27 Feb 2017

In Trump International Golf Club v The Scottish Ministers (December 2015, endnote 1), the Supreme Court suggested a fresh approach to interpreting planning conditions. This briefing looks at what the Trump decision means and what its effect might be in practice – especially for planning practitioners, developers and local authorities.

What led to this case coming before the Supreme Court?

Aberdeen Offshore Wind Farm Limited (AOW) applied to build an offshore 11 turbine wind farm in the North Sea, 3.5 kilometres off the coast of Aberdeen. In 2013 it received deemed planning permission under the Electricity Act 1989.

Onshore, with a clear view of the proposed wind farm site from the Aberdeenshire coastline, lies Trump International's luxury golf course, owned by Donald Trump.  

Following several failed attempts in the Scottish courts (and long-running protest from Mr Trump to Scottish politicians) to stop the amenity of the golf resort being diminished by the wind farm's turbines, Trump International's challenge reached the Supreme Court.

What was at issue in the case?

The Supreme Court considered two grounds of appeal. The first related to the construction of the Electricity Act 1989, and is not considered further here. The second concerned whether planning condition 14 (C14) of AOW's planning consent is valid; this is the important issue for this briefing.

C14 requires AOW, prior to commencement of development, to submit to the Scottish Ministers for written approval a detailed Design Statement providing the guiding principles for the deployment of the wind turbines (including turbine layout, dimensions, lighting, and visual impact).

Trump International argued that C14 was void for irrationality and uncertainty, advancing three arguments:

  1. C14 was invalid for lack of an enforcement mechanism by which the Scottish Ministers could compel AOW to construct the wind farm in accordance with the Design Statement.
  2. C14 was void for uncertainty because there was no indication of what compliance with it would entail.
  3. Even if the Design Statement could be complied with and then enforced via the Construction Management Statement (CMS) (as required by another condition), the power of the Scottish Ministers to agree a departure from the CMS meant that the scope of the development was uncertain.

What were the Supreme Court's findings?

Lord Hodge found that C14 could be enforced because its meaning was sufficiently clear, in the context of the whole planning permission and cross-referring to a number of the consent's other planning conditions.

Key to Lord Hodge's finding was that the planning consent, read as a whole, contains a mechanism, enforceable by the Scottish Ministers, to enforce the principles guiding the size and location of the turbines. Because Lord Hodge found that the planning consent as a whole and the planning conditions read together contain a mechanism to enable the Scottish Ministers to enforce compliance with the Design Statement (as required by C14), it was not necessary to consider whether C14 implied an obligation to construct the wind farm in accordance with the Design Statement. Trump International's appeal was dismissed.

The Supreme Court did not have to consider whether an obligation could be implied into a planning condition. However, the court noted that this was an important point and made a number of observations which have a wider significance for planning practitioners.

A common sense approach to interpreting planning conditions

The Supreme Court set out a common sense approach to interpreting planning conditions over applying a set of special rules, the approach prominent in the recent case law. Lord Carnwath, recognising a degree of tension between the two approaches, provided some guidance on principles of interpretation.

He examined three cases in particular: Sevenoaks District Council v First Secretary of State (2005); Hulme v Secretary of State for Communities and Local Government (2011); and Telford and Wrekin Council v Secretary of State for Communities and Local Government (2013).

Lord Carnwath reviewed the courts' tendency in those cases to reduce the process of interpreting planning conditions to a set of special rules. For example, in Sevenoaks, Mr Justice Sullivan found that:

“If conditions are to be included in a public document such as a planning permission, they should be clearly and expressly imposed, so that they are plain for all to read. There is no room for implication.”

Lord Carnwath made it clear that adopting this rule alongside the others that had emerged as special criteria for interpreting planning conditions was too narrow an approach. His judgment states that neither he nor Lord Hodge "regard the process of interpreting a planning permission as materially different form that appropriate to other legal documents".

Still, Lord Carnwath observed that a given document requires interpretation in its own legal and factual context. One aspect of relevant context for interpreting a planning permission is that it is a public document which may be relied on by a third party. It must also be borne in mind that a breach of planning conditions may support criminal proceedings. This particular context was a good reason for a "relatively cautious approach" to interpretation.  

Lord Hodge summarised the court's approach by saying that interpreting planning conditions should be based on "what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and the consent as a whole".

This is an objective exercise in which the court will have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, and any other conditions which cast light – in other words, common sense.

Lord Hodge stated that depending on the circumstances of the case, the court may also look at other documents connected with the application for the consent, or referred to in the consent. Other documents may be relevant if they are incorporated into the consent by reference, or there is an ambiguity in the consent, which can be resolved, for example, by considering the application for consent.

Developing a consistent approach and subsequent cases

A number of subsequent decisions show that the courts are still developing a consistent approach to interpreting planning conditions.

The courts have applied Trump to the interpretation of planning conditions under the Town and Country Planning Act 1990 (TCPA) regime.

In early 2016, the High Court reviewed Trump in three cases that considered TCPA planning conditions: Menston Action Group v City of Bradford (January 2016) applied Trump; University of Leicester v Secretary of State for Communities and Local Government (March 2016) considered it; and Dunnett Investments Limited v Secretary of State for Communities and Local Government (March 2016) followed it.

In Menston, Mr Justice Dove stated that it is necessary to start the process of interpreting the words of the planning condition "on the basis of what a reasonable reader would understand them to mean, reading the condition in context and bearing in mind that it is a public document." He noted that it is particularly important to read the condition as a whole.  

In University of Leicester, Mr Justice Supperstone considered the decision in Trump, noting that:

"The authorities suggest that when there is an ambiguity, it is permissible to look at the extrinsic evidence, including but not limited to the application form, and indeed including but not limited to documentary evidence. All relevant extrinsic material may be referred to, depending on the circumstances of the individual case."

In Dunnett, Mrs Justice Patterson held that the judgments of Lord Hope and Carnwath are of assistance in defining where the law on planning conditions is now. She stated that "[Trump] moved the law on in relation to implied conditions and may have reformulated some of the previously accepted principles but, otherwise, in my judgment, the situation in construing planning conditions is not dissimilar to how it was." Mrs Justice Patterson then proceeded to set out a number of principles of interpretation as a way of setting out the present position:

  1. Planning conditions should be construed in the context of the planning permission as a whole.
  2. Conditions should be clearly and expressly imposed, and construed in a common sense way.
  3. They should not be construed narrowly or strictly.
  4. There is no reason to exclude an implied condition, albeit with caution because a planning permission is a public document which might be relied upon by parties unrelated to those originally involved.
  5. The fact that breach of a planning condition might be used to support criminal proceedings meant that a relatively cautious approach should be taken.
  6. A planning condition should be construed objectively – not by what the parties intended at the time, but by what a reasonable reader construing the condition in the context of the planning permission as a whole would understand.
  7. A planning condition should be construed in conjunction with the reason for its imposition.
  8. A planning condition should be construed in conjunction with the reason for its imposition so that its purpose and meaning can be properly understood.
  9. The process of interpreting a planning condition does not differ materially from that appropriate to other legal documents.

Subsequent judgments in the Court of Appeal have treated Trump as the leading authority on interpreting planning conditions, including XPL Ltd v Harlow Council (April 2016) and Skelmersdale Limited Partnership v West Lancashire Council (December 2016).

What does Trump mean for anyone drafting or reviewing planning conditions?

The approach suggested by the Supreme Court in Trump is a departure from previous cases. It has the potential to lead to increased uncertainty over the meaning of conditions and what compliance with them entails.

A consequence of the decision (and of the subsequent positive judicial treatment that it has received) is that conditions which are attached to planning permissions may be expanded by implication after grant of permission to take into account the intention of the granting authority.

This should incentivise an open dialogue between applicants and local planning authorities (LPAs) to ensure that all parties are clear on conditions and compliance. In practice, for developers and purchasers of development sites the decision creates the potential problem of what to do about inadequate or ambiguous conditions.

Lord Hope called for clarity and precision in drafting planning conditions. He advised that LPAs should include an explicit obligation to comply with a condition to ensure that a condition will ultimately be enforceable, and to avoid any possibly difficult disputes about whether terms can be implied into a condition.

Applicants and developers should engage with the LPA to ensure that they are able to comment in advance on proposed conditions.

Final thoughts – implications for infrastructure planning?

It is worth considering what relevance Trump may have for the "requirements" – being the equivalent of planning conditions – attached to Development Consent Orders (DCOs) under the Planning Act 2008 regime for consenting Nationally Significant Infrastructure Projects (NSIPs).

Because the courts have applied the guidance on planning conditions in Trump to cases under the TCPA regime, it seems reasonable to expect they would also apply it in cases about DCO requirements, should any such cases arise.

Unlike most planning conditions, DCO requirements are drafted not by the granting authority, but by the promoter's legal advisors. They would usually be discussed with the relevant planning authority prior to submission of a draft Order as part of a DCO application. Whilst the final wording of requirements is settled by the Secretary of State making the DCO, it is unlikely that the Secretary of State would go behind the wording of requirements accepted by the relevant planning authority, save perhaps where bodies such as Natural England have concerns, or the Secretary of State is acting as the competent authority.

Requirements form part of a statutory instrument and their breach immediately gives rise to a possible criminal sanction. Whether or not Trump is applied as a guide to interpretation of requirements, it is essential that the drafting of requirements should be precise and clear.

Endnotes

(1) Trump International Golf Club Scotland Limited and another (Appellants) v The Scottish Ministers (Respondents) (Scotland) [2015] UKSC 74