BARNETT V. SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT [2008] EWHC 1601

The High Court has handed down an important decision concerning the approach to interpretation of planning permissions. The permission at issue in the case was a full permission but did not refer to any plans or drawings submitted with the application. The Inspector held, following the well known approach in R v Ashford BC v. Shepway DC (1999) P&CR 12, that he was not entitled to have regard to those plans and drawings as they were not referred to on the face of the planning permission. Sullivan J. held this to be incorrect and that, in the context of a full planning permission, and unless otherwise indicated, the application plans and drawings were automatically incorporated into the planning permission. In this respect the case represents an important extension to the Ashford approach to the construction of planning permissions and will be of wide ranging application. On a separate point, the Judge decided that the cubic content limitation on development in the curtilage of dwellinghouses provide by Class E of the GPDO 1995 applied only to "buildings" and did not apply to a "swimming pool". In effect therefore there is no limitation in terms of cubic content to the dimensions of a swimming pool constructed as permitted development. This point of construction is not overtaken by the amendments to the GPDO of 2008.

Clive Newberry QC and Douglas Edwards appeared for the Claimant, instructed by William Rose of Sharpe Pritchard. Permission has been granted for the case to proceed to the Court of Appeal.