Mid Suffolk District Council, R (on the application of) v First Secretary of State

When incorporated planning documents conflict, the court may use extrinsic evidence to resolve an ambiguity about the nature, extent or location of the development or application site. The general rule excluding extrinsic material remains important, but it does not require the court to ignore ambiguity within the documents forming part of the permission.

A permission for stationing a mobile or portable catering unit does not, without more, amount to permission for the erection or use of a café building. Where an inspector raises for himself the distinction between operational development and use of land, he must address the legal consequences of that distinction. Failure to do so requires the decision to be remitted.

The claimant local planning authority appealed under section 289 of the Town and Country Planning Act 1990 against an inspector’s decision on appeals concerning enforcement notices for a roadside café, toilet block, parking and hard surfacing.

The inspector treated the café as a building rather than a use of land, but did not determine whether the use of that building as a café was authorised by earlier permissions, immune from enforcement, or should receive planning permission. The issues were whether extrinsic evidence could resolve conflicting plans and whether the inspector had failed to complete the necessary analysis.

1. Ground 1 rejected. The general rule is that a clear planning permission is construed from the permission itself, including incorporated documents and conditions. That rule does not prevent recourse to extrinsic evidence where the incorporated plans are ambiguous. The ambiguity may concern the location or extent of the application site as well as the nature or extent of the permitted development. The inspector was entitled to find that the large-scale site plan identified the wrong land while the block plan identified the correct land by nearby fixed points. The court would not go behind that clear finding of fact without evidence showing that it was unreasonable.
2. The principles stated in R v Ashford Borough Council, ex parte Shepway District Council [1999] PLCR 12 did not require a different result. The case concerned the permitted development on an identified site, whereas this case concerned an ambiguity about which site the permission covered.
3. The 1995 and 1996 permissions did not implicitly authorise café use throughout the site or the use of an unlawfully erected building as a café. They authorised the stationing or retention of mobile or portable catering units at locations identified in the incorporated plans. Planning permission is expressly granted for a material change of use; there is no separate category of implicit permission.
4. Ground 2 succeeds to the extent requiring remittal. The inspector was entitled to conclude, as a matter of fact and degree, that the café was a building rather than a use of land. Having raised that issue himself, however, he had to consider its consequences, including whether the use of the building was lawful, whether it had become immune from enforcement, and whether permission should be granted under Ground (a). The matter was remitted to the inspector for further consideration, including any appropriate conditions.

High Court (Administrative Court): appeal under section 289 of the Town and Country Planning Act 1990 against an inspector’s decision. The challenge on Ground 1 was rejected. The decision was remitted to the inspector for further consideration on the consequences of treating the café as a building.