Developer loses legal challenge after drawing error invalidated planning permission

A planning inspector was right to reject an appeal over a building where a drawing error showed it lower than its intended height, the High Court has ruled.

In Choiceplace Properties Ltd v Secretary of State for Housing Communities And Local Government [2021] EWHC 1070 (Admin) Mr Justice Dove said it had been incumbent on developer Choiceplace Properties to provide the London Borough of Barnet with an accurate drawing of its proposed building.

Choiceplace had appealed under Section 288 of the Town and Country Planning Act 1990 over the decision of the Secretary of State for Housing Communities and Local Government’s planning inspector to dismiss its appeal against Barnet’s refusal of an application under Section 192(1)(b) of the 1990 Act for a certificate of lawful use or development.

It had in 2018 applied for planning permission to demolish two semi-detached houses and replace them with a three-storey block of flats.

Barnet gave permission subject to 21 planning conditions, but as work began later that year Choiceplace’s architect said a drawing of the street scene was inaccurate and showed the ridge height lower than the neighbouring building when in fact it would be higher.

Choiceplace advised Barnet of the problem and the council decided the development could not be constructed in accordance with the planning permission and refused a certificate of lawful use or development.

After the inspector rejected its appeal, Choiceplace sought judicial review on the grounds that the inspector erred in law when he interpreted the planning permission as prescribing the relationship between the proposed development and its neighbouring buildings and that the disputed drawing and only ever been illustrative.

Barnet ’s response was that Choiceplace’s plans were internally inconsistent, with the disputed drawing showing heights different to those in other drawings.

Choiceplace also argued the ground that the inspector erroneously confused his view of the merits of a potential judicial review of the planning permission with an examination of the legal effect of the permission as it stands.

Dove J said there was “no reason why the depicted heights of the existing buildings should be regarded as illustrative or somehow excluded from the requirements of…the planning consent”.

He added the relationship between a proposed development and adjacent structures “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.”

Dove J said the inspector had concluded that the development could not be implemented in accordance with the approved plans and so there was no substance to the first ground.

He was “wholly unpersuaded” by the proposition that the inspector ‘became distracted by the question of whether or not there may have been grounds for an application for judicial review in respect of the errors contained within the planning permission”.

Mark Smulian