Property law reports

Planning permission: Conditions

Planning permission - interpretation - defendant council allowing claimants' application to lift one of conditions attached to planning permission - whether other conditions still attaching to new permission - whether permissible to have reference to application and earlier permission in interpreting new permission - section 73 of Town and Country Planning Act 1990 - claim dismissed

R (on the application of Reid and another) v Secretary of State for Transport, Local Government and the Regions and another: QBD (Mr Justice Sullivan): 7 October 2002

The second claimant, RM, was a firm operated by the first claimant.

It acquired land that benefited from a 1992 planning permission, granted to the previous owner of the site, for a transport depot and the creation of a new vehicular access.

The permission was subject to several conditions, none of which had been fulfilled.

Condition 2 related to highway improvements.

RM applied, pursuant to section 73 of the Town and Country Planning Act 1990, for a new planning permission, with condition 2 removed.

The claimants further applied for retrospective planning permission for existing, unauthorised uses of the land.

The council refused the latter application in July 2001, and issued two enforcement notices requiring the unauthorised uses to cease.

The claimants appealed against the refusal of permission and the enforcement notices.

In January 2002, the council granted planning permission in respect of the section 73 application, for 'retention of use of land without compliance with condition 2'.

Under the heading 'Conditions', the word 'None' was entered.

The claimants' appeals were subsequently heard and dismissed by an inspector on the basis that all conditions, other than condition 2, still attached to the 2002 permission.

The claimants challenged that decision by way of, among other things, an application for permission to appeal under section 288, and appeals under section 289 of the 1990 Act.

It was common ground that the inspector had been required, when determining the appeals before him, to consider the effect of the development in comparison with the 'fallback position', namely the use permitted under the 2002 permission.

The claimants contended that the 2002 permission had clearly and unambiguously stated that no conditions were attached, and that it was not permissible to look beyond its terms.

The secretary of state submitted that this permission, considered in the light of the section 73 application and the 1992 consent, was only for the retention of the previously permitted use, apart from condition 2, so that all other conditions remained in force.

Timothy Corner QC (instructed by Hewitson Becke & Shaw, Cambridge) for the claimant; Paul Brown (instructed by the Treasury Solicitor) for the first defendant; the second defendants did not appear and were not represented.

Held: Permission to appeal was allowed, but all appeals were dismissed.

The 2002 planning permission was not clear and unambiguous, so recourse could be had to extrinsic material to clarify its meaning: R v Ashford Borough Council, Ex parte Shepway District Council [1999] PLCR 12 and R v Secretary of State for the Environment, Transport and the Regions, Ex parte Slough Borough Council [1995] 3 PLR 28 considered.

The permission described the permitted development only by reference to the application for it, so it was necessary to look at that application in order to determine what was being permitted.

Since the application was to develop the site in accordance with the 1992 consent, with the exception of condition 2, the other conditions attached to that consent remained in force.

The reference in the 2002 permission to 'retention of use of land' was to be construed as the retention of the use permitted under the 1992 consent, apart from condition 2, not as retention of the existing depot use generally.

The application was incorporated into the 2002 permission by reference, and the nature of that application, defining the development for which permission was sought in terms of the 1992 consent, made it permissible to have regard to that consent in construing the 2002 permission.

Against that background, the entry 'None', in relation to conditions, had to mean that no additional conditions were imposed by the 2002 permission over and above those already applying by virtue of the 1992 consent.

It did not mean that transport depot use was permitted free from all conditions.

Per curiam: Where planning permission was granted pursuant to a section 73 application, it was desirable that all the conditions to which the new permission was to be subject should be set out within it, to avoid the need for cross-referencing with the old consent.