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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Shepway District Council, R (on the application of) v Ashford Borough Council  EWHC Admin 488 (7th May, 1998)
Cite as:  EWHC 488 (Admin),  EWHC Admin 488,  PLCR 12
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JUSTICE KEENE: This is an application by Shepway District Council seeking to
quash a resolution by a neighbouring Local Planning Authority, Ashford Borough
Council, made on 10th December 1997 to approve certain reserved matters and to
discharge certain conditions, all in respect of an outline planning permission
granted by Ashford Borough Council ("Ashford") on 5th May 1994. Shepway
District Council ("Shepway") also seeks to quash the grant of approval for
those reserved matters.
outline permission was granted in 1994 as a result of an application made by
London and Edinburgh Trust Plc dated 15th July 1991. As the interpretation of
this permission is of some importance in this case, it is necessary to set out
what appears on the document (the outline planning permission) dated 5th May
1994. The permission had a number of formal parts at the beginning of the
first page. It indicated that it was a notification of a grant of outline
planning permission. It then gave the name and address of the Applicant and
the agent acting for it, described as "Correspondent". At the top right of
that page appears the date and reference number on the application, and then
the date of the decision. Under the heading "Description and
number conditions were, indeed, attached to the permission, including the two
standard ones to be expected on an outline permission. Those were, first,
is in accordance with what is now Article 3(1) of the Town and Country Planning
(General Development Procedure) Order 1995 and the definition of "reserved
matters" in Article 1(1) of the same Order.
condition is required by section 92(2) of the Town and Country Planning Act
1990 ("the 1990 Act"). Condition 04 on the outline permission states:
next condition to which it is necessary to refer is Condition 08 on the
permission. That states:
the conditions have been completed and the reasons for those conditions set
out, there follows a number of statements headed "INFORMATIVES/AMENDMENTS".
Most of these are clearly of an advisory nature and general in form, incapable
of any enforcement. Thus, numbers 02, 03, and 04 read as follows:
there expressly indicates what this applies to in the sense of what is
"amended" by those documents referred to. That is, for present purposes, a
sufficient description of the outline permission of 5th May 1994.
application of 15th July 1991 which led to that permission had described the
proposed development in somewhat similar terms to those set out in the
permission. It referred to the development as:
from the reference to that stream diversion, the only noticeable difference
between the descriptions in the permission and in the application is that the
permission referred to "non-food store" in the singular. The application was
said to be in outline and reserved for future consideration the external
appearance, siting, landscaping and design. A site plan was submitted, as was
an illustrative layout plan and an illustrative master plan, both the latter
being expressly described as illustrative. A supporting statement and a traffic
impact statement were also submitted with the application. The supporting
statement expressly said that it did not form part of the application.
site in question is located in the southeast part of the town of Ashford in
Kent and was formerly occupied by British Rail. It covers just over 14
hectares, about 35 acres. The illustrative material submitted with the
application indicated that what was contemplated at that time was some 26,000
square metres gross floor space, including a food superstore of 5,575 square
metres gross and non-food retailing of 15,580 square metres gross in total, in
the form of a number of units ranging generally from 900 square metres to 3,350
square metres. The supporting statement stressed that the type of units
proposed would be single storey and with no unit less than 500 square metres
gross. The development would thus be catering for the type of retail trading
which required units of substantial size in order to operate efficiently.
This, it was said, was very different from the type of retailing catered for by
Ashford Town Centre, whose vitality and viability was unlikely to be
17th August 1992, sometime before the grant of the permission, those acting for
London and Edingburgh Trust wrote to Ashford, enclosing copies of an
Environmental Statement for the site "... as part of the planning application
submission". That statement was a lengthy document dealing with a range of
matters, such as an assessment of the visual impact of the proposed
development, the effect on flooding in the area, noise effects and the like.
It began by stating that it had been prepared to "... accompany an outline
application submitted to Ashford Borough Council...". Within the Environmental
Statement was included a letter dated 12th August 1992, setting out the
agreement of the then Applicants to certain matters, as a result of discussions
which had taken place. It stated,
that they agreed to a limit on the total floor space to be let in units of
5,000 square feet and to no unit being below 5,000 square feet. There was also
a list of types of traders which the Applicants wished to see included in the
permission, including DIY, furniture, carpets, shoes and a number of others
generally associated with edge of or out of town trading at that time. I note
that the letter of 12th August 1992 was not amongst those expressly referred to
in the Informative/Amendment No 1 on the eventual outline permission. However,
it was mentioned in one of the letters which was so referred to, that of 25th
September 1992. That letter referred to a recent meeting and confirmed
agreement on similar kinds of restrictions as had been set out in the earlier
letter of 12th August of that year. The remaining letter referred to in that
Informative/Amendment, one dated 30th September 1992, is of no significance for
these lengthy discussions and consultations the application was reported to the
committee by the Ashford Borough Planning Officer on 7th October 1992. The
report dealt, amongst other things, with advice given to the Borough Council by
its own retail consultants which indicated that unrestricted non-food retailing
would have an unacceptable effect on the town centre. Consequently, the report
stated that certain restrictions were proposed as to the maximum amount of
floor space which could be devoted to particular types of retailing and as to
the minimum size of units along the lines already referred to. Those
restrictions were set out in paragraph 4.17(a) to (h) of that report. At the
end of it, the Planning Officer recommended that permission be granted, subject
to certain pre-conditions. One of those was that there should be a section 106
agreement covering the restrictions set out in paragraph 4.17, (a) to (h), of
members accepted that recommendation. Eventually a section 106 agreement was
concluded on 5th May 1994. It duly included the various restrictions. The
outline permission was issued on the same day. It has not so far been
that date the intentions of the developers for this site have changed, largely,
it is said, because of changing retail conditions. What they now wish to carry
out is a retail development in which the non-food element would take the form
of a factory outlet centre, that is to say units selling a full range of
non-food goods, including clothes and other fashion goods. The average size of
the units proposed would not exceed about 400 square metres, that is to say
about 4,300 square feet.
September 1996 two applications for permission for such a development of the
site were submitted to Ashford, but they were called in by the Secretary of
State for his own determination. A public inquiry was arranged for February
1998, but because of the decision by Ashford to grant the approval of reserved
matters, which is under challenge in these proceedings, that inquiry has been
cancelled and the called-in applications have been withdrawn.
October 1997 the section 106 agreement was varied by agreement between Ashford
and the developers of the site in a way which would allow the presently
proposed form of a factory outlet centre. There then followed, on 30th October
1997, an application by the developers for the approval of reserved matters
under Condition 01 of the 1994 outline permission. It was, in essence, for the
factory outlet centre as already described. It was this which Ashford resolved
to approve on 10th December 1997. It would in the non-food part produce
somewhere between 80 and 120 units, selling in many cases clothing. Shepway is
concerned about this because of the effect which they envisage this would have
on a new town centre development being planned for Folkestone within their
district, a town which is about 20 minutes drive time from Ashford.
issue which now arises is whether what Ashford have purported to approve as
reserved matters under the authority of the 1994 outline planning permission
falls within the scope of that permission so as to be permitted by it. The
issue can be put in those terms since it is well established that an
application for approval of reserved matters must be within the ambit of the
outline permission: see
v Hammersmith and Fulham London Borough Council, ex parte GLC
51 P&CR 120, applying
Corporation Limited v Manchester City Council
 1 WLR 937.
issue may in fact be even narrower than I have just put it. Mr Hicks QC for
Shepway submits that Ashford wrongly interpreted the development permitted by
the outline permission. His case is that if one is entitled to look at the
documentary material referred to in Informative/Amendment No 1 in order to
interpret the permission, then the recently submitted reserved matters fall
outside the scope of the permission. But he concedes that if the court is not
entitled to do that, then he cannot succeed. It is indeed accepted on all
sides that the present proposals do not accord with the detailed
characteristics contained in those documents, especially the letters of 17th
August 1992 and 25th September 1992, and that if they are to be used to
construe the 1994 outline permission, then the present proposals fall outside
the ambit of that permission.
essence, therefore, the issue becomes whether the development permitted by that
permission was limited by the restrictions contained within those additional
documents. If it was not, then it matters not that the present retail
proposals are described as a "factory outlet centre". It is the substance of
the proposals rather than the label attached to them which matters.
legal principles applicable to the use of other documents to construe a
planning permission are not really in dispute in these proceedings. It is
nonetheless necessary to summarise them:
Hicks, in applying those principles to the present case, advances two
arguments. His main submission is that Condition 08 on the permission
incorporates the application within the permission, since it imposes a
restriction on the use of the premises or site or any purpose "... other than
that specifically applied for whether or not in the same use class".
requires one, it is said, to look at the application to discover what was
specifically applied for, the description given on the face of the permission
itself being too general. Consequently the wording of this condition tells any
reasonable reader that the application forms part of the permission. Once one
gets to that stage, then one has, it is submitted, to deal with the application
in the condition in which it was, not originally, but as at the date of the
permission, reflecting amendments made in the course of negotiation.
Informative/Amendment No 1 shows that the application was amended a number of
times, and one has to look at the various documents there referred to, namely
the letters and the Environmental Statement to ascertain the final state of
behalf of Ashford, Mr Spence QC responds to this main argument by making two
points. First, he contends that Condition 08 does not contain words of
incorporation. What was "specifically applied for" is indicated by the
description of the development set out in the main body of the permission.
This condition is a standard one which Ashford regularly imposes and, as can be
seen from its wording, its purpose is to exclude the operation of the Use
Classes Order, no more. Secondly, even if Condition 08 were to be taken to
incorporate the application, it would only incorporate the application itself
and not the supporting material which, as had expressly been stated, did not
form part of the application. Mr Spence submits that the letters referred to
in Informative/Amendment No.1 merely amended the supporting material and not
the application itself. That is clear, it is said, from the nature of the
Environmental Statement and from other references in the documentation.
Fitzgerald QC, for the owners and developers, supports these arguments. He
contends that the development described in the main part of the permission was
not a general A1 retail use but one in which a number of specific elements were
indeed identified. The planning authority could have chosen to impose a
condition on the permission, restricting the retail uses to particular trades
and to particular sizes of units but it had not done so. Instead, it had
chosen to use a section 106 agreement to impose such restrictions. That, for
present purposes, adequately sets out the rival arguments.
argument on this aspect of the case turns, as Mr Hicks concedes, on the effect
of Condition 08. Whatever may be the proper meaning of Informative/Amendment
No.1, that item does not in any sense seek to incorporate the application in
the permission. It may indicate some amendment to the application (and I shall
come to that aspect in due course), but it is on the existence and meaning of
Condition 08 that Shepway's main case depends. The question is whether, by its
use of the words "... other than that specifically applied for...", Condition
08 is making the planning application part of the permission.
in my view, is not a question which can be resolved by investigating whether or
not this is a standard condition used by Ashford. That in itself would mean a
resort to extrinsic evidence, which would not be appropriate in the case of a
public document of this kind as a general rule. One has to look at the wording
of the permission, to see if it has made the application part of the permission.
a matter of principle, if the words in Condition 08 can be understood from the
permission itself and can have a sensible meaning attached to them without a
need to resort to the application, then no such resort should be permissible.
If, therefore, the permission did not indicate what development had been
specifically applied for, then it would become both necessary and permissible
to have regard to the application. However, one notes that the way in which
this Planning Authority chooses to frame its planning permissions is to set out
near the beginning of the document a "description and location of application",
expressly stated to be such. It is clear that then embraces a description of
the application. The content of the application is described immediately
before the words indicating that permission has been granted. The application
is described as being one for "proposed retail park to comprise food store,
non-food store, garden centre, restaurants, petrol filling stations, car parks,
service areas and associated highway works". Those uses can be seen as
specific ones, certainly in the context of the Use Classes Order 1987 referred
to in Condition 08. Thus, the condition would preclude various uses set out in
Class A1 of that Order other than food and non-food retailing.
the reasonable reader of this permission is told what the uses specifically
applied for were, simply by reading the permission as a whole and without any
need to refer to the application itself. I conclude that Condition 08 does not
make the application part of the permission.
if this were not so, it does not seem to me that the other crucial limb of Mr
Hicks's main argument is made out, namely that the various documents referred
to in Informative/ Amendment No 1 are to be taken as amending the operative
part of the planning application as opposed to the supporting material which
had been submitted with it. There are several reasons why that second limb is
an unsound one.
the wording of that Informative/Amendment takes one, first of all, to the
letter of 17th August 1992, which submitted the Environmental Statement as part
of the "planning application
(my emphasis). That final word is important, tending to suggest that the
Environmental Statement was not part of the formal application itself. The
submission included both the application and the supporting material. In any
event, an Environmental Statement is inherently a very unsatisfactory document
if it is to be regarded as part of the application itself. It is often
lengthy, as this one is, containing many expressions of subjective opinion as
to the effects of the proposals, those being statements difficult to regard as
being part of the application itself. In addition, this particular
Environmental Statement said at the outset that it had been prepared to
the planning application, again wording which points to it not being part of
the application as such.
letter dated 12th August 1992, not referred to in Informative/Amendment No 1,
only forms part of the Environmental Statement and must be seen as having the
same status as the Environmental Statement. The later letter dated 25th
September 1992 is effectively an amendment to that of 12th August 1992, as is
made clear by the reference to the earlier letter in the middle section of
paragraph (a). It too must share the same status and be seen as amending the
it would be strange if those documents formed part of the application itself,
bearing in mind that the only way in which, even on Shepway's argument, they
could be incorporated in the permission would be by way of reliance on
Condition 08. Yet Condition 08 only refers to uses of the premises/site, not
to the other matters contained in the correspondence such as minimum size of
units. If Shepway's approach were correct, it would mean that some of
restrictions from those letters operated but not others. That is not
impossible, but it would not produce a very sensible solution.
it is to be noted that the planning register, which is the public record of
planning decisions and which the Planning Authority is required by statute to
keep (see section 69 of the 1990 Act), makes no reference to the application
having been amended. It gives the date and reference number of the application
and it also states that "... the Applicants have submitted an Environmental
Statement...", but there is no suggestion that either by means of that
statement or otherwise there had been an amendment of the application itself.
all those circumstances, the documents referred to in Indicative/Amendment No 1
are to be seen as amending the supporting material rather than the planning
application itself. If that is so, then the application remained as it was
originally submitted. It contained no restrictions on the proposed uses
narrower than those to be found on the face of the permission itself. Not only
does that mean that Shepway fail to make out the second necessary part of their
main argument, but it must also follow that a reference to the planning
application would not have achieved any definition of the uses permitted more
specific than those set out on the face of the permission. That reinforces the
conclusion at which this court has already arrived, namely that Condition 08,
by referring to the purposes "... specifically applied for..." did not intend
an incorporation of the application. Such incorporation would not have
rendered the uses described in the permission any more specific.
other submission made on behalf of the Shepway is that the application can and
should be resorted to because the permission is ambiguous. There are a number
of strings to Mr Hicks' bow in this part of the case. It is argued that there
is ambiguity in the meaning of Condition 08 when one seeks to ascertain the
meaning of the words "specifically applied for". I do not agree. For the
reasons already set out earlier, the meaning of those words seems sufficiently
phrase "retail park" is then said to be uncertain. However, the answer to that
was given by Mr Fitzgerald in the course of argument, namely that the meaning
to be attached to those words in this particular case is provided by the
permission itself, that is to say, a retail development consisting of various
ingredients there described. Mr Hicks also argues that Condition 04, that
condition which prevents the creation of additional floor space inside the
buildings approved is odd if one does not know the amount of floorspace which
has been permitted. But as Mr Spence said, the amount of built floor space
will be known at the detailed approval stage and this condition will then bite.
There is no ambiguity as to its meaning.
Mr Hicks does have a valid point on ambiguity is in his reference to the words
"non-food store" in the description of the development. He draws attention to
the fact that in the register this part of the description appears as
"non-food stores" in the plural, thereby creating an inconsistency. That, he
submits, can only be resolved by looking at the application which contains the
same wording as appears on the register. The Respondents all seem to accept
that such recourse to the application may be had for that purpose.
issue, however, is whether such recourse to resolve a particular ambiguity or
inconsistency brings the application into play, so as to operate as a means of
interpreting and, if appropriate, restricting the permission as a whole. There
is no clear authority on this point, though such as there is suggests that that
is not the consequence. In the
Moorlands District Council
Purchas LJ referred to the permission being construed "where ambiguous" in the
context of other material: see page 139. In
Danckwerts J (as he then was) referred to extrinsic material in order to
resolve a specific ambiguity and no more.
propose to deal with this as a matter of principle. It is important to
recognise that when an application is being used for such a purpose, it is not
being incorporated into the permission. This is a wholly different exercise
from that involved in incorporation. The justification for such resort to
extraneous material is to resolve a particular inconsistency or ambiguity.
That being so, it would not be proper to regard other parts of the permission
free from ambiguity as open to re-interpretation in the light of the
application or, indeed, other extrinsic material. Such material is only being
brought into play for a specific purpose. Such recourse does not make the
application or other extrinsic material part of the permission generally.
Otherwise the existence of an ambiguity on a single point or word in an
otherwise complete and clear permission would mean that the extent of the
development as a whole thereby permitted could be cut down by the application.
That would be contrary to the general rule spelt out many years ago in
and endorsed by the Court of Appeal recently in
Borough Council v Secretary of State for the Environment
Moreover, any such exception to a general rule ought to be narrowly construed.
the present case, Shepway, in any event, would not be assisted by looking at
the planning application to resolve this conflict between non-food "store" and
"stores". I have already held that the application itself was not amended by
the subsequent correspondence or the Environmental Statement. The application
does resolve the conflict in favour of the plural word "stores". It does not
impose the restrictions which Shepway seek to pray in aid as defining more
narrowly the type of retail development permitted. Therefore, even if one
could look at the application for a broader purpose than just resolving that
conflict about the number of non-food stores, it would in the end not avail
a result, it follows that neither of the bases on which this challenge is
mounted is a sound one. I fully accept that what was envisaged in 1994 was
different from what has been approved recently by way of reserved matters. But
the test is whether those matters fall within the ambit of what was permitted,
not within the ambit of what was envisaged. What happened in this case was that
Ashford chose to embody the restrictions seen as appropriate in 1994, not in
conditions on the permission, but in a section 106 agreement. These
proceedings perhaps illustrate that controls imposed by means of such an
agreement depend for their efficacy and their duration on the attitude of the
Local Planning Authority which is a party to the agreement. If the permitted
development is described in the planning permission in broad enough terms, the
Planning Authority and developer will subsequently have considerable freedom of
action to vary the particular form of development from that originally
contemplated, and the Secretary of State will have very little ability to
intervene, even though the development in question may be a major one.
one regards that situation as desirable or not is not a matter for this court,
which is only concerned with the interpretation of the 1994 permission. On
that latter issue, I conclude that the reserved matters approved by Ashford on
10th December 1997 did fall within the ambit of the outline permission granted
on 5th May 1994.
SPENCE QC: I would ask your Lordship to dismiss the applications and make an
Order for costs in favour of the Respondent Borough Council? I believe my
learned friend may wish to say something about that.
morning I am instructed also on behalf of BAA McArthur/Glen and John Laing to
make an application for costs in respect of them. I do not know whether your
Lordship would prefer to hear that application before or after my learned
friend has spoken as to the first point?
JUSTICE KEENE: You mean as to the general liability as to costs? Do you want
to say anything on that all, Mr Edwards?
JUSTICE KEENE: I think Mr Spence, in that case, would like to develop his
argument on their behalf. You do not seek to say that your clients can evade,
at any rate, one set of costs?
SPENCE QC: My Lord, first of all, bearing in mind that they are not actually
parties -- they were never actually joined as second Respondents because Sedley
J said that it would be unnecessary for them to be joined, even though they did
apply. That is accepted. My Lord, there is, in my submission, no difficulty
caused by that. I do not know whether your Lordship would like me to take that
further. It recognises further ----
JUSTICE KEENE: Not at the moment, unless this particular somewhat technical
point is one which forms an important part of Mr Edward's submissions. I am
more concerned about the general discretion, bearing in mind what was said, for
example, in the House of Lords in the
SPENCE QC: Bearing in mind that that case was in the House of Lords and this
was at first instance, their Lordships in that case did draw a distinction,
because by the time it got to the House of Lords or even to the Court of Appeal
the issues had crystalised to a far greater extent than they had at the time of
would make just these points: BAA have a vital commercial interest which has
been alluded to more than once during the hearing. That interest is the
prospective implementation of the planning permission. The principle subject
to attack was the planning permission rather than the details which had been
approved. In other words, the Applicant was attacking the consent or the
construction of it which inured for the benefit of the land and of BAA
McArthur/Glen and John Laing in particular.
my Lord, in our submission the Applicants can be taken to have accepted the
risk that they would be a party represented in this court with a commercial
interest, concerned to fight any narrow construction of the planning
permission. That is the first main point.
Lord, the second main point of lesser significance is that my learned friend,
Mr Fitzgerald, and his junior, Mr Straker, were able to add somewhat to the
argument as your Lordship has set out in your Lordship's judgment, including,
in particular, the part of the argument addressed to the Use Classes Order. I
shall go on in case your Lordship is against me on that first submission for
those two reasons.
your Lordship is against me, I respectfully submit that there should be a
partial Order, as in fact occurred in the
case. If we need to look at it, we can. It was necessary for BAA and their
advisors to consider the matter and prepare materials, particularly in order to
seek expedition. A lot of work was done in order to prepare the affidavit of
Mr Whirl (?). No one else could have done it, certainly not Ashford Borough
Council, and it was a long task because the Applicant produced a mass of
material. It was inevitable that BAA would have to work through all that
your Lordship is with me on that more restrictive basis, in order to make
taxation reasonably easy, your Lordship might think of allowing BAA, say, 25
per cent of their costs.
SPENCE QC: They have, as your Lordship will notice, actually saved some costs
by their joint representation rather than their separate representation in the
EDWARDS: My Lord, I would reflect the comments of the House of Lords with the
case. There is no disrespect to Mr Straker and to Mr Fitzgerald, but, in my
submission, their arguments did not advance the matters any further than
advanced by Mr Smith. However, may I be allowed one moment to take
instructions on one point? My clients will be prepared to concede the point
regarding the affidavit. That was the situation which I believed happened in
because clearly expedition was necessary, amongst others things, but generally
I would rely on the approach taken in the
JUSTICE KEENE: Remind me of the form of the
would you? It is in the black file that I have, I know. The costs does not
appear to be reported. My report certainly does not seem to help me on that.
EDWARDS: I have a copy of the transcript, my Lord. Owen J was concerned to
help the Taxing Master.
EDWARDS: It appears that there is no clear indication as to how Owen J phrased
the terms of the Order. They should have costs for the preparation of the
affidavit going to the issues.
JUSTICE KEENE: You concede that, Mr Edwards, but I take it that you are not
conceding the 25 per cent, which was the basis upon which Mr Spence was doing
it, or are you happy to see it done on ----
EDWARDS: I understood Mr Spence was saying that 25 per cent was, if you like,
an estimate of the costs. In which case, I would not oppose that if that was a
reliable estimate. I have no reason to suppose it is not.
SPENCE QC: I need not say anything more, save that the costs at the leave stage
were costs in the cause, so I would respectfully ask that the award for costs
should be dealt with in the round?
JUSTICE KEENE: So far as the two points advanced by Mr Spence for there being
an Order that Shepway do pay both sets of the Respondents' costs, I am not
persuaded by either of those points. Of course, the developer/landowner has a
vital commercial interest in this matter and in the construction of the
permission. That is almost always the situation when a challenge is mounted by
a third party of this kind. While it is always helpful to have counsel of the
ability and standing of Mr Fitzgerald and indeed Mr Straker here, it seems to
me that the developers did not present a materially different case from that of
the planning authority. In those circumstances, I exercise my discretion by
concluding that two full sets of costs ought not to be ordered.
I do accept that some allowance ought to be made for the work that was done in
relation to the preparation of evidence by the developers/landowners. It seems
to me that the suggestion of an Order to pay 25 per cent of the
developers/landowners costs would be appropriate in this case.
therefore, make an Order that Shepway District Council do pay the costs of the
Ashford Borough Council on the usual basis and that they do pay 25 per cent of
the costs of BAA McArthur/Glen and also John Laing.
EDWARDS: My Lord, I have one other matter. I would like to apply for leave to
appeal to the Court of Appeal, if I may, on three basis arising out of your
Lordship's judgment. First (and I think it was a point to which you alluded in
the main hearing), it is the relationship of the Environmental Statement and
the information contained within it to the planning application and, indeed,
the planning permission. I seem to recall that during the hearing we did refer
to problems with regard to Environmental Statements and their status and
whether or not they can be, to a certain extent, circumvented in circumstances
not dissimilar to this one; also bearing in mind, of course, that this was an
Environmental Statement that was specifically requested by Ashford under the
Regulations. It may be that clarification on that point could be given by the
Court of Appeal.
second is also the point regarding the status of an Informative/Amendment:
does it have any status?
third point I can call the ambiguity point. In your Lordship's judgment you
made the point that there is not much in the way of case law on the point. In
resolving or resorting the applications supporting material, can one simply, as
a matter of principle, look at it for one specific purpose or can it be looked
at in a wider context? I am mindful of the situation, where one looks at the
specific purpose and then discovers something else which is of importance to
the application, perhaps, by accident. Can that be disregarded?
SPENCE QC: My Lord, only very briefly. Your Lordship's judgment was, with the
very greatest respect, extremely clear on every single point, including on
those, as to which I need say nothing about the first point.
respect of the second, the Informative/Amendment will be a point of very
localised interest, it being done here at Ashford and it may be done elsewhere.
It is a very limited point and so also is the point about the 'S' (?). Your
Lordship's judgment is so clear on all of the points, that it is, with great
respect, unnecessary for it to be taken from the public's point of view any
MR JUSTICE KEENE: I am not prepared to grant leave to appeal. I will explain
very briefly why. First of all, so far as the Environmental Statement is
concerned and the problems of its status, it seems to me that in this
particular case the status of the document was made clear earlier on in it when
it said that it accompanied the application and no more. Therefore, it does
not seem to me that this case would resolve any more general issue.
far as the status of Informatives/Amendments are concerned, that does not seem
to me to be of general application. The significance of any wording like that
is going to turn on the facts of a particular permission. Many local planning
authorities in my experience only use informatives rather than whatever
Informative/Amendment means. Therefore, I cannot see this as being of any
the ambiguity point, while I accept that there is limited authority on this, at
the end of the day this would not assist the present Applicant for reasons I
hope I have made clear. A resort to the application on the ambiguity point,
even if one referred then to the application more widely, would still have left
Shepway stuck with the fact that it could have resort only to the original
application, because of my conclusion that it was not amended.
In those circumstances, it does not seem to me that this is a matter where
leave to appeal would be appropriate.