Town and Country planning – Planning permission – Certificate of lawful existing use or development (CLEUD) – Conditional planning permission granted for development of site limiting classes A2 and A3 use to 40% of retail floorspace – Claimant applying for CLEUD to allow replacement of shops by restaurants and cafés – Inspector dismissing application – Claimant appealing – Whether new class E superseding restrictions imposed by condition – Appeal dismissed
The Brunswick Centre is a large and iconic Grade II listed structure in central London. It essentially comprises residential units, but also has retail and other uses, including a cinema.
In 2013, the claimant was granted planning permission for the extensive refurbishment of and alterations to the Brunswick Centre, along with the creation of new units and re-landscaping. Condition 3 of the permission stated: “Up to a maximum of 40% of the retail floorspace equating to 3386m2 (excluding the supermarket and eye-catcher) is permitted to be used within Use Classes A2 and A3 of the Town and Country Planning (Use Classes) Order 1987…”
The claimant applied for a certificate of lawful existing use or development (CLEUD) pursuant to section 191(1)(a) of the Town and Country Planning Act 1990. Its overall contention was that whatever the position before, since the introduction of the Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 and the new Class E, it was now able to move uses between A1 (shops), A2 (financial and professional services) and A3 (restaurants and cafés) in particular, untrammelled by condition 3.
Therefore, it could let out units for A2 and A3 use which would in total amount to more than 40% of the total retail floor space, such that shops could be replaced to a significant extent by restaurants and cafés within the centre.
The interested party local authority failed to determine the application but an inspector appointed by the defendant secretary of state refused it. The claimant challenged that decision pursuant to section 288 of the 1990 Act.
Held: The appeal was dismissed.
(1) At the time of the original planning permission in 2003, the Town and Country Planning Act (General Permitted Development Order) 1995 (GPDO) permitted a change from A3 to A1 use without the need for further planning permission but not the reverse. Similarly, a change of use was permitted from A3 to A2 and from A3 (if the building was on a ground floor or had a display window) to A1, but again not the reverse. To that limited extent, there could be movement between classes as well as within them.
Although the Class E permitted use was not in existence at the time of the original planning permission, that did not mean that condition 3 could not oust its operation. It all depended on the proper construction of that condition.
(2) A planning permission had to be interpreted as a whole. In Dunnett Investments Ltd v Secretary of State for Communities and Local Government [2017] EWCA Civ 192; [2017] PLSCS 80, the Court of Appeal emphasised that recourse could be had to the planning history of the relevant site and the reason for making the condition. It also stressed that the modern trend rejected a “myopic focus” on the words used without proper regard to their full context, and rejected a claimed purpose advanced for the condition (which would not involve the exclusionary effect) which was merely illusory or artificial.
The ultimate question, which was sensitive to the facts of each case, was whether the words used in the relevant condition, taken in their full context, clearly evinced an intention on the part of the local planning authority to exclude the GPDO. A grant for a particular stated use could not in itself exclude the application of the GPDO. To do that, something more was required than the mere fact that permission had been granted for a particular use in the first place.
(3) Condition 3 did not expressly exclude the operation of the Town and Country Planning (Use Classes) Order 1987 but that was not necessary. On the other hand, there was a very precise limitation by reference to a particular percentage of a defined floorspace area. That acted as a clear qualification to that part of the permission which allowed for A1 to A3 use: Royal London Mutual Insurance Society v Secretary of State for Communities and Local Government [2013] EWHC 3597 (Admin); [2013] PLSCS 242, UBB Waste Essex Ltd v Essex County Council [2019] EWHC 1924 (Admin); [2019] PLSCS 138 and Barton Park Estates Ltd v Secretary of State for Communities and Local Government [2022] EWCA Civ 833; [2022] EGLR 31 considered.
Condition 3 was not as emphatic as the condition in Dunnett, where the express consent of the local authority was required for any change of use. On the other hand, this was not a simple restriction to particular uses; rather, it was a restriction on the extent of such uses, so the language was bound to be different. The use of the phrase “up to a maximum” was emphatic as to the applicable limit. The expression “is permitted” had to be read in that context which was part of the same sentence. In that context, it was more than simply a permission for a particular use without more; it was a clear negative condition.
(4) By simply translating A2 and A3 use into “financial and professional services”, and “restaurants and cafés” (upon which activities the 40% limit was imposed), the import of condition 3 became even clearer and pointed to an exclusionary effect. Moreover, considered in its full context, condition 3 had an exclusionary effect. The only way to “safeguard” the retail function and character of the centre was to have a condition that was of permanent, and not merely temporary, effect. Otherwise, the intended safeguarding was meaningless. In the context of the historic significance of the centre and its character, since it was designated and built with a strong neighbourhood retail element, the force of the stated purpose became yet stronger.
The restriction imposed by condition 3 was not absolute. Its partial or complete removal could be effected by an appropriate express planning permission if that had been sought. The very existence of condition 3 could be used as an argument against the grant of a permission which had the effect of restricting or removing it. Nonetheless, it was but one factor which would be considered in any future planning application.
Reuben Taylor KC (instructed by Herbert Smith Freehills LLP) appeared for the claimant; the defendant did not appear and was not represented; Sasha Blackmore (instructed by Camden London Borough Council) appeared for the interested party
Eileen O’Grady, barrister