Interpreting pre-commencement condition, post-permission material impermissible aid to interpretation (Patel v Secretary of State for Housing, Communities and Local Government)

Mini-summary

Permission included pre-commencement condition requiring submission and approval of soundproofing measures. Development included commercial and residential units. Music venue established near the site subsequent to grant. Details to discharge soundproofing condition submitted before expiry of permission and works to implement permission undertaken. CLEUD application submitted to establish lawful implementation. Refused by Council. At appeal Council argued condition should be interpreted as requiring soundproofing to protect residential units from external noise sources (such as music venue), not just from the commercial units. High Court disagreed. Condition should be interpreted given its ordinary and natural meaning, in the context of other conditions and consent as a whole. Not permissible to interpret permission by events subsequent to its grant. Permission did not contemplate noise from the music venue. Practitioners should take care when interpreting conditions that ordinary and natural meaning not coloured by hindsight.

What are the practical implications of this case?

The case reminds us how conditions on a planning permission should be interpreted. A development is assessed by a local planning authority (LPA) at the time of its grant, and conditions attached to that permission should meet the tests in what is now paragraph 56 of the NPPF (July 2021).

There is a line of precedent authority as to how conditions on a planning permission should be interpreted. As Lang J stated in this case:

“the starting point is to identify, through the eyes of the reasonable reader, the ordinary and natural meaning of the words, in the context of the other conditions and the consent as a whole.”

This means interpreting a condition in the light of what the position was at the time of grant of the permission. That the immediate environment of a development site might have changed since grant is not relevant to the process of interpretation. In other words, a condition on a planning permission cannot be interpreted with the benefit of hindsight.

LPAs and developers should take care when interpreting conditions to only have regard to the position at the time of grant. It is open to LPAs and developers to agree to include extra details when discharging conditions, so here the LPA and developer could have agreed to include details relating to how the residential units would be protected from external noise when discharging the soundproofing condition. However, there was no obligation on the developer to do so.

What was the background?

The developer had secured planning permission in 2010 for ground floor commercial units with residential above. A pre-commencement condition required details to be submitted and approved relating to the construction of ceilings and walls. It also required details of “the proposed works of soundproofing against airborne and impact sound”.

At the time permission was granted no concerns were raised in relation to external noise sources; including in application documents, and the officer’s report. No objections to the development had been received relating to external noise sources and the LPA had not required an external noise report to be submitted.

The developer commenced development, then submitted details to discharge the condition providing details for the construction of ceilings and walls, and soundproofing in relation to these elements of the development. The application was not determined. An application for a revised scheme was refused by the LPA and an appeal dismissed. The noise generated by a music venue that had been granted planning permission since 2010 in proximity to the site would have created unreasonable living conditions for future residents.

The developer applied under s.191 Town and Country Planning Act 1990 (TCPA90) for a certificate of lawfulness of existing use or development (CLEUD) to confirm that the 2010 permission had been lawfully implemented. The CLEUD was refused and the decision appealed. The inspector determined that the soundproofing condition should be interpreted as requiring soundproofing details to protect against external noise sources. The developer challenged that decision under s.288 TCPA90.

What did the court decide?

Lang J summarised the law on the interpretation of planning permissions:

• Interpretation of conditions is a question of law for the Court (Trump International Golf Club Scotland Ltd v Scottish Ministers [2016] 1 WLR 85 and Lambeth LBC v Secretary of State for Housing, Communities and Local Government [2019] 1 WLR 4317).
• The starting point is to find ‘the natural and ordinary meaning’ of the words, viewed in their particular context, and in the light of common sense (Lambeth).
• What would a reasonable reader understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole? (Swindon Borough Council v. Secretary of State for Housing, Communities and Local Government [2021] PTSR 432).
• The reasonable reader must be equipped with some knowledge of planning law and practice (Lambeth and Swindon).
• In construing a permission which is clear, unambiguous and valid on its face, regard may only be had to the permission itself, including the conditions on it and the express reasons for those conditions (R v Ashford Borough Council, Ex p Shepway District Council [1999] PLCR 12).
• Documents incorporated by reference into a permission can be used as an aid to interpretation (Ashford).
• If there is ambiguity in the wording of a permission, it is permissible to look at extrinsic material to resolve that ambiguity (Ashford).

• The Court should be slow to use extrinsic documents not in the public domain as an aid to interpretation of a permission (UBB Waste Essex Ltd v Essex CC [2019] EWHC 1924 (Admin)).
  
  

In interpreting the soundproofing condition, Lang J considered:

• The condition, the reason for its imposition, the policies referred to in that reason, the permission as a whole, and application documents incorporated by reference into it. These aids to interpretation were permissible.
• That the condition was unambiguous and it was impermissible to rely on extrinsic material.
• That publicly available information relating to the music venue was extrinsic material, it was not available in 2010.
• These aids to interpretation were impermissible.That information passing between the music venue and the LPA was extrinsic material, it was not in the public domain. This aid to interpretation was impermissible.

Lang J concluded:

“it is wrong as a matter of law to use material produced in 2017 to cast light on how a condition imposed in 2010 should be interpreted.”

Case details

• Court: High Court
• Judge: Mrs. Justice Lang
• Date of judgment: 28/7/2021