Tatiana Milne-Skillman, R (on the application of) v Horsham District Council

This case concerns a challenge to Horsham District Council’s (“the Council”) decision to make a ‘non-material’ amendment under s.96A Town and Country Planning Act 1990 (“TCPA”) to an outline planning permission for employment development at Brinsbury Fields, Brinsbury College, Pulborough (“the site”). The amendment was to delete the requirement in Condition 1 of the outline planning permission to develop in accordance with the landscape master plan, parameters plan and proposed plot layout plan. The Claimant lives in close proximity to the site and is accepted to have locus in the proceedings.

The issue in the case is whether the removal of those plans from the Condition was a non-material amendment for the purposes of s.96A TCPA.

The Claimant was represented by Richard Harwood KC, and the Defendant was represented by James Neill. The Interested Party did not attend and was not represented.

The Grounds of challenge advanced by the Claimant are:

As is so often the case, the Grounds are in reality different ways of advancing the same issue, namely the meaning and effect of Condition 1 and the scope of s.96A TCPA.

Permission to apply for judicial review was granted by Lang J on the papers.

The site is 6.8 hectares of open, undeveloped agricultural land to the east side of the A29 Stane Street, approximately 500m north of Brinsbury College and south of the small settlement of Adversane. The area is rural in character and in open countryside. A concurrent application was submitted for the development of the southern half of the field with car showrooms, workshops and commercial units under DC/16/2963.

In the outline planning application the development was described as:

The application form had left at ‘0’ all of the entries for the floorspace proposal. The Design and Access Statement included a similar version of the layout plan referred to in Condition 1, with the same building footprint and plot size figures. The Planning and Heritage Statement said at para 4.2.1:

The statement included an Illustrative Masterplan with plot and unit sizes and the rectangular blocks of the six buildings. It also said at paragraph 4.4.1:

An Environmental Impact Assessment (“EIA”) screening opinion was adopted, which concluded that EIA screening was required for the application site, but that there was no likely significant effect on the environment and so EIA was not required.

The committee report on the outline application dated 17 October 2017 included in the description of development ‘up to a maximum combined floor area of 14,068sqm’, however this figure was not included in the later decision notice. The report explained that officers had sought to restrict the quantum of the development at para 1.3:

The floorspace total was also referred to in paras 6.2, 6.32 and 6.70. Para 6.32 said:

There are frequent references in the Officer’s Report to the plans being illustrative or indicative. There is a tension in the Officer’s Report between the clear acknowledgement that the application is in outline, with all matters reserved except for access, and the reference to precise floor spaces and layouts for landscaping as part of the argument for why the development was acceptable. The level of floorspace was relevant to the asserted employment benefits of the proposal, and the layout and landscaping was relevant to the acceptability of the proposal in terms of impact on the countryside.

Planning permission was granted on 26th January 2018 for:

32 conditions were applied to the permission. Condition 1 was:

The Landscape Masterplan Strategy was drawn to a scale of 1:500@A0 and indicated building footprints, hard and soft landscaping areas with details such as:

The Parameters Layout and Sketch Views plan was drawn at 1:2000@A3. It showed the footprint of six dual pitched buildings with maximum ridge heights of 7 or 7-8 metres; along with some indicated planting, a building line set back from the road and sketch drawings. Notably one of the frontage buildings was limited to a maximum height of 7m, whereas all the other buildings had the somewhat confusing legend of maximum height 7-8m.

The Proposed Plot Layout plan rev P4 (1:1250@A3) shows the six units in block form, with floorspaces and uses for each building. Plot sizes are indicated, with roadways, operational hardstanding and car parking areas shown.

There is undoubtedly an inconsistency between the plans that were attached to Condition 1. The building footprint locations, shape and size differ distinctly between the parameters (and landscape masterplan) and plot layout plan P4. In particular, units 1, 4 and 6 are different sizes and unit 6 is positioned further away from the A29 on the northern boundary in the parameters plan. There is a later plot layout plan in the application documents (P104 P7) which matches the footprints on the parameters plan and landscape masterplan. Revision P4 bears a later date than P7 on the drawing itself (which may explain the Condition) although the revisions are set out in sequence. It can be seen from this that neither the developer nor the Council carried out a thorough review of the documentation at the point that the permission was granted.

The next two Conditions, the first of which was misnumbered as ‘1’ read, as relevant:

Condition 4 provided for the later submission and approval of a phasing plan. Condition 13 required full details of hard and soft landscaping works within a Phase to be approved ‘within the relevant Reserved Matters application’. These would have to accord with parts of the Preliminary Ecological Appraisal.

A reserved matters application was submitted on 24 December 2020, which the accompanying Planning Statement said aligned with the ‘approved parameters plan’ and the ‘approved proposed plot layout plan (ref: 104 P7) and Landscape Masterplan Strategy’ (para 2.9 and 2.11 respectively). HGH Consulting (“HGH”) for the Claimant told the Council that the reserved matters drawings departed so far from the outline permission drawings that they were invalid. The reserved matters application has not been determined.

An application for a ‘non-material variation’ of the planning permission was made by Kingswood Village Limited on 15 August 2022 for ‘Non-material amendment to Conditions 1, 2 and 13 to clarify plans and reflect the status as on the outline permission.’ The proposed change to Condition 13 was subsequently dropped.

The officer ‘assessment sheet’ said:

It noted an objection submitted on behalf of the Claimant by HGH. The officer planning assessment was as follows:

The decision notice was issued on 9 March 2023. This amended Condition 1 to read:

It also renumbered the second Condition ‘1’ as ‘2’.

Section 96A TCPA provides for a power to make non-material changes to planning permissions or permission in principle. It states (so far as is material):

The question of whether the amendment of a planning permission amounts to a non-material amendment is a matter of planning judgement subject to challenge on normal judicial review principles, including Wednesbury irrationality (Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 22); Swire v Canterbury City Council [2022] EWHC 390 (Admin) at [123].

An outline planning permission may, and invariably is, granted subject to a condition specifying reserved matters for subsequent approval. Conditions on outline permissions frequently refer to the proposal or development being carried out in accordance with the submitted applications and plans, see R v Newbury DC ex p Chieveley Parish Council [1999] PLCR 51 at [60]. The precise relationship between the plans referred to in the outline permission and the reserved matters varies on the facts of the different cases. In EIA development it is common to have a condition referring to parameter plans and an indicative master plan so that the details to be approved remain within the scope of the likely significant environmental effects assessed for the project, see Swire v Canterbury City Council [2022] EWHC 390 (Admin) at [12] and the reference to R v Rochdale MBC ex p Milne (No 2) [2001] Env LR22. In R (Village Concerns) v Wealden DC [2022] EWHC 2039 Dove J held, on the facts of that case, that a condition on an outline planning permission could specify a given quantum of development.

In Swire an outline planning permission contained conditions which required development to be ‘in accordance with’ or to ‘accord with’ approved parameters plans (Conditions 6, 8, 9, 10 – see [36-37], [55-56] and Annex). These parameter plans included land use, building heights and building densities, and open space, [45] and [48]. Holgate J addressed the meaning of ‘ in accordance with’ at [42];

The Supreme Court in London Borough of Lambeth v Secretary of State for Housing, Communities and Local Government [2019] UKSC 33 confirmed the following general principles applicable to the interpretation of a planning permission (by reference to Trump International Golf Club Ltd v Scottish Ministers [2015] UKSC 74):

The “well established rules” referred to in the paragraph above include the rules set out in R v Ashford Borough Council, ex parte Shepway District Council [1999] PLCR 12 at [19]. In summary they are:

It is permissible to correct an error in a condition by way of construction: see, for example, Newark and Sherwood District Council v Secretary of State for Communities and Local Government [2013] EWHC 2162 (Admin) at [90].

Where an inconsistency arises between the terms of the permission granted and a condition, it is permissible to look at other extraneous material to assist in resolving that inconsistency: Newark at [86].

General principles of construction fall to be considered when construing a planning permission: see Newark at [18]. In appropriate circumstances, it is permissible to read documentary provisions as being subject to addition, omission or even substitution.

Mr Neill relies on caselaw, as set out below, concerning mistakes in contractual documents. Although this caselaw may be of some relevance, it needs to be treated with caution given the impact on third party rights from the grant of a planning permission, as opposed to the private nature of a contractual agreement. In particular, the intention of the parties is much less likely to be relevant in construing a planning permission than it is in the construction of a contract.

As regards a contractual document, where there is a mistake, rectification may not be necessary and in certain circumstances the mistake can be dealt with by way of construction: Chitty on Contracts (31st edn) Vol 1 [5-113], citing Brightman LJ in East v Pantiles Plant Hire Ltd (1982) EGLR 111 at [112]:

In Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 1101, Lord Hoffmann (at 1114 [22] to [25]) cited and approved this passage in East, subject to two qualifications: first, that correction of mistake by construction is just part of a single task of interpreting the agreement in context, in order to get as close as possible to the meaning which the parties intended. Secondly, in deciding whether there is a clear mistake, the court is not confined to reading the "face of the instrument”, without regard to the background and context, which must always be taken into consideration. He went on to state that:

Mr Harwood submits that the Council erred in law in holding that the plans were included in Condition 1 “in error”; that the Condition should be read as if the plans were not included; and therefore that it was not a non-material amendment to remove them.

He submits that the natural and ordinary meaning of Condition 1 is that the development should be carried out in accordance with the listed plans. He relies on Swire for the proposition that “in accordance with” does not have to mean in strict accordance with. Therefore, there is a difference in effect between Condition 1 and Condition 3, the latter being more specific.

He accepts that there were inconsistencies in the plans but says that does not mean that Condition 1 is a nullity or unenforceable. In respect to the inconsistency between the plans only does he accept that there is some ambiguity in the permission. However, he submits that it is not lawful to use s.96A simply because there is some ambiguity in terms of which plan applies.

He relies on Swire for the proposition that “in accordance with” can be interpreted broadly and take its precise meaning from the context and does not necessarily mean in strict conformity with the relevant plans.

Mr Neill, on behalf of the Council, submits that the outline planning permission should be read as not requiring compliance with the three plans. The inclusion of the plans was clearly “in error”, and as such it can be corrected by construction of the permission, see Newark at [90]. There was a clear error and it can be addressed by construction of the permission to not require conformity with the plans. Therefore s.96A was not material because the plans did not need to be followed as a matter of construction.

He relies heavily on the terms of the permission and its reference to all matters being reserved, save for access. Condition 1 does not impose restrictions on the scope of the reserved matters, but rather purports to require compliance with the plans for the purposes of “the development.” In oral submissions he placed considerable reliance on the use of the word “development” in Condition 1, as opposed to “reserved matters” in Condition 3. He also submits that the language of Conditions 1 and 3 does not make sense if Condition 1 requires the development to be in accordance with the three plans. Condition 3 is the only condition where the Council consciously imposed a constraint on the scope of the reserved matters application. Therefore, he submits, Condition 1 purports to go outside the scope of the outline permission.

He did accept in oral argument that the Council’s case involved a “fairly radical re-interpretation” of the condition but submitted that was allowable under the caselaw.

The key issue in this case is to establish the meaning and effect of Condition 1. In order to do that exercise I need to apply the principles set out in Trump and consider the natural and ordinary meaning of the words, the purpose of the consent, any other conditions and common sense. I also have to have in mind that this is a public document, with impacts on third parties and the broader public interest.

On the face of Condition 1 it is clear what it means. The development has to be carried out in accordance with various plans. That is not difficult, and it is perfectly possible. There is some inconsistency between those plans, particularly in respect of how far set back are the frontage buildings. However, such inconsistencies are not themselves unusual, and it seems reasonably clear that the layout plan P4 should have been superseded with P7.

There is a clear tension between Condition 1, and the permission stating that all matters save access are reserved, and to a lesser degree with the terms of Condition 3. However, it is in my view a very long step from accepting that there is such a tension, and finding that Condition 1, save the reference to the location plan, is of no effect and can be excised under s.96A.

I note that the developer did not suggest, when the permission was granted, that there was any error within it, nor did they seek to appeal. Further, they have not sought subsequently to vary the condition under s.73 TCPA, which would be the normal procedure if they wished to develop without reference to the plans. Nor does either the developer or the Council argue that the condition is a nullity, or on its face unenforceable. It plainly has a meaning and is capable of being enforced.

I do accept that the tension between the different parts of the permission means that there is ambiguity within the meaning of Shepway and it is therefore legitimate to have regard to extrinsic material. The relevant extrinsic material here is the application, but also the officer’s report. The latter is relevant because even if the application indicates that the plans were intended only to be illustrative, the Council may still have intended to give them legal effect through the mechanism of Condition 1.

Mr Neill is correct that the application, and its accompanying documents, refer to an outline application, and the layout plan has a note “detailed layout to be secured as part of future reserved matters application(s)”.

The officer’s report shows, in my view, some rather muddled thinking. The opening paragraph refers to all matters save access being reserved. However, immediately after that paragraph it states:

In the conclusions section of the report the benefits are justified, inter alia, on the basis of up to 14000m2 of employment floorspace, a figure which can only have come from the layout plan. In the overall balance at paragraph 6.71, very specific reference is made to the mitigation in respect of visual impact. This can again only be a reference to pulling back the buildings from the site boundary on the A29, and the restricted heights of the buildings, as shown on the disputed plans.

In my view the members reading the officer’s report (or the commonsense reader) would have considered that those parameters were being fixed, at least in broad terms, otherwise they could not have placed any reliance on the “mitigation”, which was being advanced as critical to the planning balance. It could be said that this was simply a reference to what could be achieved at reserved matters stage. However, a fair reading of the report suggests fixed parameters rather than simply what might be agreed in the future.

Reverting to the construction of the words of Condition 1, I take from Swire, that “in accordance with….”, can to some degree take its meaning from its context. Mr Neill is correct that the relevant conditions in Swire vary between one which relates to the reserved matters and one which fixes the outline, but I do not read Holgate J’s judgment as suggesting that such precise differences will necessarily be determinative. It would have been much clearer if Condition 1 had said “in broad or general accordance with ….”, but it is often the case that permissions could be more clearly written with the benefit of hindsight. Equally, it should probably have said “Reserved matters should be submitted to be in broad or general accordance with….”. However, I do not give the weight to the use of the word “development” rather than “reserved matters” that Mr Neill urges.

Mr Neill relies heavily on the inconsistency between the plans referred to, but that accepted inconsistency does not in itself form a basis for using s.96A to delete all the relevant plans. Such an approach does not accord with the natural reading of the Condition itself.

For these reasons I find for the Claimant on Ground One - that the Council erred in law by misinterpreting the outline planning permission. It was wrong to consider that Condition 1 did not require compliance with the plans referred to. The effect of this error was that the deletion of the plans was a material change and the use of s.96A was itself unlawful. It is not necessary to formally determine the other Grounds, which are merely different ways of analysing the same issue.