University of Leicester v Secretary of State for Communities and Local Government & Anor

When a planning permission is ambiguous, the decision-maker may consider all relevant extrinsic material needed to resolve the ambiguity. The application is often the first source to examine, but it is not an exclusive or mandatory stopping point. Relevant material may include the officer’s report, committee minutes, correspondence, evidence of the parties’ intentions and a related section 106 agreement, where the permission makes that agreement a condition of the grant.

For Town and Country Planning Act 1990, section 75(3) applies only where the permission does not specify the purpose for which a building may be used. An ancillary-use question is primarily one of functional relationship, although the extent of the use may inform the required assessment of fact and degree.

The University applied under section 191(1)(a) of the Town and Country Planning Act 1990 for a lawful development certificate concerning John Foster Hall. It sought confirmation that the premises could lawfully accommodate students and people attending day and residential conferences.

The local planning authority refused the certificate. An Inspector dismissed the University’s appeal under section 195, concluding that the relevant planning permissions authorised student accommodation only, that conference use was not ancillary, and that section 75(3) did not assist. The University challenged that decision under section 288. The central issues were the proper interpretation of the permissions, the permissible use of extrinsic material, the application of section 75(3), and the ancillary-use test.

1. Ground 1 succeeded. The Inspector correctly recognised an ambiguity in the 2004 permission, but erred by treating the application form as resolving the issue without properly considering the other relevant extrinsic material. Where ambiguity exists, all relevant material may be considered according to the circumstances of the case. There is no prescriptive hierarchy which requires the decision-maker to stop with the application form.
2. The relevant material included the officer’s report, committee minutes, correspondence, the uncontradicted evidence of the University’s project manager and the section 106 agreement. That evidence consistently showed that conference use was contemplated by the University and the local authorities. The 2005 permission was an amended version of the 2004 permission and therefore authorised the same use. Its express conditionality on the section 106 agreement also made that agreement part of the planning permission for interpretive purposes.
3. The permissions therefore authorised a mixed use comprising student accommodation and conference accommodation. The Inspector’s contrary conclusion was unlawful. The University’s appeal should have been allowed and the lawful development certificate granted.
4. Ground 2 failed. Section 75(2) asks the narrower question whether the purpose of the building is specified in the grant itself. The 2004 and 2005 permissions specified student use when read as a whole. Section 75(3), which applies where no purpose is specified, therefore had no application.
5. Ground 3 failed. Whether a use is ancillary is a question of fact and degree. The governing test concerns functional relationship rather than extent, but the extent and frequency of the use may be relevant to whether it is subsumed within the main use. Read fairly, the Inspector considered the relationship between the conference and student uses and was entitled to conclude that conference use was not ancillary. That conclusion did not affect the result because the permissions themselves authorised the mixed use.

The University challenged the Inspector’s decision dated 11 September 2015 under section 288 of the Town and Country Planning Act 1990. The claim was allowed on Ground 1, while Grounds 2 and 3 failed. The Inspector’s refusal was quashed in substance and the lawful development certificate was directed to be granted.