Kemball, R (on the application of) v Secretary of State for Communities and Local Government [2015] EWHC 3338 (Admin)

Case No CO/2661/2015[2015] EWHC 3338 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday 15 October 2015
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE HOLGATE
Between
THE QUEEN ON THE APPLICATION OF KEMBALLClaimantv
Between
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Wayne Beglan appeared for ClaimantMiss Justine Thornton appeared for First Defendant
J U D G M E N TMr. Justice Holgate:Introduction
[1]Mr. Robert Kemball applies under section 288 of the Town and Country Planning Act 1990 (“TCPA 1990”) to quash the decision of the Secretary of State for Communities and Local Government (“the First Defendant”) given by his Inspector on 28 April 2015. The Inspector dismissed the Claimant’s appeal under section 195 against the refusal by the Lake District National Park Authority (“the Authority”) to grant a certificate under section 192 (1)(b) that the proposed construction of two dwellings on a site south of Keldwith, Keldwith Drive, Troutbeck Bridge, Windermere would be lawful.[2]According to the Claim Form the application was originally made to the Authority on 3 December 2010 and was refused by a letter dated 16 February 2011. An Inspector dismissed the Claimant’s appeal on 21 October 2011. That decision was quashed on 4 February 2013 by a consent order in the High Court on an application by the Claimant. The appeal was redetermined by a different Inspector on 11 November 2013. That decision was in turn quashed on 23 April 2014 by a second consent order in the High Court, again on an application made by the Claimant. The appeal was then redetermined by a third Inspector in the decision letter dated 28 April 2015 which is the subject of these proceedings.[3]The planning history of Keldwith is long and complex. I should emphasise that the Court has been shown documents relating to only part of that history, namely those documents which the parties consider would enable the Court to resolve the issues which now fall to be decided. But I note that the original application is not before the Court.[4]The background is conveniently set out in paragraphs 7 to 10 of the 2015 decision letter which read as follows:
“… 7. The lengthy and complicated planning history of this case dates from January 1957. Many of the surviving records are on microfiche and are difficult to read. It is not absolutely certain that everything in the relevant files was preserved. 8. An outline application was made in January 1957 for “the layout for eighteen houses” in the grounds of Keldwith. A split decision was issued. On 14 March 1957, permission was refused for nine houses north of Keldwith and outline planning permission was granted for the “layout for nine houses south of Keldwith”
. This was subject to 2 conditions. The first required the submission and approval of details of sighting, design and external appearance and means of access prior to the commencement of work. The second concerned access and stipulated that all access should be from the A591 and that there should be no new access constructed to the Patterdale Road, A592. 9. Following an exchange of correspondence and the submission of a revised plan, a further decision notice was issued on 5 September 1957, granting outline planning permission for “layout for nine houses south of Keldwith. This permission was subject to 2 conditions. The first replicated the 1st condition of the March permission regarding the submission and approval details. The second stated “The vehicular access to the site shall be from the main road A591 and no new access shall be constructed to the Patterdale Road A592 except to serve the houses marked “A” and “B” on the plan attached to the consent notice, and such new access shall include a suitable turning space for vehicles off the highway to the satisfaction of the local planning authority.” 10. The Authority regards the September 1957 permission to have been valid as a matter of law. It was made in writing, was accompanied by a plan and was the subject of a formal determination. This is consistent with the letter dated 18 March 1957” from Mr Stables, acting for the land owner, which refers to a “second application”. Mr. Cannon for the appellant explicitly did not dissent from this view and I have been given no reason to take a different approach. Accordingly, I accept that both the March and September 1957 permissions were formally valid.”[5]The 1957 decision notices did not contain any conditions imposing time limits for the commencement of development. However, section 66 of the Town and Country Planning Act 1968 did impose such time limits. In relation to an outline permission the effect of section 66 was that where development had not been begun before 1968, the permission was deemed to be subject to conditions requiring any application for approval of reserved matters to be made by no later than 31 March 1972, and the development to be begun by 31 March 1974 or the expiration of two years from the final approval of all reserved matters, whichever should be the later. A failure to comply with either of those time limits would result in the permission lapsing. Section 67 defined circumstances in which development would be taken to have begun for the purposes of those conditions.[6]It appears that up until the second redetermination of the Claimant’s appeal the Authority had accepted that the permission granted in March 1957 remained extant because it was said that houses had been built in accordance with that permission. The Authority’s written representations submitted to the First Defendant in the course of the appeal proceedings also stated that two further dwellings could still be built pursuant to the March 1957 permission, provided that those houses were located within the area the subject of that permission. However, the Authority contended that the geographical extent of the March 1957 permission did not cover all land within the extensive grounds of Keldwith lying to the south of that property, as the Claimant maintains, but only covered a more limited area restricted to the area of the “layout” approved by that permission. On that basis, the authority argued that the site proposed by the Claimant in his section 192 application for two dwellings fell outside the ambit of the March 1957 permission, even if that permission remained extant. The Authority took the same approach in relation to the ambit of the September 1957 decision.[7]However, at the hearing before the Inspector on 16 December 2014 Counsel for the Authority raised for the first time an additional argument that the March 1957 planning permission had not been implemented within the time limits under the 1968 Act and was no longer extant.[8]The Claimant’s representatives complained that the Authority had resiled from its earlier clearly stated position and, as a matter of law, they were not entitled to do so. Ultimately this argument was not pursued in the hearing before me. But I should record that there have been changes in position on both sides over time. For example, at an earlier stage in the appeal process the Claimant had argued that he should be granted the certificate sought on the basis of the September 1957 permission. I do have some sympathy with the three Inspectors who have had to resolve historic issues upon the basis of a limited amount of information, and where the arguments on both sides have shifted from time to time and have not always been clear.

The Inspector’s Decision

[9]In paragraph 1 of his decision letter the Inspector correctly stated that his decision superseded those which had been issued by his colleagues on 21 October 2011 and 15 November 2013.[10]In paragraph 2 the Inspector recorded that he had adjourned the hearing on 16 December 2014 so that the Claimant could deal with the Authority’s change of case regarding the status of the March 1957 permission and the bundle of planning permissions between 1958 and 1965 (appeal document 2) which had been produced at the Inspector’s request to enable him to examine the planning history in more detail.[11]In paragraphs 7 to 10 of the decision letter the Inspector explained why he considered the decisions taken in March and September 1957 to have been formally valid.[12]In paragraphs 11 to 15 the Inspector addressed the application of the time limits introduced by the 1968 Act and came to the conclusion that neither the March 1957 nor the September 1957 permissions remained extant because development relied upon as an implementation thereof had been referable to subsequent stand-alone planning permissions and not to either of the outline consents granted in 1957. In particular, the Inspector concluded in paragraph 15 that “no ‘matters reserved’ applications were made [under the 1957 consents] prior to the timetable set out in the 1968 Act.”[13]From paragraph 16 of the decision letter onwards the Inspector considered the appeal on an alternative basis in which he assumed that he had been wrong to conclude that the 1957 consents had lapsed for failure to submit applications for approval of reserved matters in time.[14]In paragraph 16 the Inspector addressed the fact that for many years the Authority and its predecessors had regarded the September 1957 consent as having been implemented. He concluded that, even if that basis were assumed to be correct, by the time the dwelling known as “Hope Beck” came to be erected pursuant to an approval in 2009 of reserved matters under the September 1957 permission, the consent for 9 dwellings under that permission had been used up.[15]In paragraph 17 the Inspector concluded that in any event the March 1957 permission could not have been implemented “because the development carried out included dwellings with access from Patterdale Road, which were permitted by the September 1957 permission but explicitly prohibited by the March permission”.[16]For reasons expressed in paragraphs 18 to 22 of the decision letter the Inspector then concluded that “the September 1957 permission related only to the area within which the layout of the 9 dwellings was shown on the plan which was expressly incorporated into the permission” and “did not extend to the NW of the driveway to Keldwith, where the appeal site is located.”[17]DL 18 to 22 read as follows:- “… 18. As to the status of the accompanying plan, my attention has been drawn to the principles set out in the case of R v Ashford B.C., ex.p.Shepway D.C. [1999]. There, Keene J. summarised the 5 legal principles applicable to the use of other documents to construe a planning permission. The third of these principles appears applicable to the present case:
“For incorporation of the application in the permission to be achieved, more is required than a mere reference to the application on the face of the permission. While there is no magic formula, some words sufficient to inform a reasonable reader that the application forms part of the permission are needed such as”…in accordance with the plans and application…” or “… on the terms of the application…”, and in either case those words appearing in the operative part of the permission dealing with the development and the terms in which permission is granted. These words need to govern the description of the development permitted…” 19. The 1950 General Development Order required an application to “be accompanied by a plan sufficient to identify the land to which it relates and such other plans and drawing as are necessary to describe the development …”
. There was such a plan in the case of the September application and, whilst it did not have a red line outlining the site, it quite clearly showed a layout of 9 dwellings, each one clearly indicated by a rectangle, to the south of Keldwith. In the plan, 2 of the dwellings are labelled “A” and “B”. The decision notice makes reference to the permission as being “in accordance with the application and plans submitted”. Whilst the wording is pre-printed on the decision notice, that does not detract from its relevance in my view. However, more importantly, condition no.2 makes explicit reference to this plan:
“…no new access shall be constructed to the Patterdale Road, A591 except to serve the houses marked “A” and “B” on the plan attached to the consent notice…”
. The plan itself is captioned “PLAN REFERRED to in Notice of Consent to Application dated the 5th September, 1957” and is signed by the Clerk of the Board. 20. The permission cannot be interpreted or implemented without reference to this plan which quite clearly shows the layout within the grounds of Keldwith of the 9 dwellings permission by this permission. There is no doubt in my mind that the permission envisaged, and actually granted, by the LPA was for 9 houses laid out as per the approved plan; the use of the term “layout” in the description of development can mean little else. It is not a term defined at that time for planning purposes and so its ordinary meaning should be used. In this context, “to arrange in accordance with a plan” in the Oxford Dictionary, and others, appears to best convey the meaning. There is no indication on the plan that development would take place on any other part of the very extensive grounds South of Keldwith other than in the area in which the positions of the proposed dwellings were indicated, which is the area south and east of the driveway depicted on the 1957 plan. The permission quite clearly did not extend to the present appeal site, which is NW of the driveway. The appellant has argued that the permission did not explicitly exclude the appeal site – but neither did it permit 2 dwellings (or any other type of development) there. 21. Although the September 1957 permission included “siting” as a matter reserved, I see no obvious conflict with the fact that the permission included the term “layout”. It is clear to me that the rectangles drawn on the approved plan were intended to, and did in fact, indicate the layout of the dwellings. However, details of siting were required to settle the exact position, bearing in mind the footprint of each dwelling was likely to vary. That this seems to be the settled position is in my view confirmed by the close relationship between the layout of the plan forming part of the permission and of the now completed dwellings. The only significant variation is in the case of Wood Howe and Sundown, which are within the area of the September 1957 permission but which were the subject of a fresh outline permission, replacing 1 dwelling shown on the layout with 2. 22. My second conclusion, in the event that I am wrong in the first, is that the September 1957 permission related only to the area within which the layout of the 9 dwellings was shown on the plan which was expressly incorporated into the permission. Accordingly, the permission, whether implemented or not, did not extend to the NW of the driveway to Keldwith, where the appeal site is located.”[18]I note that the Inspector did not express any conclusions as to the geographical extent of the March 1957 consent.[19]At paras 23 to 25 of the decision letter the Inspector explained why he did not accept that the Claimant was entitled to rely upon the doctrine of legitimate expectation so that the Inspector was bound to act upon the basis that the March 1957 permission remained extant.

The Grounds of Challenge

[20]The grounds of challenge originally presented in the Claim were in summary as follows:-(1) The Inspector erred in law in DL 12 to 15 by failing to consider, in accordance with Etheridge v Secretary of State for the Environment (1984) 48 P & CR 35, treating applications made and approvals granted for detailed planning permissions after 1957 as also constituting applications for and approvals of reserved matters pursuant to the 1957 consents;(2) The Inspector erred in law in DL 18 to 22 by concluding that the area covered by the September 1957 planning permission was limited to a layout shown on a plan incorporated therewith and therefore that the appeal site fell outside the ambit of that permission;(3) The Inspector failed to give adequate reasons and/or failed to take into account material considerations when concluding that neither of the 1957 consents had been implemented;(4) The decision should be quashed because the Authority had not been entitled to reiterate its case that the area of the September 1957 permission excluded the appeal site given that (i) that case had been rejected in the first appeal decision, and (ii) the consent order quashing that decision did not criticise that part of the first Inspector’s reasoning.(5) The Inspector erred in law in deciding that a legitimate expectation had not arisen so as to prevent the Authority from arguing that the March 1957 permission had not been implemented.[21]At the hearing Mr. Wayne Beglan, who appeared on behalf of the Claimant, withdrew grounds (4) and (5). I consider that he was entirely correct to do so. The basis upon which the first decision was quashed could not have had the legal effect of precluding the Authority from rearguing the geographical extent of the 1957 consents in either of the subsequent redeterminations. Furthermore, there was no arguable basis for contending that the Authority, or for that matter the Inspector, was bound by an estoppel by convention, as suggested, or by a legitimate expectation which precluded the dismissal of the appeal on the basis that neither of the 1957 consents had been implemented.

Relevant Legal Principles

[22]It is common ground between the parties that in his appeal the burden lay upon the Claimant to establish to the civil standard of proof that the construction of two dwellings on the appeal site is authorised by the outline planning permission granted on 14 March 1957. Mr. Beglan made it plain at the hearing that for the purposes of the claim before the Court his client was not seeking to rely upon the September 1957 decision.[23]Section 192 of the TCPA 1990 provides:- “(1) If any person wishes to ascertain whether—(a) any proposed use of buildings or other land; or(b) any operations proposed to be carried out in, on, over or under land, would be lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use or operations in question. (2) If, on an application under this section, the local planning authority are provided with information satisfying them that the use or operations described in the application would be lawful if instituted or begun at the time of the application, they shall issue a certificate to that effect; and in any other case they shall refuse the application.” Thus, it is only if the local planning authority is provided with information which satisfies them that the proposed operational development would have been lawful if it had been begun at the time of the application that they may issue a certificate under section 192. If the authority is not so satisfied then it is obliged to refuse the application.[24]I gratefully adopt the summary by Lindblom J of the relevant principles for reviewing decisions under section 288 of TCPA 1990 given in Bloor Homes East Midlands Limited v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) at paragraph 19.

Grounds 1 and 2

[25]It is common ground that although Etheridge was not cited to the Inspector, the principle it established was nonetheless relied upon by the Claimant and also that the Inspector failed to apply it in his decision letter in DL 12 to 15. Ms. Justine Thornton on behalf of the Secretary of State therefore accepted that the error pleaded in ground 1 of the Claim is made out. However, she submitted that that failure was of no consequence because(a) the Inspector found that the appeal site lies outside the area covered by the September 1957 permission (DL 18 to 22),(b) the Court should decide that the appeal site also falls outside the March 1957 permission and(c) it follows that the appeal under section 195 was bound to fail and therefore the Court should not quash the decision dated 28 April 2015 (see Simplex (G.E.) Holdings Limited v Secretary of State for the Environment (1989) 57 P & CR 306; R (Smith) v North East Derbyshire Primary Care Trust [2006] 1 WLR 3315). Mr. Beglan agreed that if (a) and (b) are correct then (c) must follow. The correctness of points (a) and now also (b) is the subject of ground 2 in this challenge. Unfortunately, however, there is no evidence currently available of a plan with a red line boundary to show the extent of the planning permission area.[26]Mr. Beglan went on to submit, correctly, that the Inspector did not make any findings as to the geographical coverage of the March 1957 permission. In particular, he submitted that the Inspector made no findings as to whether the application made on 8 January 1957 and which resulted in the grant of the permission dated 14 March 1957, had been accompanied by a plan and, if so, what plan, or whether that permission incorporated a plan by reference and if so what plan. Nevertheless, on behalf of the Claimant Mr. Beglan agreed with Ms Thornton that the Court should determine whether on a proper construction the area covered by the March 1957 permission did or did not include the appeal site.

Legal principles for the interpretation of planning permissions

[27]Counsel were agreed on the legal principles which should be applied to the construction of the 1957 planning permissions.[28]First, the proper interpretation of a planning permission is a matter of law for the Court. To arrive at that proper meaning involves a scrutiny of the permission and any other documents to which it is appropriate to have regard, applying the principles set out in R v Ashford BC ex parte Shepway D.C. [1990] PLCR 12 (see also Barnett v Secretary of State for Communities and Local Government [2010] 1 P & CR 8 at para 28).[29]In the Ashford case Keene J (as he then was) summarised the relevant principles as follows:- “(1) The general rule is that in construing a planning permission which is clear, unambiguous and valid on its face, regard may only be had to the planning permission itself, including the conditions (if any) on it and the express reasons for those conditions: see Slough Borough Council v. Secretary of State for the Environment (1995) J.P.L. 1128 , and Miller-Mead v. Minister of Housing and Local Government [1963] 2 Q.B. 196 . (2) This rule excludes reference to the planning application as well as to other extrinsic evidence, unless the planning permission incorporates the application by reference. In that situation the application is treated as having become part of the permission. The reason for normally not having regard to the application is that the public should be able to rely on a document which is plain on its face without having to consider whether there is any discrepancy between the permission and the application: see Slough Borough Council v. Secretary of State (ante); Wilson v. West Sussex County Council [1963] 2 Q.B. 764 ; and Slough Estates Limited v. Slough Borough Council [1971] A.C. 958 . (3) For incorporation of the application in the permission to be achieved, more is required than a mere reference to the application on the face of the permission. While there is no magic formula, some words sufficient to inform a reasonable reader that the application forms part of the permission are needed, such as “… in accordance with the plans and application …” or “… on the terms of the application …,” and in either case those words appearing in the operative part of the permission dealing with the development and the terms in which permission is granted. These words need to govern the description of the development permitted: see Wilson (ante); Slough Borough Council v. Secretary of State for the Environment (ante). (4) If there is an ambiguity in the wording of the permission, it is permissible to look at extrinsic material, including the application, to resolve that ambiguity: see Staffordshire Moorlands District Council v. Cartwright (1992) J.P.L. 138 at 139; Slough Estates Limited v. Slough Borough Council(ante); Creighton Estates Limited v. London County Council , The Times, March 20, 1958. (5) If a planning permission is challenged on the ground of absence of authority or mistake, it is permissible to look at extrinsic evidence to resolve that issue: see Slough Borough Council v. Secretary of State(ante); Co-operative Retail Services v. Taff-Ely Borough Council (1979) 39 P. & C.R. 223 affirmed (1981) 42 P. & C.R. 1 .”[30]In the present case there is an issue as to whether any plans delimiting the geographical extent of either of the 1957 permissions was incorporated by reference under principles (2) and (3) or are admissible under principle (4) as extrinsic evidence to resolve an ambiguity in the consents.[31]Where as a matter of construction a permission is held to be ambiguous, and extrinsic evidence is admitted to assist in resolving that ambiguity, Keene J added that that evidence is admissible solely for that purpose. So for example, if an application which has not been not incorporated by reference is admitted as extrinsic evidence under principle (4) to resolve an ambiguity in part of a permission, that application or extrinsic material does not thereby become part of the permission itself and it may not be used for construing other parts of the permission (see Ashford at page 24).[32]In the Barratt case the Court of Appeal modified the Ashford principles in relation to detailed permissions. Such a permission is incomplete without the drawings to which the approval relates, even if that material has not explicitly been identified in the grant or incorporated by reference. In the absence of any contrary indication, the reasonable inference is that the approved drawings are those which accompanied the application (see [2010 1 P & CR 8 at paragraphs 20 to 21). In my judgment the same principle ought logically to apply, for example, to an application for which seeks aaproval at the outline stage of one of the defined “reserved matters” (such as access to the site) or indeed other detailed aspects of a proposal. In such cases the Court of Appeal in Koumis v Secretary of State for Communities and Local Government [2014] EWCA Civ 1723 (at paragraphs 46 to 48) endorsed the statement in Barrett at first instance ([2009] 1 P & C R 24 at paragraph 30) that extrinsic evidence is admissible to identify the plan or plans approved by a detailed permission (or that part of an outline permission which gives detailed approval), not as an exercise in the interpretation of an ambiguous permission engaging Ashford principle (4), but simply as a factual exercise to identify the plan or plans which has or have been approved.

The 1957 applications and decisions

[33]On 8 January 1957 an “outline application” was made. The “particulars of the proposed development” were simply given as “approval in principle sought to the layout for eighteen houses”. The application ended with:- “I/We hereby apply for permission to carry out the development described in this application and on the attached plans and drawings.” There is nothing in the papers before the Court to indicate that the application form sought to identify any drawing by a reference or title.[34]A plan is included in the Court bundle at page 37, immediately following the application made in January 1957, which is entitled “Proposed layout for eighteen houses at Keldwith Windermere”. The plan shows a layout comprising 9 houses to the north of Keldwith and 9 houses to the south. The plan does not bear any cross-references to a planning application. Mr. Beglan told the Court that this plan is contained in the Authority’s microfiche records for the planning history of Keldwith, referred to at paragraph 7 of the decision letter.[35]As the Inspector recorded, the Lake District Planning Board (the then local planning authority) determined the application by issuing a split decision on 14 March 1957. The notice containing the first decision described the “land to be developed” as “Grounds of “Keldwith”…” and the “development forming the subject of the application” as “layout for nine houses north of “Keldwith””. The Board refused to approve that development because it “would result in a serious injury to the amenities of the locality”.[36]Part I of the second decision notice issued on the same date again referred to the “grounds of “Keldwith”” as the “land to be developed”. It described the “development forming the subject of the application” as “layout for nine houses south of “Keldwith””. In the “Particulars of Decision” the Board granted permission for the development referred to in Part I, i.e. “layout for nine houses south of “Keldwith””, “in accordance with the applications and plans submitted”. Two conditions were imposed. The first condition reserved for subsequent approval “detail plans sections and elevations of the proposed buildings showing their sighting, design and external appearance and any existing or proposed means of access thereto…”. The second condition required the means of access to be solely from the A591 and prohibited access from the A592. The only reason stated for the imposition of these conditions was “the present application is in outline only”.[37]It appears that in July 1957 the agent for the landowner asked the Board to approve the laying out of the nine houses to the south of “Keldwith” with at least some access allowed from the A592; in other words a relaxation of the second condition imposed on the March 1957 consent.[38]The Board responded to this request by issuing a second decision notice on 5th September 1957. The particulars of the application in Part I give the date of the application as 8 January 1957, the date of the original application. The “land to be developed” continued to be described as the “grounds of Keldwith” and the “development forming the subject of the application” as “layout for nine houses south of Keldwith”. The Particulars of Decision in Part II of the notice granted permission for “the development referred to in Part I”, namely “layout for nine houses south of Keldwith”, “in accordance with the application and plans submitted” subject to two conditions. The first condition set out the same matters reserved for subsequent approval. The second condition required access to be taken from the A591 save for “the houses marked “A” and “B” on the plan attached to the consent notice”. At page 46 of the Court bundle there is a plan which bears the reference of the planning permissions and also the note “plan referred to in Notice of Consent to application dated the 5th September 1957”. The plan shows the houses marked “A” and “B” as part of a layout of 9 houses appearing to be identical, or at least very similar, to the layout shown on the plan at page 37 of the Court bundle.

Analysis

[39]I should refer at the outset to the consent orders which quashed the earlier decisions. The order in the High Court dated 23 April 2014 quashed the second determination of the appeal on the ground that the Secretary of State accepted that the Inspector had used a layout plan to construe the 1957 permission in a manner that was not consistent with the principles in the Ashford case on the use of such extrinsic material. In the present case neither party sought to rely upon this order in order to challenge or uphold the present decision or to support their respective arguments. I am not surprised. The particulars given in the “Statement of Reasons” did not explain how the second decision had been inconsistent with Ashford. Likewise the first consent order dated 4 February 2013 stated that the first decision should be quashed because there the Inspector had misdirected himself as the test to be applied when considering whether two permissions are incompatible with each other as set out in Pilkington v Secretary of State for the Environment [1973] 1WLR 1527, without stating what the misdirection was. This lack of particularity in the particulars to explain why a decision should be quashed by consent is unsatisfactory. It is possible that Defendants may wish to restrict as far as possible the scope of a submission to judgment, but that is no excuse for failing to define transparently, indeed meaningfully, the ambit of the error which is accepted. That is essential in order to produce a proper record for the Court and so that the parties and the public may properly know the error which is to be avoided in the redetermination. It is also necessary so that the law on issue estoppel and Henderson v Henderson abuse of process may be applied.[40]I should also record that in their submissions both parties made the assumption that the decision in March and September 1957 gave rise to two permissions. Ms. Thornton raised a concern that the Claimant is seeking to arrive at a position whereby 18 houses could be erected within the area to the south of Keldwith. However, Mr. Beglan stated that his client’s position is that even if parts of each 1957 permission had been implemented, only 9 houses in total could be erected within that area pursuant to the two permissions. The basis for that position and how it relates to the Pilkington line of authorities has not been explained in the hearing before me and does not arise for decision.[41]As Ms. Thornton suggested, I will begin with the September 1957 permission.[42]Mr. Beglan accepted that there is a limit to the extent of the area covered by the permission. He submitted that that area comprises land which lies both(a) within the grounds of Keldwith and(b) to the south of that property. Neither part of that delineation is contained within the words granting the permission contained in Part II of the decision notice. The restriction to land south of Keldwith can only be derived from the incorporation of section 5 in Part I of the application. However, if no other part of the application had been incorporated then the permission would simply have been restricted to land to the south of Keldwith but would, on the face of it, extend down as far as Lizard Point. So Mr. Beglan had to accept that section 4 of Part I of the decision notice is also incorporated into the grant of planning permission. Section 4 describes the land to be developed as “Grounds of Keldwith, Windermere”.[43]However, as a matter of construction of the language used in the grant of permission, there is no basis upon which the extent of the incorporation could be limited to just those two matters. Plainly, the application was expressly incorporated. That was given as the application dated 8 January 1957, albeit that that had already been determined on 14 March 1957. In effect, the Board appears to have acted upon the basis that the application submitted in January that year had been repeated and took into account additionally the subsequent representations on access from the A592.[44]More particularly the decision notice expressly stated that permission was granted for the development referred to in Part I hereof, which can only be taken to mean “layout for nine houses south of Keldwith”. The decision plainly granted permission for that “layout” and not simply for “9 houses south of Keldwith”. This conclusion is consistent with principles (2) and (3) in Ashford.[45]It is therefore necessary to construe the word “layout” as employed in the September 1957 permission. In Chelmsford Corporation v Secretary of State for the Environment (1971) 22 P & CR 880 it was held that the word “layout” (in a condition reserving for subsequent approval details of “the layout”) means “the arrangement of the various part of the development – the words, the houses, the shops….” (p. 887) or “the broad physical arrangement of the scheme as a whole” (p. 886 with emphasis added). In my judgment that accords not only with normal usage in planning decisions but also the ordinary meaning of the word when applied to land (see eg the Oxford English Dictionary:- “The laying out, planning or disposition of land, streets etc; also the land so laid out.” In my judgment it is essential to an approval of a layout for an area of land that the document defines that area and how the development proposed is to be arranged within that area, at least in broad terms. Typically a plan is used in order to describe a layout. Certainly, there was no attempt in either of the 1957 permissions to describe any layout by the use of language.[46]Although Mr. Beglan was prepared to accept that ordinarily the word “layout” has the meaning set out above, he submitted that in the case of the September 1957 permission it should be construed more narrowly for two reasons. First, he suggested that because there is no power to impose a limitation in the grant of a permission (I’m Your Man Ltd v Secretary of State for the Environment, Transport and the Regions (1999) 77 P & C R 251), a restriction as to the layout of an area to be developed would ordinarily be imposed by an express condition. In the present case no such condition has been imposed.[47]The Court of Appeal has recently revisited this area of the law in Winchester City Council v Secretary of State for Communities and Local Government [2015] J.P.L. 1184. The general principle is that the ambit of a grant of permission is a matter of construction of the permission itself, read as a whole. The language used in such a grant will typically define the scope of what is authorised when that permission comes to be implemented. Ascertaining the scope of a permission and what it authorises to be carried out should not be confused with issues as to whether, following the implementation of that permission, a breach of planning consent takes place within section 171A(1). I am in doubt that it is possible to apply for and to obtain a planning permission for a particular layout. In such a case the permission authorises development in accordance with that layout and not something materially different therefrom. This involves no conflict with the I'm Your Man line of authority.[48]Second, Mr. Beglan argued that the word “layout” had to be read down so as to avoid inconsistency with the reservation of details of “siting” in the first condition. (see e.g. the approach to construction in R v Newbury District Council ex parte Chievely Parish Council [1999] P.L.C.R 51, 57 on the facts of that case). In 1957 the Town and Country Planning General Development Order and Development Charge Application Regulations 1950 (SI 1950 No 728) was in force. At that stage Article 5(2) of that Order defined “reserved matters” for an outline application or permission as “siting, design or external appearance of the buildings, or the means of access thereto”. “Layout” was not added to the legislation as a “reserved matter” until much later. Accordingly, it was submitted that in 1957 the word “siting” had to be treated as including “layout” and therefore the use of the word “layout” in the grant of the September 1957 permission had to yield to the reservation of siting details in the first condition in order to avoid an inconsistency within the permission. Thus, the word “layout” in the grant of consent could not mean the arrangement or disposition of buildings within an area of land. When asked what meaning should instead be given to the word “layout”, Mr. Beglan replied “capacity”. In other words the permission granted simply expressed the number of houses that could be built within the permission area.[49]I reject this second submission. First, the concept of “capacity” falls outside the range of meanings properly attributable to the word “layout”. Accordingly, the submission involves a rewriting of the language used in the permission rather than interpretation of that text. Second, if the term “layout” were to be treated as meaning “capacity”, its usage in the 1957 permission would have been otiose. If the landowner had simply wished to obtain a decision on, or the Board had wished to determine, the number of houses that could be erected within an area of land at Keldwith, there was no need to use the word “layout” at all. The consent could simply have read “nine houses south of Keldwith” and defined the relevant area of land in some way.[50]Third, I do not think that the only way in which a “layout” could have been approved pursuant to a condition imposed in 1957, rather than at the stage of granting planning permission, was by the imposition of a condition treating “siting" as a “reserved matter”. It is trite law that details outside the ambit of “reserved matters” may be the subject of a condition requiring their subsequent approval. Thus, even if in 1957 “siting" as a “reserved matter” did include layout, it does not follow that on each occasion when a condition was imposed requiring “siting" to be subsequently approved it did so as a “reserved matter”, rather than under the general power to impose conditions requiring subsequent approval of specified details.[51]In any event, in 1957 it was possible for a landowner to obtain a planning permission approving a layout of a development but requiring details of the specific siting of buildings (or uses) within that layout to be obtained following the grant of permission. Therefore, in 1957 there was no inconsistency between the use of the word “layout” in the grant of a permission and the use of the word “siting" in a condition of that permission requiring subsequent approval of details. Nor was there any need in 1957 to insert the words “excluding layout” as an express qualification of a requirement in a condition to obtain subsequent approval of “siting", in order for the approval of a “layout” by the permission itself to be legally effective.[52]I therefore endorse the approach taken by the Inspector in DL 21 and in the submissions of the Secretary of State. In the September 1957 decision notice the grant of permission related, at least, to the general arrangement of buildings within a defined area of land, whereas “siting” referred to the exact positioning and size of each structure, including its footprint, within the framework of that approved layout.[53]The next question is to what did the term “layout” in the September 1957 permission relate? The Claimant accepts that condition 2 incorporated by reference the plan which appears at page 46 of the Court bundle but submits that that plan was not incorporated for any other purpose, in particular to show the “layout” for which permission was being granted. I reject that submission. First, the note on the plan itself reads “plan referred to in notice of consent…” and not simply “plan referred to in condition 2”. Second, the plan shows not only houses marked “A” and “B”, but also the disposition of 9 houses south of Keldwith and all located south of the driveway to that house. Third, the permission did not purport to describe the approved layout by the use of text, which would be most unusual. Instead, the permission incorporated the “submitted plans”. The issue then becomes one of identifying the relevant plan showing the “layout”, whether as a matter of extrinsic evidence to resolve an ambiguity in this particular aspect of the permission, or as an issue of fact applying Koumis. On the evidence available to the Court, I accept the Secretary of State’s submission that the Inspector made no error of law in DL 19 to 21 in identifying the plan at page 46 as the relevant “layout” plan incorporated into the permission.[54]Approaching the matter afresh I also reach the same conclusion on the material before the Court. Even on the Claimant’s case, the plan approved under condition 2 was incorporated by reference into the permission. The plan expressly states that it is the plan referred to in the consent and it shows a layout of 9 houses. The plan has been obtained from the Authority’s microfiche file which contains the records remaining from the decisions of the predecessor Board.[55]I then turn to the planning permission granted on 14 March 1957. Mr. Beglan relies upon the same submissions as to the meaning of the terms “layout” and “siting” which I have already addressed. He says that the construction of the March permission differs from the September permission because condition 2 of the former did not incorporate any plan.[56]For the reasons I have already given in relation to the September 1957 permission, the permission granted in March that year did approve a “layout” of 9 dwellings south of Keldwith, but not by the use of a written description. Instead, that approval depended upon the layout being defined by means of a plan. The March permission expressly incorporated the application dated 8 January 1957 and the plans submitted therewith. The application was for a layout of 18 houses and relied upon attached plans and drawings. Neither the application nor the permission provide a reference for identifying the layout plan. Thus, it is necessary to consider whether that plan can be identified by use of extrinsic evidence, whether by applying principle (4) in Ashford to an ambiguity in the permission or as a factual exercise applying Koumis.[57]The plan at page 36 of the bundle is the only candidate put forward as a plan showing the layout for which permission was sought and thus the location of the 9 houses which were approved to the south of Keldwith. The plan does not bear any reference to the planning application or any reference to having been approved in March 1957. However, it is entitled “proposed layout for Eighteen Houses at Keldwith, Windermere”. Moreover, as paragraph 2.1 of the Authority’s delegated decision dated 2 April 2013 states, the plan bears the name of the firm of architects which submitted the application dated 8 January 1957, and whose name appears on the decision notice dated 14 March 1957. The same source states that the plan is contained in the Authority’s microfiche record for Keldwith and expresses the opinion that on the balance of probabilities this plan was submitted with the application in January 1957. Similar points were made in the Authority’s representations to the First Defendant.[58]I accept Ms. Thornton’s submission that I am entitled to take a “pragmatic view” of the circumstances, in the sense in which that phrase was used by Lindblom J in Wood v Secretary of State for Communities and Local Government [2015] EWHC 2368 (Admin) paras. 43 to 45 (following R (Campbell Court Property) v Secretary of State for the Environment Transport and the Regions [2001] EWHC Admin 102) to mean post-decision events and documentation, such as development which takes place on the ground and subsequent planning decisions, which shed light on the issue of construction, or factual issue, to be resolved, in this case the identification of the layout plan incorporated in the March 1957 permission.[59]I accept the submissions of Ms. Thornton that in the present case the evidence plainly establishes a very substantial degree of continuity, or identity, between the March 1957 and September 1957 permissions. Both permissions determined that a layout of 9 houses to the south of Keldwith was acceptable. Both reserved essentially the same matters for subsequent approval. The only material difference between the two permissions is that in the later one the landowner sought a relaxation of the prohibition of any access being taken from the A592. On the evidence there was no other reason for the landowner to seek a second permission. That relaxation was approved in relation to two specific dwellings shown as part of the layout of 9 houses on a plan which undoubtedly was incorporated in the September 1957 permission. Moreover, there is no suggestion that the layout of 9 houses on that drawing differed materially from the layout of 9 houses proposed to the south of Keldwith on the plan at page 37 of the Court bundle.[60]I must also bear in mind that I am being asked to construe the March 1957 permission and to deal with the identification of a layout plan in the context of a challenge to the Inspector’s decision under section 195 of TCPA 1990. The issue for the Court posed by section 288 is whether the decision should be quashed. In that context the claimant has sought to obtain a certificate based upon the March 1957 permission. He bore the burden of proof to show that the development now proposed falls within the ambit of that earlier permission. He also now bears the burden to show that the Inspector’s dismissal of his appeal and consequent refusal of the certificate was wrong in law.[61]Having regard to the evidence I have set out, the Claimant has not shown that the area covered by the March 1957 permission included the appeal site. Moreover, I am satisfied for the purposes of these proceedings that the March 1957 permission approved the layout shown on the plan at page 37 of the Court bundle and that that layout did not include the appeal site. Indeed it is accepted as a matter of fact by the Claimant that the appeal site falls outside the layout shown on that plan.[62]For these reasons the Inspector’s decision cannot be impugned under either grounds 1 or 2.[63]Ms. Thornton also sought to resist these grounds on the basis of DL 16, namely that any 1957 permission for 9 houses has already been used up. As I made plain during the hearing, I am not prepared to decide the case on this basis. The argument depends upon the application of the Pilkington principle. I have already mentioned that an earlier determination was quashed because of a mis-application of that principle, albeit that the error of law involved has not been properly identified. Moreover, it does not appear from the material I have been shown that this aspect was a live issue before the current Inspector. Rather, as Mr. Beglan demonstrated, the position of the Authority was that two dwellings could still be erected under the 1957 permission if it had been implemented. Finally, there has not been any citation of the subsequent authorities which further explain the Pilkington principle.

Ground 3

[64]This ground alleges that the Inspector failed to take certain matters into account and/or give adequate reasons in relation to those matters when reaching his conclusion that the 1957 permissions had not been implemented. For the reasons already given under grounds 1 and 2 above, this further line of attack must fail because, evenassuming that the 1957 permissions had been implemented, the appeal site fell outside the area which they covered and so the Claimant was not entitled to the certificate applied for. I should add, however, that from the material which I was shown I do not accept that the matters listed under this ground amounted to a substantial issue before the Inspector which obliged him to give any additional reasoning beyond that set out in his decision letter.

Conclusion

[65]For the reasons given above this application must be dismissed. MISS THORNTON: The Secretary of State seeks costs of the hearing. Your Lordship has a copy of our schedule. MR JUSTICE HOLGATE: Yes. I imagine it was given the other day to the claimant? MISS THORNTON: Yes. MR JUSTICE HOLGATE: Has there been agreement reached on the costs? MR BEGLAN: We do not have any observations on the schedule. MR JUSTICE HOLGATE: You are content that I make an order, or do not oppose. What are you asking for? MISS THORNTON: Can I ask for an additional £350 for today's attendance. MR JUSTICE HOLGATE: In addition to the figure set out - - - - - MISS THORNTON: In addition to the figure that is on there. so we would be seeking £7,850 please. MR JUSTICE HOLGATE: Do you have any observations on that? I therefore make an order, first, dismissing the application; secondly, an order that the claimant must pay the first defendant's costs assessed in the sum of £7,850. I thank both counsel for their arguments in this case. MR BEGLAN: I have a short application for permission to appeal. For the purposes of today can I restrict it to the point about the condition of reserving the issue of siting. My Lord said in a careful judgment that in this case there was no necessary inconsistency between the use of the word "layout" within the grant of permission and the condition of reserving the issue of siting. We went during the hearing in detail through the provisions of the 1950 order. You had my submission that in fact siting was in all essentials - - the word "layout" was the word recognised to be used for that layout and for the disposition of houses across the site within that order. My submission is that there is at least a real prospect of persuading the Court of Appeal that in this case there is a necessary inconsistency between the use of the word "layout" and "grant" itself and the condition reserving siting. MR JUSTICE HOLGATE: To make sure I have grasped the way you are putting it at this stage, this is a submission that flows from the 1950 order. MR BEGLAN: Yes. MR JUSTICE HOLGATE: The effect of which would apply to any permission granted whilst that legislation was current which reserved siting. MR BEGLAN: Each case would need to be considered on its own facts. It is certainly capable. MR JUSTICE HOLGATE: The way you put the point is that when siting was a reserved matter that was the only route under which layout could be approved. MR BEGLAN: Not necessarily. I would not go that far. There may be circumstances in which it is so clear from the face of permission take. An example where it is transparent, the plan was attached and the plan shows layout and there really cannot be any debate about what the record intends, there may be a case where siting has to yield and it cannot have the meaning that I say it should normally have by virtue of the order. But I say that is not this case, where what was a skeletal use of words within the application itself, where the use of the word "siting" I say should be taken as having an established meaning and to be given its full force. I say there is at least a real prospect of persuading the Court of Appeal that there is necessarily a tension in this case. MR JUSTICE HOLGATE: (To Miss Thornton) Do you want to add anything? MISS THORNTON: I do not agree with my friend's submissions. I rely on Lucas, which I raised before your Lordship in the hearing, where planning permission was granted for a 1950s planning permission for layout, and although siting was not discussed it was clearly assumed throughout the judgment that "layout" meant what you have come to find it means as in Chelmsford. So therefore, in my submission there is no inconsistency. MR BEGLAN: I do not wish to add anything further. MR JUSTICE HOLGATE: I am not going to grant permission to appeal. I notice you put the application on the basis of realistic prospect of success and not the second heading. MR BEGLAN: No. MR JUSTICE HOLGATE: Briefly, my reasons are that the matters you raise now have been dealt with in the judgment. I have not heard anything to persuade me in that context that there is a realistic prospect of success. I think it will be a matter for you to decide whether to pursue it with the Court of Appeal, having formulated a notice of appeal and skeleton argument. MR BEGLAN: I am grateful. MR JUSTICE HOLGATE: (Pause) I appreciate that you have asked for permission to appeal now because formally that is the correct thing to do, and your client may want to take stock - - - - - MR BEGLAN: Undoubtedly. MR JUSTICE HOLGATE: - - - - - of the position. I am thinking aloud. If the transcript is available next week so well and good. That depends on a number of variables. If your instructions become that an application to the Court of Appeal is to be made, I am wondering whether I can do anything to assist by making an informal draft available. I do not suppose there will be any objection so long as it is not quoted or cited. Otherwise, sometimes Counsel asks can we have an extension of time until the transcript becomes available and so on. MR BEGLAN: We would be obliged. MR JUSTICE HOLGATE: That depends, first, on you or your client deciding that an appeal is to be promoted. You can get in touch with my clerk and we will do our best to assist.

Cited in 2 later judgments