Fisher v Wychavon District Council

A planning permission must be construed objectively from the approval notice, read as a whole. Internal indications may establish that a temporary permission was intended even where the opening words refer to permanent development. If the period cannot be identified, the time condition is void for uncertainty. The court cannot sever a fundamentally important temporary limitation to create a permanent permission. Extrinsic documents may be considered within proper limits, but material created after the notice cannot assist its construction, and earlier material cannot prevail over the notice itself. Rectification was refused where the evidence did not establish the intended period with sufficient certainty.

Mrs Fisher obtained an approval notice stating that permission had been granted for the permanent siting of a residential caravan. The notice also contained a condition requiring discontinuance and reinstatement within “F year(s)”, a reason referring to environmental monitoring, and a provision making the consent personal to Mrs Fisher.

The first-instance judge held that the condition was void for uncertainty, that it was not severable, and that the permission was consequently of no effect. The Council sought to uphold that result and alternatively sought rectification so as to impose a five-year limit. The appeal concerned whether the permission was permanent or temporary, whether the condition was valid or could be rectified, and what effect its invalidity had.

1. Appeal dismissed. The order that condition (1) was void for uncertainty, was not severable, and rendered the permission of no effect was upheld. The Council’s claim for rectification was also refused.
2. The approval notice had to be construed objectively as a whole. Although its opening words referred to the permanent siting of a residential caravan, three internal features pointed to a temporary grant: condition (1) required discontinuance and reinstatement within a limited period; the reason referred to monitoring environmental effects; and the permission was personal to Mrs Fisher. Those features made it plain that only a temporary permission was intended, although the number of years could not be identified.
3. Documents referred to in the notice, such as the application and amended plans, could be considered. It was unnecessary to decide whether other documents predating the notice, including the letter of 24 October 1986, were admissible, because they could not prevail over the intention apparent from the notice. Documents created after the notice, including the later letter and retrospective witness statement, could not assist in its construction.
4. The court could not use a blue pencil to remove the temporary character of the grant and leave a permanent permission. Applying the approach in Kingsway Investments v Kent County Council [1971] A.C. 72, the temporary limitation was objectively of fundamental importance to the Council’s decision. Its removal would produce a permission which the Council might not have been willing to grant.
5. Rectification was refused because there was no strong, irrefragable evidence establishing what period should replace “F”. The court expressed grave reservations about whether rectification was in principle available for a public notification of planning consent, but left that question undecided.

• Court of Appeal (Civil Division): Fisher v Wychavon District Council [1999] EWCA Civ 2114. Appeal from the decision of His Honour Judge Mott, sitting as a High Court judge, dismissed with costs.