Planning & Environment

Interpretation and enforcement of planning permission conditions can be difficult. This is illustrated in the recent decision of the Court of Session on the Sneddon Law wind farm.

Enforcement notice

The case involved an enforcement notice, served on 9 August 2017.

The developer appealed against the notice, on the grounds that, on a proper interpretation as applied to the facts, the planning permission conditions had been purified and accordingly it was not a breach of planning control to commence work on the development.

The reporter found to the contrary, and refused the enforcement notice appeal on 12 April 2019.

Replacement water supply

The conditions had been imposed to mitigate the risk of contamination or disruption of existing private water supplies to properties owned by third party proprietors.

A key requirement was: “the following shall be in place before development …. a fully operational replacement water supply”.

The reporter found the pipes had been installed up to the verge of the properties but not connected to the properties themselves. She held that did not fulfil the requirement specified in the condition. She also upheld the other breaches of conditions specified in the enforcement notice.

How to interpret

The Court agreed with previous court decisions which indicated that conditions are to be interpreted as follows:

  1. What would a reasonable reader understand the words to mean?
  2. What is the natural and ordinary meaning of the relevant words?
  3. Take account of the overall purpose of the consent, and any other conditions which cast light on the purpose of the relevant words, and common sense. This may require looking at relevant documents related to the consent.
  4. Planning conditions should not be construed too narrowly or strictly, but in a benevolent manner that ensures that they are not unreasonable.
  5. The starting point – and usually the end point – is to find the natural and ordinary meaning of the words there used, viewed in their particular context (statutory or otherwise) and in the light of common sense.

Meaning of condition

The Court agreed with the reporter that the condition required the pipes to be connected to the property itself. That is the natural and ordinary meaning of the words used.

It was acknowledged that the condition cannot have been intended to confer on the affected proprietors a power to veto the development, by withholding consent to the making of the connection. However, at the inquiry, the third party proprietors confirmed they would accept a connection from the public mains.

Presumably thinking ahead to a situation where it might be unreasonable for the proprietors to withhold consent, the Court noted that the planning authority has the discretion not to take enforcement action (although it had decided to serve the enforcement notice in this case). The developer also has the option of applying under section 42 to vary or discharge the condition.

Expediency

This decision illustrates a shortcoming in the statutory enforcement provisions. Section 127 states that an enforcement notice may be served where there appears to be a breach of planning control “and it is expedient to issue the notice”. However, none of the grounds of appeal specified in section 130 enable the recipient to challenge whether it is expedient to issue the notice. In consequence, neither the reporter nor the court can review the expediency of enforcement.

 

 

Neil Collar