QUEEN'S BENCH DIVISION
In the matter of s.288 of the Town and Country Planning Act 1990
Strand, London, WC2A 2LL
B e f o r e :
| UNIVERSITY OF LEICESTER
|- and -
|(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
(2) OADBY & WIGSTON BOROUGH COUNCIL
Gwion Lewis (instructed by Government Legal Department) for the First Defendant
The Second Defendant did not attend and was not represented
Hearing date: 16 February 2016
Crown Copyright ©
Mr Justice Supperstone :
"hall of residence together with day and residential conferences, such conferences falling within the use as applied for and permitted by planning permission ref. 03-407-8M and 04/00189/FUL granted in 2004 and 2005 respectively and/or being ancillary to the use of the subject site as a hall of residence."
"On the evidence submitted by the Applicant, or otherwise available to the Council, the premises has not been used continuously for a mixed halls of residence and conference use for a period of ten or more years nor is it expressly permitted through previous planning permissions relating to the site."
"student accommodation – 569 [this was a typing error; the correct number was 509] rooms – plus addition to existing communal facilities building, new road, paths and landscaping."
i) Under the heading "DESCRIPTION OF PROPOSAL" it is stated (4th paragraph)"the units would be used for the majority of the year to house the students that are attending the University. It is also proposed that the building will also be used during holiday time to provide accommodation for the users of the various conferences which are run by the University within their Manor Road campus."
ii) Under the heading "EXPLANATORY COMMENTS" and under the sub-heading "Impact through increased vehicular traffic" it is stated"The County Council's Highways Department was consulted over the development…The use of the units for conference accommodation was brought to their attention. The University in its management plan had indicated that any delegates attending the course would be informed in advance of their parking area and, for the attendees which would not be in spaces adjacent to their accommodation, a bus service would be provided to transport them from parking spaces to their accommodation…The main comments of the Highways Department were as follows…You will note that the revised management statement now includes a commitment that the University will ensure that all conference parking is provided within its land holding in advance of the conference date…"
"increase disruption caused by conference use, delegates have little regard for local residents…"
"cause traffic congestion along Manor Road especially during conference time…"
One of the residents' letters raising such objections dated 23 September 2003 was before the Inspector.
"DEMOLITION OF EXISTING HALLS OF RESIDENCE AND THE ERECTION OF 14 BLOCKS COMPRISING OF A TOTAL OF 509 ROOMS PLUS EXTENSION TO EXISTING FACILITIES BUILDING (REV B)…"
"This decision is conditional upon the terms of the planning agreement which has been entered into by the developer and the Council under section 106 of the Town and Country Planning Act 1990 (as amended)…"
"student accommodation – construction of an additional 77 no. study bedrooms."
"Amended scheme to approved application for redevelopment of students accommodation incorporating the construction of an additional 72 number study bedrooms (Rev B)."
"This permission shall only be implemented in conjunction with permission 03/0407/8M dated 5 February 2004."
"This decision is also conditional upon the terms of the planning agreement which has been entered into by the developer and Leicestershire County Council and Oadby and Wigston Borough Council under Section 106 of the Town and Country Planning Act 1990 (as amended) to ensure that the requirements of the highway authority are met…"
"the construction of 581 Study bedrooms at the site pursuant to the Planning Permission."
i) Under "Part 1 – General Requirements" in the Fourth Schedule, the following requirements are listed:"Incorporation of the University of Leicester's anti-car policy to promote sustainable travel and discourage staff, students, those attending conferences and other users of the University's facilities from bringing their vehicles to the University's premises in Leicester and Oadby; …Incorporation, implementation, monitoring and enforcement of a car parking Management Plan… The Management Plan shall include arrangements for parking for conferences and similar events held at the University of Leicester's properties in Oadby and be in accordance with the University of Leicester Management Statement for Conference Parking in Oadby included in part 6 and in the accompanying bwb consulting drawing 'Conference Parking in Oadby' Figure 1 dated 14/11/03, or as altered and approved in writing by the Borough Council."
ii) Under "Part 2 – Monitoring" it is stated that monitoring shall include"(b) The level of car parking resulting from the Development and the holding of conferences and similar events held at the University of Leicester's properties in Oadby…"
iii) Under "Part 3 – Targets" it is required that the travel plan shall have the following among its targets:"(b) No on-street car parking resulting from the Development and the holding of conferences and similar events held at the University of Leicester's properties in Oadby…"
iv) "Part 6" is headed "UNIVERSITY OF LEICESTER – MANAGEMENT STATEMENT FOR CONFERENCE PARKING IN OADBY". It is clear from Part 6 that it was contemplated, and known to the Council, that the new accommodation in JFH would be used for conference purposes;"1.0 Introduction1.1 The University properties in Oadby are primarily used as student halls of residence. However, for a limited period outside term-time, these premises are used as venues for various conferences. Whilst this is a secondary, diminutive use, the University acknowledges that conferences have different parking characteristics to student halls of residence. Consequently, this management statement has been produced to demonstrate that the additional parking related to these conferences can be accommodated within the University's properties in Oadby.1.2 It should be recognised that the local authority currently has no control over conference parking in the area. This management statement will enable the University to plan their conference parking more efficiently and therefore improve the current parking situation in the area.2.0 Delegate numbers2.1 The University has approximately 1700 bed spaces in 1517 rooms in Oadby. However, only 1367 of these beds have been identified as suitable for conference use. The proposed re-development of Villiers Hall would provide an additional 339 bed spaces. Therefore, as an absolute worst case, the University could accommodate residential conferences with a total attendance of 1706 delegates…"
"4. As a Project Manager I was involved in the project for the redevelopment of Villiers Hall and I can confirm that it was always the University of Leicester's intention that conferencing use should continue at the site…
5. To my personal knowledge, at no point in time did the University… ever have any intention that conferencing use would cease.
6. To my personal knowledge conferencing [and] student use have co-existed at Villiers Hall/John Foster Hall since at least 2002.
7. In my role as project manager, I was involved in the development of the designs for the new John Foster Hall… The designs were always meant to have a conferencing capability.
8. In particular I can draw attention to a number of factors that were incorporated into the design specifically because the use was intended not merely to be for students but also for conference delegates…
13. The issue of conference car parking was a matter that was raised by the local planning authority during the development of the scheme and addressed [refers to the letter from the County Council dated 14 October 2003, referred to at paragraph 11 above]."
The Inspector's Decision ("DL")
"(i) the 2004 and 2005 planning permissions grant consent for the use; or (ii) the conferencing use is lawful ancillary to the use of the buildings as student halls of residence; or (iii) the use for conferencing and student halls of residence is lawful under s.75 of the 1990 Act because that is the purpose for which the buildings were designed and intended to be used." (DL4).
"In my view, most people looking at the permission and detailed plans would interpret this as being permission for a student hall of residence. There is no mention of conference use and, to my mind, no basis on the face of the permission for anyone to interpret the permission as being for such use. However, I agree that the permission is poorly worded, to the extent that there is some lack of clarity. In this case, the planning permission does not expressly incorporate the application. However, following the principles set out in R v Ashford B.C, ex p Shepway DC , it is permissible to look at extrinsic material, including the application, to resolve any ambiguity." (DL8)
"… in seeking to resolve ambiguity, there would appear to be no clearer expression of what is sought by an applicant than his own 'full' description of the proposal which is entirely consistent with detailed plans showing rooms and facilities which appear designed for student use. There is no reference at all to either existing or proposed conference use on the application form. …" (DL9).
"helpful to an objective interpretation of the planning permission. There is no indication that the application was formally modified in any way to incorporate conference use." (DL10)
"It is also proposed that the building will also be used during holiday time to provide accommodation for the users of the various conferences which are run by the University within their Manor Road campus".
However, he said,
"there is no indication of the source of this information by way of an amendment to the application. Furthermore, it is not clear whether reference to 'the building' refers to the 14 pavilions or to the facilities building or to the whole complex. Accordingly, I find the officers' report of little assistance in resolving any ambiguity".
"the 2004 planning permission can only be properly interpreted as being for student halls of residence with associated facilities building" (DL13).
"Furthermore the permission is described as an amended scheme and condition no.33 requires it to be implemented in conjunction with the 2004 permission, which I have concluded above relates to student halls of residence with associated facilities building." (DL15)
"Whilst it is clear that conference use is a common use of halls of residence, and appears to make efficient use of otherwise vacant premises when students are away, it does not appear to me to be ancillary to the primary use." (DL20)
He added that the conference use was not "diminutive" (as the University had claimed), but a substantial use in its own right" (DL21).
"It is not in dispute that a conference use existed at the former Villiers Hall and continues to do so at the redeveloped John Foster Hall. It appears that was the University's intention all along and Mr Bale gave evidence that the designs and specifications of the buildings were tailored to such a mixed use."
However, he said,
"A local planning authority can only determine the formal application before it; it can't proceed on the basis of an applicant's intentions unless they are formally incorporated into the application." (DL24)
Interpretation of a planning 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: see Slough Borough Council v Secretary of State for the Environment (1995) JPL 1128, and Miller-Mead v Minister of Housing and Local Government  2 QB 196.
(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: see Slough Borough Council v Secretary of State (ante); Wilson v West Sussex County Council  2 QB 764; and Slough Estates Limited v Slough Borough Council  AC 958.
(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: see Wilson (ante); Slough Borough Council v Secretary of State for the Environment (ante).
(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: see Staffordshire Moorlands District Council v Cartwright (1992) JPL 138 at 139; Slough Estates Limited v Slough Borough Council (ante); Creighton Estates Limited v London County Council, The Times, March 20, 1958.
(5) If a planning permission is challenged on the ground of absence of authority or mistake, it is permissible to look at extrinsic evidence to resolve that issue: see Slough Borough Council v Secretary of State (ante); Co-operative Retail Services v Taff-Ely Borough Council (1979) 39 P&CR 223 affirmed (1981) 42 P&CR 1."
"23. … 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 have 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. …"
"… Differences in the nature of documents will influence the extent to which the court may look at the factual background to assist interpretation. Thus third parties may have an interest in a public document, such as a planning permission or a consent under section 36 of the 1989 Act, in contrast with many contracts. As a result, the shared knowledge of the applicant for permission and the drafter of the condition does not have the relevance to the process of interpretation that the shared knowledge of parties to a contract, in which there may be no third party interest, has. There is only limited scope for the use of extrinsic material in the interpretation of a public document, such as a planning permission or a section 36 consent: R v Ashford Borough Council…"
"When the court is concerned with the interpretation of words in a condition in a public document such as a section 36 consent, it asks itself what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole. This is an objective exercise in which the court will have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense. Whether the court may also look at other documents that are connected with the application for the consent or are referred to in the consent will depend on the circumstances of the case, in particular the wording of the document that it is interpreting. Other documents may be relevant if they are incorporated into the consent by reference… or there is an ambiguity in the consent, which can be resolved, for example, by considering the application for consent."
"The first port of call in any examination of extrinsic evidence will usually be the application for permission."
"When it is necessary to do so, it is permissible to consider extrinsic evidence beyond the available relevant documents as an aid to the interpretation of a planning permission. Such evidence may relate to the way in which the permission was actually implemented. In R (on the application of Campbell Court Property) v Secretary of State for the Environment, Transport and the Regions  EWHC Admin 102 Sullivan J, faced with the need to construe a planning permission whose full meaning was not apparent from the decision notice itself was prepared to consider the application for permission, the site plan and the relevant planning officer's report. But having done that, he said (in paragraph 58 of his judgment) that he did not see why the consideration of extrinsic evidence should be confined to documentary evidence, and (in paragraph 59) that, in the circumstances of the case before him, he did not see why it should not be possible to have regard to what had taken place on the ground. He went on to say (in paragraph 60);
'I realise that what takes place on the ground cannot be conclusive and agree with [the] submission that caution has to be exercised because land owners may choose not to implement the whole of a planning permission, and may carry out development in breach of planning control. But if the documentary evidence is sparse, I do not see why the purported implementation of a planning permission on the ground, if done without any complaint over many years, should be altogether ignored.' "
"Nothing in the Inspector's approach to the interpretation of the planning permission in question here seems in any way inconsistent with the well established principles in the cases to which I have referred. He adopted the pragmatic approach endorsed by the court in Barnett and Campbell Court Property…"
Section 75 of the TCPA 1990
"(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 specified, the permission shall be construed as including permission to use the building for the purpose for which it is designed.'
General approach to decision letters
"An inspector's decision cannot be subjected to the same exegesis that might be appropriate for a statute or deed. It must be read as a whole, and in a practical, flexible and common sense way, in the knowledge that it is addressed to the parties who will be well aware of the issues and arguments deployed at the inspector's inquiry, so that it is not necessary to rehearse every argument but only principal important controversial issues. The reasons for an inspector's decision must be intelligible and adequate to enable an informed observer to understand why he decided the appeal as he did, including his conclusions on those issues. They must not give rise to any substantial doubt that he proceeded in accordance with the law, e.g. in his understanding the relevant policies (see Seddon Properties v Secretary of State for the Environment (1981) 42 P&CR at page 28 per Forbes J: Bolton Metropolitan Borough Council v Secretary of State for the Environment  71 P&CR 309 at page 314; South Somerset District Council v Secretary of State for the Environment  1 PLR 80 at pages 82H, 83F-G per Hoffman LJ; and South Bucks District Council v Porter (No.2)  UKHL 33 at  per Lord Brown…"
Grounds of Challenge
i) that the use in respect of which the LDC was sought was permitted by the 2004 planning permission and/or the 2005 planning permission (Ground 1); or
ii) by reason of the application of s.75(3) of the TCPA 1990 (Ground 2).
Alternatively, the Inspector erred in law in dealing with the University's submissions in relation to ancillary use (Ground 3).
The Parties' Submissions and Discussion
Ground 1: the nature of the use was permitted by the 2004 and 2005 permissions
"In seeking to resolve ambiguity, there would appear to be no clearer expression of what is sought by an applicant than his own 'full' description of the proposal which is entirely consistent with detailed plans showing rooms and facilities which appear designed for student use. There is no reference at all to either existing or proposed conference use on the application form. The existing use is stated to be 'student accommodation (250 rooms), facilities building and garden'." (DL9)
Ground 2: the application of s.75(3) of the TCPA 1990
"DEMOLITION OF EXISTING HALLS OF RESIDENCE AND ERECTION OF 14 BLOCKS COMPRISING OF A TOTAL OF 509 ROOMS PLUS EXTENSION TO EXISTING FACILITIES BUILDING (REV B)"
The Inspector agrees with the University that the wording of this permission does not clearly state what the "509 rooms" and "facilities building" are to be used for (DL7). Neither the planning conditions, nor the detailed plans specify the purpose for which the building may be used.
"Amended scheme to approved application for redevelopment of students' accommodation incorporating the construction of an additional 72 study bedrooms (Rev B)."
Ground 3: ancillary use