Tatiana Milne-Skillman, R (on the application of) v Horsham District Council

Whether a change to a planning permission is non-material depends on its effect on the permission as originally granted. A local planning authority must first construe the permission objectively, considering the natural and ordinary meaning of the words, the consent as a whole, related conditions, purpose and common sense.

An inconsistency or tension between an outline permission and its conditions does not automatically make a condition ineffective or justify deleting approved plans under section 96A of the Town and Country Planning Act 1990. Where the condition has a real and enforceable meaning, removing plans which impose development parameters may materially alter the permission. The authority’s decision is subject to ordinary judicial review principles.

The claimant, who lived near the site, challenged the Council’s decision under section 96A of the Town and Country Planning Act 1990 to remove a landscape masterplan, parameters plan and proposed plot layout plan from an outline planning permission for employment development.

The permission reserved all matters except access, but its first condition required development in accordance with the three plans. Other conditions required reserved matters and referred to specified parameters. The Council considered that including the plans in the first condition was an error and that their removal merely clarified the outline status of the permission. Permission to apply for judicial review had been granted by Lang J on the papers. The central issue was whether the deletion was a non-material amendment.

1. Claim allowed. The Council’s decision was unlawful because it misinterpreted the outline planning permission. The deletion of the plans was a material change, so section 96A could not lawfully be used.
2. The permission had to be construed objectively. The court considered the natural and ordinary meaning of the condition, the purpose of the consent, the other conditions, common sense, and the public nature of a planning permission, applying the principles in London Borough of Lambeth v Secretary of State for Housing, Communities and Local Government [2019] UKSC 33 and Trump International Golf Club Ltd v Scottish Ministers [2015] UKSC 74.
3. On its face, Condition 1 required the development to be carried out in accordance with the listed plans. Although the plans contained inconsistencies, the condition had a discernible meaning and was capable of enforcement. The tension between the condition and the reservation of matters was insufficient to treat the condition as ineffective or to excise the plans.
4. The ambiguity permitted reference to extrinsic material under R v Ashford Borough Council, ex parte Shepway District Council [1999] PLCR 12. The application documents and officer’s report showed that the plans’ broad parameters, including floorspace, building positions, heights and landscaping, had materially informed the planning balance. They therefore had legal effect through Condition 1.
5. The court accepted that errors in a planning permission can sometimes be corrected by construction, as explained in Newark and Sherwood District Council v Secretary of State for Communities and Local Government [2013] EWHC 2162 (Admin). This was not such a case. The Council’s approach amounted to a radical reinterpretation of an operative condition. The remaining grounds did not require formal determination.