Key Facts
- •Horsham District Council (the Council) made a 'non-material' amendment under s.96A Town and Country Planning Act 1990 (TCPA) to an outline planning permission for employment development.
- •The amendment deleted the requirement in Condition 1 to develop in accordance with the landscape master plan, parameters plan, and proposed plot layout plan.
- •The Claimant, living near the site, challenged the amendment's legality.
- •The outline planning permission reserved all matters except access, yet Condition 1 referenced specific plans.
- •Inconsistencies existed between the plans referenced in Condition 1.
- •A reserved matters application was submitted, deemed non-compliant with the outline permission by the Claimant's representative.
- •The Council argued the plans' inclusion in Condition 1 was an error, correctable by construction and thus a non-material amendment.
Legal Principles
Section 96A TCPA allows for non-material changes to planning permissions; the decision rests with the Council, subject to judicial review.
Town and Country Planning Act 1990, s.96A
The interpretation of planning permissions involves considering the reasonable reader's understanding, the consent's purpose, other conditions, and common sense, within the legal and factual context. Extrinsic material can be considered to resolve inconsistencies.
London Borough of Lambeth v Secretary of State for Housing, Communities and Local Government [2019] UKSC 33; R v Ashford Borough Council, ex parte Shepway District Council [1999] PLCR 12
Errors in planning conditions can be corrected by construction; inconsistencies between the permission and conditions allow consideration of extraneous material.
Newark and Sherwood District Council v Secretary of State for Communities and Local Government [2013] EWHC 2162 (Admin)
In interpreting 'in accordance with' in planning conditions, the degree of conformity depends on the words' meaning, the plans' nature, and how the condition relates to others. It doesn't always mean strict adherence.
Swire v Canterbury City Council [2022] EWHC 390 (Admin)
Outcomes
The claim succeeded.
The Council misinterpreted Condition 1; it wrongly believed the plans' inclusion was an error. Deleting the plans was a material change, making the use of s.96A unlawful. The inherent ambiguity in the permission justified consideration of extrinsic material (the application and officer's report), which indicated the Council intended the plans to have legal effect.