Barnett v Secretary of State for Communities and Local Government

These two linked appeals concern the approach to be adopted to the interpretation of planning permissions. They both give rise to the same issue: namely whether a planning permission dated 16 December 1998 granted permission for the use of a piece of land for purposes ancillary to a dwelling house, so that that land became part of the curtilage of the house, and permitted the construction of a tennis court and swimming pool. The two appeals stand or fall together and can therefore be treated as a single appeal for all practical purposes.

The appeal is brought against a decision of Sullivan J, who dismissed the appellant’s appeal under section 289 and his application under section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”).

The case concerns land at Buriton near Petersfield in Hampshire. On 4 May 1995 an inspector appointed by the Secretary of State for the Environment granted planning permission, on appeal, for the erection of an estate manager’s dwelling on land at Cowhouse Farm, Pitcroft Lane, Buriton, in accordance with the terms of an application dated 5 July 1994 and of plans submitted therewith, subject to a number of conditions. Those plans included a location plan at a scale 1:5,000 and a site plan at a scale of 1:500. The plans showed the proposed dwelling within a roughly rectangular plot whose northeast/southwest dimension seems to have been about 70 metres. The inspector who conducted the subsequent inquiry which gave rise to the proceedings before Sullivan J found that the approved 1995 drawings defined the permitted curtilage of the dwelling which, when built, was given the name Miscombe Manor.

Curtilage as a concept is of importance in planning law, since the General Permitted Development Order 1995 grants permission for various forms of development within the curtilage of a dwelling house if they are “for a purpose incidental to the enjoyment of the dwelling house as such”: see Schedule 2 thereof.

The dwelling was completed and occupied in 1998. Then, by an application registered by the local planning authority on 25 June 1998, permission was sought for:

“Construction of four dormer windows in existing roof and extension to provide estate managers office and garages with games room above.”

The applicant was described as “Buriton Estates Limited”. The application site was described on the application form as “Miscombe Manor, Pitcroft Lane, Buriton”. The application was described as “a full application for alteration/addition to an existing dwelling” The next question on the application form therefore did not apply, though it is to be noted that it included, at question B2, a box to be ticked if permission were being sought for a change of use. That was left blank, as was that part of the form where the site area was, in appropriate cases, to be specified (Question C2). A further part required the existing use of the land or buildings to be stated but only in cases where change of use permission was being sought. That too was left blank.

The application form, when dealing with the material to be used for external walls, was completed with the words “please refer to drawings”. Plans/drawings 9813.2.01 and 02 were stated to be enclosed. Drawing 01 contained four features: a ground floor plan, a first floor/roof plan, a location plan at a scale of 1:5,000 and a site plan at 1:500. The former enclosed by a red line roughly the same area of land as was covered by the 1995 permission. The latter, however, enclosed by a red line a larger area, with a northeast/south west boundary about 105 metres in length. Drawing 02 showed the elevations and proposed extensions and alterations to the house and the details of the materials to be used.

There was then some further communication between the planning authority and the planning consultants acting for the applicant, resulting in a letter from the consultants, dated 5 October 1998, received on 7 October 1998. This explained the need for the office accommodation. Subsequently a further plan was sent to the planning authority showing the land ownerships in the vicinity. The site was again edged in red and shown as the area covered by the 1995 permission. The plan was stamped as received on 13 November 1998.

Planning permission (“the 1998 permission”) was granted by a document dated 16 December 1998 for:

“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)”

A number of conditions were attached, the first of which required the development permitted thereby to be begun within five years. The reason for that condition was said to be to comply with section 91(1) of the 1990 Act. None of the conditions required any further approval of details of the development. It was thus clearly a full detailed permission, not an outline permission, as the reference to section 91(1) confirms.

At some time between 2000 and 2005 it seems that an area immediately to the northeast of the site granted planning permission in 1995 was brought into garden use ancillary to the dwelling house and a tennis court and swimming pool were constructed in that area. This area, roughly rectangular, measured about 65 metres by 35 metres. It was the subject of appeals to the Secretary of State against enforcement action and it can therefore conveniently be referred to as “the Appeal Site”. About half the Appeal Site fell within the red line shown on the site plan on drawing 01 which accompanied the application leading to the 1998 permission.

On 20 December 2005 the appellant sought retrospective planning permissions for the continued use of the Appeal Site as a garden, the retention of the swimming pool and the retention of the tennis court and chain link fence. The permissions were refused by the authority and the appellant appealed to the Secretary of State.

On 19 April 2006 the planning authority issued three enforcement notices. One of those is irrelevant for present purposes. The other two alleged breaches of planning control by, respectively, the change of use of the Appeal Site to residential use, and the construction of a tennis court with chain link fence and a swimming pool with pool building. The appellant appealed against those enforcement notices under section 174 of the 1990 Act. All the appeals were determined by an inspector, whose decision was the subject of the proceedings before Sullivan J.

A number of grounds of appeal were pursued before the inspector, only one of which remains relevant now. That was ground (c) in section 174(2): namely that what had occurred on the Appeal Site did not constitute a breach of planning control. The argument advanced on behalf of the appellant was that the 1998 permission extended the curtilage of the dwelling house because of the red line shown on the site plan forming part of drawing 01 and so it granted planning permission for the change of use of that part of the Appeal Site to use for purposes incidental to the dwelling house. Had that argument succeeded, the swimming pool and part of the tennis court would have come within the extended curtilage.

The inspector rejected that argument, holding that the 1998 permission did not grant planning permission for an extension to the residential curtilage of Miscombe Manor. He arrived at that finding on two alternative bases. The first was that, as a matter of legal principle, regard could not be paid to the application and drawings which led to the 1998 permission. Alternatively, if regard were had to the application and drawings, the inspector did not accept that the inclusion of part of the Appeal Site within the red line on the site plan on drawing 01 conferred lawfulness on that part of the garden extension.

The first of those conclusions was arrived at by considering the principles which the inspector understood to be applicable to the use of documents to construe a planning permission, as summarised in R v Ashford  BC ex parte Shepway DC [1999] PLCR 12, a decision of mine as a High Court judge. From that summary the inspector took the approach to be as follows, as set out in paragraph 16 of his 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.

That understanding of the law was successfully challenged before Sullivan J and, in my view, rightly so. It is no longer an issue before us, but since I appear to have been responsible for this misunderstanding on the inspector’s part, it perhaps behoves me to add a few comments of my own on this matter of the documents to which reference can be made when construing a planning permission.

Sullivan J referred to the regulations which deal with the plans and drawings to be submitted with a planning application, the Town and Country Planning (Applications) Regulations 1988 (“the 1988 Regulations”), and he noted that they draw a distinction between an application for an outline planning permission and one for a full planning permission. Both require a plan identifying the land to which the application relates, but additional plans and drawings are required for an application for a full permission where details are not being reserved for subsequent approval. As the judge said, at paragraph 20:

“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.”

He went on to endorse the proposition that:

“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.”

The judge then went on to say this, at paragraphs 23 and 24 of his judgment:

“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.”

I agree. As Sullivan J rightly pointed out, the Ashford case was one dealing with an outline planning permission. Of the main cases to which I referred in support of the principles there summarised, Slough BC v the Secretary of State [1995] JPL 1128 was concerned with an outline permission, as were Wilson v West Sussex CC [1963] 2 QB 764 and Slough Estates Ltd v Slough BC [1971] AC 958. An apparent exception is Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196, but in fact that was a change of use case, not one concerned at all with permission for building operations where detailed drawings would be necessary. What I said in the Ashford case was not intended to apply to the interpretation of a full detailed planning permission because, as Sullivan J said:

“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”

I therefore agree with the judge that the first basis upon which the inspector reached his decision in the present case was wrong in law. However, the inspector, as I have indicated, also went on to consider the matter on the alternative basis. He said this, at paragraphs 18 and 19 of his decision:

“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.”

Sullivan J was not impressed by the point about the ambiguity between the site plan red line boundary on drawing 01 and the red line on the plan received by the authority on 30/11/98. The latter he regarded as seeking to show the extent of the Buriton estate and not as one superseding the boundary shown on the site plan part of the earlier drawing. Nor did he regard the inspector’s reference to the architect’s presumed intention as relevant, since planning permissions run with the land and the public must be able to rely on the documents themselves. Nevertheless the judge concluded that the 1998 permission did not grant planning permission for use of land beyond the 1995 permission site for residential purposes incidental to the dwelling house. Whether he was right in that conclusion forms the main issue in this appeal. It turns on the interpretation of the 1998 permission.

The judge noted that all parties recognised that the 1995 permission had established the curtilage of the dwelling that became Miscombe Manor and that this was because the 1995 site plan showed such a boundary. But he rejected the appellant’s submission that the same approach should be adopted towards the 1998 permission to extend and alter the dwelling. Sullivan J said this, at paragraph 33:

“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.”

The judge recognised that the application might, as a matter of principle, have included an application to extend the existing curtilage. But he then went on to look at the 1998 application and permission to see whether that was an appropriate inference in this case. He observed that the application form did not suggest that any change of use of land was being sought or that any change to the existing site area was proposed: see questions B2 and C2. Unlike the 1995 site plans, no features were shown on the 1998 site plan which indicated any proposed extension of the curtilage. The 1995 site plan had shown a driveway and other features consistent with the red line boundary defining the curtilage. The 1998 site plan merely showed a red line with no new features or works within the additional area enclosed by that line. The judge concluded as follows, at paragraph 34 of his decision:

“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.”

The appellant now challenges that conclusion. Mr Newberry QC, on his behalf, points out that it is mandatory to submit a site plan with a planning application: see the 1988 Regulations, regulation 3(1)(b), which requires a “plan which identifies the land to which it [that is the application] relates”. Mr Newberry then argues that the planning permission subsequently granted then relates to that area of land shown on the site plan. That, he says, is the function and purpose of the site plan. He acknowledges that his argument logically implies, if pushed to the extreme, that a permission to alter the windows of an existing house would also grant permission for ancillary residential use of the whole area shown within a red line on a site plan even if it covered a much larger area than the existing curtilage. But he submits that, even when such a use is not specified on the permission itself or within the application, the change of use is implicit within the documents to which reference can be made. He contends that, as a matter of principle, all land shown as included within the site on a site plan in a planning application therefore receives the benefit of any resulting planning permission unless expressly excluded by a condition on the permission. In consequence all such land where permission is granted either for a new dwelling or for an extension to a dwelling house enjoys permission for use for purposes ancillary or incidental to the dwelling house. The distinction drawn by the judge between permission for a new dwelling and permission for an extension to an existing dwelling is, it is contended, unsound. There is a subsidiary argument advanced on behalf of the appellant which refers to one of the conditions on the 1998 permission. Condition 5 there requires three parking spaces to be provided “within the curtilage of the site”. Consequently it is said the permission refers to the curtilage of the site, and that must be taken to be a reference to the land enclosed by the red line on the 1998 site plan. Mr Newberry points out that curtilage is not necessarily the same thing as the site shown on a site plan accompanying a planning application but he acknowledges that that does not assist the appellant’s argument in this particular case.

He has a second ground which is contained within his grounds of appeal and skeleton argument, which has not been advanced orally. It is that if the judge’s approach were to be upheld by this court as a matter of principle, then this case should be remitted to the inspector to determine as a matter of fact and judgment whether the 1998 application and its plan show an extension to the residential curtilage. Reliance is placed on a passage in the judgment below where the judge commented that whether a particular plan does or does not show an extension to a curtilage is very much a question of fact.

I summarise those two grounds before dealing with either of them because to my mind they are not really separate issues. What we are concerned with in the present case is the meaning and effect of the 1998 planning permission. As the judge rightly recognised, the proper interpretation of a planning permission is a matter of law and it is a topic upon which the courts regularly pronounce. Whether they need the assistance of expert or other evidence depends upon the particular case, but in principle the meaning of a planning permission should involve the construction of documents, whether those are plans or textual documents. To arrive at that proper meaning involves a scrutiny of the permission and any other documents to which, in accordance with the legal approach set out in Ashford but modified by what I have said earlier, it is appropriate to have regard. This is the exercise in which, in my judgment, Sullivan J engaged.

The principal question which he, like the inspector, had to answer was whether the 1998 permission granted planning permission for ancillary residential uses for the additional land within the site plan red line beyond the 1995 curtilage. As a convenient shorthand, it was described as involving the extension of the existing curtilage and it seems to me to be appropriate in the present case that one should treat the two as amounting in practice to very much the same thing. The judge recognised that when permission is granted for a new dwelling house, that dwelling house will normally have a curtilage including such uses as a garden, possibly a driveway, and a curtilage will normally be identified by the site as it is defined on the site plan. But in my judgment he was also right to draw the distinction between such a situation and one where permission is sought to alter or extend an existing dwelling which has an existing curtilage. Permission to construct a new dwelling on non-residential land will carry with it permission to use the new building for residential purposes: see section 75(3) of the 1990 Act. Thus there is in a sense a built-in application for a change of use of land in such cases, and the extent of the land covered by the implicit permission for a change of use will normally be ascertained by reference to the site as defined on the site plan. Thus that part of the site not built on can be used for purposes ancillary to the dwelling unless there is some obvious restriction shown on the permission itself. The site boundary shown on the plans defines the area of the new use.

But that is not the situation where there is an existing dwelling and the proposal is merely to alter or to extend it. The curtilage already exists. There is not necessarily any new use of land involved nor any extension to the existing curtilage. The extreme example to which Mr Newberry had to concede his argument led, about alteration to a window or windows in an existing dwelling, illustrates that very vividly. Whether there is an extension to the existing curtilage in any given case will depend upon the documents in question. Whether any resulting planning permission grants consent for a larger area than before to be used for purposes ancillary to the dwelling house depends on looking at the application form and the drawings. That was all that Sullivan J seems to me to have been saying on this aspect of the case. Sometimes it will be obvious that the extension to an existing house involves a change of use of land beyond the original residential site. This will be the case where an extension itself involves building on land beyond that original site or where permission is expressly sought and granted for a change of use of additional land.

What is the situation in the present case? In the appellant’s favour is the red line shown on the site plan part of drawing 01. But that is all which favours his interpretation. The proposed building extension does not extend beyond the original curtilage and, as the judge said, nothing is shown on that plan as being proposed to be done on the additional area of land. For what it is worth, the location plan which is part of that same drawing 01 shows the original 1995 site boundary, so there is some ambiguity in that drawing itself. What, however, seems to me to resolve the matter quite clearly is the application form and the permission itself. Neither of those documents refers to any proposed change of use of any land. The application form states that it is an “application for alteration/addition to an existing dwelling”. The box required to be completed for a change of use is left blank and so is the subsequent box where, in change of use applications, the existing use has to be stated. The planning permission itself contains no reference to any change of use of land but is simply permission for an “extension” and for four dormer windows to provide additional bedrooms. To all that has to be added the fact that there is no suggestion on the application form that the site area is to be changed. The question dealing with the site area is left blank, which implied the site area was not being changed.

When all that is put together it seems to me to be quite clear that this 1998 permission was not granting permission for any new use beyond the established residential site. The inclusion of condition 5 in the permission does not assist the appellant. The reference to curtilage there does not imply any change to the curtilage of the dwelling house since there was already a curtilage in existence. The condition makes perfectly good sense without any extension to the existing curtilage. Nor does one need the assistance of any expert witness in order to be able to arrive at the proper interpretation of the 1998 permission. Mr Newberry at one point in his written submissions argues that the appellant would be deprived of the opportunity of calling evidence about the meaning of the red line on the 1998 site plan. I simply do not follow that. The significance of that plan was obviously an issue at the public inquiry. The appellant had every opportunity to call such evidence as he thought fit on that issue. So neither for reasons of fairness, nor in order to interpret properly this permission, is there any need to send this case back to the inspector.

It follows that for the reasons I have given I for my part have concluded that Sullivan J was right to uphold the inspector’s decisions and I would dismiss these appeals.

I agree.

I also agree. So the order will be that the appeals be dismissed.