Town and country planning – Planning permission – Interpretation – Section 74(2)(c) and (a) of Town and Country Planning Act 1990 – Claimant using basin for private moorings – Second defendants issuing enforcement notice – First defendant’s inspector granting planning permission on ground (a) appeal for mooring of no more than 25 boats – Whether erring in rejecting ground (c) appeal – Whether private mooring permitted under earlier planning permissions – Whether permitted use abandoned – Claim dismissed
In 2011, the second defendant issued an enforcement notice alleging a breach of planning control by the use of a basin on an island site off the River Yare in Norfolk for boat moorings and by the construction of jetties on the basin. The claimant, as the owner of the site, appealed to the first defendant’s planning inspector on the grounds in section 74(2)(c) and (a) of the Town and Country Planning Act 1990, respectively that the matters enforced against did not constitute a breach of planning control or that planning permission should be granted for them.
The inspector considered the planning history of the site including a series of planning permissions granted to a boat hire company in the mid-1960s. The first was an outline planning permission for the construction of the basin and other development related to boatyard use, including wet and dry boathouses and a clubhouse. There were also full planning permissions for much of that development and for a bridge over the river to the island. After carrying out that development, the boat hire company had left the site in 1970 and everything but the basin and the bridge had been demolished. In 1985, planning permission had been granted for residential development on a nearby riverside site, subject to a planning agreement under which the island site could not be used for any purpose other than the mooring of private boats.
The inspector found that the claimant’s use of the site was not permitted by the earlier planning permissions since they permitted mooring only as part of the commercial boatyard use rather than as an independent private mooring facility. He further considered that the permitted use had in any event been abandoned after the boat hire company left the site, if not by the demolition of the boatyard development then by virtue of the 1985 planning agreement. He accordingly dismissed the ground (c) appeal but he granted planning permission on the ground (a) appeal for the mooring of no more than 25 boats.
The claimant brought proceedings to challenge the inspector’s decision, contending that he had erred both in relation to the ground (c) appeal and in restricting the number of boats which could be moored to 25.
Held: The claim was dismissed.
(1) The inspector had been entitled to dismiss the ground (c) appeal on the grounds that the present use of the basin constituted a material change of use for which planning permission was required and had not been granted. Any lawful use of the basin for private mooring could only have come from the planning permissions granted in the 1960s. The inspector had taken the correct approach when construing those permissions to ascertain the nature of the use which they made lawful.
When interpreting a grant of full planning permission, it was permissible, where necessary, to consider extrinsic evidence beyond the available relevant documents as an aid to interpretation. Such evidence could relate to the way in which the permission had actually been implemented. The inspector had been entitled to adopt a pragmatic approach, which involved considering the planning permissions approving the construction of the basin in their own terms in the light of the applications for those permissions and the relevant drawings, but also taking into account the series of permissions granted for individual elements of the other boatyard development and the earlier outline planning permission. In that way, the inspector had been able to gain a full and accurate understanding of the nature of the development approved by the basin permissions. It would have been artificial for him to confine his attention only to the permissions granted specifically in relation to the basin. He was entitled to consider all of the publicly available documents and drawings comprised in the several applications for planning permission, which together formed the proposal for the commercial boatyard, as well as the decision notices themselves. He was also entitled to have regard to the development which had in fact been carried out on the island site, which confirmed the interpretation which he had reached of the planning permissions themselves: Barnett v Secretary of State for Communities and Local Government [2009] EWCA Civ 476; [2009] PLSCS 110 and Campbell Court Property v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 102 applied.
The relevant planning permissions were for operational development, not for any change of use, and it was accordingly relevant to consider the purpose for which the development was “designed”, that being the purpose for which, under section 75(3) of the 1990 Act, permission was taken to be granted in the absence of any specific purpose mentioned in the permission itself. The word “designed” in that context referred to the purpose for which the building was intended, rather than architecturally designed: Wilson v West Sussex County Council [1963] 2 QB 764 applied. The inspector had been entitled to conclude that the lawful use of the basin under the planning permissions, and the purpose for which it had been “designed”, was not for private moorings but to provide a facility for the commercial boatyard. The basin had been proposed and built to serve that enterprise. The private mooring use enforced against was materially different in character than the use for which the basin had been designed. The fact that the permissions contained no condition precluding a use materially different in character from that for which the building was designed could not serve as approval for such materially different use: I’m Your Man Ltd v Secretary of State for the Environment [1998] EWHC 866 (Admin); (1998) 77 P&CR 251; [1998] 4 PLR 107 distinguished.
(2) The inspector had not erred in his approach to the issue of abandonment. He had properly found that two supervening events had occurred since the grant of planning permission, namely the demolition of most of the structures on the island site and the imposition of a restriction on the use of the site in the planning agreement for the residential development. The first of those two events had a physical and practical effect, transforming the island site and ending use of the buildings for the purpose for which they had been designed, while the second had a legal effect since it was intended to ensure the permanent cessation of all commercial activity on the site. It thus became impossible to use the basin for boatyard purposes under the planning permissions originally granted for its construction. For a commercial boatyard to be recreated on the site, a fresh grant of planning permission would be required, and would have to be restricted to private mooring. The planning agreement could not itself authorise private mooring use where permission for such use did not already exist.
(3) The inspector’s exercise of planning judgment in relation to the ground (a) appeal could not be criticised. The inspector had properly assessed the planning merits of the unauthorised mooring use and associated operational development and had been entitled to conclude that planning permission could be granted subject to certain conditions, including a condition restricting the private mooring use to no more than 25 vessels. There was no irrationality in the conclusions which he had reached.
Daniel Stedman Jones (instructed by Leathes Prior, of Norwich) appeared for the claimant; Gwion Lewis (instructed by the Government Legal Department) appeared for the first defendant; William Upton (instructed by Norfolk Public Law, of Norwich) appeared for the second defendant.
Sally Dobson, barrister
Click here to read transcript: Wood v Secretary of State for Communities and Local Government and another
