GALLAGHER VENTURES LIMITED (R on the application of) v SECRETARY OF STATE FOR HOUSING COMMUNITIES AND LOCAL GOVERNMENT

The interpretation of a planning permission is a question of law for the court. The court must begin with the permission itself and any documents incorporated by reference. It asks what a reasonable reader, with some knowledge of planning law, would understand from the permission read as a whole. Extrinsic evidence may be considered only where the permission is ambiguous, and such evidence requires a cautious approach, especially when private or non-public. The court must consider planning purpose and common sense, including whether an interpretation produces a surprising or internally inconsistent result. A permission may replace or vary an earlier scheme in practical effect, even though the statutory power to vary a permission is limited. On the evidence, the permission covered the same site as the earlier outline permission.

The claimant challenged, under section 288 of the 1990 Act, an Inspector’s dismissal of its appeal against refusal of a certificate of lawfulness of proposed use or development. The certificate application concerned whether works carried out in 2011 had lawfully commenced a 2008 planning permission for a retirement village at Sladnor Park.

The dispute turned on the geographical scope of the 2008 Permission. The claimant contended that it covered the whole site governed by the 2006 outline permission, as amended by the 2007 reserved matters approval. The Secretary of State maintained that it was limited to the central area shown on an attached plan. The central issue was the proper construction of the 2008 Permission and the extent to which intrinsic and extrinsic material could be considered.

1. The claim was allowed. The Inspector’s decision was quashed in substance, and the court would hear counsel on the appropriate form of relief.
2. The proper interpretation of a planning permission is a matter of law. The court must start with the permission itself and any intrinsic documents incorporated by reference. The 2008 application, covering letter and plan PL 12.001/A were incorporated documents, but the plan was not an approved plan.
3. The court applied an objective and holistic approach. It considered the description of the site as Sladnor Park, the stated area of 24.7 hectares, notification of owners of two lodges outside the red line, the references to amending the earlier permissions, and the change from 206 to 188 units. These matters pointed to the same geographical scope as the 2006 Site.
4. The reference in the covering letter to PL 12.001/A as indicating the boundary created sufficient ambiguity to permit consideration of extrinsic evidence. It did not provide an unequivocal answer when read with the permission and application. The officer’s report described the whole Sladnor Park site and stated that the earlier conditions applied to the amended scheme. That evidence supported the intrinsic construction.
5. An interpretation confining the permission to the red-line area would have granted permission for most of the built form without the earlier controlling conditions and could have made full implementation of the 2006 permission impossible. Those were relevant interpretative considerations, not merely merits points.
6. The court placed no material weight on private statutory declarations concerning intended scope, applying the caution required for non-public extrinsic evidence. It concluded that the 2008 Permission covered the same site as the 2006 Outline Planning Permission.

The claim was brought at first instance under section 288 of the 1990 Act against the Inspector’s decision dated 3 March 2021 dismissing the claimant’s CLOPUD appeal. This court allowed the claim.