Djurberg v Secretary of State for Communities and Local Government

A planning permission for the retention of existing development does not authorise later construction unless the development was existing when permission was granted. Planning drawings alone may not establish that fact, particularly where contemporaneous business evidence points to a proposal rather than an existing arrangement. A lawful fallback must be established on the evidence. Even if lawful mooring facilities existed, a planning inspector may distinguish the visual and policy effects of moored boats from those of permanent pontoons and reach a different planning judgment. An enforcement appeal decision will stand unless affected by an error of law.

The claimant challenged a Planning Inspector’s decision on an enforcement appeal concerning pontoons and piles serving a riverside boatyard. The inspector allowed retention of some pontoons but required removal of the western extension.

The claimant argued that a 2008 planning permission for the retention of existing boatyard moorings authorised the earlier pontoons, or that the permission had been partly implemented and provided a fallback position. He also argued that the inspector had failed to take account of the earlier permission. The central issue was whether the inspector had made an error of law.

1. Appeal dismissed. The claimant failed to show that the inspector’s decision was affected by an error of law.
2. The general proposition that a planning permission is ordinarily either implemented or not implemented did not assist the claimant. The inspector had not adopted the local planning authority’s assertion that parts of the 2008 permission had lapsed. In any event, the permission concerned the retention of existing pontoons, not their construction. If the pontoons had been present when permission was granted, no commencement of works was needed to keep that permission alive.
3. The inspector had correctly treated the earlier finger pontoons as unlawful. The plans accompanying the 2007 application did not establish that they were existing. The pontoons were not labelled as existing and were instead described as a changed layout. The contemporaneous business plan stated that capacity was to be increased by returning to an original layout. That evidence was irreconcilable with the finger pontoons already being in place. There was no reliable evidence that they had been constructed between the business plan and the application.
4. There was consequently no lawful fallback to the earlier finger pontoons or to the earlier reversed-L arrangement. Construction of either arrangement in 2012 would have breached planning control.
5. Even if piles had lawfully supported mooring without pontoons under the 2008 permission, that would not establish an error. The inspector was entitled, as a matter of planning judgment, to distinguish the effect of moored boats from the effect of permanent pontoons on designated heritage assets and the openness of Metropolitan Open Land. The possible availability of pile moorings therefore did not require permission for the present pontoons to be granted.

The claim was dismissed.

The judgment does not state any prior appellate decision. The claimant’s challenge was dismissed by the High Court (Administrative Court).