Planning essentials case update: where should I draw my red line?

When making a planning application you must comply with the requirements of the Town and Country Planning (Development Management Procedure) (England) Order 2015. This details the need to submit various plans and documents to your local planning authority – including “a plan which identifies the land to which the application relates”.

Government guidance details that this ‘location plan’ should be based on an up-to-date map, at a scale of 1:1250 or 1:2500, ideally scaled to fit onto A4 or A3 paper, and with a clear red edge.  The guidance further states that your red line area “should include all land necessary to carry out the proposed development (eg land required for access to the site from a public highway, visibility splays, landscaping, car parking and open areas around buildings)”. A blue line should be used to show any other land owned by the applicant in the vicinity of the red line area. 

Local planning authorities will not typically review the title and/or ownership details of your proposed application site as defined by the red line (beyond considering the ownership certificate that you will have completed as part of your planning application form) and thus it is important that you ensure you own or have appropriate rights to develop or use all necessary parts of your application site so that, once planning permission is granted, you can carry out the development without needing additional third party consents. It is the responsibility of the applicant to check ownership details, serve notices on those parties with relevant interests in the site and certify that they have done so in their application form. 

A recent Court of Appeal case emphasises the need to be precise when it comes to drawing red lines and of ensuring consistency between your description of development and your plans. In R (Arriyo) v London Borough of Richmond upon Thames [2024] EWCA Civ 960, planning permission had originally been granted in 2005 for a change of use from shop to restaurant at ground floor level (with the first floor of the building to be retained as residential use). The location plan included the garden and garage area, whilst the description of development referred to a change of use of “the ground floor”. 

In 2022, the applicant applied for retention and amendment of a large, screened pergola at the rear of the building. The Council considered that the rear garden was already lawfully used as part of the restaurant and it subsequently granted permission on this basis. This was challenged by a neighbour on the basis that the description of development did not extend beyond the ground floor (amongst others). 

The Court of Appeal concluded that, on review of the plans, a reasonable reader would consider that the existing restaurant use extended to the rear garden area and the garage, and therefore the Council was entitled to proceed on the basis that the use of the rear as a restaurant was lawful. 

Whilst the permission was quashed on other grounds, the case serves as a reminder that plans should be consistent with the development description, as differences in opinion as to the correct interpretation of an ambiguous permission can end up in the Courts. Indeed, it is notable that there was a dissenting judgment, with Lord Justice Moylan giving weight to the fact that other planning application documents had made a distinction between the rear area and the ground floor - demonstrating that matters of interpretation can fall either way.   

Applicants, and indeed planning authorities, should therefore be mindful that application drawings (and indeed all application documents) should make the proposals clear – with change of use applications in particular clearly identifying the proposed extent of the change. Otherwise, there is a risk that the Courts may interpret that otherwise “useless” land within the red line application boundary (and which forms part of the same unit of occupation) shall also benefit from the change of use.