Stevenage Borough Council v Secretary of State for Communities And Local Government & Anor

By a decision letter dated 6 April 2009 ("the DL") Mr Colin Thompson, an Inspector appointed by the First Defendant, granted a certificate of lawful development ("LDC") to the Second Defendant ("GPI"). By that LDC the unrestricted sale of retail goods within Use Class Al was certified as being lawful within two subdivided units within Unit 7, Roaring Meg Retail Park which is about Ikm south of Stevenage town centre. The retail park consists of some 17 units, mainly retail outlets. The relevant LPA is the Claimant, Stevenage Borough Council ("the Council") which applies to the Court pursuant to s288 of the Town and Country Planning Act 1990 ("the Act") to quash that decision.

ft is common ground that the initial 1987 planning permission in respect of the then undivided Unit 7 restricted the type of retail goods which could be sold at that and the other units. Before the Inspector, GPI contended that a later planning permission in 2006 which on its face related to external works only had the effect of removing that restriction, even though neither the 2006 nor any other planning application since 1987 had expressly sought to remove it. The argument was that in truth, the 2006 permission encompassed not only external works to the units but also internal works to divide Unit 7 into two and as a result, when those works were later done, the altered building constituted a new chapter in the planning history of Unit 7 so that any prior restrictions on retail use were swept away. Alternatively, the application of s75 (3) of the Act had the same effect. The Inspector accepted those arguments. The Council says that he erred in law in so doing.

The 1987 planning permission was the first in relation to the new retail park. Conditions 3 and 4 which applied to all units stated as follows:

The reason given for these conditions was "to limit the scale of impact on Town Centre trading and on District and Neighbourhood Centres and to conform with the policies of the County Structure Plan."

Subsequent to the 1987 permission, mezzanine floors were added to a number of units, In the case of Unit 7 this occurred some time before 1997. The mezzanine floor is the shaded area shown on the enlarged plan at p71 of the bundle. It had a floor area of a little over half of the 22,000 sq. ft. occupied by the ground floor. The creation of this and other mezzanine floors was in breach of Condition 4 of the 1987 permission ("Condition 4") because of the resultant increase in the total floorspace occupied by the units to well beyond 200,000 sq. ft.

Then, on 8 October 2002 planning permission was granted to vary that part of Condition 4 which prescribed a minimum of 15,000 sq. ft. for each unit. The 2002 permission referred to the "Application to vary Condition no. 4..to allow the subdivision of ..No. 7..to provide units of no less than 929 square metres." The grant of permission was subject to a condition that "no retail unit within Unit 7 shall be less than 929 square metres of gross floor space" and the reason given was "to limit the scale and impact on Town Centre and Local Centre trading and to conform with the policies of the County Structure Plan." 929 square metres approximates to 10,000 sq. ft. While an internal sub-division, not part of external works, would not itself require planning permission, a sub-division of Unit 7 would have created two areas of 11,000 sq. ft., a breach of Condition 4 unless varied. The 2002 permission lasted for 5 years.

On 3 July 2006 a further planning permission was granted. On its face it permitted recladding and other external works to Units IA-ID, 2A-2B, 3-5, 6A-B and 7 and the relocation of Unit 14. All of these units are in the southern part of the retail park — see the plan at p60. The northern part had been modernised some years earlier. It is common ground that permission for the creation of mezzanine floors at Unit 7 was on that occasion neither sought nor given. I deal in detail with the 2006 permission below.

On 6 February 2007 the Council granted an LDC in respect of the existing mezzanine floors at Units 3, 6A and 7 on the ground that the breach of Condition 4 caused by their creation had occurred continuously for the previous 10 years.

All the external works to Unit 7 were completed by June 2007. Internal sub-division work was also done. Most of this was completed by June and the remainder by August 2007. The extant mezzanine floor as at 2006 was enlarged slightly but nothing turns on this for present purposes. By the time the works were completed there was strictly no need for the variation to Condition 4 granted by the 2002 permission. That was because the recently legitimised mezzanine floors meant that the total floor space in each sub-divided unit was still above the 15,000 sq. ft. minimum prescribed by

The design statement at p48A refers to refurbishment of the southern units which would be overclad in metallic silver cladding to match the retail units developed in 2002. Entrance features to be constructed would reflect the new style and provide an identity for individual retailers. It then said:

There was then a detailed planning statement accompanied by drawings. Paragraph 1 . 1 said that:

Paragraphs 3.9 and 3.10 refer to the acknowledgement in the adopted development plan of the town's existing areas of retail warehousing to complement the town centre facilities and of the fact that a number of the retail parks were dated and that proposals to regenerate such facilities would be considered favourably.

The photographs enclosed with the application include at no. 3 (p63 of the bundle) the then frontage to Unit 7, on its eastern side, when the Furniture]and store was still operating.

I now refer to some of the plans submitted with the application. Plan 838-34B shows the existing layout of the units. The enlarged version showing Unit 7 is at p71. The boundary of the existing mezzanine is marked by the words "Extent of existing mezzanine. There is then a caption which reads "SUB-DEVISION OF UNIT 7 PERMITTED BY PERMISSION REF. 01/00120 DATED 08 OCTOBER 2002". The line of the sub-division is not shown on this plan, In the clear area the floorspaces are given and at the top left the words "SHOP INTERNALS NOT SURVEYED" appear. Unit 14 can be seen at the top towards the right.

Plan 838-036D is entitled "Proposed Ground Floor and Site Plan." An enlarged version at p74 shows the mezzanine area much expanded with new boundaries marked "EXTENT OF PROPOSED MEZZANINE". The caption referring to sub-division and the 2002 permission appears again in the same form but this time on either side of a physical internal division of the unit. The left side of the unit is now called Unit 7A and the right, Unit 7. Unit 14 has gone. There are New Entrance Features shown along with new signage. They correspond to the sub-divided units.

Plan 838-41 B shows the existing and proposed elevations to Units 2, 6 and 7A and 7B. The enlarged version at p 76 shows the new entrance features and two sets of tenant signage for "Unit 7A" and "Unit 7B".

This reads as follows:

The permission is expressed to be for 3 years. There is then an Informative reading as follows:

The grant was said to be for the reason that the proposed development would enhance the appearance of the retail park and surrounding area.

Following completion of the works, on 24 January 2008 GPI applied to the Council for an LDC for open Al retail use of what were by then Units 7A and 7B ie without the restriction imposed by Condition 3 of the 1987 permission. When the Council failed to determine this application GPI appealed and the Inspector held a public inquiry on 17 and 18 February and 5 March 2009 following which he gave the disputed decision in the DL as noted in paragraph 2 above.

It should further be noted that the Council accepts that if the Inspector was correct to determine that the 2006 permission did indeed encompass the internal sub-division works, the resultant building was a new chapter in the planning history and/or s75 (3) of the Act applied, thereby having the effect of removing Condition 3 and justifying the LDC granted.

If the Inspector was wrong as to the 2006 permission however, he stated that s75 (3) would still apply so as to remove Condition 3 ("Ground 2"). Further, and as an alternative basis to uphold the Inspector, GPI contends that even if confined to external works the 2006 permission led to a state of affairs which was still a new chapter in the planning history so that the LDC granted was justified ("Ground 3"). I deal with each of these matters in turn.

In R v Ashford Borough Council [1998] PLCR 12, when dealing with the question as to whether an outline planning permission could be interpreted by recourse to the underlying planning application, Keene J (as he then was) said this at paragraph 19C20B of his judgment:

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:....

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 applicati on 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:......

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: .

These principles were considered further in the context of a full planning permission by Sullivan J (as he then was) in Barnett v Secretao,' of State for Communities and Local Government [2009] 1 P & CR 24. In that case the owner of the dwelling had obtained permission to build it in 1995. The site plan showed the curtilage of the intended development which formed part of the planning permission. In 1998 permission was sought to make an extension to the house to include an office and garages. There was no application for a change of use. The application form referred to drawings. Drawing 01 had four features including a location and a site plan. The location plan enclosed by a red line roughly the same area as that covered by the 1995 permission. However the site plan enclosed a larger area within a red line. A later plan showed an area edged in red which was the same as in the 1995 permission. Permission was granted. Later the owner brought the land next to the dwelling into garden use and built a swimming pool and tennis court. About half of the area which contained the pool and tennis court was within the larger red-lined area shown on the 1998 site plan. In opposing an enforcement notice the owner claimed that the 1998 permission had in fact extended the curtilage beyond that granted in 1995. The Inspector held, purportedly applying Ashford (supra), that the owner could not refer to the 1998 plans at all and on that basis ruled out any extended curtilage, the 1998 decision notice itself not referring to any curtilage. But if he was wrong about that, then as a matter of construction of the 1998 permission it did not grant any extended curtilage anyway.

On an application to quash, Sullivan J held first that the Inspector was wrong to have excluded the plans on the essential ground that where there was a full planning application the plans and drawings submitted with it could always be referred to, whether they were expressly incorporated into the planning permission or not. In particular he said this:

In my judgment, both Mr Newberrys 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.

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 against the statutory background provided by Sggt ion 62 of the Act and the 1988 Regulations, is that a grant of full planning permission approves the application drawings....

In paragraph 29 he observed that the reason why proposition (2) in Ashford was not appropriate to apply where there was an application for full planning pennission was because on their face such permissions do not purport to be a complete and selfcontained description of the development permitted, and the plans and drawings are a if not "the" vital part of the permission.

He therefore turned to the second ground for the Inspector's decision and here he upheld it. He drew a distinction between the (1995) application to build a new dwelling house, where it is implied that it will be surrounded by a curtilage which in the absence of anything to the contrary will be the red line on the site plan submitted. It will be reasonable to infer that such permission approves that curtilage. But with the (1998) application to extend or alter an existing house there is no such necessary inference. The form did not seek to extend the curtilage as well as extending the house. The extension itself would be within the existing curtilage. And apart from the expanded area shown by the red line in the site plan no other drawing showed an expanded curtilage. And the site plan itself did not have anything to suggest that its red line should be taken to be extending the curtilage already granted. So the 1998 permission had not extended it.

The decision of Sullivan J on the first point was not challenged in the Court of Appeal but nonetheless Keene LJ (with whom Clarke LJ and Toulson LJ agreed) approved it saying that what he had said in Ashford (supra) was not intended to apply to ful l

It is worth adding that given that both Sullivan J and Keene LJ considered the content of the application form it would appear that each considered that this was a case of ambiguity.

By way of preliminary the Inspector accepted that the 2002 permission had never in fact been implemented. By the time of the inquiry of course, all the work had been done. As he pointed out in paragraph 24 of the DL, had it been implemented the effect would have been that all the 1987 Conditions would have continued to apply. This is because the 2002 permission was sought by way of an application made under s73 of the Act and because of the decision of Sullivan J in Reid v Secretary of Sate for Transport Local Government and the Regions [2002] EWHC 2174. This outcome would have been fatal to GPI's application for an LDC granting unrestricted Al use. As noted above, in the event the 2002 permission was not needed because the minimum floor space in the sub-divided units was kept above 15,000 sq. ft. by reason of the mezzanine floors legitimised by the 2007 LDC.

At paragraph 29 the Inspector noted that it was permissible to look at the plans and drawings as a result of Barnett (supra). In paragraph 40 he then said this:

In paragraph 31 he recited the work actually done including the physical splitting of the unit in two and went on to say:

First, this is not a case where the plan (insofar as it deals with sub-division) is revealing the detail of or describes the building works referred to in the decision notice. As already noted the proposal recited in the notice is concerned exclusively

In truth, it is unlikely that a Court will be required to interpret a planning permission where the plans show much more extensive works than those recited in the notice. That is because any such discrepancy is likely to have been picked up by the planning officer at the application stage and investigated. The applicant might be told that the LPA is not prepared to deal with that kind of discrepant application at all or that revised plans are required. Mr Lockhart-Mummery's extreme example of the application for a one-room extension whose plans show the erection of an office block falls into that category, But in more modest cases where planning permission has been granted, if the plans show a material addition to the decision notice the common sense approach is not to rule them out per se but instead to look at them with some care to see whether they really are part of proposed works, Alternatively, in some cases they may suggest that there is a problem of ambiguity to be resolved under Ashford principles.

In taking this view I have considered the Council's reliance on the notice requirements for both applicant and LPA under Articles 6 and 8 of the General Development Proceedings Order 1995. The applicant must serve a notice which is a "description of the development" while the LPA is required to serve a notice informing the public how and when they can inspect copies of the application, the plan and other documents submitted with it. But I do not see that the fact chat the public are directed first to the description of the works (in the case of the applicant) or may view the application form first as entailing the conclusion that the description in the form (or by analogy in the planning permission decision notice) should "trump" any additional feature shown in the plans. On any development of any significant scale it will obviously be necessary to look at the plans to see what the detail is. Indeed such documents are now usually easily accessible online. And the application itself has of course to be accompanied by these documents — see Article 3 (l) (b) of the Town & Country Planning (Applications) Order 1988.

Against that background I turn to the proper construction of the 2006 permission.

The first point, as already noted, is the lack of any reference to the internal works in the notice. On the other hand, one needs to take account of the relative significance of the sub-division. In relation to Unit 7 this has become distorted because of the consequences said to flow from the 2006 permission and the works done, namely the effective removal from Unit 7 of all the conditions in the 987 permission, But in truth the sub-division is the erection of one simple dividing wall in one of 13 units which

One then turns to the captions set out in paragraph 17 above as they appear in the proposed plan for Unit 7. Since they refer to a previous planning permission it is objectively legitimate and necessary to see what that permission granted. It did not permit the internal works per se. It did not need to, on the assumption they were to be carried out by themselves. What it did was to allow a variation of Condition 4 so as not to render the creation of any subdivided — and therefore lesser — floor space unlawful. As at 2006 that was still an important consideration. In the absence of any lawful mezzanine floors to increase the floor space, the 2002 permission would have been needed even if the 2006 permission allowed for the internal work itself. Or at least arguably so. The message conveyed by the captions is that any decrease in floor space as a result of the proposed sub-division had been covered by the previous submission. That piece of information does not imply that permission for the internal work itself is not sought by the plans on this application.

The Inspector himself addressed the captions in paragraph 43 of the DL where he said this:

I would not myself have expressed the matter in quite this way. After all, a consideration of what the Architect was, or thought he was, doing is not relevant because the Court is not concerned with subjective intent. And a reference to the fact that ultimately the 2002 permission was not used does not really assist as at 2006. Equally I agree that the fact that it was said at the inquiry that the 2002 permission merely "paved the way" for the 2006 permission does not take the matter much further. This may or may not have been in the mind of GPI back in 2006, but it does not assist on objective interpretation. However, it does not follow from the above that the objective analysis in paragraph 41 above is wrong.

The question is thus whether the sub-division should be seen as part of the overall package of works. In my judgment, although other possibilities are theoretically open, the inference from the plan must be that the sub-division is intended to be done at the same time as the external works to Unit 7. Of course the former could be delayed and Unit 7 could re-open as a single store but with two major entrances. But as a matter of common sense this seems very unlikely. One also has to remember that although the 2002 permission had another I h years to run, the external works across the whole site were substantial and if the intention was not to do anything with the sub-division until after such works had been clearly completed that might be cutting it fine.

The fact that the internal works were in the event done along with the external works is of course not directly relevant to the position as at 2006 because that would be to apply hindsight. But it does perhaps suggest that this was the most obvious course to take. It also shows, by way of example, that if the sub-division had not even started

The rest of the proposed plans suggest firmly that the sub-division was part of the overall works proposed. The new sub-divided units were given names, Unit 7 and Unit 7A. And it is the case that in relation to Unit 7 unless there was a real intention to make a sub-division, there would be little point in having the two doors and relocating Unit 14 which, at least as shown on the plan, was blocking where the new entrance would be. On the elevation plan 838-041B at p57 the new entrance doors are allocated to Units 7A and 7B thereby emphasising the sub-division.

It is also said that the fact that plans show that the "shop internals" had not yet been surveyed militates against the inclusion of the sub-division. But I do not see that the lack of such details means that the application and permission could not have encompassed the main structural item, namely the internal wall, as opposed to matters of fitting out.

In the grounds for the application before me at p7, the error of law alleged against the Inspector is that in paragraph 40 of the DL he misconstrued Barnett (supra) because he included sub-division in the permission even though not in the notice whereas Barnett is not authority for this proposition. This was the principal point taken in the Council's submissions also. But that contention rests upon a hard and fast rule of law which Barnett did not lay down and which I have rejected.

For all the reasons given above, I would therefore uphold the Inspector's decision as to the scope of the 2006 permission. It included the internal works.

I should add that the focus above was on the plans because all parties accepted that in this case, it could not be said that the application itself was incorporated by reference into the planning permission.

However, if I am wrong in my conclusion at paragraph 543 above, then in any event this was at best a case of ambiguity. The Inspector did not regard it as such but I should give my findings in case it be thought that it was. Reference to the extrinsic materials does in my judgment show sub-division to have formed part of the application and permission for the reasons set out below.

I agree that the letter enclosing the application itself referred only to external alterations and made no reference to the sub-division. The application form's Brief Description also referred simply to recladding of existing units and relocation of the Moben Unit. But the fact remains that the sub-division at Unit 7 was in truth a relatively minor aspect of this whole project affecting 13 units. I do not doubt that it may have been physically possible to insert something about the sub-division into the box at section 4 of the form but the main point is that the sub-division was not a key element of the works as a whole. Its absence from the description in the fom is not material here.

It is said that if the sub-division was included in the application, section I l (b) would have been ticked to indicate an application for a change of use ie to unrestricted Al. But that was not relevant at this point. The 2006 permission was all about the works to be done. The Defendants do not suggest that the 2006 permission itself impliedly allowed unrestricted use or that such use was sought in the 2006 application. Rather the unrestricted Al use is said to have been the consequence of the 2006 permission covering the internal and external works - intended or otherwise.

The design statement again concentrated on the external works. But, as noted in paragraph 13 above, it did contain these words: "Moben Unit... is to be relocated to enable the sub-division of the former Furntureland unit (unit 7) in the proposed style." Those words explain why the unit was being moved. But on a fair reading L also consider that they show that sub-division "in the proposed style" was part of that application. The same applies to the appearance of the words in brackets in the planning statement referred to in paragraph 14 above.

I agree with the Inspector in paragraph 40 of the DL that the original 2006 planning application could and should have been better worded. But in my judgment there was sufficient in the wording of the design and planning statements in the context of the works as a whole, to include the sub-division.

At paragraph 38 of the DL the Inspector said that the 2006 permission authorised alteration to a structure falling within this definition of building, that Unit 7 was originally one building and Units 7A and 7B were two buildings created out of that original. But in any event "building" included part of a building and "erection" included alteration "however it is interpreted", So the permission allowed the erection

It is common ground that the Inspector here was seeking to apply s75 (3) whether he was correct in holding that the 2006 permission covered the internal works or not. So it is invoked by the Defendants as justifying the correctness of the Inspector's decision in any event.

Assuming that the 2006 permission was for extemat works only, the first question is whether s75 (3) is engaged at all, The Council says that it is not. This is because, on the facts of this case, the word "erection" in s75 (2) must be confined to erection only and not to the other meanings ascribed to it by s336 (l) and the same for "building". And on this view of the 2006 permission what was being permitted was at most the alteration to a building (Unit 7) or more appropriately, part of the building, ie its exterior frame. The "context" so requires. See the opening words of s336 (l). If this is right s75 (3) simply does not apply at all because the permission was not for the erection of a building properly so-called.

I do not accept this argument. The words "except so far as the context otherwise requires" are a reference to the particular provision within "this Act" in question. The words of that provision may make it inapposite to give a wider meaning to erection or "building". The "context" is thus that of the statutory language not the facts of any given case. The decision of the House of Lords in Shimizu v Westminster City Council [1997] 1 All ER 481, relied upon by the Council in this regard, actually supports my view of the relevant "context". See the headnote at p482a-c and the judgment of Lord Griffiths at p493b-494a.

But the Council also argues that the factual context for s75 (3) here would have to be a permission to alter the exterior of Unit 7 ie altering a part of a building (the exterior). So one then needs to consider the purpose for which the "building" referred to in s75 (3) is designed. I do not accept that "building" here should simply be read (in this case) as the building (Unit 7) in its altered state. Rather, I agree with the Council that at this point the focus has to be on the subject of the actual works permitted. The works here have nothing to do with the building as a whole, they are only concerned with altering the exterior. The relevant "building" within s75 (3) here is therefore the exterior. It makes no sense to ascribe as a purpose of that part of the building altered ie the exterior the purpose of a retail warehouse. The purpose would have to be confined to its role as an exterior surface or the new doors. Since one cannot assign the purpose of retail warehousing to the works in question — or, more accurately, to that part of the building affected by them, there is no de-restriction of the original Condition 3.

It would be very odd indeed if the position were otherwise. Suppose that permission was sought to make bright yellow doors for Unit 7 or some other relatively modest alteration which nonetheless required permission. Once permitted this would at a stroke remove Condition 3 because of the effect of s75 (3). Indeed, if this invocation of s75 (3) was correct it would mean that the 1987 restrictions covering all the units in this retail park would now go. That strikes me as absurd. It is no answer to say that

In my judgment therefore, s75 (3) does not have the effect of removing Condition 3 from Unit 7 had the 2006 permission been found to be limited to external works, and the Inspector erred in so finding. In the light of my ruling on Ground l, however, this does not affect the outcome.

GPI further contends that even if the Inspector was wrong on Grounds I and 2, his decision can be justified on the basis that the ultimate result of the 2006 permission was the creation of two new planning units such that previous restrictions no longer apply. It is possible that the Inspector had this further point in mind also, because at paragraph 13 he refers to the question whether the restrictions were extinguished following implementation of the 2006 permission and the creation of two units, and in paragraph 37 he said that the implementation of the 2006 permission and the physical sub-division of Unit 7 into two created two new planning units and that existing rights attaching to the former planning unit (Unit 7) were lost as in Newbury (supra). Either way, the point is now before me.

Although the contention is expressed by reference to the creation of two new planning units, the more apt way to put it is surely the creation of a new chapter in the planning history of Unit 7. "Planning unit" should be confined to those cases where the concept is used in the context of deciding whether there has been a material change of use. See for example the judgment of Woolf J in Winton v Secretary of State for the Environment [1982] P & CR 205 at 209-210. See also South Staffordshire District Council v Secretary of State for the Environment 6 April 1987 in which Glidewell LJ referred to where the expression "new planning unit" was used in the different context of considering if the new permitted development created a new planning unit which had no lawful or established use except the use or uses which the permission itself authorised. A similar concept was sometimes expressed in the phrase "new chapter in the planning history". The former words were used by the House of Lords in Newbury (supra) and the latter in Prossor v Minister of Housing and Local Government [1968] 67 LGR 109. The latter expression was more appropriate.