Stevenage Borough Council v Secretary of State for Communities And Local Government & Anor

A full planning permission is construed by reference to the decision notice and, where appropriate, the approved plans and drawings. A material feature shown on the plans is not excluded merely because it is absent from the notice. The court must consider whether the feature objectively formed part of the proposed works, having regard to the permission as a whole and any ambiguity. Section 75(3) of the Town and Country Planning Act 1990 does not remove existing use restrictions merely because permission is granted for external alterations to a building. The permitted works must themselves be capable of having the relevant purpose. An internal subdivision of an existing retail building will not necessarily create a new chapter in its planning history where its essential character and operational use remain unchanged.

Stevenage Borough Council applied under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s decision granting Aberdeen Property Investors (UK) Ltd a certificate of lawful development for unrestricted Class A1 retail use in two subdivided parts of Unit 7 at Roaring Meg Retail Park.

The original 1987 permission restricted the goods that could be sold. A 2006 permission principally described external alterations, but the approved plans showed the subdivision of Unit 7. The inspector held that the subdivision formed part of the permission and that implementation removed the earlier restriction. The central issues were the true scope of the 2006 permission, the application of section 75(3), and whether the works created a new chapter in the planning history.

1. The claim was dismissed. The inspector’s decision was upheld because the 2006 permission included the internal subdivision of Unit 7.
2. A full planning permission is not necessarily confined to the wording of its decision notice. Plans and drawings may form part of the permission, particularly where they describe the detail of the permitted building works. A plan showing additional works must be examined carefully. It should not be excluded merely because the works are absent from the notice. The court must determine objectively whether those works formed part of the proposed package.
3. On the facts, the subdivision was objectively included. The plans showed two named units, separate entrances and the relocation of Unit 14 to facilitate the subdivision. The subdivision was materially connected with the external works. The absence of a reference to it in the notice did not override the plans. Alternatively, the application materials created an ambiguity which was resolved in favour of its inclusion.
4. Section 75(3) of the Town and Country Planning Act 1990 would not have removed the 1987 retail restriction if the 2006 permission had been confined to external works. The relevant building for that purpose would have been the part affected by the works, such as the exterior, and it could not sensibly be assigned the purpose of retail warehousing. A contrary construction would mean that a modest alteration could remove restrictions applying to an entire development.
5. The alternative “new chapter” argument also failed. The concept was preferable to describing the result as the creation of a new planning unit. An internal subdivision of an existing retail warehouse, whose essential character, use and operational nature remained unchanged, did not create a new chapter in its planning history.

The judgment does not state a prior appellate history. The court reviewed the inspector’s decision dated 6 April 2009 on the statutory challenge under section 288 of the Town and Country Planning Act 1990.