COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE SULLIVAN)
Strand, London, WC2A 2LL
B e f o r e :
(SIR ANTHONY CLARKE)
LORD JUSTICE KEENE
LORD JUSTICE TOULSON
|- and -
SECRETARY OF STATE
FOR COMMUNITIES AND LOCAL GOVERNMENT
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Mr A Sharland (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Keene:
The factual background.
"Construction of four dormer windows in existing roof and extension to provide estate managers office and garages with games room above."
"Single storey extension to provide estate managers offices and garages, with games room in roof. Four dormer windows in main building to provide additional bedrooms (as amplified by letter received 7.10.1998 and plan received 30.11.98)"
The inspector's decision
"the general rule is that in construing a planning permission that is valid and unambiguous, regard may only be had to the planning permission itself and its conditions. This rule excludes reference to the planning application unless the application is expressly incorporated by words such as 'in accordance with the plans and application'."
He found that the 1998 permission did not incorporate the application and plans save for the one "received 30.11.98". That showed the site no larger than that covered by the 1995 permission. Consequently the appellant, he said, could not use the site plan on drawing 01 to construe the 1998 permission.
"While an application for outline planning permission may, or may not, be accompanied by other plans and drawings, an application for a 'full' planning permission must be accompanied by such other plans and drawings as are necessary to describe the development which is the subject of the application. In the case of an application for planning permission for the erection, alteration or extension of a building, the plans and drawings will show, in appropriate detail, what is proposed by way of building works."
"where a full planning permission for the erection, alteration or extension of a building is granted, it is unnecessary for that permission to expressly incorporate the application plans and drawings. Precisely because the permission is a 'full', and not an outline permission, any member of the public will know that there will be plans and drawings which will describe the development that has been permitted."
"In the Ashford case Keene J was considering the proper interpretation of an outline planning permission. The issue was whether, in construing that planning permission, regard could be had to a letter which had been included in an environmental statement that had accompanied the application for planning permission. The reason given for normally not having regard to the application is that 'the public should be able to rely on a document which is plain on its face without having to consider whether there is any discrepancy between the permission and the application.' (see principle (2))
24. If it is plain on the face of the permission that it is a full permission for the construction, erection or alteration of the building, the public will know that, in addition to the plan which identifies the site, there will be plans and drawings which will describe the building works which have been permitted precisely because the permission is not, on its face, an outline planning permission. In such a case those plans and drawings describing the building works were as much a part of the description of what has been permitted as the permission notice itself. It is not a question of resolving an 'ambiguity'. On its face, a grant of full planning permission for building operations is incomplete without the approved plans and drawings showing the detail of what has been permitted. In the absence of any indication to the contrary, those plans and drawings will be the plans listed in the application for permission. If the local planning authority does not wish to approve the plans submitted with the application and wishes to approve amended plans, then it can include a statement to that effect in the decision notice. Absent any such statement, the reasonable inference, against the statutory background provided by section 62 of the Act and the 1988 Regulations, is that a grant of full planning permission approves the application drawings."
"Such a permission does not purport to be a complete and self-contained description of the permitted development."
In his words, at paragraph 29:
"Any member of the public reading such a decision notice will realise that it is incomplete, indeed quite useless without the approved plans and drawings which are a, if not the, vital part of permission"
"If the view were taken that the Council's failure to expressly incorporate the extension drawings in the permission was an oversight, and the drawings are construed as part of the permission, then there would be an ambiguity between the red line on drawing 9813.201 and the red line on the plan subsequently received by the Council on 30.11/98. The building extensions do not involve any operational development within the present appeal site, and I therefore think it unlikely that the architect who drew up the extension plans deliberately intended to extend the curtilage, especially since it is correctly shown on the later plan. The conditions attached to that permission do not require any works to be carried out within the appeal site.
19. If it were necessary to refer to the planning application form to resolve any ambiguity, the application is then described as being alteration/addition to an existing single dwelling, and the description in the proposals does not include the change [of] the use of any land."
The interpretation of the 1998 permission
"In my judgment there is in this respect a distinction to be drawn between an application for planning permission for a new, detached dwelling house, and an application for planning permission to extend or alter an existing dwelling house. In the former case the application for planning permission carries with it the necessary implication that the detached dwelling house will be surrounded by a curtilage which will be used for purposes incidental to the residential use of the proposed dwelling. While not every proposed dwelling, for example flats, will necessarily have a curtilage, a detached dwelling house is bound to have a curtilage. If nothing is said in the application about the extent of the proposed curtilage, the reasonable inference, in the absence of any contrary indication, will be that the red line on the site plan submitted with the application defines the proposed curtilage of the proposed new dwelling house. It will be reasonable to draw this inference whether or not the applicant has stated in the application form that planning permission is sought for a change of use for residential purposes in addition to permission to erect a new dwelling. That is because it is implicit in the application that the new dwelling will have a curtilage and the site plan had answered the only outstanding question: how extensive is the proposed curtilage?
That is not the case with an application to extend or alter an existing detached dwelling house. The dwelling house will have an established curtilage. The application to extend or alter the dwelling may or may not include an application to extend the curtilage and to change the use of the land within the extension to residential purposes incidental to the residential use of the dwelling house as extended or altered, but there is no necessary implication that it does include such an application."
"It was a necessary implication of permitting the new detached dwelling in 1995 that it would have a curtilage. Given that context and the other information on the site plan, the only reasonable inference was that it defined the extent of the proposed curtilage in 1995. In 1998 the position was materially different. There was a dwelling in existence, it had a curtilage. It was not a necessary implication of permitting the extension or alteration of that dwelling that its curtilage would be extended beyond that which had been permitted in 1995. There was nothing on the site plan which suggested that the red line should be interpreted as defining the extent of such an extension. For these reasons the Inspector's conclusions that the 1998 permission did not grant planning permission for an extension to the residential curtilage of Miscombe Manor was correct."
Lord Justice Toulson:
The Master of the Rolls:
Order: Appeals dismissed