Town and country planning – Certificate of lawfulness of proposed use or development (CLOPUD) – Revocation – Claimant obtaining CLOPUD confirming lawfulness of planning permission for erection of single dwelling with two-storey basement – Defendant local authority revoking certificate – Claimant applying for judicial review – Whether defendant erring in interpretation of planning permission – Whether exercise of planning judgment irrational – Application dismissed
The claimant owned land to the rear of 92-96 Kensington Park Road, London W11, a backland site within a conservation area. The defendant was the local planning authority. The interested party was the leasehold owner of adjoining land from where a restaurant operated.
The previous landowner obtained planning permission for the construction of a single family dwelling with two-storey basement excavation. The plans showed the walls of the development to be 1.1m away from an adjacent building and the development was required to be carried out “in complete accordance” with the approved plans.
Shortly before the expiration of the time limit for commencing the development, piling works were undertaken for the basement construction. In April 2021, an application was granted for a certificate of lawfulness of proposed use or development (CLOPUD) pursuant to section 192(1)(b) of the Town and Country Planning Act 1990 (as amended). The certificate confirmed that the development had been lawfully implemented and could be carried out and completed.
In March 2022, the defendant received requests from neighbours, including the interested party, asking it to revoke the CLOPUD because the works were not in accordance with the permission. An investigation established that the piles were only 0.75m away from the adjacent wall, which could have made a difference to whether the piling work was “comprised in” the development for which permission had been granted.
The defendant revoked the CLOPUD on the basis that materially false information had been submitted with the application. The claimant applied for judicial review.
Held: The application was dismissed.
(1) Section 193(7) of the 1990 Act provided that a local planning authority might revoke a certificate if, on the application: “(a) a statement was made or document used which was false in a material particular; or (b) any material information was withheld”.
The impact of section 193(7) was that an applicant assumed a risk (which passed to or affected successors in title) that any certificate they obtained might be revoked if it turned out that materially inadequate or false information was provided on the application. That risk was likely to be greater if they took a minimalist approach to the provision of information. In practical terms, an applicant was responsible for supplying information to verify the application that would not give rise to action under section 193(7): R (Ocado Retail Ltd) v Islington London Borough Council [2021] EWHC 1509 (Admin); [2021] PLSCS 104 applied.
Section 193(7)(a) did not require the party who made or relied on the statement or document to have known that it was false, or to have been reckless. There was no requirement that the making of a statement was deliberately false or dishonest. A local planning authority was entitled to consider the materiality of matters cumulatively as well as individually.
(2) To be “material” the local authority had to be satisfied that the false information submitted would have resulted in the application for a certificate being refused or granted in different terms. The materiality test might be satisfied because the relevant information could have resulted in the authority making a different factual finding (or drawing a different inference) to one made previously; and that could have resulted in the application under section 191 or 192 being determined differently.
Subject to the authority correctly understanding the relevant principles, the application of the law to the facts was a matter for the authority which was required to: assess the evidence submitted in support of an application for a CLEUD; weigh the material supplied along with any weaknesses or gaps in it; and make findings of fact and draw inferences from that material. Those were all matters of judgment for the decision-maker in an evaluative process.
(3) The authority’s evaluation might only be challenged on Wednesbury principles. Where an authority reached a judgment whether a false statement was made or withheld information was “material,” that judgment could only be challenged on public law grounds. If either paragraph (a) or (b) was met, section 193(7) conferred a discretion on the local authority whether to revoke a certificate under section 191 or 192.
A local authority’s decision to revoke a certificate comprised three elements; (i) a finding that false statements were made, or information withheld on the facts of the case; (ii) a finding that any false statements or withheld information were material; and (iii) if positive findings were made, it was for the local authority to decide whether to exercise its discretion to revoke the certificate.
The question for the court in the present case was whether the defendant erred in its interpretation of the planning permission and was irrational in exercising its planning judgment in the way that it did.
(4) In general, the same principles applied to the interpretation of a planning permission as applied to other legal documents. The question was what a reasonable reader would understand the words used in a permission to mean, read in the context of the conditions and consent as a whole. The context in which a planning permission or a condition had to be interpreted included the legal framework within which permissions were granted. Accordingly, the reasonable reader had to be treated as being equipped with some knowledge of planning law and practice. Because the interpretation of a planning permission was an objective question of law, it was irrelevant to ask what were the intentions of the parties involved in its genesis (eg, the developer or the local authority) or to have regard to the subsequent conduct of any such party: R (Swire) v Canterbury City Council [2022] EWHC 390 (Admin) applied.
It was clear that the defendant properly understood the planning permission as requiring the walls of the development to be 1.1m away from the wall of the adjacent building. It was not irrational for the defendant to conclude that the fact that application for the certificate contained false information was material to its decision to issue a certificate. Accordingly, the defendant’s interpretation of the permission and the decision to revoke the certificate was lawful.
Richard Harwood KC (instructed by Town Legal) appeared for the claimant; Jack Parker (instructed by Royal Borough of Kensington and Chelsea) appeared for the defendant; Tobias Davey (instructed by Woodroffes Solicitors) appeared for the interested party.
Eileen O’Grady, barrister
