QUEEN'S BENCH DIVISION
B e f o r e :
(sitting as a Judge of the High Court)
| STEVENAGE BOROUGH COUNCIL
|- and -
|(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
(2) ABERDEEN PROPERTY INVESTORS (UK) LIMITED
(formerly GOODMAN PROPERTY INVESTORS)
John Litton QC (instructed by the Treasury Solicitor) for the First Defendant
Christopher Lockhart-Mummery QC (instructed by Eversheds, Solicitors) for the Second Defendant
Hearing dates: 25 and 28 May 2010
Crown Copyright ©
"03 . ..the consent which this permission grants, insofar as it relates to retail floor space shall, unless otherwise agreed in writing by the Local Authority be confined to retail warehousing of comparison goods to exclude expressly the sale of all foodstuffs for consumption off the premises, clothes and footwear (other than specifically for the playing of sport) or other fashion goods retailing;
04 the retail warehouse floor space referred to in Condition 03 of this permission shall not, at any one time, exceed a total of 200,000 square feet (18,580 metres) and in the case of each individual retail warehouse shall, unless otherwise agreed in writing by the Local Authority be not less than a minimum of 15,000 square feet (1,395 square metres).."
The 2006 Permission
"RECLADDING OF EXISTING RETAIL UNITS, RELOCATION OF MOBEN UNIT AND ERECTION OF NEW CAFE BUILDING FOR USE WITHIN CLASS A3. MINOR ALTERATIONS TO CAR PARK."
"When rebuilt the Moben Unit (unit 14) is to be relocated to enable the sub-division of the former Furntureland unit (unit 7) in the proposed style..."
"This statement is submitted to assist the Council's consideration of the planning application ..to undertake external alterations to improve and upgrade existing retail units, relocate the existing Moben unit (to enable the subdivision of Unit 7)..."
The Decision Notice
"Application No: 06/0214/FP
Location: Roaring Meg Retail Park..
Proposal: Alterations to external elevations of units, relocation of Moben Unit, erection of a café building and alterations to car park landscaping Plan Nos: 838-036D; 838-034B....838-041B...
GRANT PLANNING PERMISSION
...the Council have considered your application received with sufficient particulars on 8 May 2006 as shown on the plans accompanying the application.
Planning Permission is granted
Subject to the following conditions...."
"Notwithstanding the detail shown on the approved plans, this planning permission does not grant consent for the insertion of any mezzanine floor in any of the retail units within the application site."
The Present Application
Ground 1: The true nature of the 2006 permission
"(1) The general rule is that in construing a planning permission which is clear, unambiguous and valid on its face, regard may only be had to the planning permission itself, including the conditions (if any) on it and the express reasons for those conditions:…….
(2 ) This rule excludes reference to the planning application as well as to other extrinsic evidence, unless the planning permission incorporates the application by reference. In that situation the application is treated as having become part of the permission. The reason 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:....
(3) For incorporation of the application in the permission to be achieved, more is required than a mere reference to the application on the face of the permission. While there is no magic formula, some words sufficient to inform a reasonable reader that the application forms part of the permission are needed, such as ' ... in accordance with the plans and application ...' or ' ... on the terms of the application ...,' and in either case those words appearing in the operative part of the permission dealing with the development and the terms in which permission is granted. These words need to govern the description of the development permitted:……
(4) If there is an ambiguity in the wording of the permission, it is permissible to look at extrinsic material, including the application, to resolve that ambiguity:....
23 In my judgment, both Mr Newberry's submission is correct and proposition (2) in Ashford is correct when it is applied in the proper context. The approach adopted by the Inspector illustrates the dangers inherent in a slavish adherence to judicial dicta without sufficient regard to the fact that such dicta are not to be treated as of universal application and are usually, if not invariably, a response to a particular factual matrix.
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 a 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....
The Inspector's Approach here
"It is obvious that the original 2006 planning application could and indeed should have been better worded or the LPA could have altered it in the decision notice (but again did not do so) but this does not change the results of the LPA's action. If the decision includes reference to the application plans (in full planning permissions, the case here, Bennett [it should be Barnett] indicates that they do, then as a matter of logic reference to the plans must form part of the application as well. So the fact that it might be self-evident that the permission cannot grant more than was sought by the application does not alter anything because of the extensive nature of what was actually applied for (and shown on the plans and drawings). It follows that as a matter of fact and degree the implementation of what is a full planning permission for warehouse buildings resulted in a new permission with no restrictions on the sale of retail (Class Al) goods..."
"In this case (and not withstanding the minimum floor space requirements of the 1987 permission) the internal sub-division needs planning permission because it involved associated necessary works to the exterior of the building."
On the face of the notice and plans
"I have also taken account of the wording of some notes on plan No. 838-036D. These are architect's notes recording that the 2002 permission allowed for the sub-division of Unit 7 into two. An Architect is not necessarily a planning specialist and his notation cannot be construed as committing the Appellant to the implementation of a permission which it has steadfastly denied was ever taken up. To my mind the Architect was simply making reference to a then extant planning permission, presumably, in the mistaken belief that it would help his client."
Ground 2: Application of s75 (3)
"(2) Where planning permission is granted for the erection of a building the grant of permission may specify the purposes for which the building may be used.
(3) If no purpose is so specified, the permission shall be construed as including permission to use the building for the purposes for which it is designed."
"(1) In this Act, except so far as the context otherwise requires...."
" "building" includes any structure or erection, and any part of a building, as so defined...
"erection" in relation to buildings as defined in this subsection includes extension, alteration and reerection."
Ground 3: The Additional Ground
(1) On this analysis of the 2006 permission, the internal works relied upon to found the new chapter were not authorised by that permission. This makes it difficult to see that permission as founding a new chapter. Indeed on this view they were unlawful, giving even less reason to see them as a new chapter;
(2) Although I accept that a new chapter can be created by something less than an entirely new building I cannot see that what happened here was sufficient in any event. All that took place was an internal sub-division of an existing building. That there might be some future sub-division was actually contemplated in 1987 in the sense that Condition 4 could be altered by written agreement of the Council and in the event the 2002 permission allowed for sub-division. In the case of Unit 1, Condition 12 expressly allowed for this after 4 years. Moreover, the essential character of the site at Unit 7 - retail warehouse - even though now subdivided, remained unchanged. Its use and operational nature has stayed the same.