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

A planning permission for a change of use does not, without clear wording, authorise building, engineering or mining operations needed to implement that use. The statutory distinction between use and operational development is fundamental. Conditions may regulate or clarify the development permitted, but cannot enlarge the grant or convert permission for a change of use into permission for operations. The permission must ordinarily be construed from its own terms, including conditions and their express reasons. The application or other extrinsic material may be used only where incorporated into the permission or where the permission is ambiguous. A permission granted under section 73 of the Town and Country Planning Act 1990 is a new freestanding permission, but cannot rewrite the original permission.

The claimant appealed under section 289 of the Town and Country Planning Act 1990 against an inspector’s decision upholding an enforcement notice issued by Nottinghamshire County Council. The notice alleged unauthorised mining operations arising from the excavation and removal of material during the construction of fish-breeding and fishing lakes.

The claimant contended that planning permissions granted by Bassetlaw District Council authorised both the change of use and the operational development required to construct the lakes. The central issue was whether the permissions authorised only the use of land for fish breeding and fishing, or also authorised excavation and mineral removal.

1. The appeal was dismissed. The 2006 and 2007 permissions authorised a change of use only. They did not authorise the operational development involved in constructing the lakes or removing minerals.
2. The permission had to be interpreted principally from its own terms, including its conditions and the express reasons for them. The application could not be used as extrinsic material because the permission was not ambiguous and had not incorporated the application by appropriate operative wording. The approved layout plan was referred to only in a condition and was general and illustrative; it did not authorise construction of the lakes.
3. The statutory distinction between a material change of use and the carrying out of building, engineering, mining or other operations was decisive. Under section 336(1) of the Town and Country Planning Act 1990, use did not include carrying out operations on land. The description “use of land as lakes for breeding fish and fishing” therefore did not grant permission for excavation merely because excavation was necessary to achieve that use.
4. Following Wivenhoe Port Ltd v Colchester BC [1985] JPL 396, conditions could not enlarge the grant. The conditions presupposed excavation and regulated matters such as levels, HGV movements and access, but they could not change permission for a use into permission for operational development. The approach was not absurd merely because the grant consequently provided little practical benefit.
5. The 2007 permission was granted under section 73 of the Town and Country Planning Act 1990. It was a new freestanding permission concerned with the specified condition, but section 73 could not be used to rewrite the original permission or introduce operational development that the 2006 permission had not authorised.
6. The claimant was ordered to pay the Secretary of State’s costs, summarily assessed at £12,605.10. There was no order as to Nottinghamshire County Council’s costs because, although it had a separate interest, separate representation was not shown to be required.

The judgment states that the appeal was brought under section 289 of the Town and Country Planning Act 1990 against the Secretary of State’s inspector’s decision dated 19 February 2009, which had dismissed the claimant’s appeal against Nottinghamshire County Council’s enforcement notice. Permission to appeal to the High Court was granted on 26 March 2010.