Success in the Planning Court

Success in the Planning Court

The Planning Court has today handed down judgment in Patel v Secretary of State for Housing, Communities and Local Government & Ors [2021] EWHC 2115 (Admin).

The issue in the case concerned the proper interpretation of a condition attached to a planning permission in 2010. The condition required soundproofing but there was disagreement as to the extent of what was required. The significance of the interpretation of this condition is that if it had not been properly discharged, then the 2010 permission would not have been lawfully implemented and the consent would have lapsed.

The Claimant’s case at appeal stage was that the condition was limited in scope and only required soundproofing within the development between its commercial ground floor and the residential units above. The Inspector disagreed and found the condition was broader in its scope. The Inspector determined that the condition could also require soundproofing to protect future occupants of the development from noise originating external to the site. This would include from the music studios next door, who supported the Secretary of State’s resistance to the claim and was named as the Third Defendant.

Following the Inspector’s decision to reject the Claimant’s interpretation, the matter was referred to the High Court under s.288 of the Town and Country Planning Act 1990. Permission to bring the case was granted by Timothy Mould QC (sitting as a Deputy High Court judge).

Agreeing with the Claimant, Lang J found that:

  1. The Inspector erred by deciding that the word “including” in the condition allowed her to interpret its requirements more broadly. Lang J found that this was “clearly incorrect” ([65]). This error infected the Inspector’s further description of what may be required under the condition ([66]).
  2. The interpretation preferred by the Inspector, the Council and the Music Rooms required the reader to depart from the natural and ordinary meaning of the words in the condition and further required additional words to be read into the condition ([68]-[70]).
  3. The Claimant’s interpretation of the condition was supported by reading it in the context of the permission as a whole, which includes the documents and plans expressly incorporated into the permission ([71]-[77]).
  4. There was nothing in the reasons for the condition which supported the broader interpretation. Moreover, the same reason was applied to other conditions which related to noise originating from the commercial units. If the same reason was being used for a different purpose, this would require the reasons to be read inconsistently ([79]-[82]).
  5. Given that the condition is a pre-commencement condition, it is imperative that the Claimant knows what is required so that he can address it prior to making an application to discharge the condition. The Inspector’s interpretation was “unacceptably general and vague”. The reasonable reader would not (and should not) also seek to imply into the condition a set of requirements not expressly referred to in the condition ([89]).
  6. The condition is unambiguous. It was not, therefore, permissible to refer to the extensive extrinsic material the Inspector and the Music Rooms relied upon, which included documents produced many years after the permission was granted as well as those not publicly available ([90]-[92]).

Accordingly, the Inspector’s decision has now been quashed. You can view the judgment here.

This case is a good reminder of the basic principles of the interpretation of conditions attached to a planning permission. In particular, the judgment highlights the dangers of departing from the natural and ordinary meaning of the words of a condition, as well as relying upon extrinsic documents when the condition is unambiguous. One should also read a condition in the context of the permission as a whole, including any documents and plans that are expressly incorporated into the consent.

Max Short acted for the Claimant during the planning appeal and worked closely with counsel (Jack Parker of Cornerstone Barristers) during the legal challenge.

July 2021