Choiceplace Properties Ltd v Secretary of State for Housing Communities And Local Government

A planning condition requiring development to be carried out in accordance with approved plans may require compliance with an accurate, scaled depiction of the relationship between the proposed development and neighbouring buildings. The fact that the planning permission cannot control land outside the application site does not make that depiction merely illustrative. The condition must be interpreted objectively by asking what a reasonable reader would understand its words to mean in the context of the permission as a whole, having regard to natural and ordinary meaning, purpose, other conditions and common sense. Where approved plans are internally inconsistent and the development cannot replicate a material relationship shown on them, the development cannot lawfully be implemented in accordance with the condition.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s dismissal of its appeal against refusal of a certificate of lawfulness. The certificate concerned planning permission for a replacement residential building. One approved street-scene drawing inaccurately showed the proposed building as lower than neighbouring buildings, whereas other approved drawings showed its correct, greater height.

The claimant argued that the neighbouring buildings were outside the application site and that their depiction was illustrative. The central issue was whether the permission could nevertheless be implemented in accordance with all the approved plans.

1. Application refused. The inspector had lawfully concluded that the development could not be implemented in accordance with condition 1 of the planning permission.
2. The applicable approach was the objective interpretation of planning conditions stated by Lord Hodge in Trump International Golf Club Ltd v Scottish Ministers [2015] UKSC 74. The court asks what a reasonable reader would understand the words to mean in the context of the permission as a whole, considering natural and ordinary meaning, purpose, other conditions and common sense. The approach is also consistent with the principle that ambiguity does not make a planning condition void where a sensible or ascertainable meaning can be given, as explained through Fawcett Properties Ltd v Buckingham County Council [1961] AC 636.
3. Condition 1 required the development to be carried out in accordance with the approved plans. The street-scene drawing was a technical, scaled drawing showing the proposed building’s height in relation to neighbouring buildings from different perspectives. Its depiction of those buildings was not purely illustrative. Although the permission could not control neighbouring land, the proposed development had to be capable of replicating the relationship depicted on the approved plan.
4. Because the proposed building was in fact taller than the neighbouring buildings, it could not be built in a manner consistent with the street elevations shown in the drawing. The permission therefore could not lawfully be implemented in accordance with the approved plans.
5. Burhill Estates v Woking BC [1995] JPL147 did not assist the claimant. That case concerned an illustrative depiction of a barn which did not qualify the permission. Here, the relevant drawing was incorporated into condition 1 and materially depicted the proposed development’s relationship with neighbouring buildings.
6. The inspector’s observations about the importance of the street scene and possible judicial-review arguments were alternative and supplementary. His freestanding conclusion in paragraphs 8 and 9 was sufficient and did not depend on extrinsic evidence or the merits of the planning permission.

The judgment describes the following prior administrative stages:

• Local planning authority: refused the application for a certificate of lawfulness on 25 September 2019.
• Planning inspector: dismissed the claimant’s appeal under section 195 of the Town and Country Planning Act 1990 in a decision dated 31 March 2020.
• High Court (Administrative Court): refused the section 288 challenge.