Report by planning enforcement

Summary

A request was made to confirm if Tel's Limited's operations at Snugborough Trading Estate complied with existing planning permission, specifically regarding a crusher and re-graded land. The Department of Environment, Food and Agriculture disclosed a full enforcement report detailing the site visit findings and relevant legal case law regarding planning scope.

Key Facts

• The enforcement report concerns Tel's Limited at Unit 43B, Snugborough Trading Estate.
• A site visit on 15 August 2019 confirmed the presence of a crusher and re-graded rear wall bank.
• The re-grading of the bank is considered an engineering operation requiring separate planning approval.
• The report cites case law including Wall v. Winchester City Council [2015] and Wilson v. West Sussex CC [1963] to discuss limitations of planning permission descriptions.
• The authority determined that without express conditions, descriptions in permissions do not prevent subsequent uses within the same Use Class.

Data Disclosed

• 19/00255/CUD
• PA 09/00856/B
• PA 09/00855/B
• 15th August 2019
• 2020-10-05
• 2020-10-13
• 13 pages
• 2 documents
• 1499233
• section 55(2)(f)
• IOM Equiv 6(3)(e)
• Use Class C3
• 2015
• 1963
• 1972
• 1998
• 1989
• 2012
• 2014

Original Request

 confirmed the report required.

Data Tables (2)

Full Response Text

1

ENFORCEMENT REPORT

Enforcement Reference 19/00255/CUD Subject Tel's Limited Nature Non accordance with PA 09/00856/B Site Unit 43B, Snugborough Trading Estate, Union Mills, Isle Of Man,
Land Owner Tel's Limited Officer

1.0 Background The complaint was to confirm whether the current operations of Tel's Ltd with regards to the crusher was being carried out in accordance with their Planning Permission. A site visit on the 15th August 2019 confirmed that the crusher was on the site of Unit 43 which was the site in question for PA 09/00855/B.

It was also noted that some of the rear wall bank had been re-graded and was being used as a platform for the siting and use of plant/machinery in relation to the above. The re- grading of the bank the bank is considered to be engineering operation for which planning approval would be required.

2

2.0 Relevant Case law and Guidance
2.1 To what extent does the description in the operative words of the permission have the legal effect of limiting the scope of the permission? Wall and others v. Winchester City Council [2015] discussed the limitation of the scope of a planning permission by description. In other words, in the absence of a condition attached to the permission.

Previous judicial authorities include Wilson v. West Sussex CC [1963]– “an agricultural cottage” and East Suffolk CC v. SSE (1972) - “a detached bungalow or house for occupation by an agricultural worker”) which established that the initial use of a development is limited by the description of that development in the operative words of the planning permission that authorises it, but it was clear from those cases that such a description could not prevent the subsequent use of the property for some other purpose within the same Use Class (by virtue of what is now section 55(2)(f) in the 1990 Act) (IOM Equiv 6(3)(e) of the Act). It was subsequently confirmed that in the absence of an express condition attached to the permission, this does not prevent a different use being implemented at a later date, provided it does not amount to a material change of use constituting development. (See I’m Your Man Ltd v. SSE [1998], also Uttlesford DC -v- SSE (1989) JPL 685).

The Winchester case related to a travelling show people’s site, and the crucial point is that this is a sui generis use, whereas the use of a single private dwellinghouse (for example) for holiday lets still falls within Use Class C3 in most cases (although there can be exceptions, such as Moore v. SSCLG [2012]. In the absence of a condition preventing this, section 55(2)(f) would normally apply to such a use. The Winchester case is very clearly distinguishable from this situation, because the planning permission authorising the change of use of the site to use as a travelling show people’s site did not merely contain a limitation, but it prescribed the scope of the sui generis use that was authorised. It did not authorise a general caravan site use.

In the judgment, reference is made to the well known case of Wilson (cited above). This established that the description of the development [erection of “an agricultural worker’s dwelling” in that case] limited the purpose to which the planning unit could be put, at least in the first instance. In that case, the court left open the question as to whether a subsequent change in the manner in which the dwelling was used would be a material change of use. In later cases (also cited above) it was established that a limitation by description of the kind in the Wilson case was insufficient, in the absence of an appropriate condition, to prevent the operation of section 55(2)(f). The essential point is that where (as in the Winchester case) the limitation in the description of the authorised development is describing a sui generis use, then a change of use to a wider caravan site use could, as a matter of fact and degree, be a material change of use, as the High Court and CA found it was in the Winchester case (over-ruling the inspector).

In these cases, the rule in I’m Your Man is still fully effective – i.e. if there is no condition, then there is no restriction on any other use within the same use class. 3

Because Winchester was a case in which the change of use authorised by the planning permission related to a sui generis use, the well known rule in Wilson applied not only to the initial use but to the use of the site without limit as to time and without limit as to the scope of the use. The planning permission authorised only a travelling show people’s site and nothing else.

The position would have been different if the authorised use had in fact fallen into one of the Use Classes identified in the Schedule to the Use Classes Order. If, for example, the planning permission had authorised a specific and limited category of residential use of a building, which would fall wholly within Use Class C3 (dwellinghouses), then whilst the initial use of the building could only have been for the limited category of use specified by the permission, the description of the authorised development would not (absent a relevant condition) have prevented the subsequent use of the building for any other purpose also falling with in Use Class C3. Cotswold Grange Country Park LLP v SSCLG [2014] (when Hickinbottom J observed: “… the grant identifies what can be done—what is permitted—so far as use of land is concerned; whereas conditions identify what cannot be done—what is forbidden.” Summary Point Relating to this Case In seeking to establish the lawful use of this site, taking into account of the above, as there is no limiting condition, the limitation in the description is describing a sui generis use the test would be what does the description provide for.

2.2 To what Extent can Extrinsic Evidence assist in the Interpretation of Planning Approval Of course extrinsic evidence may be required to identify a thing or place referred to, but that is a very different thing from using evidence of facts which were known to the maker of the document but which are not common knowledge to alter or qualify the apparent meaning of words or phrases used in such a document. Members of the public, entitled to rely on a public document, surely ought not to be subject to the risk of its apparent meaning being altered by the introduction of such evidence. It is a long established principle that planning permissions are to be interpreted in a common sense manner. The basic rule is that a permission should stand by itself, and the meaning be clear within the four corners of the document. However if it clearly incorporates the application and plan, as does the format of most permissions, and there is something which is not clear, then that application and plan may be used as aids to interpretation, to define the scope of what is permitted; Slough Estates v Slough BC (No 2) [1970]. 4

So to interpret a planning permission it is generally only permissible to look within the permission itself. A principle upheld in R v Ashford Borough Council ex parte Shepway District Council [1999] 2PLCR 12, QBD which provided a useful summary of the principles to be employed (5 were identified but only the first 2 are noted here). Judge Keen stated that:
(a) …The general rule that in construing a planning permission which is clear, unambiguous and valid on its face, regard may only be had to the planning permission itself, including the conditions (if any) on it and the express reasons for those conditions;
(b) This rule excludes reference to the planning application as well as other extrinsic evidence, unless the planning permission incorporates the application by reference. In that situation the application is treated as having become part of the permission. The reason for normally not having regard to the application is that the public should be able to rely on a document which is plain on its face without having to consider whether there is any discrepancy between the permission and application. see Slough Borough Council v Secretary of State (ante); Wilson v West Sussex County Council [1963] 2 QB 764; and Slough Estates Limited v Slough Borough Council [1971] AC 958 (c) For incorporation of the application in the permission to be achieved, more is required than a mere reference to the application on the face of the permission. While there is no magic formula, some words sufficient to inform a reasonable reader that the application forms part of the permission are needed, such as '... in accordance with the plans and application ...' or '... on the terms of the application ..., ' and in either case those words appearing in the operative part of the permission dealing with the development and the terms in which permission is granted. These words need to govern the description of the development permitted: see Wilson (ante); Slough Borough Council v Secretary of State for the Environment (ante).

(d) If there is an ambiguity in the wording of the permission, it is permissible to look at extrinsic material, including the application, to resolve that ambiguity: see Staffordshire Moorlands District Council v Cartwright (1992) JPL 138 at 139; Slough Estates Limited v Slough Borough Council (ante); Creighton Estates Limited v London County Council, The Times, March 10, 1958.

(e) If a planning permission is challenged on the ground of absence of authority or mistake, it is permissible to look at extrinsic evidence to resolve that issue: see Slough Borough Council v Secretary of State (ante); Co-operative Retail Services v Taff-Ely Borough Council (1979) 39 P&CR 223 affirmed (1981) 42 P&CR 1." This judicial approach to construing a planning permission did not take account of the approved drawings and their status in relation to the planning permission. However, any doubt which there might have been on that score was removed by the judgment of Sullivan J (as he then was) in Barnett v. SSCLG [2008] where he explained that:

“If it is plain on the face of a permission that it is a full permission for the construction, erection or alteration of the building, the public will know that, in addition to the plan which identifies the site, there will be plans and drawings which will describe the building works 5

which have been permitted precisely because the permission is not, on its face, an outline planning permission. In such a case those plans and drawings describing the building works were as much a part of the description of what has been permitted as the permission notice itself. It is not a question of resolving an "ambiguity". On its face, a grant of full planning permission for building operations is incomplete without the approved plans and drawings showing the detail of what has been permitted. In the absence of any indication to the contrary, those plans and drawings will be the plans listed in the application for permission. If the local planning authority does not wish to approve the plans submitted with the application and wishes to approve amended plans, then it can include a statement to that effect in the decision notice. Absent any such statement, the reasonable inference, against the statutory background provided by Section 62 of the Act and the 1988 Regulations, is that a grant of full planning permission approves the application drawings.” The interpretation of planning permissions was again considered in the case of Wood v SSCLG & the Broads Authority [2015] In dismissing the appeal, Mr Justice Lindblom concluded that nothing in the Inspector’s approach to the interpretation of the planning permissions in question was in any way inconsistent with the well-established principles of relevant case law. He adopted the pragmatic approach endorsed by the court in Barnett and Campbell Court Property.
That approach was endorsed by the High Court in the case of Kemball v SSCLG [2015] A “pragmatic view” of the circumstances can be taken, in the sense in which that phrase was used by Lindblom J in the Wood case to mean post-decision events and documentation, such as development which takes place on the ground and subsequent planning decisions, which shed light on the issue of construction, or factual issue, to be resolved, in this case the identification of the layout plan incorporated in the March 1957 planning permission. In University of Leicester v SSCLG & Oadby & Wigston BC [2016] the critical issue on the first ground of challenge was whether the Inspector should have had regard to the extrinsic material before him beyond the application for planning permission. The High Court held that the authorities, in particular Trump and Wood v SSCLG & the Broads Authority [2015] suggest that where there is an ambiguity, it is permissible to look at the extrinsic evidence, including but not limited to the application form, and indeed including but not limited to documentary evidence. All relevant extrinsic evidence may be referred to depending on the circumstances of the individual case. There are a number of other cases where the description of development had a functional significance. The first sequentially, in the material before me, is Wilson v West Sussex County Council [1963] where planning permission was given for an “agricultural cottage”. The second is Williamson and Stevens (Executors of Walter Williamson Dec’d) v Cambridgeshire County Council [1977], where planning permission was given for the use of land as a site for caravans “occupied by gipsies”. The third is Winchester City Council v SSCLG and others [2013], where the use permitted was as a “travelling showpeople’s site”. In every case it was found that a distinct and narrow use had been granted planning permission.

6

Summary Point in relation to this Case In seeking to identify the lawful use of the relevant planning unit, taking into account the legal principles applicable to construing a planning permission as summarised in Ashford BC ex parte Shepway DC and qualified in Barnett v SoS, and University of Leicester v SSCLG & Oadby & Wigston in this instance consideration of all of the publicly available documents and drawings comprised in the planning application (including application), as well as the decision notices themselves have been taken into account. The description has a functional significant particularly when the use specified would be sui generis.

3.0 Relevant Planning History and Assessment 3.1 Planning History The starting point is the decision notice which does tie the development to the application received. Application is taken to be the official application form, the submitted plans and Inspectors Report.

The left hand side is covered by 09/00855/B (43a) The right hand side is covered by 09/00856/B (43) – (43b on plan above)

43a Sn

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