Barnett v Secretary of State for Communities and Local Government & Anor

A full planning permission for building works is incomplete without the approved plans and drawings describing the permitted development. Unless the decision notice indicates otherwise, submitted plans ordinarily form part of the permission, even without express incorporation. Permission to extend or alter an existing dwelling does not necessarily authorise enlargement of its established residential curtilage. Such an enlargement must follow from the only reasonable inference from the permission and approved plans. A merely possible inference is insufficient.

An inspector dismissed appeals against enforcement notices and refusals of retrospective planning permission concerning a garden extension, swimming pool, pool building and tennis court adjoining Miscombe Manor. The claimant challenged the decisions under sections 289 and 288 of the Town and Country Planning Act 1990.

The claimant argued that a 1998 full planning permission for extensions and alterations to Miscombe Manor incorporated the approved plans and authorised an extension of the dwelling’s residential curtilage. The inspector rejected that argument. The central issue was whether the 1998 permission authorised the claimed curtilage extension.

1. The section 289 appeal and section 288 application were dismissed. The inspector had reached the correct conclusion that the 1998 permission did not authorise an extension of Miscombe Manor’s residential curtilage.
2. The general principles summarised in R v Ashford Borough Council ex parte Shepway District Council [1999] P&CR 12 had to be applied in context. A full permission for the erection, alteration or extension of a building is not complete without the approved plans and drawings describing the works. Against the statutory background of section 62 of the Town and Country Planning Act 1990 and regulation 3 of the Town and Country Planning (Applications) Regulations 1988, submitted plans ordinarily form an integral part of the permission.
3. Where the approved plans are not clearly identified, extrinsic material may be considered to resolve ambiguity. The plan received on 30 November 1998 did not supersede the site boundary shown on drawing 01.
4. A new detached dwelling necessarily carries an implied curtilage, so its site plan may define its extent. An application to extend or alter an existing dwelling is different because an established curtilage already exists. The 1998 permission did not support the only reasonable inference that the curtilage was to be enlarged. The inspector’s conclusion was therefore correct, although his characterisation of the issue as one of fact and degree was erroneous.
5. The inspector also erred in treating a swimming pool as a building for paragraph E.1(f) of Class E in Part 1 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995. The error was immaterial because the fallback case had been considered on both interpretations.
6. Limited visibility did not overcome the conflict with countryside protection policies. The inspector was entitled to find that the development had changed the intrinsic local character of the countryside and adversely affected its rural character. Costs were summarily assessed at £10,000. Permission to appeal was refused.

The judgment concerned challenges to an inspector’s decision letter dated 2 February 2007. The claimant brought a statutory appeal under section 289 and an application under section 288 of the Town and Country Planning Act 1990. This court dismissed both challenges, ordered costs of £10,000, and refused permission to appeal.