Fisher v Wychavon District Council

A planning permission must be construed from the approval notice as a whole. Clear indications that only a temporary permission was intended cannot be displaced by introductory wording referring to permanent development. Where the notice does not identify the duration of the temporary permission, the relevant condition is void for uncertainty.

An invalid condition cannot be severed where the time limitation was fundamental to the planning authority’s decision. The court should not use a blue pencil to convert an intended temporary permission into a permanent one. Rectification was refused on the facts, and the wider question whether rectification is available for a planning consent was left open.

The claimant obtained a planning permission concerning the siting of a residential caravan. The approval notice referred to permanent siting, but included a condition requiring discontinuance and reinstatement after “F year(s)”, a reason referring to environmental monitoring, and a provision making the consent personal to the claimant.

The claimant sought declarations that the permission was permanent and that the condition was void. The Council contended that the permission was temporary, alternatively sought rectification, and argued that the condition was not severable. His Honour Judge Mott held that the condition was void for uncertainty and that the permission consequently had no effect. The central issues on appeal were the proper construction of the notice, the admissibility and effect of surrounding evidence, and the consequences of the invalid condition.

1. Appeal dismissed. The approval notice, read as a whole, granted only a temporary planning permission, although it was impossible to determine the intended number of years. The condition requiring discontinuance and reinstatement, the reason referring to environmental monitoring, and the personal nature of the grant were strong contra-indications to permanent permission.
2. The introductory statement that permission was granted for the permanent siting of a caravan did not prevail over those internal indications. Documents referred to in the notice could be considered. Pre-notice documents might also be admissible, but could not override the intention objectively discernible from the notice. Documents created after the notice, including later correspondence and retrospective witness evidence, could not assist its construction.
3. The defective time condition was void for uncertainty. The Council’s rectification claim was properly rejected because there was no strong and irrefragable evidence identifying the intended period. The court expressed grave reservations about whether rectification is available for a notification of planning consent, but left that question undecided.
4. The condition could not be severed from the permission. Applying the approach in Kingsway Investments v Kent County Council [1971] A.C. 72, the temporary limitation was objectively fundamental to the Council’s decision. Removing it would leave a permanent permission which the Council might not have granted. The whole permission therefore fell.
5. The appeal was dismissed with costs, subject to the directions recorded in the order.

• Court of Appeal (Civil Division): Appeal from the decision of His Honour Judge Mott sitting as a High Court Judge. The appeal was dismissed with costs.