Sevenoaks District Council, R (on the application of) v First Secretary of State & Anor

A planning condition must impose any obligation clearly and expressly. A court may construe an ambiguous condition in a common-sense way, having regard to the planning permission as a whole and its purpose. It may not imply an additional obligation into a clear condition merely because the planning authority intended that result. This applies whether the proposed implication would create a new condition or add an obligation to an existing condition. Because enforcement action may have criminal consequences, clarity is essential. A planning authority may also be ordered to pay costs where its enforcement action lacked reasonable justification, including reliance on a peripheral observation in another decision as the basis for alleging breach.

The claimant local planning authority granted outline permission for a golf course subject to conditions. Condition 12 required details of engineering works, including earth bunds, to be submitted to and approved in writing before development commenced. The details were approved, but the bunds were constructed differently from the approved plans.

The claimant issued enforcement notices alleging unauthorised development and breach of condition. The first notice was withdrawn. The Inspector allowed the appeal against the second notice, finding that condition 12 required submission and approval only, not construction in accordance with the approved details, and awarded costs against the claimant.

The claimant appealed under section 289 of the Town and Country Planning Act 1990, challenging both decisions. The central issues were whether an implementation obligation could be implied into condition 12 and whether the costs award was lawful.

1. The appeal was dismissed. The Inspector was entitled to quash the enforcement notice and to award the second defendant its costs. The claimant was ordered to pay the first defendant’s costs, summarily assessed at £4,565.50.

2. A planning permission is a public document. It must be construed in a common-sense manner together with admissible documentary evidence. The question is what the local planning authority permitted, not the unexpressed intention of the applicant or the authority. This approach was supported by Carter Commercial Developments Ltd v Secretary of State for Transport, Local Government and the Regions [2002] EWCA Civ 1914.

3. Where a planning condition is ambiguous, its meaning may be resolved by considering the permission as a whole and the planning purpose evidenced by the stated reasons. That principle did not assist the claimant because condition 12 was clear on its face. The contrast with condition 8, which expressly required completion in accordance with approved details, showed that no equivalent obligation had been imposed by condition 12.

4. Any obligation capable of enforcement must be clearly and expressly imposed. There is no material distinction between implying a separate condition and implying an additional obligation into an existing condition. The principles in Trustees of Walton-on-Thames Charities v Walton and Weybridge Urban District Council [1970] 68 LGR 488 and Pardes House School Trustees v Hendon Borough Council 15 P&CR 326 therefore applied.

5. The Inspector’s costs decision was not perverse. It was open to him to consider the claimant’s conduct as a whole, including the late withdrawal of one notice, the defects in the other, and the absence of reasonable legal justification for alleging breach of condition 12. The Dartford decision letter provided only a peripheral observation and a slender basis for enforcement action.

The judgment describes the claim as an appeal under section 289 of the Town and Country Planning Act 1990 against an Inspector’s decision allowing the second defendant’s enforcement appeal and awarding costs. The Administrative Court dismissed the appeal and upheld both decisions.