Barnett v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Lord Justice Keene,Lord Justice Toulson,The Master of the Rolls |
| Judgment Date | 23 March 2009 |
| Neutral Citation | [2009] EWCA Civ 476 |
| Docket Number | Case No: C1/2008/1975&1976 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 March 2009 |
[2009] EWCA Civ 476
The Master of the Rolls
(Sir Anthony Clarke)
Lord Justice Keene and
Lord Justice Toulson
(Mr Justice Sullivan)
Case No: C1/2008/1975&1976
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr C Newberry QC and Mr D Edwards (instructed by Sharpe Pritchard) appeared on behalf of the Appellant.
Mr A Sharland (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
Lord Justice Keene:
Introduction
These two linked appeals concern the approach to be adopted to the interpretation of planning permissions. They both give rise to the same issue: namely whether a planning permission dated 16 December 1998 granted permission for the use of a piece of land for purposes ancillary to a dwelling house, so that that land became part of the curtilage of the house, and permitted the construction of a tennis court and swimming pool. The two appeals stand or fall together and can therefore be treated as a single appeal for all practical purposes.
The appeal is brought against a decision of Sullivan J, who dismissed the appellant's appeal under section 289 and his application under section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”).
The factual background.
The case concerns land at Buriton near Petersfield in Hampshire. On 4 May 1995 an inspector appointed by the Secretary of State for the Environment granted planning permission, on appeal, for the erection of an estate manager's dwelling on land at Cowhouse Farm, Pitcroft Lane, Buriton, in accordance with the terms of an application dated 5 July 1994 and of plans submitted therewith, subject to a number of conditions. Those plans included a location plan at a scale 1:5,000 and a site plan at a scale of 1:500. The plans showed the proposed dwelling within a roughly rectangular plot whose northeast/southwest dimension seems to have been about 70 metres. The inspector who conducted the subsequent inquiry which gave rise to the proceedings before Sullivan J found that the approved 1995 drawings defined the permitted curtilage of the dwelling which, when built, was given the name Miscombe Manor.
Curtilage as a concept is of importance in planning law, since the General Permitted Development Order 1995 grants permission for various forms of development within the curtilage of a dwelling house if they are “for a purpose incidental to the enjoyment of the dwelling house as such”: see Schedule 2 thereof.
The dwelling was completed and occupied in 1998. Then, by an application registered by the local planning authority on 25 June 1998, permission was sought for:
“Construction of four dormer windows in existing roof and extension to provide estate managers office and garages with games room above.”
The applicant was described as “Buriton Estates Limited”. The application site was described on the application form as “Miscombe Manor, Pitcroft Lane, Buriton”. The application was described as “a full application for alteration/addition to an existing dwelling” The next question on the application form therefore did not apply, though it is to be noted that it included, at question B2, a box to be ticked if permission were being sought for a change of use. That was left blank, as was that part of the form where the site area was, in appropriate cases, to be specified (Question C2). A further part required the existing use of the land or buildings to be stated but only in cases where change of use permission was being sought. That too was left blank.
The application form, when dealing with the material to be used for external walls, was completed with the words “please refer to drawings”. Plans/drawings 9813.2.01 and 02 were stated to be enclosed. Drawing 01 contained four features: a ground floor plan, a first floor/roof plan, a location plan at a scale of 1:5,000 and a site plan at 1:500. The former enclosed by a red line roughly the same area of land as was covered by the 1995 permission. The latter, however, enclosed by a red line a larger area, with a northeast/south west boundary about 105 metres in length. Drawing 02 showed the elevations and proposed extensions and alterations to the house and the details of the materials to be used.
There was then some further communication between the planning authority and the planning consultants acting for the applicant, resulting in a letter from the consultants, dated 5 October 1998, received on 7 October 1998. This explained the need for the office accommodation. Subsequently a further plan was sent to the planning authority showing the land ownerships in the vicinity. The site was again edged in red and shown as the area covered by the 1995 permission. The plan was stamped as received on 13 November 1998.
Planning permission (“the 1998 permission”) was granted by a document dated 16 December 1998 for:
“Single storey extension to provide estate managers offices and garages, with games room in roof. Four dormer windows in main building to provide additional bedrooms (as amplified by letter received 7.10.1998 and plan received 30.11.98)”
A number of conditions were attached, the first of which required the development permitted thereby to be begun within five years. The reason for that condition was said to be to comply with section 91(1) of the 1990 Act. None of the conditions required any further approval of details of the development. It was thus clearly a full detailed permission, not an outline permission, as the reference to section 91(1) confirms.
At some time between 2000 and 2005 it seems that an area immediately to the northeast of the site granted planning permission in 1995 was brought into garden use ancillary to the dwelling house and a tennis court and swimming pool were constructed in that area. This area, roughly rectangular, measured about 65 metres by 35 metres. It was the subject of appeals to the Secretary of State against enforcement action and it can therefore conveniently be referred to as “the Appeal Site”. About half the Appeal Site fell within the red line shown on the site plan on drawing 01 which accompanied the application leading to the 1998 permission.
On 20 December 2005 the appellant sought retrospective planning permissions for the continued use of the Appeal Site as a garden, the retention of the swimming pool and the retention of the tennis court and chain link fence. The permissions were refused by the authority and the appellant appealed to the Secretary of State.
On 19 April 2006 the planning authority issued three enforcement notices. One of those is irrelevant for present purposes. The other two alleged breaches of planning control by, respectively, the change of use of the Appeal Site to residential use, and the construction of a tennis court with chain link fence and a swimming pool with pool building. The appellant appealed against those enforcement notices under section 174 of the 1990 Act. All the appeals were determined by an inspector, whose decision was the subject of the proceedings before Sullivan J.
The inspector's decision
A number of grounds of appeal were pursued before the inspector, only one of which remains relevant now. That was ground (c) in section 174(2): namely that what had occurred on the Appeal Site did not constitute a breach of planning control. The argument advanced on behalf of the appellant was that the 1998 permission extended the curtilage of the dwelling house because of the red line shown on the site plan forming part of drawing 01 and so it granted planning permission for the change of use of that part of the Appeal Site to use for purposes incidental to the dwelling house. Had that argument succeeded, the swimming pool and part of the tennis court would have come within the extended curtilage.
The inspector rejected that argument, holding that the 1998 permission did not grant planning permission for an extension to the residential curtilage of Miscombe Manor. He arrived at that finding on two alternative bases. The first was that, as a matter of legal principle, regard could not be paid to the application and drawings which led to the 1998 permission. Alternatively, if regard were had to the application and drawings, the inspector did not accept that the inclusion of part of the Appeal Site within the red line on the site plan on drawing 01 conferred lawfulness on that part of the garden extension.
The first of those conclusions was arrived at by considering the principles which the inspector understood to be applicable to the use of documents to construe a planning permission, as summarised in R v Ashford BC ex parte Shepway DC [1999] PLCR 12, a decision of mine as a High Court judge. From that summary the inspector took the approach to be as follows, as set out in paragraph 16 of his decision:
“the general rule is that in construing a planning permission that is valid and unambiguous, regard may only be had to the planning permission itself and its conditions. This rule excludes reference to the planning application unless the application is expressly incorporated by words such as 'in accordance with the plans and application'.”
He found that the 1998 permission did not incorporate the application and plans save for the one “received 30.11.98”. That showed the site no larger than that covered by the 1995 permission. Consequently the appellant, he said, could not use the site plan on drawing 01 to...
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