Litigant in person wins High Court planning dispute over house design

A litigant in person has won a High Court case against the Secretary of State for Levelling-Up, Housing and Communities and Cornwall Council over whether he can build a house to a different design to that originally intended.

In Armstrong v Secretary of State for Levelling-up, Housing and Communities & Anor [2023] EWHC 176 (Admin) James Strachan KC, sitting as a deputy judge of the High Court, concluded that a planning inspector erred in law in his approach to an appeal by Mikael Armstrong, and quashed the decision.

Mr Armstrong brought the case under section 288 of the Town and Country Planning Act 1990.

The inspector had dismissed his appeal against Cornwall’s refusal of his application under section 73 of the same act to vary plans for construction of a new house under an extant planning permission at Portwrinkle.

Judge Strachan said the main issue was whether the inspector lawfully concluded that the application would give rise to such a fundamental variation to the permission that the application fell outside s.73 because it conflicted with the description of the development in that permission.  

Permission had been given in 2007 by the former Caradon District Council to build a home in accordance with eight specified drawings but was silent on the effect of the other drawings involved.

In 2010 Mr Armstrong applied unsuccessfully to Cornwall to make the changes under section 73.

The proposed building was described as being of more regular form, with an overhanging dual-pitched roof and detailing in an ‘alpine lodge style’, when compared with the design Caradon had approved.

Mr Armstrong explained he wanted to change the design to a modern beam-and-post timber-framed house, but with a similar footprint to the originally approved design.

He said the revised design was simpler and more elegant than the more irregular modern building and that it would enable the use of more sustainable construction methods.

Cornwall said Mr Armstrong “seeks to change the design of the dwelling approved from an irregularly-shaped boldly modernist dwelling to a dual-pitched alpine lodge style dwelling.

“The application site occupies a highly prominent and sensitive coastal plot. The proposed revised design completely alters the nature of the development and would result in a development that would differ materially from the approved permission.”

It concluded this was too extensive to be permitted by s73 and rejected the application. The inspector agreed with Cornwall, saying the changes “goes beyond the parameters of a minor material amendment and cannot be considered under section 73”. 

Mr Armstrong argued among other points that the inspector restricted the powers of section 73 without having the legal authority to do so.

The Secretary of State accepted Mr Armstrong’s point that the concept of a ‘minor material amendment “is not to be found in the TCPA 1990”, Judge Strachan said, but had cited case law to the effect that even where particular words used in a statute appear at first to have an apparently clear and unambiguous meaning, it is always necessary to resolve differences of interpretation by setting it in its context as part of the relevant statutory framework, by having due regard to the historical context in which the relevant enactment came to be made, and arrive at an interpretation which serves rather than frustrates its purpose.

Judge Strachan said: “As the defendant accepts, there is nothing in section 73, or in the TCPA 1990, that limits its application to ‘minor material amendments’, or to amendments which do not involve a ‘substantial’ or ‘fundamental’ variation.”

He added: “There is nothing in the language used that restricts an application to vary or remove a condition to ‘minor material amendments’…however it is an important starting point that, on the face of the statute, provided the application is limited to non-compliance with a condition (rather than any other part of the permission) it falls within the stated scope of s.73 of the TCPA 1990”.

Judge Strachan in all gave seven reasons to find for Mr Armstrong and as an eighth point said: “Even if a test of fundamental variation is a lawful one to apply, I am not persuaded that the inspector applied such a test in this case.

“In my judgment there is more than sufficient doubt about that to justify quashing the decision on the basis that he misdirected himself by reference to the planning policy guidance and its concept of ‘minor material amendments’.”

Mark Smulian