Residential development — Certificate of lawfulness — Construction of planning permissions — Whether permissions permitting proposed development — Whether development restricted to one house per plot — Claim dismissed
The second defendant council refused an application by the claimants for a certificate of lawfulness for the construction of a single detached dwelling on land previously forming part of an estate. On appeal to the Secretary of State, the question arose as to whether the proposed development was permitted under either of two planning consents dating from 1949 and 1953 respectively. The 1949 consent was a conditional permission for the development of “domestic dwellings” on the estate, and referred to a layout “shown on the accompanying plans”. Those plans indicated the division of the land into plots, with the appeal site forming part of a single large plot. The 1953 consent referred to a plan, submitted with the planning application, upon which “sites to be sold for future building or houses or cottages” were shown in blue and “plots already sold as sites for houses or where houses have already been built” were marked in red. The appeal site fell within the red land. By the time of the claimants’ application, two dwellings had already been constructed on the plot that incorporated the appeal site, pursuant to further planning permissions.
Dismissing the appeal, the inspector held that the 1949 consent permitted a single dwelling on each plot, and that, since two had already been built on the relevant plot, there was no justification for allowing a further dwelling. He held that the areas coloured in red in the 1953 consent were outside the scope of that consent, which granted permission in principle only for development of the blue land. The claimants challenged his decision under section 288 of the Town and Country Planning Act 1990.
Held: The claim was dismissed.
The 1953 consent could not be construed as affecting the planning status of any part of the appeal site. It was apparent that the applicant for permission on that occasion had not been seeking permission over the land coloured red. The 1953 consent was given by reference to the application plan, which was seeking permission only over the land coloured blue on that plan. The 1953 consent could not therefore be construed as granting permission over any land not coloured blue on the plan.
Although the inspector’s “one house per plot” view did not necessarily follow from an inspection of the plans, his conclusion was correct for different reasons. The 1949 consent had given the then equivalent of outline consent for the construction of houses on the plot in question. When granting the 1949 consent, the council had retained control over the density of housing to be permitted on the site. The equivalent of detailed permission would still have had to be obtained, and it would have been within the council’s power to restrict development to one house on the plot, although they would have had to give detailed consent for that one house. The 1949 consent had, in the event, been implemented by the construction of two dwellings, thereby exhausting the 1949 consent.
Michael Druce (instructed by Brachers, of Maidstone) appeared for the claimants; Rebecca Haynes (instructed by the Treasury Solicitor) appeared for the first defendant. The second defendants did not appear and were not represented.
Sally Dobson, barrister
