Sunday 18 August 2013

What Are - Informatives on Planning Decision Notices



 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.



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