John Southwood v Buckinghamshire Council

A planning permission does not require exact compliance with every detail where the departure is immaterial in the context of the scheme as a whole. Whether a departure is material is a matter of fact and degree for the planning decision-maker.

Works which constitute a material operation may implement a permission even though later works differ from the approved scheme, unless the works considered as a whole are not sufficiently comprised in the permitted development. The proper approach is to assess the whole development and the significance of the differences.

Planning permissions are interpreted objectively, by reference to what a reasonable reader with appropriate planning knowledge would understand from the permission and incorporated documents. A proposal in an application is not necessarily a binding requirement.

The claimant owned land adjoining a site in Buckinghamshire. The interested party had constructed a storage building pursuant to a 2010 planning permission and later applied to change its use to residential use.

The council granted the change-of-use permission after an officer concluded that the building was lawful. The claimant argued that the building differed materially from the approved plans, that the permission had not been lawfully implemented, and that the officer had misinterpreted the permission. An earlier enforcement claim and one permission ground had fallen away. The issues were whether the building was lawful and whether the officer’s report lawfully addressed implementation, interpretation and material departures.

1. Application dismissed. The surviving grounds of challenge were not made out.
2. The officer’s report had to be read fairly and flexibly, with reasonable benevolence. The question was whether it materially misled the decision-maker on a matter bearing on the decision. The officer had identified lawfulness as the first issue and had addressed it under structured headings.
3. Under section 56 of the Town and Country Planning Act 1990, implementation depended on whether the operations were comprised in the permitted development. Applying Commercial Land and the related authorities, later differences did not automatically invalidate earlier foundation works. The decision-maker had to assess the works as a whole and determine, as a matter of fact and degree, the significance of the differences.
4. The officer was entitled to conclude that the pre-commencement conditions concerning external materials and landscaping did not go to the heart of the permission. On the approach in Hart Aggregates and Meisels, the permission could be implemented while a breach of condition remained enforceable, particularly where the relevant details were subsequently approved.
5. The permission was to be interpreted objectively in accordance with Hillside, UBB Waste and the reasonable-reader approach. The application form proposed facing brick, but the permission did not incorporate the design and access statement, and the permission imposed no requirement that brick be used. The later approval of timber boarding was therefore consistent with the permission.
6. The as-built building differed from the approved plans, but the officer was entitled to regard the differences in appearance and function as immaterial. The permission allowed a building for general storage, and its condition restricted use to storage purposes rather than to a particular type of storage. The building therefore remained an existing lawful rural building for policy C1.