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Mondial | Publication | August 11, 2021
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.
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.
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.
Lang J summarised the law on the interpretation of planning permissions:
In interpreting the soundproofing condition, Lang J considered:
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.”
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