Singh v Secretary of State for Communities & Local Government & Anor

A planning permission must generally be implemented and completed in accordance with its approved plans and conditions. Where development under a later, inconsistent permission makes part of an earlier permission physically incapable of completion, the earlier development as a whole will ordinarily be unlawful. A minor change cannot be made under the original permission merely because it is immaterial; the planning authority’s statutory procedures must be used. Whether developments are compatible is ordinarily a matter of fact and planning judgment for the authority or inspector, not a merits review by the court.

The claimant challenged, under section 288 of the Town and Country Planning Act 1990, an inspector’s dismissal of his appeal against refusal of a certificate under section 191(1). The certificate concerned completion of a family-room and garage extension authorised by a 2003 planning permission.

The claimant had subsequently implemented a 2005 permission for a new dwelling. The inspector found that the later development occupied land needed for the earlier permission’s driveway, turning area and garden layout, making the earlier development impossible to complete as approved. The central issue was whether the necessary changes could be treated as de minimis and carried out without further planning consent.

1. Application refused. The inspector had not erred in law. The claimant was liable for the Secretary of State’s costs, summarily assessed at £8,054.66. There was no order for costs concerning the planning authority.
2. Under the planning regime, a landowner may make successive applications for the same land, even where the permissions are mutually inconsistent, and the authority must consider each application independently. The later grant of permission does not itself amend or approve departures from an earlier permission.
3. The principle in Pilkington v Secretary of State for the Environment [1973] 1 WLR 1527, approved in Hoveringham Gravels v Chiltern District Council [1977] 76 LGR 533 and developed in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] 1 AC 132, required comparison of the development already carried out with the development authorised by the other permission. A permission may become incapable of implementation or completion because of the first development.
4. Implementation and completion are distinct. The 2003 permission had been commenced and implemented, but the question was whether its development could lawfully be completed. Planning development is generally holistic. If part of the permitted development cannot be carried out, the whole development is ordinarily unlawful. The exceptional possibility of severable independent acts identified in Lucas & Sons v Dorking and Horley Rural District Council [1964] 17 P & CR 111 did not apply.
5. The driveway and landscaping were not immaterial elements. They appeared on the approved plans, and landscaping was also required by an express condition. A change cannot be made under the permission merely because it is minor. Sections 73 and 96A of the Town and Country Planning Act 1990 provide the appropriate routes for obtaining consent to a change.
6. The inspector’s findings that the driveway, turning area and garden could not be completed as approved were matters of planning judgment. The court could not conduct the merits review sought by the claimant. The proper course was a further application for the appropriate planning consent.

1. Inspector: dismissed the claimant’s appeal against refusal of the certificate application on 5 June 2009.
2. High Court (Administrative Court): refused the section 288 challenge and upheld the inspector’s decision.