Town and country planning – Planning condition – Construction – Conditional planning permission being granted for industrial and office premises – Condition being varied to include class B1 business use – Appellant challenging refusal of subsequent application for certificate of lawful use – Appellant appealing against dismissal of application – Whether condition excluding right to change use of land under Town and Country Planning (General Permitted Development) Order 1995, as amended (GPDO) – Appeal dismissed
In 1982, planning permission was granted for new industrial and office premises at Cobham Road, Ferndown, Dorset, subject to strict conditions. In 2005, the second respondent local authority granted an application to vary a condition under section 73 of the Town and Country Planning Act 1990 Act. The condition, as amended, provided: “This use of this building shall be for purposes falling within Class B1 (Business) as defined in the Town and Country Planning (Use Classes) Order 1987, and for no other purpose whatsoever, without express planning consent from the Local Planning Authority first being obtained”. The reason for the imposition of the condition was “in order that the council may be satisfied about the details of proposal due to the particular character and location of this proposal.
In January 2014, the appellant applied to the second respondents for prior approval under paragraph N2 of the Town and Country Planning (General Permitted Development) Order 1995, as amended by the Town and Country Planning (General Permitted Development) (England) Order 2013 (GPDO) for a change of use from Class B1(a) offices to class C3 dwelling houses. When a proper response was not made to that application, the appellant applied for a lawful development certificate. That application was refused on the grounds that the condition attached to the original planning permission, as varied, showed a clear intention to limit the scope of the planning permission to class B1. It consequently prevented a change of use to class C3 without express planning permission. An inspector appointed by the first respondent secretary of state dismissed an appeal by the appellant against that refusal.
The appellant’s application under section 288 of the Town and Country Planning Act 1990 to quash the inspector’s decision was dismissed by Patterson J: [2016] EWHC 534 (Admin); [2016] PLSCS 83. The appellant appealed contending, amongst other things, that the judge erred in finding that the condition precluded reliance upon permitted development rights granted under the GPDO.
Held: The appeal was dismissed.
(1) The process of interpreting a planning permission did not differ materially from that appropriate for other legal documents. An open-textured approach was required to the objective exercise of construction of planning conditions, with due regard to the natural and ordinary meaning of the relevant words, but also consideration of the context (including purpose) and common sense. Although the approach to the construction of different types of public document was similar, the relevant factors that bore upon that construction, and their weight, would be fact-specific. Consequently, legal and factual context was vital and there was less scope for using extrinsic evidence in the interpretation of a public document such as a planning permission than in a private commercial contract. Other relevant factors to the construction of planning conditions included the fact that a planning permission was a public document which might be relied upon by parties unrelated to those originally involved and that planning conditions might be used to support criminal proceedings (e.g. under section 187A of the Town and Country Planning Act 1990 which made failure to comply with a breach of condition notice a criminal offence): Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74, [2015] PLSCS 362, [2016] 1 WLR 85 followed.
(2) It was common ground that a planning condition on a planning consent could exclude the application of the GPDO. Exclusion might be express or implied. However, because a grant of planning permission for a stated use was a grant of permission for only that use, a grant for a particular use could not in itself exclude the application of the GPDO. To do that, something more was required. To exclude the application of the GPDO, the words used in the relevant condition, taken in their full context, had to clearly evince an intention on the part of the local planning authority to make such an exclusion: Carpet Decor (Guildford) Ltd v Secretary of State for the Environment (1981) 261 EG 56, [1982] 1 EGLR 164 and Dunoon Developments v Secretary of State for the Environment [1992] 2 PLR 128 considered.
(4) In the present case, on its proper construction, the condition excluded the operation of the GPDO. Read straightforwardly, and as a whole, the natural and ordinary meaning of the words used was that the condition allowed planning permission for other uses but restricted to that obtained upon application from the local planning authority, and excluded planning permission granted by the first respondent by means of the GPDO. The first part of the condition set out the scope of the permission and included a clear and specific exclusion of GPDO rights. The third part of the condition made it the more abundantly clear that automatic or direct GPDO rights were excluded by requiring a planning application if such uses were to be pursued.
Christopher Katkowski QC and Alistair Mills (instructed by Hewitsons LLP) appeared for the appellant; Sasha Blackmore (instructed by the Government Legal Department) appeared for the first respondent; the second respondents did not appear and were not represented.
Eileen O’Grady, barrister
Click here to read a transcript of Dunnett Investments Ltd v Secretary of State for Communities and Local Government and another
