‘What is the application
for?’ the information given was ‘Office development (B1a) Reg 5 (outline)’.
Further
questions elicited the answers that the application involved a change of use, a
redevelopment and the erection of new buildings, the application being for
outline permission which reserved the details of external appearance, siting,
design, means of access and landscaping. Having given an affirmative answer to
the question 21, which inquired whether the proposal involved any
non-residential building or use, the
required the applicant to:
state the
gross floor space in square meters (by external measurement) of all buildings
to which this application refers.
In answer it
was declared that the class of use was Class B1(a) office (other than Class A2)
and the proposed additional floorspace created by the new building was given as
1,055 m2. Part 1 (incorporating as it does in this case part 2), concluded
with these words:
I hereby
apply for permission in respect of the particulars described above and in the
attached plans and drawings.
A report was
prepared for the committee considering the application. The application was
identified by its number (and the addition of extra noughts adds nothing to
it.) The proposal was for the ‘erection of B1a office development. Reg
5.(Outline). Petrol Station Site, Hershel Street’. The recommendation was to
resolve ‘to authorise the carrying out of the development’. That was duly done.
At the top right-hand corner of the resolution the application number
S/00328/000 and the Berks county number 513334 are clearly written. The
resolution then reads:
In pursuance
of their powers under the (Town & Country Planning Act 1971) and the (Town
& Country General Regulations 1976), the Council of the Borough of Slough
as the Local Planning Authority, hereby resolves by resolution which is hereby
expressed to be passed for the purposes of Regulation (5) of the Town and
Country General Regulations 1976 to authorise the carrying out of:
B1A Office
Development. (Reg 5) (Outline).
Petrol
Station Site Hershel Street.
Subject to
the following condition (s);
01 The
developments shall be carried out in accordance with detailed plans showing the
siting design and external appearance of the building (s) the means of access
thereto, and the landscaping of the site, hereinafter collectively referred to
as the ‘reserved matters’ which shall have been submitted to and approved by
the Local Planning Authority before the commencement of the development.
01 Reason: to
prevent the accumulation of planning permissions, to enable the Council to
review the suitability of the development in the light of altered circumstances
and to comply with the provisions of Section 41 of the Town & Country
Planning Act 1971 …
The resolution
is in fact typed over three pages, each page giving the application number and
Berks county number. It was dated October 18 1989.
The site was
then sold by the council. On July 4 1991 the second respondent applied for
planning permission using the same form as we have described. He stated that
the application involved the change of use, the redevelopment and the erection
of new building and the type of
to the relevant outline planning permission no S/00328/000. He was also
required to complete part 2, but he stated that the proposed additional
floorspace to be created by the new building was 1,530 m2.
The council as
planning authority were not prepared to approve as reserved matters a
development which increased the floor area by some 45% and there was some
correspondence not placed before us as to whether or not the application was to
be properly regarded as one for the approval of those matters or for a new full
planning permission. Having failed to make a determination, the second
respondent duly appealed on November 7 1991.
Some of the
correspondence passing between the first respondent and the second respondent’s
agent is before us. The planning inspectorate seemed inclined to treat the
application as being one for full planning permission given the substantial
difference in the amount of floorspace included in the approved outline application
and the amount proposed by the second respondent. The inspectorate took legal
advice which confirmed that view. The second respondent did not agree with
those opinions.
The Secretary
of State then appointed the inspector initially to determine as a preliminary
issue whether the appeal should proceed as one for approval of reserved matters
or whether it should be treated as a fresh application for full planning
permission. He concluded that the application was intended to be for approval
of details and there is no challenge to that part of his decision.
It therefore
became necessary for him to decide whether the proposal was outside the terms
of the original planning permission because of the increased floor area. That
decision did not call for any consideration of the merits of the proposal. The
inspector set out his findings in his decision letter dated June 25 as follows:
12. I am in no doubt that the Local Planning
Authority clearly intended to apply for and grant a permission in accordance
with the Local Plan for office development limited to 1055 sq m. That figure
was given in the application, and in the report. However the permission itself
is silent on the question of floor area restriction.
…
17. I accept that the floor area proposed by
your client of 1530 sq m, an increase of 475 sq m, amounted to an increase of
45% of floor area, is so substantial that I do not consider that it can be said
to be in the same terms as the original application. The permission, although
giving the application reference number, does not specifically state that it is
in accordance with plans and applications submitted. The permission is
unambiguous on the matter of floor area, since there is no reference to it
whatsoever. The application, despite its clarity, does not justify a restricted
interpretation of the unfettered (as far as floor area is concerned) outline
permission given …
18. The permission is the principal document,
and I do not consider that this application for approval of details which
relate to the same type of development on essentially the same site is outside
the scope of that permission. I accept, as the Council have pointed out, that
the outline permission dated 18 October 1989 does give the reference number.
However
own, too tenuous a link to justify the assertion that the outline permission in
this case incorporates the application. I also accept that the application is a
public document. But I do not think that the ordinary reasonable man would
consider that it would be necessary to refer to the application, in order to
ascertain the limitation on floor space, in the light of what permission says.
…
21. I further conclude that the proposal, in
terms of floor area does not fall outside the terms of the outline permission
granted; and that the appeal should now therefore go forward to be determined
on its merits, by having regard to Local Planning policies.
On September
23 1992 the local authority moved to quash that decision and sought a
declaration that the second respondent’s application dated July 4 1991 was
outside the terms of the outline planning permission dated October 18 1989.
That application for judicial review was dismissed by Schiemann J on March 25
1994 and the borough council now appeal against that order with leave of the
judge.
The question
therefore for this court is in what circumstances is it permissible to look at
an application for planning permission when deciding the scope of the
permission granted pursuant to the application.
In the instant
case the permission was clear, unambiguous and valid on its face; apart from
the reference number, there was no mention of the application. The general rule
is that, in construing a planning permission, regard may be had only to the
permission itself, including the reasons stated for it. In Miller-Mead v
Minister of Housing and Local Government [1963] 2 QB 196 the Court of
Appeal rejected the submission that the permission should be construed along
with the application. Lord Denning MR (at p215) said:
A grant of
permission runs with the land and may come into the hands of people who have
never seen the application at all. It cannot be cut down by reference to the
application.
At pp223-224
Upjohn LJ said:
It must always
be remembered that the grant of permission runs with the land under section
18(4) of the Town and County Planning Act, 1947, and a successor in title is
entitled to rely on the actual words of the grant: he will not have seen the
application. But in any event the principle sought to be established seems to
me unsound. The application may ask for too much or, as Mr Megarry submits in
this case, too little, but it is entirely a matter for the planning authority
to consider what permission is to be granted and I do not see how logically one
can construe the permission by reference to the application made. I, therefore,
reject that argument. In saying that I am dealing only with questions of
construction. I express no view on Mr Megarry’s argument that a permission
granted in wider terms than the application might be ultra vires. That
is not an issue before us.
Mr Brian Ash
QC submits that we should not follow Miller-Mead‘s case
the proposition that the application is not available to be seen, whereas since
the Town and Country Planning General Development Order 1988 (SI 1988 No 1813),
article 27 it has to be included in the register and is therefore available to
be seen by anyone interested. Prior to this order, the relevant general
developments orders had since 1948 merely required that certain particulars of
the application, namely the name and address of the applicant, the date of
application and brief particulars of the development forming the subject of the
application should be included. In other words, the application itself was not
on the register. Prior to 1948 there was not even this requirement.
Accordingly, Mr Ash submits that since the raison d’être of the rule has
gone, the rule should go too. He relied in support of this submission on a dictum
of Forbes J in Clwyd County Council v Secretary of State for Wales
[1982] JPL 696 as reported in Wivenhoe Port Ltd v Colchester Borough
Council [1985] JPL 396 at p401 as follows:
The planning
permission, which was the subject of debate in Slough Estates, was one
which was granted under the planning legislation in force in 1945. There was
then no requirement that a local planning authority had to keep a register of
applications, as Lord Pearson points out at page 967F-G. The application in the
Slough Estates case was not a public document. For a long time before
the current provisions of the Town and Country Planning General Development
Order 1977, Article 21, there has been a permanent register containing records
both of the application with its plans and of the planning permission. Lord
Reid’s objections therefore do not apply and he did not intend them to apply to
the modern situation, but to the historical situation of planning application
which was before him.
We do not
accept Mr Ash’s submission. It does not follow that simply because one of the
reasons for the rule, even if it is the principal reason no longer exists, the
rule itself should be abrogated. There is nothing to suggest that the change
brought about by the 1988 General Development Order was for the purpose of
altering the rule. Still less is there any legislative provision in subsequent
Acts of Parliament to alter the rule which has been well established since Miller-Mead‘s
case.
The rule was
affirmed by the House of Lords in Slough Estates Ltd v Slough Borough
Council (No 2) [1971] AC 958. The planning permission with which the court
was concerned in that case was prior to the Town and Country Planning (General
Development) Order 1948 (SI 1948 No 958) which introduced the requirement for
particulars of the planning permission to be included in the register. This
point was adverted to by Lord Pearson, with whose speech the other members of
the House agreed. At p967 he said:
Under these
relevant Acts and Orders of 1932-1945 what documents can properly be taken into
account in construing the planning permission? If the purported planning
permission had been on the face of it a complete and self-contained document,
not incorporating by reference any other document, I should have been inclined
to apply the rule, established under
2 QB 196 and Wilson v West Sussex County Council [1963] 2 QB 764,
that the application should not be taken into account in construing planning
permission unless the planning permission incorporates the application by
reference.
There is no
hint of reservation or disapproval of the Miller-Mead decision and in
particular no suggestion that it is permissible to look at such particulars of
the application as do appear on the register. On the contrary, it appears to us
to be cited with approval. Lord Pearson in effect says that the present case
was a fortiori. In our view, Lord Reid also approved the decision in Miller-Mead
at p962. He said:
Of course,
extrinsic evidence may be required to identify a thing or place referred to,
but that is a very different thing from using evidence of facts which were
known to the maker of the document but which are not common knowledge to alter
or qualify the apparent meaning of words or phrases used in such a document.
Members of the public, entitled to rely on a public document, surely ought not
to be subject to the risk of its apparent meaning being altered by the
introduction of such evidence.
The
application is just as much extrinsic evidence as any other document that may
have passed between applicant and planning authority. It should be borne in
mind that breach of planning permission may lead to criminal sanctions. The
public should be able to rely on a document that is plain on its face without
being required to consider whether there is any discrepancy between the
permission and the application.
Second, Mr Ash
submits that the planning authority lacked jurisdiction to grant permission for
substantially more than had been applied for. This is the argument adverted to
by Upjohn LJ in Miller-Mead. Mr Ash submits that it is now clearly
established, whereas it was not in 1963, that the planning authority cannot
grant substantially more than is applied for. He relies on the inspector’s
decision in this case that the proposed development of 1,530 m2 is
substantially more than those applied for. But we cannot see how want of
authority or jurisdiction can affect the construction of the permission which
is plain on its face.
It does not
follow that an enlargement of the application site is ipso facto
invalid. The rationale for saying that it may be invalid was explained by
Forbes J in Bernard Wheatcroft Ltd v Secretary of State for the
Environment (1980) 43 P&CR 233 in that if the enlargement is so
substantial it would deprive those who should have been consulted of an
opportunity to make representations and objections. But whether the enlargement
is so substantial must in the first place be a decision of the planning
authority which can only be challenged on well known principles applicable to
judicial review. It would, in our judgment, be highly unsatisfactory if a
prospective purchaser, seeing that there is some discrepancy between the
application and permission, had then to perform a mental judicial review to
determine whether the permission was valid or not. We agree with Schiemann J
that if the validity of the permission is to be challenged on the
grounds that it substantially exceeds what was applied for, such challenge must
be made promptly, otherwise the permission is taken to be valid. The time for
challenge in this case has long since passed. In any event, the application for
1,530 m2 development is irrelevant; the real question at this stage is
whether the permission as granted is invalid, having regard to the application
which was limited to 1,055 m2. It is possible when the detailed application is considered that
the size of the development can properly be reduced, having regard to such
reserved matters as siting, design and external appearance of the buildings,
access and landscaping.
In our
judgment, the general rule stated in Miller-Mead is well established.
There are recognised exceptions to it. The first is where the planning
permission incorporates by reference the application and accompanying plans, thus
enabling those documents to be referred to: Wilson v West Sussex
County Council [1963] 2 QB 764, and the Slough Estates case. The
exception is in fact more apparent than real, since the incorporation makes the
documents incorporated part of the permission. It simply avoids the necessity
of the planning authority repeating these matters in the permission.
The second
exception is where the permission is ambiguous on its face. The case of Staffordshire
Moorlands District Council v Cartwright [1992] JPL 138 must be
regarded as an example of this. Mr Ash sought to derive a much wider principle
from this case. He relied upon a passage in the judgment of Purchas LJ at p139
where he said:
The terms of
the planning consent had to be construed in the factual context of the
application as a result of which the permission was granted. Any exchange
between the applicant and the planning authority might form part of the
evidential matrix: see Oakimber Ltd v Elmbridge Borough Council and
Surrey County Council [1991] JPL 48. In this case the relevant documents
were the permission itself, which was to be construed where ambiguous in the
context of the correspondence and plans submitted by Jackson and letters
written by Cheadle in response.
Although the
first part of this passage suggests that Purchas LJ was stating a wide general
proposition, we do not think he can have intended to do so without any
consideration of the cases of Miller-Mead and Slough Estates. The
second part of the passage makes it clear that he regarded the case as one of
ambiguity. In the Oakimber case it appears to have been conceded by
counsel that in considering the approval reference can be made to the
application, and Purchase LJ (at p51) cited Wilson‘s case as authority
for this proposition. It is not clear on what basis the concession was made;
but Wilson‘s case was an incorporation case. Oakimber‘s case
cannot be taken as authority for the general proposition that the application
can be referred to in all cases to construe the permission, since this is
contrary to binding authority of this court.
A further
exception arises where the validity of the planning permission is challenged on
the grounds of want of authority or mistake. In such circumstances it is
permissible to look at the background
Council (1979) 39 P&CR 233, CA, and (1981) 42 P&CR 1, HL. But no
question of that sort arises in this case.
Mr Ash’s
second main submission is that the mere inclusion of the reference number of
the application on the permission is a sufficient incorporation of the
application. We do not agree. It is not sufficient to inform a reasonable
reader that the application forms part of the permission. Some such words as
‘in accordance with the plans and application’ would in our view be necessary.
There can be no doubt about the position. For this part of his appeal Mr Ash
relied on the statement of Lord Pearson in Slough Estates v Slough
Borough Council (ibid) at p968B where he observed:
But in the
present case the purported planning permission was not complete or
self-contained on the face of it, because it incorporated by reference ‘the
plan submitted’. Also it referred in the top right hand corner to ‘Application
No UL 21’.
We do not
regard this statement as indicating that in the view of Lord Pearson a
reference to the application number alone would have sufficed; rather that the
reference number was, on the facts of the case, a relevant consideration in the
identification of the plan in question.
The appeal is
dismissed.
Appeal
dismissed with costs.
