Mills-Owens, R (on the application of) v The First Secretary of State & Ors

In a challenge to a planning decision, the scope of permission is determined by reading the decision, the application and the plans together. Defects or ambiguities in an application form do not create a wider permission where the development described and shown is clear. The absence of a new condition does not remove an existing condition imposed by an earlier permission, nor does it necessarily create a legal error. An inspector may grant permission contrary to development-plan policy where material considerations justify that conclusion. In assessing incremental development, the inspector may consider the development as a whole but cannot reopen the lawfulness or merits of an earlier permission. Environmental impact screening is required only for development falling within Schedule 2 of the relevant regulations; location in a sensitive area alone is insufficient. Judicial review does not permit the court to reconsider the planning merits.

The claimant, a neighbouring resident, applied under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s decision granting permission to raise the roofline of an existing outbuilding at Hangersley House.

He argued that the application form created an excessively wide permission, that a condition restricting separate occupation was required, and that the inspector had erred in applying national-park and local-plan policies. He also challenged the absence of environmental-impact screening, consultation with the Highway Authority and alleged interference with his human rights.

1. Scope of permission. The permission was confined to raising the roofline of the identified existing building, together with the inherent demolition shown on the plans. The application type, description and plans made clear that it was not permission for an unspecified change of use or an unspecified number of dwellings. The incomplete entries on the form did not enlarge the permission.
2. Condition. The decision did not remove the condition attached to the February 2004 permission. Whether that condition applied to the whole annex or only the infill building, separate use of the existing building would remain governed by the pre-existing planning-control position. The inspector therefore made no error of law by failing to impose an equivalent condition.
3. Planning policy and review. Under section 38 of the Planning and Compensation Act 2004, the proposal had to be determined in accordance with the development plan unless material considerations indicated otherwise. The inspector was entitled to treat the negligible visual impact, improved appearance of the outbuildings and absence of harm to other policy objectives as material considerations justifying a departure from policy NF-H3. The court was not entitled to reassess the planning merits.
4. Incremental development. The inspector properly considered the earlier permission and the current proposal together for the relevant percentage increase. He was not required, and had no power in this application, to reconsider the lawfulness or merits of the earlier permission.
5. Environmental assessment and procedure. Under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, a screening opinion was required only if the proposal was Schedule 2 development. The roof-raising works and infill were not within Column 1 of Schedule 2, and their location in a sensitive area did not itself trigger screening. There was no legal duty to consult the Highway Authority.
6. Human rights and disposal. The circumstances did not engage Article 8. The claim was dismissed. The claimant was ordered to pay the First Secretary of State’s costs in the sum of £6,000.

Not stated in the judgment.