Gregan & Ors, R (on the application of) v Hartlepool Borough Council & Anor

A planning permission must be construed objectively and in a common-sense manner. Where the permission is clear, the court ordinarily considers only the permission, its conditions and any documents expressly incorporated into it. Incorporated documents must be read as a whole and in their statutory context. An activity not described or environmentally assessed in an incorporated Environmental Statement will ordinarily be taken not to form part of the permitted development, unless there is a contrary indication. The expression “marine structures” did not include ships where the permission and its supporting documents consistently distinguished ships, vessels and merchant shipping from marine structures. An informal officer’s view could be addressed by declaratory relief where no quashing order was required.

The claimants, local residents, challenged an informal letter from Hartlepool Borough Council stating that an existing planning permission authorised Able UK Limited to receive and dismantle ships from the United States National Defence Reserve Fleet at the TERRC site.

The relevant 1997 planning permission authorised, among other activities, the dismantling and refurbishment of redundant marine structures and equipment. It expressly incorporated the planning application and Environmental Statement. The issue was whether “marine structures” included ships, having regard to the permission and incorporated documents.

1. The application for judicial review succeeded. The court granted a declaration that the words “marine structures” in the 1997 planning permission did not include ships. A quashing order was unnecessary because the challenged letter was merely an informal expression of an officer’s view. The interim order restricting work on the ships, other than work necessary to make and keep them safe, was continued until further order.
2. The construction of a planning permission is a question of law for the court. The principles stated in R v Ashford Borough Council ex parte Shepway DC (1999) PLCR 12 were applied. A clear, unambiguous permission is construed from the permission itself, including its conditions and express reasons. An application or other extrinsic material may be used where it has been incorporated into the permission, or where ambiguity requires resolution.
3. The permission, application, letter of 2 December 1996 and Environmental Statement had to be read as a whole. In ordinary language, a ship was not a “marine structure”. The documents repeatedly distinguished ships, vessels and merchant shipping from marine structures. No express wording extended “marine structures” to include ships.
4. The Environmental Statement was incorporated for the purpose of defining the permission. Its statutory function was to describe the proposed development and assess its environmental effects. It described the dismantling and refurbishment of offshore modules and structures, but did not describe ship dismantling, the method by which ships would be handled, or the environmental implications of that activity. Absent a contrary indication, an activity not described or assessed in the Statement was not part of the permitted development. The absence of express exclusion could not justify treating ship dismantling as authorised.
5. Definitions in other legislation, later international guidelines and the Agency’s interpretation of the waste-management licence were not relevant to the objective construction of the 1997 permission. The court did not need to determine the separate submissions concerning the EIA Directive or the combined effect of conditions 3 and 13 on a possible new activity or material change of use.