Mahadevan Krishnamohan v Secretary of State for Housing, Communities and Local Government & Anor

The Claimant occupies a dwellinghouse known as Cliveden Stud House in Taplow, Buckinghamshire (“the dwellinghouse”). It was built in the 1970s within an area of land known as the Cliveden Stud Farm, which lies within the Green Belt. Its construction followed the grant of outline planning permission for a dwellinghouse on that site on 31 December 1969, with reserved matters being approved on 6 June 1970. Occupancy conditions were imposed on the grant of the outline permission, limiting occupation of the dwellinghouse to those involved in agriculture or stud farming in association with the surrounding land.

The Claimant has made three applications for a Certificate of Lawful Existing Use or Development (“CLEUD”) under section 191(1)(a) of the Town and Country Planning Act 1990 (“the 1990 Act”). In each case, he has sought to establish that the dwelling was not built with the benefit of the 1969 outline planning permission, but that it is now immune from enforcement having been substantially completed more than ten years ago. His object is to establish that he need not comply with the occupancy conditions imposed when planning permission for the dwelling was granted.

The first CLEUD application was made on 8 August 2022. I shall refer to it as “CLEUD Application 1”. The application sought to establish that Cliveden Stud House as built was materially different to the dwelling permitted under the 1969 outline planning permission and the 1970 reserved matters approval. The local planning authority, Buckinghamshire Council (“the Council”), failed to determine that application within the prescribed period. The Claimant appealed to the Secretary of State under section 195 of the 1990 Act. The appeal was dismissed by an Inspector, Graham Dudley, in a decision letter dated 8 January 2024 (“the 2024 DL”). I will need to return to the terms of the 2024 DL in more detail below. In summary, Inspector Dudley found that the house had been built in general compliance with the outline planning permission and reserved matters approval.

The second application was made on 26 January 2023 (“CLEUD Application 2”). The development for which it was sought was the use of Cliveden Stud House “otherwise than in compliance with the conditions attached” to the 1969 Outline Planning Permission. On 26 April 2023, the Council refused that application. The Claimant appealed to the Secretary of State against the refusal of CLEUD Application 2. It will be noted that this application was made, and had been refused, before the appeal in respect of CLEUD Application 1 had been determined.

The third application was made on 6 February 2024 (“CLEUD Application 3”), four weeks after the date of the 2024 DL dismissing the appeal against the non-determination of CLEUD Application 1. The development for which it was sought was described in the application form as follows: “Cliveden Stud House (‘the House’) was not built with the benefit of planning permission. The House was substantially completed more than 10 years ago and is therefore immune from enforcement.” On 2 April 2024, the Council refused that application. The Claimant appealed to the Secretary of State against the refusal of CLEUD Application 3.

Both the appeals against the refusal of CLEUD Application 2 and of CLEUD Application 3 were heard and determined together by Inspector J Moss. She referred to the appeal against the refusal of CLEUD Application 2 as “Appeal B”, and the appeal against the refusal of CLEUD Application 3 as “Appeal A”. The appeals proceeded by way of written representations (the Claimant’s request for a hearing having been rejected).

By a decision letter dated 13 January 2025 (“the DL”), Inspector Moss dismissed Appeal B in respect of CLEUD Application 2. She allowed Appeal A in respect of CLEUD Application 3, but did so only in as much as she considered that a certificate of lawful use or development comprising the erection of the dwellinghouse should be granted certifying that the 1969 outline planning permission had been validly made and granted for a “private dwelling house in connection with the Stud” at Cliveden Stud, and that the dwellinghouse had been constructed in accordance with the permission and subsequent approval of reserved matters. This was, therefore, in substance a rejection of the Claimant’s arguments. The effect of the Decision was to confirm that the occupancy conditions had been validly imposed and were effective.

In so finding, Inspector Moss rejected the Claimant’s argument that the outline planning application had been limited to the red coloured footprint of a proposed dwellinghouse on the outline application plan entitled “Block Plan” (“the Outline Block Plan”), outside which the dwellinghouse had been constructed. She held that the application for planning permission had been made in respect of a much larger site, shown on a plan marked as “Plan A”. In reaching her conclusions, Inspector Moss considered the reasoning and findings of Inspector Dudley as set out in the 2024 DL in respect of the CLEUD Application 1 appeal. She considered that her findings were consistent with those of Inspector Dudley.

The Claimant now applies to this Court under section 288 of the 1990 Act to seek an order quashing the Decision and remitting the appeals in respect of CLEUD Application 2 and CLEUD Application 3 to be redetermined.

The Claimant contends that Plan A could not have been the site plan for the outline application, and that only the Outline Block Plan could have been the site plan (with which, it is submitted, the dwelling as constructed did not comply). The Claimant further contends that Inspector Dudley had rejected the Council’s case that Plan A had been the site plan, and had not (as Inspector Moss considered) left that question open. Hence, he submits, if Plan A was not the site plan, and if (contrary to his primary case) the red coloured footprint on the Outline Block Plan was not the “site plan” in respect of which outline planning permission had been granted (as both Inspector Dudley and Inspector Moss considered), then the original application for outline planning permission had been invalid: that would mean that contrary to the applicable procedural requirements at the time, the application had not been accompanied by any site plan identifying the land to which the outline application related. In that event, the outline permission had been invalid and a nullity, such that the house was not constructed pursuant to any permission at all.

There are three grounds of challenge set out in the Claimant’s Statement of Facts and Grounds. They are, in summary:

Permission was granted in respect of each of those grounds on 12 May 2025 by Richard Kimblin KC sitting as a Deputy High Court Judge (as he then was). In his skeleton argument for this hearing dated 18 September 2025, the Claimant also sought permission to adduce a new “sub-ground”. It had come to light in preparation for the hearing that Inspector Moss did not have certain correspondence from December 1969 before her. The Claimant’s representatives on the CLEUD applications and appeals (who differed from his legal representatives for the present challenge) had erroneously believed that they had submitted the correspondence in support of the appeals against the refusal of CLEUD Application 2 and CLEUD Application 3, but had not in fact done so. The correspondence had been included in support of the original CLEUD Application 2 application to the Council, and was referred to in the Claimant’s Statement of Support for that application. It is contended that Inspector Moss ought to have realised the error, and taken steps to obtain the missing documents from the parties.

In response to the three grounds, the Secretary of State submits that irrespective of whether the original outline application had been accompanied by a site plan complying with the relevant procedural requirements, the outline permission took effect as a valid planning permission and it is now (significantly) too late to challenge it. He further submits that the Claimant’s grounds are in any event without merit.

Mr James Burton appeared for the Claimant. Mr Jack Parker appeared for the Secretary of State. The Council did not appear and was not represented. I am grateful to both counsel for their written and oral submissions.

Planning applications under the Town and Country Planning Act 1962

At the time of the outline planning application, the primary legislation governing planning control was the Town and Country Planning Act 1962 (“the 1962 Act”).

Section 19(1) of the 1962 Act provided: “Any application to a local planning authority shall be made in such manner as may be prescribed by regulations under this Act, and shall include such particulars, and be verified by such evidence, as may be required by the regulations or by any directions given by the local planning authority thereunder.”

As at the date of the outline planning application, the relevant regulations governing the form of application were to be found in Article 5 of the Town and Country Planning General Development Order 1963 (“the 1963 Order”). Article 5(1) made provision as to the submission of forms, plans and drawings; Articles 5(2) and 5(3) made provision respectively allowing an outline application and (subsequently) an application for reserved matters to be made. The material provisions of Article 5 provide as follows (emphasis added):

“(1)

An application to a local planning authority for planning permission shall be made on a form issued by the local planning authority and obtainable from that authority or from the Council with whom the application is to be lodged, and shall include the particulars required by such form to be supplied, and be accompanied by a plan sufficient to identify the land to which it relates and such other plans and drawings as are necessary to describe the development which is the subject of the application, together with such additional number of copies (not exceeding 3) of the form and plans and drawings as may be required by the directions of the local planning authority printed on the form : and a local planning authority may by a direction in writing addressed to the applicant require such further information to be given to them in respect of an application for permission made to them under this paragraph as is requisite to enable them to determine that application.

(2)

Where an applicant so desires, an application, expressed to be an outline application, may be made under the preceding paragraph for permission for the erection of any buildings subject to the subsequent approval of the authority with respect to any matters relating to the siting, design or external appearance of the buildings, or the means of access thereto, in which case particulars and plans in regard to those matters shall not be required and permission may be granted subject as aforesaid (with or without other conditions) or refused, provided that:–

(i)

where such permission is granted, it shall be expressed to be granted under this paragraph on an outline application and the approval of the authority shall be required with respect to the matters reserved in the permission before any development is commenced; …

(3)

An application for an approval required by the last preceding paragraph shall be in writing and shall include such particulars and be accompanied by such plans and drawings as are necessary to deal with the matters reserved in the permission together with such additional number of copies of the application and plans and drawings as were required in relation to the application for permission.

…

(8)

The foregoing provisions of this article shall be the regulations to be made for the purposes of section 19 of the Act.”

The 1962 Act provided for various circumstances in which an application for planning permission should not be entertained by a local planning authority. Those circumstances included:

Notably, however, there was no equivalent provision in the 1962 Act to that which now appears in section 327A of the 1990 Act (inserted by the Planning and Compulsory Purchase Act 2004). Section 327A has, since 2006, prohibited a local planning authority from entertaining a planning application which fails to comply with any requirement imposed by the 1990 Act (or secondary legislation made under it) as to the form or manner in which the application must be made, or as to the form or content of any document or other matter which accompanies the application. In 1969, there was no such prohibition.

Certificates of Lawfulness of Existing Use or Development

Section 191(1) of the 1990 Act provides that if any person wishes to ascertain whether any existing use of buildings or other land is lawful, or whether any operations which have been carried out on land are lawful, he may make an application for the purpose to the local planning authority. Section 191(2) provides that for the purposes of the 1990 Act, uses and operations are lawful at any time if no enforcement action may then be taken in respect of them (including because the time for enforcement action has expired), and they do not constitute a contravention of any requirements of any enforcement notice or breach of condition notice then in force. Section 191(4) provides that if, on an application under section 191, the local planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operations or other matter described in the application, they shall issue a certificate to that effect; and in any other case they shall refuse the application.

Section 195(1) of the 1990 Act provides for a right of appeal to the Secretary of State where an application is refused in whole or in part, or where the authority do not give notice to the applicant of their decision within the prescribed period (or such extended period as is agreed in writing between the applicant and the authority).

Statutory review

Section 288(1) of the 1990 Act provides that if any person is aggrieved by action on the part of the Secretary of State (including in dismissing an appeal under section 195) and wishes to question that action on the grounds (i) that the action is not within the powers of the Act, or (ii) that any of the relevant requirements [including of the 1990 Act or any order, regulations or rules made under it] have not been complied with in relation to that action, he may make an application to the High Court. Section 288(4A) requires the leave of the High Court for such an application to be made. Section 288(5) provides that on any application under section 288, the High Court may quash that action, if satisfied that it is not within the powers of the Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it.

The principles to be applied by the Court upon such an application were set out by Lindblom LJ (as he then was) in St Modwen Developments Ltd v Secretary of State for Communities and Local Government [2017] EWCA Civ 1643 at [6]. It is not necessary to repeat them.

The outline application and covering letter

On 3 October 1968, an application for outline planning permission was made in respect of land at “Cliveden Stud, Bucks” for a “Private dwelling house in connection with the Stud.” The applicant was the then owner of the freehold of the property.

The application was sent under a covering letter from the applicant’s agents. It noted that following the withdrawal of a previous application and a site visit made by two Council representatives, they were now making a fresh application for outline planning permission for “the erection of a house adjacent to the stud buildings”.

BCC’s pro-forma application form for planning permission, not untypically for the time, was short. I note the following particulars of the application:

The covering letter outlined the applicant’s case for the grant of planning permission. The property was described as being part of the Cliveden Estate, of which 138 acres was in the freehold ownership of the applicant, and shown edged red on the accompanying Plan A. An additional area of 45 acres had been leased from the National Trust, and was shown edged blue on Plan A. The letter described the nature of the stud farm, which was essentially represented to be of very high quality, attracting international interest, and of the agricultural uses of the land. It was said that it was important that the applicant should reside on the stud to deal with problems which arose on site, and to be able to discuss business with important visitors from home and overseas in the right atmosphere.

In that connection, the agents indicated that the applicant would be prepared to consider entering into (what was described as) “a Clause 12 Agreement under the Bucks County Council Act 1959.” This may be presumed to be a reference to section 12(1) of the Buckinghamshire County Council Act 1957. Section 12 was in effect a predecessor provision to (what is now) section 106 of the 1990 Act, albeit local to Buckinghamshire. It provided for an agreement to be made between BCC and the owner of any legal estate in land “on the passing of plans or otherwise in connection with the land” which would be binding not only upon the owner joining in the agreement but also upon their successors in title, and would be treated as a local land charge (a “section 12 agreement”). Section 15(1) of the 1957 Act also provided power for section 12 agreements to be entered into by district councils within Buckinghamshire.

Notwithstanding that the application was for outline permission only with all details as to siting, design, external appearance and access being reserved, the covering letter set out some details of what was to be proposed. Under the heading “Siting of the House”, the agents said as follows: “We are fully conscious of the fact that this land is in the Green Belt and our Client has instructed us to site the house as close as is reasonably practicable to the main Stud buildings. It will be seen from the Site Plan that the house is within the curtilage of the Stud premises. We have been instructed to site the house close to the existing buildings so that it blends in with the complex of the existing buildings and in no way will intrude into the existing scenic beauty of the Green Belt, and will not be readily visible away from the curtilage of the farm.” Some further details were given as to the proposed materials for the house.

The outline application plans

BCC’s application form identified the plans and drawings which BCC required to be submitted with an application for planning permission, under the Heading “Plans”. It stated that “Three copies of each plan required in accordance with the following instructions must accompany the application. … Each plan should be drawn in accordance with the directions given below for it.”

The first category of plan required was a “Site Plan”. The form set out the following instructions and directions in respect of it (insofar as is material; all emphasis in the original):

“Site Plan

(a)

This is required in every case, …

(b)

This should be drawn on a scale appropriate to the development (e.g., 25ins.–1 mile or 6 ins.–1 mile) showing the land to which the application relates coloured pink, any adjoining land in the same ownership coloured blue, and sufficient details to readily identify the site in comparison with the Ordnance Survey Map of the same scale. The Council should be consulted in any cases of doubt as to which scale is appropriate.”

The second category of plan which may be required was a “Layout Plan”, drawn to a scale of not less than 1/2500. The instructions noted that this was only required:

“(a)

where the development involves the erection of a building or buildings on an isolated site surrounded by undeveloped land which is suitable for development, and upon which development is likely to be permitted by the Council.

(b)

where the layout of the site is not completely determined by existing and adjoining development.”

The third category of plan was “Block and Building Plans”. The notes explained: “These are required in all cases where the application is for the erection, rebuilding or alteration of a building, except where the development is otherwise sufficiently described by this application. In the case of an outline application they need not be submitted with this application. The Block Plan should be drawn to a scale of not less than 1in.–44ft., and the Building Plans to a scale of not less than 1/2 in.–1 foot, ….

The covering letter stated that the following plans were attached, none of which was referred to in this context as a “Site Plan”:

The first of the plans, which I shall refer to henceforth as “Original Plan A”, was entitled “Cliveden Stud Farm”. In broad terms, it showed the extent of the land owned by the applicant, and the extent of the land which he had leased from the National Trust, as described in the covering letter. The only copy which survives is in black and white. At some point, someone has handwritten on the plan the word “Red” to indicate the boundary of the land owned by the applicant (in two parcels, apparently to the immediate north and south of a road which separates them), and “Blue” to indicate the boundary of the land which the applicant had leased from the National Trust (in three parcels). The existing stud buildings can be seen on the plan, as well as the (indicative) siting of the proposed new house which was the subject of the application for outline planning permission, to the east of the stud buildings. The scale is not shown, but the plan is at a sufficiently small scale to include the entirety of the 183 acres owned and leased by the applicant, as well as some surrounding land.

The second of the plans (which I will refer to as the “Outline Block Plan”) was drawn at a scale of 1:2500. It was also entitled: “Proposed House at Cliveden Stud Farm, Bucks”. This was the plan which was said to “indicate” the position of the proposed dwellinghouse. Again, the only surviving copy is in black and white. There is again a boundary shown around the extent of the land in the applicant’s ownership, albeit that there is a minor variance at the northwestern corner to exclude some existing buildings. Because it is at larger scale, the plan only includes the northern end of the applicant’s land, and the line showing the boundary goes off the page to the eastern and southern sides. Its colour is not indicated by any handwritten note. The stud buildings are again shown, as is the indicative position of the proposed house to the east. The footprint of the proposed dwellinghouse has been shaded, and a handwritten annotation indicates that the colour of the shading was red.

The grant of outline planning permission

In late 1969, BCC’s planning committee resolved to grant outline planning permission subject to conditions and to the submission of a section 12 agreement with Eton Rural District Council (“Eton RDC”). It appears that Condition 6 was that the building should not be occupied except by a person who was primarily engaged in carrying out or directing agriculture or stud farming operations on a holding of not less than 60 acres of the agricultural land: there followed some correspondence between the applicant, Eton RDC and BCC between 12 and 18 December 1969, which was not placed before the Inspector in the present case. I shall need to return to its significance when considering the Claimant’s complaint that he should have been provided with an opportunity to provide it. Its effect was that:

The plan attached to the letter of 12 December 1969 was also entitled Plan A, Cliveden Stud Farm. I shall refer to it as “New Plan A”. The copy that I am told was supplied on this occasion is available only in black and white. New Plan A shows the land which was formerly outlined in red on the original Plan A (that is, the land owned by the applicant) at the same scale as before, again split into two parcels of land. The northern parcel of land included the land within which the new house was intended to be sited, and shows the intended dwellinghouse shaded. A handwritten annotation indicates that the northern parcel was again edged in red. The rest of the land owned by the applicant to the south is also shown with an edged outline, but with a handwritten annotation indicating the colour of this edging now to be blue (rather than in red as before). The land leased from the National Trust is no longer separately edged in any colour. The parties agree that this plan was before the Inspector on the present appeal (without the surrounding correspondence). There is no evidence that the two copies of the plan submitted on 18 December 1969 was any different to this one.

On 31 December 1969, the outline permission was formally granted by the Council, a completed section 12 agreement between the applicant and Eton Rural District Council having been entered into on the same date (“the section 12 Agreement”).

The outline permission was described as being for “Outline application for dwellinghouse in connection with Stud, Cliveden Stud, Cliveden Road, Taplow in accordance with your outline application dated 3 October 1968 and the plans and particulars accompanying it subject to the following conditions.” The conditions included the following:

The section 12 Agreement also attached a plan. The copy attached is available in colour, and shows the northern parcel of the land edged in red, and the southern parcel edged in blue. It is materially identical to New Plan A. The text of the section 12 Agreement itself, however, refers to land edged in “pink” and “green”, respectively. In its recitals, it recalled that the applicant was the Owner of the land known as Cliveden Stud Farm showed edged pink and green. The substance of the section 12 Agreement was that in consideration for the grant of planning permission, the owner undertook and covenanted:

It has not been suggested by anyone that the land referred to as having been edged “pink” and “green” should not be understood as referring to the land edged red and blue respectively in the plan which in fact appears to have been attached to it: that was plainly the intent.

The upshot is that each of (a) New Plan A, (b) the plan referred to in Condition 6 which had been submitted by Eton RDC to BCC on 18 December 1969, and (c) the plan attached to the section 12 Agreement were materially identical, even if it is possible that different colours than those indicated were used (at least on some copies) to demarcate (i) the northern area of c.60 acres within which the new dwellinghouse would be built and to which the occupancy condition in Condition 6 would attach, and (ii) the southern area which was covenanted to remain in agricultural/stud farming use under the section 12 Agreement.

The reserved matters application and approval

On 29 April 1970, the applicant’s agents submitted an application for approval of the reserved matters of siting, design, external appearance and means of access. The application was completed on a template form provided by BCC, which noted that an applicant should provide a Block Plan showing amongst other things (a) the boundaries of the plot, (b) the position of existing and proposed buildings, and (c) the position and width of existing and proposed means of access. It further stipulated that there should also be a Building Plan showing amongst other things the materials to be used, a plan for the roof and each floor, and elevations of all sides of the building.

The reserved matters application was accompanied by plans which included:

On 6 June 1970, BCC approved the reserved matters application. It is not now in dispute that the dwellinghouse was subsequently constructed in accordance with the details shown on the reserved matters application plans.

CLEUD Application 1 and the 2024 DL

The Claimant’s case on his first CLEUD application (dated 8 August 2022) was that the dwellinghouse had been built without planning permission. His case was that at the outline application stage, the site in respect of which outline permission had been granted was limited to the shaded area marked “red” on the Outline Block Plan, being only the footprint of the proposed dwellinghouse. The reserved matters application had accordingly been invalid, as it showed the site of the house as being in a different place and orientation, outside the site for which outline permission had been granted, and the house’s construction in that location therefore did not benefit from any planning permission.

The Claimant’s argument was built upon the premise that the Outline Block Plan must have been the “site plan” for the purposes of the outline application, and that Plan A could not have fulfilled that function (in either its original or amended form). In response, the Council argued that Plan A had shown the full extent of the application site. The Claimant responded that Plan A, showing 138 acres of land including other existing buildings, could only have been included in connection with the contemplated section 12 agreement.

In the 2024 DL dated 8 January 2024, Inspector Dudley dismissed the Claimant’s appeal against the Council’s failure to determine CLEUD Application1 within the prescribed time. He recorded at 2024 DL5 that “It was acknowledged by all that if the outline application site was the building footprint identified by the word ‘red’ [on the Outline Block Plan], then the reserved matters application, with the building mainly outside that building footprint, would not be a valid application for reserved matters. It was also accepted that if the building is not that approved by the outline permission, the conditions attached to the permission would not apply to the building as built.” However, he went on to reject the Claimant’s case that the outline application site was limited to the footprint of the building shown on the Outline Block Plan.

Inspector Dudley’s reasons in support of that conclusion included at 2024 DL6 to DL9 that this was an outline application in respect of which the precise siting of the dwellinghouse was to be a reserved matter. There had been nothing to indicate that the shaded area of the building on the Outline Block Plan had been intended to identify the application site. The reserved matters application had been in general compliance with the block plan, as required by Condition 4.

At 2024 DL13, Inspector Dudley said:

“13.

I acknowledge that the plan showing overall ownership was submitted in relation to a S12 application and not in relation to the outline planning permission. Although condition 6 tied the building to the ‘not less than 60 acres of agricultural land’ identified, I think little weight can be placed on these plans in relation to deciding the application site for the outline application.”

At 2024 DL14, Inspector Dudley continued: “I conclude that the outline planning permission itself does not set the location of the building, only an indication. The siting itself was a reserved matter and therefore it is the reserved matters siting that sets the position of the building and in this respect the [reserved matters] block plan is most useful.” He found at DL15-16 that the house had indeed been constructed in accordance with the reserved matters application.

At 2024 DL17, Inspector Dudley concluded on the balance of probability that the red line defining the site for the outline application would not have been the building plan itself, as identified ‘red’ on the outline block plan. He pointed out that besides such an approach being unusual, siting was a reserved matter and had not been set by the outline permission (which it would have been if the plan form of the building was the application site). He went on to reject all remaining arguments raised by the Claimant as to the conformity of the dwellinghouse as built with the plans approved at the reserved matters stage. He therefore dismissed the Claimant’s appeal.

The effect of Inspector Dudley’s decision, therefore, was that the dwellinghouse did have the benefit of planning permission, having been constructed in accordance with the reserved matters approval, which in turn had been in general conformity with the outline planning permission. The reason why the application for a CLEUD was rejected was that the Claimant had sought to establish that the building was lawful only because no enforcement action had been taken in respect of a building which had been built outside the site for which planning permission had been granted.

No challenge was made to the 2024 DL by way of application under section 288 of the 1990 Act.

CLEUD Application 2

Meanwhile, on 26 January 2023 (almost a year before Inspector Dudley’s 2024 DL on CLEUD Application 1), the Claimant made CLEUD Application 2. By that application, the Claimant continued to seek to establish (as under the first application) that the dwellinghouse as built was not the dwellinghouse permitted under the outline planning permission, by reason that it had not been built on the site for which outline planning permission had been granted, which was claimed to have been limited to the extent of the footprint of the proposed dwellinghouse shown on the Outline Block Plan. As such, it was argued, the outline permission had never been implemented. The documents submitted in support of CLEUD Application 2 included some of the correspondence of December 1969 to which I have referred above, including the applicant’s agent’s letter of 11 December 1968 to Eton RDC and one of the letters from Eton RDC to BCC’s Area Planning Officer (which had also been submitted in support of the CLEUD Application 1). The only substantive addition to CLEUD Application 1 was that the Claimant also relied on some additional exchanges with a Council officer from 2022 (which were ultimately found not to take the matter any further).

On 28 April 2023, the Council refused the application. The essential reasoning of the decision was that the Outline Block Plan had not been the basis upon which the siting of the dwellinghouse had been approved; siting had instead been approved on the reserved matters application, and BCC had been satisfied at the time that the siting of the dwellinghouse generally accorded with that shown on the outline application. The officer’s reasoning did not directly deal with the Claimant’s submission that the extent of the outline application had been limited to the footprint of the dwellinghouse as shown on the Outline Block Plan.

The Claimant appealed to the Secretary of State.

CLEUD Application 3

On 6 February 2024, the Claimant made CLEUD Application 3. It was in effect a response to the findings of Inspector Dudley in the 2024 DL of four weeks earlier. It proceeded on the basis that Inspector Dudley had not only rejected the Claimant’s submission that the Outline Block Plan had defined the extent of the outline application as the red shaded area showing the footprint of the dwellinghouse, but that at DL13 he had also rejected the Council’s case that Original Plan A and/or the New Plan A had defined the extent of the application site. Further, it was argued, he had not identified any other plan as amounting to the site plan for the outline application. On that basis, it was submitted that the outline application had been invalid for want of a site plan and hence for want of any identified land to which it related, contrary to Article 5(1) of the 1963 Order. Further, it was submitted that it followed that the reserved matters application had been invalid, and the outline planning permission was necessarily invalid as well. The submissions in support of the CLEUD 3 Application challenged the Council to provide its own explanation of the area to which the outline consent related, if the Claimant’s submissions were not accepted.

On 2 April 2024, the Council refused CLEUD Application 3, for reasons explained in a delegated officer report. Its essential reasons were that Inspector Dudley had been satisfied on the earlier appeal that the permission had been enacted in accordance with the plans and conditions, and that the development had been lawful. It further noted that BCC had considered the validation requirements at the time of the submission of the outline and reserved matters applications, had concluded that the required information had been submitted, and had granted permission. The Council did not directly respond to the Claimant’s challenge to identify the full area of land to which the outline application had related.

On 9 April 2024, the Claimant appealed to the Secretary of State.

The decision under challenge

The appeals against the refusals of each of CLEUD Applications 2 and 3 were linked and heard together by way of written representations.

By decision letter dated 13 January 2025, Inspector Moss dismissed the appeal against the refusal of CLEUD Application 2. She allowed the appeal in respect of CLEUD Application 3 only to the extent that she issued a CLEUD confirming that the dwellinghouse had been built lawfully with the benefit of planning permission. As with Inspector Dudley’s decision, this amounted to a rejection of the Claimant’s arguments to the effect that the dwellinghouse did not benefit from any planning permission and was lawful only by reason of the elapse of time since its construction.

So far as the refusal of CLEUD Application 3 was concerned, Inspector Moss found as follows.

At DL29, the Inspector recalled that the legislation required that an application should “be accompanied by a plan sufficient to identify the land to which the outline application relates.” She accurately summarised the Claimant’s case to be that “having regard to the Inspector’s remarks and conclusions in the 2024 Appeal decision, the outline planning application was not accompanied by a plan sufficient to identify the land to which the outline application related, and that the application was, therefore, invalid.”

At DL30-35, the Inspector described the BCC standard printed application form and (what she called) the “guidance” provided with regard to the plans that should accompany the application. She described the plans which had been attached to the application, including the original Plan A and the Outline Block Plan, and the hand annotations which had been added to them later (likely before being copied to microfiche, she found, given that they could only be stored in black and white).

At DL36-40, the Inspector considered the Claimant’s case on its own merits, without (at this stage) reference to Inspector Dudley’s conclusions. She found as follows:

“36.

The northernmost section of Plan A is land that is shown in a smaller scale on the Block Plan. The grey block (i.e. that annotated with the word ‘red’) on the Block Plan is broadly in the same location as the grey block I can see on Plan A. These plans were submitted together, and one was clearly intended to accompany the other.

37.

I acknowledge that neither Plan A nor the Block Plan are described in the 1968 letter accompanying the outline application as plans identifying the land to which the application relates. This does not mean that the plans did not serve this purpose.

38.

The evidence before me indicates that the ER/1466/68 outline application was, on the balance of probability, accompanied by a plan (i.e. Plan A) that identified land with a red outline and land with a blue outline, as required by the guidance on the outline application form. That the handwritten annotation on Plan A indicates that the outlines on the plan before it was copied to microfiche were in red, rather than pink as required on the form, is of little consequence in my judgement. The evidence also indicates that the application was also accompanied by a smaller scale plan showing part of the land shown on Plan A with an outline (i.e. the perimeter line), although I acknowledge that the perimeter line on the Block Plan is not annotated with a colour. Nevertheless, it is not unusual for planning applications to be submitted with more than one plan identifying all or part of the application site (i.e. all or part of the red outline) at different scales.

39.

Notwithstanding the above, I have noted that the outline or outlines that the handwritten ‘red’ and ‘blue’ annotation point to are not entirely discernible on the copy of Plan A provided. This does not mean that these outlines were not clear on Plan A when it was submitted to the Local Planning Authority in 1968. Indeed, I note that the date of the outline application given on the ER/1466/68 decision notice is the same as the date of the letter that accompanied the outline application, 3 October 1968. I also note that the Local Planning Authority, Bucks County Council, went on to determine the application. This indicates that the Local Planning Authority were satisfied that the application had been validly made and that it was considered valid on the date it was submitted and accompanied by the plans referred to in the accompanying letter, which included Plan A.

40.

All of the above indicates that at the time Plan A was submitted with the outline application, it was a plan that satisfied the requirements of legislation at the time for the purposes of making a valid outline planning application. …”

The Inspector then went on to consider the findings of Inspector Dudley and the Claimant’s submissions in respect of them:

At DL48-49, the Inspector observed that the area identified as having been outlined in red on Original Plan A showed the extent of the land owned by the applicant. She concluded that the outline application had, on the balance of probability, been accompanied by a plan sufficient to identify the land to which the outline application related, and that the application had been validly made.

She further held at DL50-52 that her conclusions thus far were not inconsistent with those of the previous Inspector, who had been considering a different question. The previous Inspector had gone no further that deciding that the Outline Block Plan did not identify the shaded block with the handwritten “red” annotation as the application site. He had not needed to go any further than that given that that was the scope of the dispute before him.

The Inspector noted that as far as the appeal in respect of CLEUD Application 2 was concerned, she was in effect being asked to revisit the conclusions of Inspector Dudley on the previous appeal. She rejected this appeal too at DL67, agreeing with the previous Inspector that the red line defining the site for the outline application would not have been the building [on the Outline Block Plan] identified as “red”. To the contrary, as she held at DL64, “[Original] Plan A is more likely than not to have identified the land to which the application relates (i.e. the ‘red’ land on [Original Plan A]) as being consistent with the land identified in the S12 Agreement Plan and on the Condition 6 Plan. This is why I say that the perimeter outline on the [Outline] Block Plan may well have been an attempt to indicate on that plan, on a smaller scale, the position of the red outline that would have been on [Original] Plan A. My conclusions are not altered, despite the perimeter line being incomplete and not annotated on the [Outline] Block Plan.”

The Claimant’s submissions

Mr Burton’s first ground of challenge to the decision is that the Inspector misconstrued the 2024 DL, in that she treated it as having been silent about Original Plan A, and read 2024 DL13 as having discussed only New Plan A as submitted with the section 12 Agreement and for the purposes of Condition 6. He submits that this was an error of law, in that Inspector Moss had regard to an immaterial consideration or failed to have regard to a material one, aggravated further by her mistaken belief that her conclusions had been consistent with those of Inspector Dudley. It was clear that Inspector Dudley had been discussing both Original Plan A and New Plan A at 2024 DL13. This was reflected in the Claimant’s submissions in the CLEUD Application 3, and had not been contradicted by the Council. Whilst Inspector Moss had not been bound by Inspector Dudley’s conclusions, she rightly treated them as being important.

The second ground of challenge is that Inspector Moss unfairly failed to give the parties notice or an opportunity to address her proposed construction of the 2024DL to the prejudice of the Claimant. Had the Claimant been given notice of the intended construction, it is said, the Claimant would have had the opportunity to adduce the 2024 Appeal documents that demonstrated that 2024 DL13 was expressly discussing Original Plan A (among other plans). As it was, she settled upon an interpretation of the 2024 DL and of Original Plan A for which no party had contended.

The third ground is that Inspector Moss misconstrued Original Plan A as marking the site line, and hence misconstrued the outline application. The BCC proforma application form specified that the application should be accompanied by a site plan drawn at an appropriate scale and showing the land to which the application related coloured pink and any adjoining land in the same ownership coloured blue. Original Plan A did not fulfil those requirements: to the contrary, a red line showed the applicant’s ownership of the land, and a blue line showed land in the ownership of the National Trust, contrary to these requirements. Nor (since it showed hundreds of acres of land) could it be said to have been at an appropriate scale. Instead, its purpose was “in connection with the envisaged s.12 Agreement.” When New Plan A was substituted for Original Plan A, there was no suggestion that the site plan itself was being substituted. Only the Outline Block Plan fulfilled the requirements of a site plan.

In the alternative, Mr Burton submitted, if the Outline Block Plan did not mark the site as being the footprint of the proposed dwellinghouse (contrary to what he described as being his primary case), then the outline application was invalid for want of a proper site plan, and had been mistakenly accepted by BCC. There was nothing more fundamental to an application for planning permission than the site plan showing some form of line or colouring precisely identifying the subject of the application and so (if granted) the permission. Without one, a permission would be a nullity, because it would be incapable of establishing to what land it related. If the site plan had not been the Outline Block Plan in this case, then it was impossible to establish to what land the permission related.

Mr Burton also applied for permission to add an additional “sub-ground”, after it had come to light that the Claimant’s representatives for the CLEUD applications and appeals had mistakenly failed to supply copies of the December 1969 correspondence to the Inspector, even though (at least some of) that correspondence had been supplied to the Council with CLEUD Application 2. It is argued that Inspector Moss should have identified that she had not been supplied with these documents and made enquiries of the Claimant and Council, and that it had been Wednesbury unreasonable for her to have failed to do so. The documents had been material as they showed that New Plan A had been substituted for Original Plan A, which provided further evidence that Original Plan A could not have been the site plan.

The Defendant’s submissions

For the Secretary of State, Mr Parker submitted that the Claimant’s claim was misconceived. Irrespective of whether the procedural requirements in place at the time of the outline planning application were complied with, the outline planning permission had taken effect as a valid planning permission, and it was now significantly too late to challenge it (over 50 years after the event). Even if there had been any flaw in the application leading to its grant, it did not follow that the permission was a nullity; rather, it continued to have legal effect unless and until it was quashed. As no application for judicial review of the grant of permission had been brought, and it now too late to do so, the outline permission must be taken to have been valid. The claim should be dismissed for this reason alone.

Further, the Claimant’s grounds were without merit in any event. As to Ground 1, the focus on Inspector Dudley’s conclusions in the 2024 DL was beside the point: the validity of the outline planning permission was accepted by the Claimant to be a matter of law, which would be unaffected by Inspector Moss’s interpretation of the 2024 DL. In any event, Inspector Dudley had not been seeking to identify the correct site plan or consider the validity of the application, but was responding to the Claimant’s argument that the area of the outline planning permission had been restricted to the area of the footprint of the dwellinghouse shown on the Outline Block Plan – and that argument had failed. Inspector Dudley’s conclusions did not depend on any findings as to Original Plan A or New Plan A. However, it was anyway clear that he was not referring to Original Plan A at 2024 DL13, as he had stated in terms that the plans to which he was referring had not been submitted in relation to the outline planning permission, but in relation to (what he called) the section 12 “application”. Yet Original Plan A had unequivocally been submitted in support of the outline planning application, as had been made clear in the covering letter. Further, Inspector Moss reached her conclusions independently of Inspector Dudley’s reasoning; while she subsequently had regard to the consistency of her conclusions with his earlier conclusions, this was not a matter which was logically capable of disturbing her own earlier conclusions.

As to Ground 2, Mr Parker submitted that there had been nothing unfair in the Inspector arriving at her conclusions without affording the Claimant a further opportunity to comment on her interpretation of 2024 DL13 or confirm whether he wished to adduce further documents in support of his position.

In response to Ground 3, Mr Parker submitted that the real substance of the Claimant’s case did not raise an issue as to the interpretation of the outline planning permission, but only a question of whether procedural requirements which applied to the making of the application had been complied with. In any event, there had been no error in Inspector Moss’s conclusion that Original Plan A had sufficiently identified the land to which the application related. The Claimant’s highly technical complaints as to the scale and colouring of the plan were nothing to the point: the purpose of the site plan, which was simply to identify the land to which the application related, had been fulfilled. The precise siting of the development (as well as other matters such as design and external appearance) was to be controlled by plans to be submitted at the reserved matters stage, subject to the conditions imposed. It was wholly unrealistic for the Claimant to contend that the entirety of the outline planning permission was invalid because there was no identified site plan complying with BCC’s requirements as set out on the proforma application form, least of all when no complaint to that effect was made by BCC at the time. Whether judged by reference to Original Plan A or New Plan A, the substance of the requirement that a plan sufficient to identify the land to which the outline application relates be submitted had been fulfilled.

Finally, as to the Claimant’s proposed additional sub-ground, it was the Claimant’s failure to put documents that he now wished to rely upon before the Inspector. There was no Tameside duty for the Inspector to request further documents from the Claimant.

Ground 3

It is convenient to address the Claimant’s Ground 3 first. Mr Burton’s argument under Ground 3 may be distilled into the following propositions:

I cannot accept any stage of that argument.

Article 5(1) of the 1963 Order required that the application should be made on a form issued by BCC, that it include the particulars required by the form to be supplied (thus requiring, in this case, the various questions set out at paragraph 26 above to be answered), and that it be accompanied by “a plan sufficient to identify the land to which it relates and such other plans and drawings as are necessary to describe the development which is the subject of the application.” Since the application was in outline only, no further plans or drawings were required: Article 5(2).

Article 5(1) was not prescriptive as to the form the plan should take, or how the land should be identified. Its sole requirement was that the plan should be sufficient to identify the land.

Inspector Moss found that taken together, the submitted plans were sufficient to identify the land to which the application related, with the result that the requirements of the legislation were satisfied. In particular:

I can detect no error in any of those conclusions. In particular, there is no reason in law why BCC should not have gone on to determine the application on the basis of the submitted plans, as it did. It is to be remembered that the application was for outline permission only, with all matters including siting reserved. The outline planning application gave the address or location of the land to be developed as “Cliveden Stud, Bucks”, described the proposed development as being a “Private dwelling house in connection with the Stud”, and provided two plans which whether taken together or separately indicated the proposed siting of the house to the immediate east of the existing Stud buildings, in an area falling within the curtilage of those buildings (according to the covering letter). Crucially, the application was made in the full knowledge that an exceptional justification would be required to be shown for the construction of a new dwellinghouse in this area of putative Green Belt, and that the use of the dwellinghouse and the surrounding land could be expected to be controlled by way of condition and/or section 12 Agreement. To that end, through the inclusion of original Plan A, the proposed location of the development was shown within the full context of the applicant’s farm, to show the full extent of the land which could be associated with the occupancy of the house and/or whose use could be further controlled. There was, therefore, a very good reason why the applicant provided a plan at such small scale showing the entirety of the 138 acres of land, while simultaneously showing the location of the proposed dwellinghouse both on Plan A and (at a larger scale) on the outline block plan. Taken together, as the Inspector rightly found, they were sufficient to identify the land to which the application related.

Moreover, it is impossible to identify any material respect in which BCC could have been in any confusion as to what was proposed, or in respect of what land. BCC knew where the proposed house was to be built, and knew the extent of the land whose use as a Stud farm and agriculture was said to justify the need for the house. Since both siting and access were to be reserved matters, BCC could not have imagined that the extent of the application land was limited to the indicatively shown shaded area of the footprint of the house. Inspector Dudley found at 2024 DL6-9, 14 and 17 (see paragraphs 50 and 52-53 above), and Inspector Moss agreed at DL67 (see paragraph 72 above), that there was nothing to indicate that the applicant intended the proposed development to be limited to that very small area, or that its siting should be fixed at that outline stage. They were fully entitled so to conclude on the evidence before them.

Indeed, in imposing a condition that the reserved details of the siting and access should be in “general compliance” with the outline block plan, BCC was plainly recognising that some minor variation would be permissible to the outline details provided at the reserved matters stage, but was nonetheless requiring that the reserved details should generally reflect the scheme as it had been proposed in outline. Neither the applicant nor BCC could have been under any mistaken impression that at the reserved matters stage the house could be sited somewhere else entirely within the 60 or 138 acre area. Nor was it sited elsewhere, even if the footprint was shifted slightly to the east and re-oriented. BCC was plainly satisfied at the reserved matters stage that this was in general compliance with the outline permission.

For similar reasons, there is no difficulty with the interpretation of the planning permission as granted. The correct approach to interpreting planning permissions is well known and was set out by Sir Keith Lindblom SPT in Barton Park Estates Ltd v Secretary of State for Housing, Communities and Local Government [2022] EWCA Civ 833 at [21], and by Lieven J in UBB Waste Essex Ltd. v Essex County Council [2019] EWHC 1924 (Admin), at [51]-[57]. Materially, the principles include that a planning permission must be interpreted as a whole, consisting not only of the grant but also the conditions imposed and the reasons for their imposition; further, that permissions should be interpreted as by a reasonable reader with some knowledge of planning law and the matter in question, and with regard to the planning purpose of the permission and any conditions. Adopting that approach, it is impossible to be under any doubt as to what land the permission related. The dwellinghouse and its associated access to the track at the back of the existing stud buildings were shown first indicatively at the outline stage and then in detail at the reserved stage. Condition 6 related to the northern parcel of land in the applicant’s ownership, and the section 12 Agreement to both that parcel of land and the further one to the south. The matter is no more complicated than that.

Mr Burton submitted that this analysis ignored the fact that the BCC proforma application form specified that the application should be accompanied by a site plan drawn at an appropriate scale and showing the land to which the application related coloured pink and any adjoining land in the same ownership coloured blue. He submitted that the application was invalid for breach of this requirement.

As to this argument:

The result is that even if the application plans failed to meet the requirements set out in BCC’s proforma application for a site plan to be provided, it would not follow that the application was an invalid one such that BCC could not lawfully determine it.

The second stage of Mr Burton’s argument does not arise, therefore: as Inspector Moss found, the outline application was a valid one which BCC was entitled to determine. However, even if there had been an “invalid” application for planning permission which did not fulfil the requirements of Article 5(1), the consequence of that would not be that a planning permission granted on the basis of that application was in itself automatically a nullity. Absent any application for judicial review of the grant of planning permission resulting in a declaration that it was unlawfully granted or in a quashing order, the planning permission would still have legal effect: see R (Thornton Hall Hotel Ltd) v Wirral MBC [2018] EWHC 560 (Admin) at [53], where Kerr J accepted the submission (based upon the well-known authorities of Smithv East Elloe RDC [1956] AC 736, 739, per Lord Radcliffe, and R (Noble Organisation Ltd) v Thanet DC [2005] EWCA Civ 782; [2006] 1 P & CR 13 at [42]-[43], per Auld LJ) that a decision which is defective by reason of a legal flaw cannot normally be treated as a complete nullity, such that it is wholly void, ab initio, and can safely be ignored. As Kerr J put it, the orthodox position is now settled: such a decision is capable of having legal effect, unless and until it is quashed. Further, as Mr Parker pointed out, even in a case where a local planning authority grants planning permission in circumstances where it was prohibited by statute from entertaining the claim, the court will always retain a discretion as to whether or not to grant relied upon any such application for judicial review: Maximus Networks Ltd v SSCLG [2018] EWHC 1933 (Admin); [2019] PTSR 312 at [19]-[24].

Mr Burton submitted that on an application for a CLEUD, and by extension on appeal to the Secretary of State, the decision-maker could treat a planning permission as invalid even in the absence of any application for judicial review having been brought. He relied on Newbury District Council v Secretary of State for the Environment [1981] AC 578 (“Newbury”) and R (Croyde Area Residents Association) v North Devon District Council [2021] PTSR 1514 (“Croyde”).

In Newbury, the Secretary of State had allowed an appeal following an inquiry against an enforcement notice on the ground that the condition which the local planning authority sought to enforce was invalid because it did not fairly and reasonably relate to the permitted development. He therefore allowed the appeal on the statutory ground that the matters alleged in the enforcement notice did not constitute a breach of planning control, and quashed the enforcement notice pursuant to section 88(5) of the Town and Country Planning Act 1971. The House of Lords upheld that decision principally upon different grounds: it held that no planning permission had in fact been required as there had been no development beyond an existing lawful use, with the result that there had been no breach of condition for that reason. However, their Lordships went on to consider (obiter) whether, if the planning permission had otherwise been operative, the Secretary of State had been right to allow the appeal on the basis that the condition being enforced was invalid. They unanimously held that the Secretary of State’s decision showed no error of law.

In my judgement, Newbury does not assist the Claimant. The Secretary of State was exercising a statutory jurisdiction to quash an enforcement notice on appeal. The exercise of that jurisdiction required him to consider whether the matters alleged in the enforcement notice amounted to a breach of planning control. He found that they did not, as the condition imposed had been invalid and so was of no legal effect. The House of Lords considered that the exercise of that jurisdiction to quash an enforcement notice necessarily entailed consideration of whether the condition was valid. As was confirmed by the Court of Appeal in Delta Design Ltd v SSETR (1999) 80 P. & C.R. 76, at 81 (per Pill LJ) and at 83 (per Auld LJ), this entailed an exercise of a planning judgement as to whether that condition fairly and reasonably related to the permitted development which was a matter for the decision-maker himself (here, the Secretary of State): it was not a matter of law for the court. As Auld LJ put it (at 83), this requirement of relevance for a condition was

“… primarily one of judgement for the decision-maker. So in a planning context it is for the Inspector or the Minister to apply his expertise and experience to matters of planning judgement and their weight in reaching a decision, albeit one susceptible to challenge on Wednesbury grounds. This is clearly how their Lordships in the Newbury Council case regarded the requirement of relevance. There, the House was concerned with the Secretary of State's decision that a planning permission was invalid because a condition of it was extraneous to the proposed use. Lord Scarman, at 621B-C, said that the decision-maker – there the Minister as the ultimate decision-maker on planning questions arising in the enforcement of planning control – was the appropriate authority to determine whether a condition "sufficiently i.e. fairly and reasonably related to the permitted development". As Viscount Dilhorne said at 601E-F:

"If in the circumstances of this case the condition imposed was not, in the Secretary of State's opinion, fairly and reasonably related to the permission granted, the courts cannot interfere with his conclusion unless it is established that he misdirected himself or reached a conclusion to which he could not reasonably have come."

Whether, in the circumstances before this court, the condition in question was relevant to the permission was therefore primarily a matter for the Inspector on the material before him. It was not open to the judge to decide the question as purely one of law, as he did, thus removing the need to consider the adequacy and rationality of the Inspector's reasoning.”

The determination of the validity of otherwise of the condition at issue in the Newbury case therefore fell squarely into the exercise of the Secretary of State’s statutory jurisdiction. This does not establish, however, that a local planning authority considering a CLEUD application, or an Inspector on appeal, can disregard the effect of a planning permission on the grounds that they consider it should be quashed.

This was further made plain in Croyde. In that case, Lieven J was considering an application by the claimant residents’ association to extend time to bring a judicial review claim to quash an unlawful planning permission that had been granted to the interested party over six years earlier. In the highly unusual circumstances of that case (as in Thornton Hall), the judge decided that it was appropriate to extend time. En route to that conclusion, the judge had to consider whether the claim should have been brought earlier, once the interested party was asserting that the effect of the planning permission was wider than had originally been intended. The claimant contended that it did not need to bring such a claim, as the interested party had already applied for a lawful development certificate (“LDC”) in respect of the proposed development – but that application had been refused by the local planning authority. It was only after the interested party had successfully appealed against the refusal of the LDC to the Secretary of State that a judicial review claim became necessary, it was argued. The judge rejected that argument at [71] in the following terms:

“[Counsel for the claimant] submits that the lawfulness of the 2014 permission could not have been raised in the LDC consideration process. This is correct, in the sense that neither the defendant nor the inspector had the power to quash the 2014 permission. However, the lawfulness of the 2014 permission did, in my view, go to whether the LDC should be granted. Plainly, if it was unlawful then no LDC should be granted. In those circumstances, the claimant, or someone else, could have sought judicial review of the 2014 permission before the LDC was granted. If such a challenge had been brought then in all probability it would have been stayed pending the outcome of the LDC appeal. That is one factor that I will take into account when going through the Thornton Hall considerations [as to whether time to claim judicial review should be extended].”

This confirms that absent an application for judicial review, it is not for the local planning authority or for an inspector on appeal to quash a planning permission. As in the present case, if the claimant wished to contend that a planning permission was unlawfully granted, it would be necessary to establish that unlawfulness on an application for judicial review – which will entail (among other things) establishing in accordance with the Thornton Hall test whether time should be extended for such a claim to be brought.

Mr Burton sought to argue that Lieven J was here confirming that the validity of a planning permission could be considered on an LDC appeal, in that she confirmed that the lawfulness of the planning permission did go to whether the LDC should be granted. That misunderstands the effect of the judge’s words. She was explaining that the question of whether the planning permission was lawful was one factor which indicated that a judicial review claim should have been brought at an earlier stage, as that was the only means by which the lawfulness of the permission could be adjudicated. The only reason why she suggested that such a claim would have been stayed was that at that earlier stage the LDC application had been refused in any event; if and when an LDC was granted on the basis of the planning permission, the stay could then have been lifted at that time to allow the judicial review claim to be determined.

It follows that absent a successful judicial review claim challenging the lawfulness of the grant of planning permission in 1970 – which, it is fair to observe, would have been exceptionally unlikely to have been granted permission over 50 years later – there was no basis upon which the Inspector could have concluded that the planning permission was of no effect, simply by reason of the claimed deficiency in the plans submitted with the outline planning application.

I therefore reject the Claimant’s submission that either of the outline planning permission or the reserved matters approval should have been treated as invalid by the Inspector.

Ground 3 must therefore fail.

As to the Claimant’s new “sub-ground”, this takes the matter no further. The Claimant accept that his representatives for the CLEUD appeals failed to submit copies of the 1969 correspondence to the Planning Inspectorate in support of either of the appeals against the refusals of CLEUD Applications 2 and 3, whereas they had intended to submit the applicant’s solicitor’s letter dated 11 December 1969 and Eton RDC’s memo to the BCC Area Planning Officer dated 12 December 1969, as they had done when submitting CLEUD Application 2 to the Council.

This was entirely the responsibility of the Claimant’s representatives. Inspector Moss was entitled to determine the appeal on the basis of the material submitted to her in accordance with the established written representations procedure, as set out in the Town and Country Planning (Enforcement) (Written Representations Procedure) (England) Regulations 2002 (SI 2002/2683), which although not applying directly to CLEUD appeals are in practice applied by analogy.

Mr Burton submits that it was irrational not to have called for the parties to submit two documents referred to as “CS4B Memo to planning officer re S12 plan” and “CS4C Letter from applicant’s solicitor re S12 Agreement” in the Schedule to the original CLEUD Application 2. However, the Inspector did have the supporting statement submitted with the CLEUD Application 2, which conveyed the substance of the content of those documents, and the Claimant’s argument based upon them, in the following terms:

“The Council should note that Plan A was later revised ([New Plan A]) following negotiations with the applicant with regard to the area of land to be tied to the new dwellinghouse through the S12 Agreement (copy correspondence is shown at CS4B and CS4C). The revised plan is also referred to in condition 6 of the Outline Consent and identifies an area being ‘not less than 60 acres of the agricultural land edged red on the plan received by the Area Planning Officer on 18 December 1969.’ In particular the condition refers to a specific area and plan. It does not refer to the ‘application site’ or the ‘dwellinghouse site’ or any other reference that would suggest that the Outline Consent area is a wider area than that of the red line area shown on [the Outline Block Plan].”

It is true that in his appeal statement, the Claimant indicated that he relied upon the submissions made in his original supporting statement. However, that does not mean that the Inspector was obliged to call for any documents referred to in that statement which had not then been submitted in support of the appeal. It was not even arguably irrational or unfair not to revert to the Claimant for copies of these two documents, whose content had been summarised in any event. The sub-ground amounts to little more than an attempt to transfer responsibility for the Claimant’s representatives’ own error on to the Inspector. In my judgement, that is wholly inappropriate.

In any event, Inspector Moss understood the point being advanced in the Claimant’s supporting submission and duly took account of it. The argument advanced was that it was significant that Condition 6 referred to New Plan A for the purposes of the occupancy conditions, but did not refer to it as “the application site”. That was a poor argument on its merits: it is hardly surprising that a condition imposing an occupancy condition requiring the dwelling house to be occupied by a person working on an identified area of land should specify the plan to which reference was being made. Notwithstanding that, the Inspector took account of New Plan A and concluded that it supported her view that Original Plan A had been submitted with a red line around the land owned by the applicant and which was the land to which the outline application related, with the result that the application had been valid at the point at which it was first made. There is no error in that assessment.

The only omission that could arguably be said to result from the absence of this correspondence is that the Inspector was not informed (in the Claimant’s supporting statement or otherwise) that the 1969 correspondence taken as a whole showed that by that time (over a year after the outline application had been submitted) the applicant had asked to substitute New Plan A for Original Plan A as an application document. But that was not the point that the Claimant was advancing, and even if that were otherwise a material error of fact affecting the Inspector’s reasoning, it would not give rise to a viable ground of complaint under section 288 of the 1990 Act, as the Claimant’s advisers were themselves responsible for that error: see E v Secretary of State for the Home Department [2004] EWCA Civ 49 at [66]. It was not a material error, however: this was incapable of providing any further support for the Claimant’s case that the application site was limited to the indicative footprint on the Outline Block Plan.

Since the point is not arguable, I refuse permission to introduce the new sub-ground.

Ground 1

Against that background, Ground 1 can be dealt with more briefly. It concerns the question of whether Inspector Moss correctly understood Inspector Dudley’s observations at 2024 DL13. Ultimately, however, the point is immaterial.

First, there is genuine doubt as to what Inspector Dudley meant in the first sentence of that paragraph. If and to the extent that (as the Claimant contends) he was referring to Original Plan A when he stated that “the plan showing overall ownership was submitted in relation to a S12 application and not in relation to the outline planning permission”, he would have been demonstrably wrong:

Similarly, his second sentence can only sensibly be read as a reference to New Plan A, as it refers to the identified area of c.60 acres in condition 6, which cannot possibly be a reference to Original Plan A. Inspector Moss understandably did not consider that Inspector Dudley had referred to Original Plan A at all, therefore: see DL44.

Secondly, and in any event, as Inspector Moss observed at DL50-52, this was not in fact a matter which was critical to the issue that Inspector Dudley was considering. His focus was upon whether the application site was limited to the indicative footprint on the Outline Block Plan, and his conclusions did not go beyond this. Inspector Moss shared Inspector Dudley’s conclusion that the application site was not so limited, and in this regard rightly observed at DL50-51 that her conclusions were not inconsistent with his with regard to the Outline Block Plan.

Thirdly, Inspector Moss had reached her conclusion that Original Plan A fulfilled the requirements of the legislation as at the time of the submission of the planning application at DL34-DL40 even before consideration of Inspector Dudley’s conclusions. Even if she had understood that Inspector Dudley had explicitly concluded at 2024 DL13 that Original Plan A did not even relate to the outline planning application but only a contemplated potential future section 12 Agreement, she would inevitably have concluded that that was in error (as such a conclusion would have been). The point could not rationally have affected her conclusions, and to that extent did not even amount to a material consideration (being a demonstrably erroneous finding). At most, she would have had to explain why she differed from his conclusion, but that would inevitably have led to the same result.

Ground 1 must accordingly fail.

Ground 2

Finally, under Ground 2, the Claimant complains that it was not open to the Inspector to arrive at her conclusions without putting the parties on notice of her proposed construction of 2024 DL13: it is said that the Council had not contended for such a meaning, and that if the Claimant had understood that anyone was going to conclude that Inspector Dudley was not referring to Original Plan A in that paragraph, the opportunity would have been taken to adduce the underlying documents from the 2024 appeal to show that there was a key contest between the parties as to whether Original Plan A was the site plan – and that 2024 DL13 was the only place at which Inspector Dudley could have been addressing it.

I cannot accept that submission. The Claimant had a full opportunity to make his case in respect of each of his appeals that neither Original Plan A nor New Plan A identified the land to which the outline planning application related. For the reasons I have set out under Ground 3, that case was considered and rightly rejected. Inspector Dudley’s conclusions were not critical to Inspector Moss’s reasoning: she rightly formed her own view of the underlying evidence and provided wholly sustainable reasons as to why the Claimant’s claim that the planning permission was invalid should be dismissed. There was no unfairness in any failure to invite further submissions on what Inspector Dudley had meant in respect of an issue which was not the focus of his decision. Nor was the point capable of making any difference in the circumstances. The complaint of procedural unfairness goes nowhere, therefore: even taking at its highest, it cannot have caused any prejudice to the Claimant in relation to any material issue.

Ground 2 must also be dismissed, therefore.

In my judgement, each of the grounds of challenge to the DL must fail. For the reasons I have set out, the application for outline permission was validly made, and the effect of the outline permission granted is (and was at all material times) clear. It settled the principle that a dwellinghouse could be built to support the operation of the Cliveden Stud in general compliance with its indicative siting shown on each of Original Plan A, New Plan A and the Outline Block Plan, subject to the various occupancy conditions and to the section 12 Agreement controlling the future use of the land, which were together considered necessary given the designated landscape value of the land and its putative inclusion in the Green Belt. Some 50 years later, a number of technical arguments have been devised (admittedly with some ingenuity) to seek to release the Claimant as successor in title to the dwellinghouse from the effect of the occupancy conditions. Those arguments were correctly rejected by each Inspector before whom their variants were advanced.

The Claimant’s application is accordingly dismissed.