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Increased floor area was within permission

LAW REPORT v 14 June 1995
Regina v Secretary of State for the Environment, Ex parte Slough Borough Council Court of Appeal (Lord Justice Stuart-Smith, Lord Justice Morritt and Lord Justice Ward) 19 May 1995

It is not permissible to construe the scope of planning permission which is unambiguous and valid on its face by reference to the application for planning permission. Therefore if outline planning permission is silent on floor-size restrictions, a proposed floor area which is substantially larger than that referred to in the application is within the terms of the outline permission granted.

The Court of Appeal dismissed the council's appeal against Mr Justice Schiemann's dismissal of the council's application for judicial review of a planning inspector's decision that a developer's proposal was within the terms of outline planning permission.

The council wished to sell an old petrol station site with the benefit of planning permission for development. Its application for outline permission stated that the additional floor space created was 1,055 square metres. The planning permission, which referred to the application number, authorised the development without reference to floor space.

The site was sold to a developer who applied for planning permission, referring to the matters reserved in the outline permission and stated that the additional floor space was 1,530 square metres. The council was not prepared to approve the 45-per-cent increase in floor area. A planning inspector decided that the increased floor area did not fall outside the terms of the outline planning permission granted.

The council applied to quash that decision.

Brian Ash QC and Paul Stinchcombe (Council solicitor) for the council; Rabinder Singh (Treasury Solicitor) for the Secretary of State.

Lord Justice Stuart-Smith, giving the court's judgment, said that the permission was clear, unambiguous and valid on its face; apart from the reference number, there was no mention of the application.

The general rule was that, in construing a planning permission, regard might be had only to the permission itself, including the reasons stated for it: Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196. It was submitted that the reasoning for that general rule was that the application had not been available, but that since 1988 it was available and therefore the rule should go.

There was nothing to suggest that the change in 1988 was for the purpose of altering the rule. The rule was affirmed in the House of Lords in Slough Estates Ltd v Slough BC [1971] AC 958. A breach of planning permission might lead to criminal sanctions. The public should be able to rely on a document that was plain on its face without being required to consider whether there was any discrepancy between the permission and the application.

Turning to the submission that the council could not grant substantially more than was applied for, the court could not see how want of authority or jurisdiction could affect the construction of the permission which was plain on its face. Whether an enlargement of the application site was so substantial that it would deprive those who should have been consulted of an opportunity to make representations was a decision which could only be challenged on well-known principles applicable to judicial review.

If the validity of the permission was to be challenged, such challenge must be made promptly, otherwise the permission was taken to be valid. The time for challenge in this case had long since passed.

The general rule stated in Miller-Mead was well established. There were recognised exceptions to it. The first was where the planning permission incorporated by reference the application and accompanying plans, thus enabling those plans to be referred to. The second exception was where the permission was ambiguous on its face. A further exception arose where the validity of the planning permission was challenged on the grounds of want of authority or mistake.

The mere inclusion of the reference number of the application on the permission was not sufficient to inform a reasonable reader that the application formed part of the permission. Some such words as "in accordance with the plans and application" would be necessary. The appeal was dismissed.

Ying Hui Tan, Barrister