Gillespie & Anor v Tewkesbury Borough Council

A planning permission should be construed so as to overcome apparent ambiguity where the permission can reasonably be given a sensible meaning. Revised plans identified in the decision may supersede inconsistent earlier application material. An inaccurate depiction of the relationship between approved buildings and neighbouring land does not, without more, make the permission void or mean that development is unauthorised. The relationship will not amount to a binding limit on the permission unless the permission imposes an appropriate condition or otherwise makes it part of the authorised development.

The claimants sought judicial review of the Council’s decision that two houses built by the interested party were not in breach of planning control and that enforcement action should not be taken. They argued that the planning permission was void for uncertainty because the application documents and plans contained inconsistent height and floor-level information. Alternatively, they argued that the houses had not been built in accordance with the approved plans because the relationship with the neighbouring property, Rowanside, was inaccurately shown.

The central issues were whether the permission could be given a sensible meaning and whether the development was authorised by it.

1. Claim dismissed. The Council’s decision not to treat the development as a breach of planning control was not quashed.
2. The court applied the established approach that, in cases of ambiguity, it should strive to give words in a planning permission some meaning, following Fawcett Properties Ltd v Buckinghamshire County Council [1961] AC 636.
3. The permission expressly related to the revised scheme and plans received on 22 May 2008. Those plans contained the updated information on which the development was to be based and superseded the earlier application material. The discrepancy between the application form’s stated height and the revised plans did not create a hopeless uncertainty.
4. The relevant question was whether the houses had been built in accordance with the dimensions approved for the development. The permission authorised two houses and garages on the application site. It did not require compliance with a specified relationship between those buildings and Rowanside.
5. The relationship with Rowanside was a relevant planning factor, but the Council could have imposed a condition controlling the relative positions or levels and did not do so. The court therefore rejected the argument that the inaccurate depiction of Rowanside made the permission void or that the completed houses were outside the permission.
6. Section 171A(1)(b) of the Town and Country Planning Act 1990 was not engaged. The claimants therefore had to establish development without planning permission under section 171A(1)(a), which they failed to do. Issues of delay, prejudice and expediency did not arise for decision, although the judge indicated that the delay was undue and that expediency would have favoured the Council.

Not stated in the judgment.