Planning permission — Golf course — Conditions — Approval of details — Claimant council issuing enforcement notice for failure to comply with approved details — Whether right to imply further words into planning condition — Whether inspector justified in awarding costs — Appeal dismissed
The claimants granted the second defendant outline planning permission for a golf course. The permission was subject to the condition, inter alia, that, prior to the commencement of the development, details of associated engineering works should be submitted to, and approved in writing by, the claimants, in order to satisfy them that the proposals were in the interests of the area’s visual amenities. The claimants subsequently served an enforcement notice on the second defendant, alleging breach of that condition on the ground that the earth bunds that had been constructed on the course were higher than those previously approved by the claimants.
The second defendant appealed the notice to the first defendant. The inspector decided that it was impossible to imply a requirement that the works in question be carried out in accordance with the approved details. The appeal was allowed and the claimants were ordered to pay the second defendant’s costs.
The claimants appealed, contending that it was permissible to imply words into planning conditions to achieve their purpose. They maintained that the costs decision had been flawed because they had not acted unreasonably and had provided reasonable justification for their allegation of breach by relying upon a similar earlier decision.
Held: The appeal was dismissed.
Since a planning permission was a public document that might have adverse consequences if an enforcement notice were issued and not complied with, it was essential that any obligation was clearly and expressly imposed. The words in the condition had to be given their plain and ordinary meaning. Where the language of the condition was unambiguous, no extraneous words were to be implied either as an aid to construction or for any other purpose: Crisp from the Fens Ltd v Rutland County Council (1950) 1 P&CR 48 and Carter Commercial Developments Ltd (in administration) v Secretary of State for Transport, Local Government and the Regions [2002] EWCA Civ 1994; [2003] JPL 1048 distinguished.
In the present case, the language of the condition was clear. The claimants had failed to heed the unambiguous warning in Circular 11/95 that a condition that simply required the approval of details to be obtained would be unlikely to allow the planning authority to enforce compliance with those details. The claimants could have expressly inserted the further obligation that they now sought to have implied, but had chosen not (or had omitted) to do so.
With regard to the costs decision, the inspector had properly found that the claimants’ allegation in the enforcement notice had been fundamentally flawed and, absent clear judicial authority, had been entitled to conclude that it had no reasonable underlying justification. He had therefore been correct in making the order.
Robert Lewis (instructed by Sharpe Pritchard as agent for Sevenoaks District Council) appeared for the claimants; Kate Selway (instructed by the Treasury Solicitor) appeared for the first defendant; Robert Turrall-Clarke (instructed by Stephens & Scown, of Exeter) appeared for the second defendant.
Eileen O’Grady, barrister
