Exmouth Marina Ltd., R (on the application of) v First Secretary of State & Anor

A planning permission must be construed from its terms. A limitation on the development authorised must be imposed in clear language; it cannot be inferred merely because the approved drawings do not depict a particular use. Where an enforcement appeal is brought on ground (f), the decision-maker must grapple with a sufficiently clear fall-back proposal advanced by the appellant. The decision-maker need not devise a scheme independently, but must consider whether the breach can be remedied by appropriate conditions or by varying the notice. A material misunderstanding of the scope of the existing permission, especially where it drives the principal planning assessment, may fatally flaw both the enforcement decision and a related costs decision.

The claimant challenged an Inspector’s decision under section 289 of the Town and Country Planning Act 1990. The Inspector had upheld an enforcement notice requiring removal of boat-racking systems erected otherwise than in accordance with approved plans, and had refused planning permission on the deemed application under ground (a). He had also rejected a ground (f) appeal seeking modification of the structures rather than complete removal, and refused an application for costs.

The central issues were whether the existing planning permission prohibited storage of boats on the tops of the permitted racks, and whether the Inspector had properly considered the claimant’s proposed under-enforcement solution.

1. The appeals were allowed and both the enforcement decision and the costs decision were remitted to the Secretary of State.
2. The 2001 planning permission did not prohibit storage of boats on top of the permitted structures. Condition 2 required construction in accordance with amended drawings, but neither that condition nor the drawings imposed an express or implied restriction preventing such storage. A local planning authority wishing to impose such a limitation must do so in clear terms. The absence of a condition could not be repaired by a strained construction of the permission or by importing a limitation not contained in it.
3. The Inspector’s contrary interpretation was fundamental to his reasoning. His concern about a fourth storage level permeated the decision letter and formed the principal reason for rejecting the proposed reductions in height. The alternative concern that one rack extended too far west was subordinate, and it was doubtful that it would independently justify the result.
4. On ground (f), the claimant had advanced a real fall-back case. It proposed reducing the height of the racks, altering their internal girders, and reducing the western extension of rack A, including by deleting specified boat spaces. The Inspector was not entitled simply to dismiss that case as insufficiently clear. The available plans and representations enabled the required reduction to be identified, and any remaining detail could have been addressed through conditions or variation of the enforcement notice.
5. Taylor & Sons (Farms) v The Secretary of State for the Environment, Transport and the Regions [2002] PLCR 11 was distinguishable. There, the appellant had made no ground (f) submissions and had not identified a fall-back position. Here, the claimant had expressly identified the modifications on which it relied.
6. The same fundamental error affected the costs decision because it was expressly based on the Inspector’s mistaken construction of the planning permission. The first respondent was ordered to pay the claimant’s costs, summarily assessed at £12,500. Permission to appeal was refused, although 21 days from the date of the transcript were allowed for lodging any appellant’s notice.

1. High Court (Administrative Court): The Inspector’s decisions upholding the enforcement notice and refusing costs were quashed in substance and remitted to the Secretary of State. The appeals under section 289 of the Town and Country Planning Act 1990 were allowed.