Kemball, R (on the application of) v Secretary of State for Communities and Local Government

In a challenge to a decision under Town and Country Planning Act 1990, the court must determine the proper construction of a planning permission as a matter of law. A permission granting approval for a particular layout authorises development in accordance with that layout, even where details of siting are reserved for later approval. The approved layout may be identified from incorporated plans or, where necessary, by admissible extrinsic evidence. A claimant seeking a certificate of lawful proposed development bears the burden of proving that the proposal falls within the permission. The claim failed because the proposed site was outside the layout approved by the 1957 permission.

The claimant sought to quash the Secretary of State’s Inspector’s decision dismissing his appeal against refusal of a certificate under section 192(1)(b) of the Town and Country Planning Act 1990. The certificate concerned two proposed dwellings at Keldwith.

Earlier Inspector decisions had been quashed by consent orders, and the appeal had been redetermined twice before the decision challenged in these proceedings. The claimant relied on a March 1957 outline permission, while the Inspector had also considered the September 1957 permission. The issues included whether the permissions remained extant, whether later applications could constitute approval of reserved matters, and the geographical extent of the permissions. The claimant ultimately relied only on the March permission.

1. The application was dismissed. The claimant was ordered to pay the first defendant’s costs, assessed at £7,850.
2. Under sections 192 and 288 of the Town and Country Planning Act 1990, the claimant bore the civil burden of establishing that the proposed development was authorised by the March 1957 permission and that the Inspector’s dismissal of the appeal was unlawful.
3. The construction of a planning permission is a question of law. The permission, read as a whole, and documents incorporated into it must be examined in accordance with R v Ashford BC ex parte Shepway D.C. [1990] PLCR 12. Extrinsic material may also be used to identify an approved plan where appropriate, consistently with Koumis v Secretary of State for Communities and Local Government [2014] EWCA Civ 1723.
4. The word “layout” in the 1957 permissions meant the general arrangement of the buildings within a defined area. It did not merely mean the capacity to build a specified number of houses. “Siting” referred to the exact position and footprint of each structure within the approved layout. There was therefore no inconsistency between approval of layout and reservation of siting.
5. The September 1957 permission incorporated a plan showing nine houses south of Keldwith and did not extend to the appeal site. The March 1957 permission likewise incorporated the January 1957 application and plans. On the available evidence, its approved layout was shown on the plan at page 37 of the bundle, which also excluded the appeal site.
6. The court therefore did not need to decide whether the permissions had been implemented or used up. Even assuming implementation, the proposed dwellings were outside the permissions’ geographical scope. The Inspector’s failure to apply the principle in Etheridge v Secretary of State for the Environment (1984) 48 P & CR 35 was consequently immaterial.

The judgment itself was a first-instance judicial review under section 288 of the Town and Country Planning Act 1990. Earlier Inspector decisions had been quashed by consent orders, and the appeal was redetermined by a third Inspector. The High Court dismissed the present claim and refused permission to appeal.