Payne v Caerphilly County Borough Council

A planning permission must be construed according to the substance of what the instrument grants, rather than the heading under which its terms appear. A permission expressed to cover specified areas but not others is limited in scope to those specified areas. No condition can operate over land for which no permission was granted. A decision concerning limitations in time attached to a general permission does not govern a grant that excludes particular areas altogether.

After earlier litigation, Mr Payne obtained a continuing planning permission under the Environment Act 1995, linked to a permission granted to the National Coal Board in 1955. Maurice Kay J rejected his construction of the 1955 document. Permission to appeal against that judgment was considered by Pill LJ, who refused permission concerning a related decision of Davis J and remitted the issue concerning Maurice Kay J. The issue before Buxton LJ was whether the 1955 instrument granted permission for the whole site subject to a condition excluding sections BB, CC and DD, or granted permission only for sections AA and EE.

Application refused. Permission to appeal from the judgment of Maurice Kay J was refused.

1. The question was one of construction of the 1955 planning permission. Although the document placed the relevant wording under the heading of conditions, that heading reflected an unfortunate use of a standard form and did not determine the legal effect of the grant.
2. The substantive effect of the document was to grant permission for the areas covered by sections AA and EE, while granting no permission for sections BB, CC and DD. The permission was therefore limited to part of the site. Since no permission existed for the excluded areas, conditions could not be imposed in respect of them.
3. Mr Payne relied on I'm Your Man Ltd v Secretary of State for the Environment (1988) 77 P.&C.R. 251. Buxton LJ distinguished that decision. The limitations considered there were temporal limitations attached to a general grant of permission. They did not concern a grant whose extent was defined by the areas for which permission was given. Whether that decision was correct was therefore immaterial to the present case.
4. The court reached its conclusion by its own construction of the underlying document. It did not decide the matter on the basis of an indication attributed to Schiemann LJ in earlier proceedings, because the issue had not been argued out before him. The order was: application refused.

• Court of Appeal (Civil Division): On 10 September 2003, Buxton LJ refused permission to appeal from the judgment of Maurice Kay J. [2003] EWCA Civ 1262.
• Court of Appeal (Civil Division): On 5 August, Pill LJ refused permission to appeal from the related decision of Davis J and remitted for further consideration the issue arising from Maurice Kay J’s judgment.
• High Court, Queen’s Bench Division: Maurice Kay J gave judgment on 8 April 2003 concerning the construction of the 1955 planning permission.