Barnett v Secretary of State for Communities and Local Government

A full planning permission for building operations ordinarily incorporates the submitted plans and drawings needed to describe the authorised development, even if the decision notice does not expressly incorporate them.

Permission for a new dwelling normally carries permission for residential use and ancillary use within the site shown on the site plan. Permission merely to alter or extend an existing dwelling does not, without more, enlarge its established curtilage. Whether additional land is authorised for ancillary residential use depends on construing the permission, application and relevant drawings as a whole. A red line identifying the application site does not by itself authorise a change of use.

The appellant owned a dwelling whose permitted curtilage had been established by a 1995 planning permission. A full permission granted in 1998 authorised extensions, garages, offices, a games room and dormer windows. One submitted site plan placed a red line around an area larger than the established curtilage.

Part of the additional land was subsequently used as a garden, swimming pool and tennis court. Following refusals of retrospective permission and enforcement action, an inspector held that the 1998 permission had not authorised an extension of the residential curtilage. Sullivan J dismissed appeals and an application under sections 289 and 288 of the Town and Country Planning Act 1990.

The Court of Appeal had to decide whether the 1998 permission, properly construed with the application documents and drawings, authorised ancillary residential use of the additional land.

1. The linked appeals were dismissed. Sullivan J had correctly upheld the inspector’s conclusion that the 1998 permission did not authorise ancillary residential use beyond the dwelling’s established curtilage. Toulson LJ and the Master of the Rolls agreed with Keene LJ.

2. The inspector’s primary approach to the documents was wrong in law. A full permission for the erection, alteration or extension of a building does not ordinarily provide a complete description of the authorised works. The plans and drawings required to describe those works form part of the permission without express words of incorporation, unless the decision notice indicates otherwise. The more restrictive discussion in R v Ashford BC, ex parte Shepway DC [1999] PLCR 12 concerned an outline permission and was not intended to govern full detailed permissions.

3. The interpretation of a planning permission is a question of law involving the construction of the permission and those application documents and drawings which may properly be considered. The need for expert or other evidence depends on the circumstances, but no such evidence was needed here.

4. Permission for a new dwelling on non-residential land carries permission to use the building residentially under section 75(3) of the Town and Country Planning Act 1990. The site-plan boundary will normally identify the extent of the land authorised for the new residential and ancillary uses, subject to any evident restriction.

5. Different considerations apply to permission merely to alter or extend an existing dwelling. Its curtilage already exists, and the permission does not necessarily authorise any new use or enlarged curtilage. The effect depends on the application and drawings as a whole. An enlargement may be clear where the building works extend beyond the original residential site or where permission is expressly sought and granted for a change of use.

6. Here, the larger red line on one site plan was outweighed by the remaining documents. No works were proposed on the additional land; the location plan showed the original boundary; and neither the application nor the permission referred to a change of use or increased site area. Condition 5’s reference to parking within the curtilage was consistent with the existing curtilage and did not enlarge it.

1. Court of Appeal (Civil Division): The linked appeals were dismissed. The court upheld Sullivan J’s decision and the inspector’s conclusion that the 1998 permission did not extend the residential curtilage. [2009] EWCA Civ 476

2. Administrative Court: Sullivan J dismissed the appellant’s appeal under section 289 and application under section 288 of the Town and Country Planning Act 1990. No citation is stated in the judgment.

3. Planning inspector: The inspector dismissed the material enforcement appeals, holding that the 1998 permission did not authorise an extension of the dwelling’s residential curtilage.