On the first claimant’s appeal—

Held, appeal dismissed. (1) In paragraph AA.1 of Part 1 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015, provision was made, among other things, for the outer parameters applicable to the Class as a whole, including maximum heights. But those provisions had to be read together with those for conditions in paragraph AA.2, including, crucially, the condition in paragraph AA.2(3)(a) requiring, in every case, an application to be submitted for prior approval for the particular development proposed. It would be a basic misconception, therefore, to suppose that the generic parameters in paragraph AA.1 overrode the prior approval process requisite in each case or dictated its outcome, or, for example, that there was an automatic entitlement under Class AA to build to the maximum heights provided in paragraph AA.1. It was open to the local planning authority, in determining the application for the prior approval for a particular development complying with the generic parameters in paragraph AA.1, to decide whether such approval should be granted or refused. If one accepted, as might be obvious, that the height, bulk and mass of a building once extended could give rise to a legitimate refusal of prior approval under paragraph AA.2(3)(a)(i)—because, in the particular case, each or all of those attributes of the extended building would bring about unacceptable “overlooking”, loss of “privacy” or “loss of light”—or under paragraph AA.2(3)(a)(ii)—because the “external appearance” of the building would consequently be unacceptable—the same could be the result of inappropriate “scale”. None of that negated the “principle” of the permitted development right under Class AA or the generic parameters set by paragraph AA.1. It followed that “scale” was not excluded as a relevant consideration in the prior approval process under paragraph AA.2(3)(a). That was not the effect of the parameters, including the maximum height provisions, set out in paragraph AA.1, nor of any of the provisions for conditions in paragraph AA.2. Nor was it implicit in the scope of the prior approval process itself. A meaningful assessment of the likely impacts of a development on “amenity” under sub-paragraph (3)(a)(i), or on “external appearance” under sub-paragraph (3)(a)(ii), would in many cases, if not all, require consideration of its scale. Accordingly, “scale” was subject to the local planning authority’s control under the provisions for prior approval in paragraphs AA.2 and AA.3 (paras 25–33).

(2) An approach to the construction of the phrase “any adjoining premises” in paragraph AA.2(3)(a)(i) which focused unduly on the linguistic origins of the word “adjoining” would be inappropriate. In modern usage, the meaning of the word “adjoining” was not restricted to the sense of being contiguous to, or touching. It extended to the concept of something lying close to something else. Where the context required or justified that alternative or wider meaning it should not be rejected in favour of the narrower or “primary” sense. An assessment of the likely effects of Class AA development on “amenity … including overlooking, privacy and the loss of light”, would frequently, if not in every case, require consideration of the effects on the “amenity” not merely of contiguous or abutting buildings, but also of other premises lying close to the site of the proposed development, whose amenity might be equally or more significantly affected by it. Accordingly, in the specific context of paragraph AA.2(3)(a)(i) in Class AA of Part 1, the true meaning of the word “adjoining” in the concept of “adjoining premises” was the wider sense—that was, lying close or contiguous to—and not the narrower—which was merely contiguous to (paras 35, 39–44).

(3) The word “including” in both sub-paragraphs AA.2(3)(a)(i) and AA.2(3)(a)(ii) did not exclude other factors which were necessary for a meaningful consideration of impact on “amenity” and “external appearance”. Such factors would of course vary from case to case, but they were not in every case confined to the matters actually mentioned in these two sub-paragraphs. Had the intention been to impose such a restriction, it would have been straightforward to do so without using the word “including” to refer to specific considerations and instead using some other formulation, stipulating expressly and exhaustively the only matters which the local planning authority could lawfully take into account. That, however, was not done and instead, examples were provided of the matters that would fall within the concepts of “the amenity of any adjoining premises” and “the external appearance of the dwellinghouse”. The deliberate use of the word “including” to introduce the examples given was simply inclusive, and not also exclusive. Their intention was clearly to state, by way of example, matters included in the concept referred to. They did not seek to limit either concept only to the examples given. Potential impacts of development within Class AA of Part 1 on “the amenity of any adjoining premises”, under sub-paragraph (3)(a)(i), were not limited merely to “overlooking, privacy and the loss of light” for the occupiers of those premises. Other effects on “amenity” were also possible, and might be significant, such as changes to the living conditions of neighbours through increases in noise and activity, overshadowing or changes to outlook. Likewise, the possible effects on the “external appearance of the dwellinghouse” under sub-paragraph (3)(a)(ii) would not necessarily be limited to the changes to its principal elevation or to any side elevation fronting a highway. It seemed unreal to contemplate that the assessment of such effects on “amenity” and “external appearance” would have been excluded from the prior approval procedure without explicit language to do so. Accordingly, the inspector’s decision was not flawed by the errors of law alleged, and the judge was right to reject the challenge to it (paras 48, 50–51, 57, 58, 59).