Notes to Applicants or Informatives are often to be found on planning decision notices but what are they and how do they relate to the decision notice?
In Slough Borough Council v Secretary of State for the
Environment and Oury [1995] the Court of Appeal said: "The general rule
is that, in construing a planning permission, regard may only be had to the
permission itself, including the reasons stated for it."
Circular 11/95 (on Conditions)
records how informatives can remind an applicant to obtain further planning
approvals and other consents. They can be used to draw the applicants
attention to certain matters and no more. The Circular’s underlying message is
clear - informatives should not establish mandatory requirements with which an
authorised development must comply. They may be used as non-binding best
practice, but lack a statutory basis. Planning Conditions, on the other
hand, may impose mandatory requirements for the carrying out of development and
have statutory authority.
The decision and its reason(s) is the primary document with the
informative no more than that; non-binding additional information.
However, in ‘Slough’ the Court recognised a limited number of
exceptions to this rule. Extrinsic material may be taken into account if
the permission expressly incorporates it, if the permission is incomplete, is
not self-contained or is ambiguous on its face. This might be the case if
an informative contradicts a condition attached to the same permission, for
example.
The question then is whether this permission could be challenged on
the basis of the Notes being contradictory? It may be possible to
construct an argument to that the decision is ambiguous and that the
notes/informative forms part of it. However, since the statutory definition of
planning permissions makes no reference to informatives, a Court might struggle
to accept that view.
In R (oao Wall) v Brighton & Hove City Council [2004] a
decision notice contained an informative. It stated that the decision to
grant permission had been taken having regard to all relevant material
considerations - but did not identify those considerations. In upholding
a legal challenge and quashing the permission, the High Court held that, even
if the information is complete, including it within an informative does not
satisfy the separate obligation to give reasons for both granting planning
permission and imposing conditions. Here is was necessary to have included a
condition(s) to formally support the decision.
In Fisher v Wychavon District Council Court of Appeal (9
November 2000) it was concluded that there was an intention, discernible from
the notice itself, that there should only be a temporary grant of planning
permission, although it could not be said for how long due to ambiguity in the
notice; which gave rise to the reason for the challenge. It therefore
became impossible for the court to strike out all references to a temporary
consent so as to leave a permanent consent. The condition that the permission
should only be temporary, for the reasons stated in the approval notice, could
objectively be seen to be of fundamental importance to the council in making
the grant and could not be deleted.
“The court may be particularly disinclined to perform feats of
surgery where an invalid condition is one of the terms on which a discretionary
power is exercised. If an invalid condition is attached to a licence or to
planning permission, the permission without the condition may be such as the
licensing authority would not have been willing to grant on grounds of public
interest. The right course for the court is then to quash the whole permission,
so that a fresh application may be made.”
So Informatives are just that. They are designed to draw attention to other matters of import but do not have a direct bearing upon the decision notice, unless there is clear and evident ambiguity. Even then, it may only give rise to a decision being quashed. You are probably better off re-applying if you really need clarity.
