Choiceplace, Wrong Place

Choiceplace Properties Limited v Secretary of State (Dove J, 27 April 2021) amounts to a short and sharp lesson for applicants and their advisers: make sure your application plans are accurate, not just in relation to your development proposals but as to the relationship of the proposals to the existing streetscape or landscape, particularly if a condition of the permission requires that development is to be carried out in accordance with those (scaled) plans.

Planning permission had been granted for a small block of flats to be built in north London. Condition 1 required the development to be carried out in accordance with a set of approved plans. The set included drawing “P.04, street elevations”.

This is an extract from the plan:

Courtesy of London Borough of Barnet planning portal

To quote from Dove J:

“Not long after the permission had been granted the claimant mobilised in order to implement the development. In December 2018, the claimant was advised by the architect that it had retained to prepare detailed construction drawings that the street scene drawing P.04 was inaccurate. In essence, the drawing, which was one of those listed in condition 1 along with the other drawings forming part of the pack accompanying the application, was in error in purporting to show that the proposed development would have a ridge height lower than the neighbouring building 159 Holden Road, when in fact the ridge height of the proposed building would be higher. Whereas the street scene in drawing P.04 showed the buildings stepping down in height from 159 via the proposal to 157, where the ridge height of 157 Holden Road was shown to be lower than the application site proposed building, in fact the proposed building was taller than both of them.”

I suspect that it is quite unusual that an error such as this is spotted pre-construction. The stakes are even higher for all concerned if the discrepancy is spotted at a later stage.

The local planning authority, London Borough of Barnet, took the position that the permitted development could not be lawfully implemented. The parties waved opposing counsel’s opinions at each other. The applicant, Choiceplace, made an application for a certificate of lawfulness of proposed use or development under section 192 of the Town and Country Planning Act 1990 to seek to make good its position. The application was refused by Barnet and the subsequent appeal was dismissed by an inspector.

Some extracts from the inspector’s decision letter:

“In my view the starting point is that when interpreting a condition it should be asked what a reasonable reader would understand the words to mean. In this case it clear to me the development should be built in accordance with the plans. At its simplest this is impossible because to build it in accordance with P.03 and P.06 the building will not look like the building shown in P.04. In other words the plans are inconsistent. The condition doesn’t require the development to be in accord with some of the plans, or parts of the plans, but with the approved plans, and I think it reasonable to imply the word “all” there, again on the basis that is what an ordinary reading of the condition implies.

Starting from this point, it could be argued that the P.04 is merely illustrative, the buildings either side could change shape or size or even be demolished, but that seems to me to be rather missing the point. Firstly, P.04 is clearly not illustrative, it is not a simple sketch purporting to show a view, but is an allegedly scale drawing with the heights of the neighbour at No 159 drawn on to specifically compare to the proposal. Secondly, whether the neighbours can change is irrelevant. The drawing shows the proposed building in a relationship to the neighbours at the time the application was made regardless of any theoretical future changes. That relationship should have been replicable on site on the date the permission was granted and it was not.

If we delve further into the extrinsic evidence to see if there is anything else to suggest that reliance on P.04 would be excessive or in some way unreasonable then it becomes clear, for the reasons given in the Council’s opinion, that the streetscene drawing was important in the determination of the application, which was only allowed by the committee by a narrow margin. Furthermore it is only by detailed analysis of various spot heights across several of the drawings that the errors are revealed. The Council should be able to rely on accurately scaled drawings, especially when the drawing in question is important to determining the acceptability of the proposal.”

Dove J agreed with the inspector:

“In my judgment, there is no reason why the depicted heights of the existing buildings should be regarded as illustrative or somehow excluded from the requirements of condition 1 on the planning consent. As was pointed out during the course of argument, a relationship between a proposed development and the existing height of either adjacent structures or indeed adjacent ground levels is a matter to be accurately depicted on plans accompanying planning permission for good reason. It is at the very least to be assumed to be an accurate depiction, in the absence of any specific text on the drawing indicating that elements of it are not to scale. The Inspector was correct in pointing out that the drawing showed a relationship between the proposed development and surrounding buildings which should have been capable of replication on the site at the time permission was granted and it was not. In short, the development is not capable of being implemented in accordance with the approved drawings because it is not capable of being implemented in a manner which replicates the street elevations both longitudinally and axially which are purported to be shown to scale on drawing P.04. To reach that conclusion does not involve any suggestion that the planning application granted might be capable of controlling the scale or appearance of adjacent dwellings beyond the application on site; it is simply a reflection of the inaccuracy in the plans leading to an inability to construct a development which accords with that which is depicted upon them.”

A simple case but with some potentially far-reaching conclusions for applicants:

1. Of course, be careful that all drawings, plans and written descriptions of your development proposal are accurate, are internally consistent and describe accurately the surrounding environment – particularly where by condition you are required to build in accordance with what has been set out. If there need to be caveats as to accuracy, include them.

2. To what extent has someone, at some remove from the detail, audited whether this is in fact the case and confirmed it, such that you can rely on that confirmation if an issue subsequently arises? It’s not the local planning authority’s job.

3. Always check that you will be able to comply with plans and other details that are set out in planning conditions. The condition here was all encompassing: “The development hereby permitted shall be carried out in accordance with the following approved plans: Site Location Plan; Drawing no. P.01 Rev C; Drawing no. P.02 Rev C; Drawing no. P.03 Rev B; Drawing no. P.04; Drawing no. P.05; Drawing no. P.06 Rev A; Landscaping Scheme Drawing no. TH/A3/1497/LS; Arboricultural Impact Assessment & Method Statement by Trevor Heaps Arboricultural Consultancy Ltd Ref: TH 1497 dated 11th December 2017 including drawing no. TH/A3/1497/TPP; Sustainability Statement by Henry Planning; Planning statement by Henry Planning; Document titled “Holden Road, London, N12 8SP – Part M4(2) Category 2 Accessible and Adaptable Dwellings”. I am always wary of such an approach. For instance, why were documents listed that were not even “plans” and precisely which elements of those statements were to be incorporated into the condition?

Simon Ricketts, 7 May 2021

Personal views, et cetera

NB Next Tuesday’s Queen’s Speech should be interesting, in terms of whether we will see any detail released as to the contents of the proposed Planning Bill and the Government’s proposed way forward, and what else is on the Government’s agenda impacting upon our little world. No surprise that this will be our main clubhouse #PlanningLawUnplanned topic for 6pm that evening. I hope you can join us – if you have an iPhone, here is an invitation.

Author: simonicity

Partner at boutique planning law firm, Town Legal LLP, but this blog represents my personal views only.

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