Ambiguous planning permission

March 17th, 2016 by James Goudie KC

It is well established that in construing a public document such as an outline planning permission which is clear, unambiguous and valid on its face, the general rule is that may be had only to the planning permission itself, including the conditions to which the permission is subject and the expressed reasons for those conditions. This rule excludes reference to extrinsic evidence, including even the planning application, unless the planning permission itself incorporates the application by reference, in which case the application is treated as having become part of the permission. However, where there is an ambiguity in a planning permission, it is permissible to look at extrinsic evidence to resolve that ambiguity. This includes, but is not confined to, the application form, the site plan, and other documentary evidence, such as a Section 106 agreement. In University of Leicester v SoS for CLG and Oadby & Wigston Borough Council [2016] EWHC 476 (Admin) Supperstone J said that all relevant extrinsic evidence could be referred to depending on the circumstances of the case.  This might include evidence of the way in which the permission was actually implemented on the ground, albeit this could not be conclusive.   The first port of call in any examination of extrinsic evidence will usually be the application for permission. It may not, however, be the end of the matter.  When it does not resolve the ambiguity, other extrinsic material may be referred to, including non-documentary material.

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