Tuesday, 22 April 2014

Uses restricted by condition - some further thoughts


In two previous blog posts (“Can conditions preclude Permitted Development?” on Friday, 18 October 2013, and “Conditions that fail to prevent Permitted Development” on Monday, 24 March 2014) I discussed the circumstances in which a condition attached to a planning permission may preclude the operation of section 55(2)(f) of the 1990 Act and Article 3(1) of the Use Classes Order and/or Article 3(1) and Part 3 of the Second Schedule to the General Permitted Development Order – in other words, the right to use the land or building in question for other purposes within the same Use Class and/or to make any of the changes of use that are (or would otherwise be) Permitted Development.

Since then, I have been considering some other judicial decisions on this issue that may shed further light on the topic, although I am bound to say that these judgments have left the position far from clear.

First of all, as I have previously pointed out, a condition that expressly refers to either the UCO or the GPDO can certainly prevent the operation of those Orders. It is perhaps worth noting in this connection that the model conditions that were previously recommended (in Circular 11/95) read:

"The premises shall be used for......…and for no other purpose (including any purpose in Class........… of the Schedule to the Town and Country Planning (Use Classes) Order 1987, or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order with or without modification."

and

“Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 1995 (or any order revoking and re-enacting that Order with or without modification) no....[specified development]........shall be [carried out].”

A problem only arises where those words, or very similar words have not been used.

In my first article, I argued that a condition which simply prohibited other uses without referring to either or both of these two pieces of subordinate legislation could not be taken to preclude their operation. My view (particularly with regard to the GPDO) was based on the proposition that a condition could not prevent an application for and grant of a fresh planning permission for a change of use to any of the uses that the original condition sought to prevent. If granted, the planning permission would supersede the previous permission (and its conditions) and this is exactly what Part 3 of the Second Schedule to the GPDO does; i.e. it grants planning permission (subject to certain requirements being met) for a further change of use. It was on this basis that I argued that a condition that does not expressly preclude the operation of the GPDO cannot therefore have the effect of preventing this permitted development.

Judicial support for this proposition, and for a similar approach to the operation of section 55(2)(f) and Article 3(1) of the Use Classes Order, can be found in the High Court judgment in Carpet Decor (Guildford) Ltd v. SSE [1981] JPL 806 and in the subsequent decision of the Court of Appeal in Dunoon Developments Ltd -v- SSE [1992] JPL 936, as discussed in the second of my two previous articles.

However, I am aware of two or three other judgments that have gone the other way, and the purpose of this third article is to examine these, and to attempt to form a view as to their effect on this issue.

The first of these was City of London Corporation v. SSE (1971) 23 P&CR 169 (which predated both Carpet Decor and Dunoon Developments). In that case, the wording of the condition was that "the premises shall be used as an employment agency and for no other purpose." This was held to operate effectively to exclude the operation of the Use Classes Order.

In Rugby Football Union v SSETR [2001] EWHC 927, the court considered a condition relating to stands at Twickenham Rugby Football Ground, which was worded that the stands "shall only be used ancillary to the main use of the premises as a sports stadium and for no other use." The argument that the words did not exclude the Use Classes Order was rejected by the court on the ground that the words 'for no other use' were clear. They had no sensibly discernible purpose than to prevent some other use which might otherwise be permissible without planning permission, for example under the Use Classes Order (by virtue of section 55(2)(f)). The judge was satisfied that those words met the test of being sufficiently clear for the exclusion of the Use Classes Order.

A more recent decision - R (Royal London Mutual Insurance Society Limited) v. SSCLG [2013] EWHC 3597 (Admin) - related to planning permission for the construction of a non-food retail park comprising 5 units. This permission contained a condition which provided that: "The retail consent shall be for non food sales only in bulky trades normally found on retail parks which are furniture, carpets, DIY, electrical goods, car accessories, garden items and such other trades as the council may permit in writing." The stated reason for the condition was to ensure that the nature of the scheme would not detract from the vitality and viability of the nearby town centre.

The appellant sought a Lawful Development Certificate to confirm that they were entitled to use these retail units for any purpose within Use Class A1 of the UCO (i.e. not limited to the categories specified in the condition). On appeal against the council’s refusal of a certificate, the Inspector found that, on a fair interpretation, the use of the word 'only' was effectively the same as the phrase 'and for no other purpose', especially when the condition was read in its entirety. When read alongside the reason and in the context of the permission as a whole, the Inspector found that the condition prevented the exercise of rights under the Use Classes Order (i.e. to use the premises for other purposes falling within Use Class A1).

When the matter came before the High Court, it was held that the reason for imposing a condition is important in understanding the objective of the condition. It is publicly available as part of the planning permission. To ignore it or to fail to have regard to the reason would operate as an unnatural and unnecessary constraint on an interpretation of the condition. This condition was intended to provide an on going mechanism to maintain the retail health of the town centre. In the Court’s judgment, that is what a reasonable reader of the condition would discern - namely, a non food retail consent only, with sales permitted of bulky goods within certain main sectors so as not to cause any material harm to the retail health of the town centre.

The Court specifically considered whether the wording of the condition might be insufficiently clear and unequivocal in its terms as to exclude the operation of the Use Classes Order. However, the judge regarded the use of the word "only" as emphatic. It meant solely or exclusively. That was its plain and ordinary meaning. This would prevent any retail sales other than those stipulated of a non food nature.

The Court did not agree that the absence of the words 'for no other use' (in contrast with the Rugby Union case) made any difference in this regard. The condition before the court in the Royal London Insurance case could also be distinguished from Dunoon Developments, where there was nothing more than a restrictive description of the use in the relevant condition that might potentially (but did not in practice) exclude the Use Classes Order.

In Royal London Insurance there was a planning permission which, read as a whole, including Condition (3), set out what was permitted. Condition (3) restricted the ambit of Class A1 uses. It would be logically inconsistent to construe Condition (3) as carefully limiting A1 uses on the one hand, but then to argue that A1 use is unrestricted and permitted on the other. The condition only made sense if there was an implied exclusion of the Use Classes Order and Class A1 rights. In the Court’s judgment, this was achieved by the words used in the condition.

The first comment I would make in light of these judgments is that the decision of the Court of Appeal in Dunoon Developments should not be lightly set aside. I drew attention in my second article, on 24 March, to the clear words of both Farquharson LJ and the Vice-Chancellor, Sir David Nicholls. These words must be taken as an authoritative statement of the legal position in this regard. It follows that the other cases to which I have referred must, to a greater or lesser extent, have been dependent on their facts.

If any further refinement of the general proposition can be derived from these other cases it is perhaps that if, read as a whole and in context, the clear words of the condition (including the stated reasons for its imposition) leave no doubt that the planning permission that is being granted is only for a strictly limited use, then it may be effective to preclude the operation of either or both of the UCO and the GPDO, even though these are not expressly referred to. So, for example, in the Royal London Insurance case, the condition was explicitly intended to ensure that the development would not detract from the vitality and viability of the named town centre.

By contrast, I suggest that a vaguely worded reason (for example, “to enable the local planning authority to retain control over such uses in future” or some similar rubric) is unlikely to cut the mustard, especially bearing in mind that the procedural advice from ministers (as set out in the NPPG) continues to be firmly against conditions that purport to preclude the operation of section 55(2)(f) and Article 3(1) of the UCO or Article 3 and the Second Schedule to the GPDO. The very fact that there were until very recently model conditions (in Circular 11/95) that recommended explicit wording for such conditions is another persuasive factor which indicates that the general rule in Dunoon Developments should be applied in the absence of a very clear intention (backed up by a clearly stated and specific planning reason for the imposition of the condition) to preclude the operation of the statutory provisions.

© MARTIN H GOODALL

Wednesday, 16 April 2014

More banner adverts on shrouded buildings

(Fourth in an occasional series)

As I have pointed out on several previous occasions in this blog, there seems to be an unreasoning prejudice in this country against outdoor advertising. Whatever one may think of the overall control of advertisements regime, one aspect that particularly irritates me is the extreme reluctance of some local planning authorities (in fact, I suspect, a majority) to countenance large banner adverts on shrouded buildings while they are in course of demolition, reconstruction or repair.

I have in the past acted for one or two of the companies engaged in this type of advertising, but I am not currently retained by these clients and so I have no professional or commercial axe to grind. I simply think that this type of advertising can be beneficial, both as a means of hiding an eyesore while the building work is in progress and in helping to finance the restoration of the fabric, not to mention brightening up the townscape for a time.

Other countries do not seem to have the same hang-up with this type of advertisement display that we have in the UK. I have previously illustrated examples from both Paris and Venice, where large banner adverts have been erected around outstandingly important buildings in the most sensitive of settings – the point being that if such temporary advert displays are accepted by the authorities in those locations, then there can be no justification for resisting such displays on Grade I listed buildings located in a World Heritage Site in this country or in the most outstanding of conservation areas, and of course on many less important buildings in less sensitive environments.

I previously drew attention to a shroud advert in the Place Vendôme in Paris, and I found several further examples on my latest visit to Paris this year. The first of these is in the Place des Vosges (originally the Place Royale) in le Marais (the 4ème Arrondissement), one of the earliest town squares in Europe (if not the earliest) – completed in 1612. Cardinal Richelieu lived here from 1615 to 1627, and Victor Hugo’s house in the south-east corner of the square is open to the public.







The banner advert here is at the north end of the eastern side of the square, next to the junction with the rue du Pas de la Mule. As the rubric on this and the other advertisements illustrated here clearly states: “Cet affichage contribue au financement de la restauration de l’immeuble.” Précisément!


At night this advert is externally illuminated, as seen in the next shot.




















An even larger banner advert is to be seen on the south front of the range of public buildings that house le Palais de Justice, le Conciergerie and Sainte-Chapelle on l’Île de la Cité (in the 1er Arrondissement). This advert fronts onto Quai des Orfèvres and le Pont Saint-Michel.
















A third example can be seen at the junction of rue Auber and rue Scribe (in the 9ème Arrondissement) immediately opposite the monumental Opéra Garnier. There is a good view of it from the roof terrace of les Galeries Lafayette (as shown in a second photo below).





In these various shroud displays, the advertising material does not cover the whole of the shroud, so there is also a representation of at least part of the building façade in these displays, which gives an indication of the structure of the building lying behind the shroud.

The three examples illustrated here are representative of the type of banner adverts on shrouded buildings that are clearly acceptable in such cases, even where heritage assets of the highest value are involved, in very sensitive locations. The essential point is that these displays are by their nature temporary and, as the displays illustrated here explicitly state, they contribute to the funding of the restoration of the building (as was clearly also the case in the examples from Venice to which I drew attention in earlier posts).

It seems that LPAs (and even the Planning Inspectorate) remain very reluctant to grant advertisement control consent for such displays, and so the only sensible course of action would be to amend the Control of Advertisements Regulations so as to grant deemed consent to these displays. Planning ministers have shown great enthusiasm for cutting through red tape in the planning system, particularly through the medium of extended permitted development rights, and so an amendment of the Control of Advertisements Regulations ought perhaps to commend itself to Eric Pickles and Nick Boles.

© MARTIN H GOODALL

Wednesday, 2 April 2014

We apologise for the interruption...............


We have reached one of those frustrating periods again when pressures on my time prevent my keeping up-to-date with this blog. I fear that by the time I can post the next entry on this blog, more than a fortnight is likely to have passed since the previous item was posted at the end of last week. Regrettably, the same applies to the moderation of comments, and so here too there is likely to be a hiatus.

Meanwhile, there have been further developments on which I wish to report when I have the opportunity to do so. My attention has been drawn to a couple of recent judgments that are relevant to the issue of conditions removing permitted development rights and/or removing the right (under section 55(2)(f)) to use a planning unit for purposes falling within the same use class as the existing use. Unfortunately, these judgments are not as clear as might have been hoped and do not really help in clarifying the position.

I have not forgotten that I promised to look at the small print in the recent GPDO amendment order, which limits or restricts some of the development potentially permitted by these changes. There is also an unresolved issue as to the validity of conditions attached to prior approvals issued by LPAs before 6 April 2014. Are these, as some have suggested, ultra vires, or is the provision in the latest amendment order confirming that LPAs have power to impose conditions on prior approvals under Part 3 retrospective in its effect as regards conditions imposed before 6 April 2014? I am rather inclined to doubt this, but the position is not all that clear-cut.

So there is plenty to talk about, but it may have to wait at least another 10 days, before I can get back to posting further entries on this blog.

© MARTIN H GOODALL

Friday, 28 March 2014

Planning Court will open for business on April 7


The Planning Court, which (like the Administrative Court) will be part of the Queen’s Bench Division of the High Court, is due to open for business on Monday 7 April. So far as the actual applications are concerned, this is just a paper change, although we are promised that specialist planning judges will be assigned to hear cases in this list. This is perhaps the most important and most welcome change brought about by this reform.

The Civil Procedure Rules 1998 have been amended to cater for the new arrangements, and the changes are set out in the Civil Procedure (Amendment No. 3) Rules 2014, which will come into effect on 6 April.

An application which will in future be known as “a Planning Court claim” is defined as a judicial review (under CPR Part 54) or statutory challenge (e.g. under sections 287, 288 or 289 of the 1990 Planning Act, among other statutory rights of challenge) which involves planning permission, other development consents, the enforcement of planning control and the enforcement of other statutory schemes; applications under the Transport and Works Act 1992; wayleaves; highways and other rights of way; compulsory purchase orders; village greens; European Union environmental legislation and domestic transpositions, including assessments for development consents, habitats, waste and pollution control; national, regional or other planning policy documents, statutory or otherwise; or any other matter the Planning Liaison Judge [may determine]. (There is a misprint in the Rules, and the words in square brackets, or words to similar effect, are missing.)

These claims must be issued in future in the Planning Court, and there is power to transfer matters to that court under Part 30 of the CPR. The Planning Court claims will form a specialist list. A judge nominated by the President of the Queen’s Bench Division will be in charge of the Planning Court specialist list and will be known as the Planning Liaison Judge. There is a Practice Direction (54E) that deals with procedure in more detail, but I don’t propose to trouble readers with this.

The new rules will apply to all claims issued on or after 7 April 2014, but I understand that claims in the categories listed above which are issued before that date (in the Administrative Court) will also be transferred to the Planning Court after that date.

The only point which remains unclear is whether the Planning Court, like the Administrative Court, will sit in trial centres outside London. In view of the intention that judges sitting in the Planning Court should be planning specialists, it may not be practicable for the Planning Court to sit in other centres. I don’t see that as a problem. Specialist counsel from London chambers will be briefed in the vast majority of cases, and so it will no doubt be convenient for these cases to be heard in the RCJ in the Strand.

It only remains to wish success to the new Planning Court and to all who sail in her.

© MARTIN H GOODALL

Wednesday, 26 March 2014

Town centre uses – new Permitted Development rights


As I indicated when writing a short time ago on the new permitted development rights for agricultural buildings, the same amendment order to the GPDO (coming into effect on 6 April) also provides additional PD rights for shops (A1) and High Street offices (A2).

The Order introduces a new Class CA into Part 3. This new class consists of a change of use of a building and any land within its curtilage currently in use within Use Class A1 (shops) to use as a bank, building society, credit union or friendly society. However, this PD right is excluded in the unlikely event of the premises being within a site of special scientific interest, a designated safety hazard area or military explosives storage area, or if the site is, or contains, a scheduled ancient monument. However, unlike some of the other recently introduced PD rights, change of use under Class CA is not excluded on “Article 1(5) land” (i.e. in a National Park, the Broads, an Area of Outstanding Natural Beauty, a Conservation Area or a World Heritage Site).

This change of use is subject to a condition that a site which has changed to one of these uses is not to be used for any other purpose (i.e. other than one or other of these purposes – referred to in the order as a ‘deposit taker’), except to the extent that the other purpose is ancillary to the primary use as a deposit-taker.

No prior approval is required in this case, but as soon as reasonably practicable after a change of use under Class CA the LPA must be notified of the change of use, and evidence must be provided that the site is being used for this purpose. A further change of use can only take place within this category (i.e. between a bank, building society, credit union or friendly society) and, again, the LPA must be notified of this further change of use as soon as reasonably practicable after the change together with evidence that the site is still being used for the purposes of a ‘deposit taker’.

Next, the Order introduces a new Class IA into Part 3. This authorises the residential conversion of a building falling within Class A1 (shops) or A2 (financial and professional services), or which is in combined use as a dwelling and a use falling within Class A1 or A2 (whether that use was previously granted permission under Class F of Part 3 or otherwise). In contrast to Class 3, Part J (introduced last May), this new Class includes the authorisation of building operations reasonably necessary to convert the building to residential use.

There are several restrictions on the permitted development authorised by Class IA. It only applies where the building was used for a purpose within Use Classes A1 or A2 on 20th March 2013 or, if the building was not in use on that date, when it was last in use. A further change of use under this class cannot be made where permission to use the building within Class A1 or A2 arises only from a change of use already made under Part 3 of the GPDO. Furthermore, this change of use cannot be made if the cumulative floor space of the existing building changing use under Class IA exceeds 150 square metres, or if the development (together with any previous development under Class IA) would result in more than 150 square metres of floor space in the building having changed use under Class IA.

In relation to the building works permitted by Class IA, the external dimensions of the building as a result of such works must not exceed the external dimensions of the existing building at any given point. In addition, the works must not consist of demolition (other than partial demolition which is reasonably necessary to convert the building to residential use).

As with some of the other recently introduced PD rights, change of use under Class IA cannot be made if the building is on “Article 1(5) land” (i.e. in a National Park, the Broads, an Area of Outstanding Natural Beauty, a Conservation Area or a World Heritage Site) or if the site is or forms part of a Site of Special Scientific Interest, a designated safety hazard area or a military explosives storage area, or if the site is, or contains, a scheduled ancient monument. Development under Class IA is also excluded if the building in question is a Listed Building.

Where development is permitted under Class IA, there are various conditions attached to this PD right. To start with, it is subject to a prior approval procedure. In fact, there are two separate requirements, one in respect of the change of use and the other in respect of any associated building operations.

Before beginning the development, the developer must apply to the LPA for a determination as to whether the prior approval of the authority will be required as to —

(i) transport and highways impacts of the development,
(ii) contamination risks in relation to the building,
(iii) flooding risks in relation to the building, and
(iv) whether it is undesirable for the building to change to residential use because of the impact of the change of use —
(aa) on adequate provision of services of the sort that may be provided by a building falling within Class A1 or A2 (but only where there is a reasonable prospect of the building being used to provide such services), or
(bb) where the building is located in a key shopping area, on the sustainability of that shopping area,


I have put the last of these in italics, because it seems to me that this gives the LPA considerable scope for resisting such changes of use, although this discretion is subject to the proviso that in order to justify a refusal of prior approval based on the need to ensure the adequate provision of services of the sort provided by that building, the LPA must be able to demonstrate that there is a reasonable prospect of the building still being used to provide such services, or (where it is located in a key shopping area) that the loss of this unit would have an adverse impact on the sustainability of the shopping area.

The provisions of paragraph N of Part 3 (introduced in May 2013) will apply in relation to any such application, and this includes the requirement that the LPA must, when determining one of these prior approval applications, have regard to the National Planning Policy Framework as if the application were a planning application. As I noted in relation to the residential conversion of agricultural buildings recently, this point was previously discussed in an earlier post on this blog on Wednesday, 22 May 2013 (“Offices to residential – a further thought”). The inclusion in Class IA of the sub-paragraph I have put in italics [(iv) above] might tempt some LPAs to seek to apply the NPPF to these residential conversions in a wider context, not necessarily confined to the criteria listed above, although the scope for this may perhaps be limited by the proviso as to the likelihood of an alternative retail (or A2 office) use in this case, or the retail impact of the loss of the retail/A2 unit if the building is in a key shopping area.

As regards building operations permitted by Class IA, these are subject to a separate (or additional) condition that before beginning the development, the developer must apply to the LPA for a determination as to whether the prior approval of the authority will be required as to the design or external appearance of the building. Again, the provisions of paragraph N will apply in relation to this application, including the requirement that the LPA must, when determining the application, have regard to the NPPF as if the application were a planning application. In this case, however, it would appear that the NPPF will only be relevant insofar as it addresses design issues (in paragraphs 56 to 68).

Finally, there is a condition that a building which has changed use under Class IA is to be used as a dwellinghouse within the meaning of Class C3 of the Schedule to the Use Classes Order and for no other purpose, except to the extent that the other purpose is ancillary to the primary use as such a dwellinghouse.

Other conditions in the amendment order provide that the development must begin within a period of three years beginning with the date on which any prior approval is granted for that development, or the period of 56 days expires without the LPA notifying the developer as to whether prior approval for that development is given or refused, whichever is the earlier. This will work in exactly the same way as other time limits for determination of prior notification/approval applications (as previously discussed in this blog).

I referred in a previous post on this amendment order to various consequential amendments which it makes to the GPDO. I have already drawn attention to the power of the LPA to impose conditions on the grant of prior approval under Part 3. I ought also to mention the removal or restriction of PD rights for extensions and enlargements to the dwelling under Part 1 where the dwelling is created by a change of use under either Class IA (from agricultural use) or Class MB (from A1 or A2 use). I will try to find time to look at these consequential amendments in a future post, as they could prove to be a trap for the unwary.

A couple of further thoughts occur to me. First, as regards Class CA, this appears to be another instance of this government taking up and putting into practice the ideas canvassed by ‘James Hacker MP’ in his imaginary speech four years ago (see ”REAL reform of the Planning System”, published here on Tuesday, 20 April 2010. Sorry - we still don’t do internal links on this blog. To access this item, click in the side bar on the arrow next to ‘2010’, then click on the arrow against ‘April’, and click on the tile to open that post.)

As regards Class IA, this is a further example of ‘permitted’ development that may not in fact be permitted. It is rather like a double illusion. Rather than puling a rabbit out of the hat, the conjuror only appears to produce it, then with the other hand immediately whips it away again. There was in fact no rabbit, only the illusion of one.

The practical effect could be limited if LPAs are robust in using the power they will have when dealing with prior approval applications under Class IA to refuse approval if they consider that it is undesirable for the building to change to residential use, because of the impact of the change of use on adequate provision of services of the sort that may be provided by a building falling within Class A1 or A2 (where there is a reasonable prospect of the building being used to provide such services), or in those cases where the building is located in a key shopping area, on the sustainability of that shopping area. These are very much the sort of reasons that may well have been given for refusing planning permission before this new PD right was created, so arguably the new PD right may not change very much.

© MARTIN H GOODALL

Monday, 24 March 2014

Conditions that fail to prevent Permitted Development


In a blog post published here on Friday, 18 October 2013 (“Can conditions preclude Permitted Development?”) I drew attention to a type of condition attached to planning permissions along these lines : - “ The premises shall be used as an office (Use Class B1a) and for no other purpose (including any other purpose in Class B of the Schedule to the Town and Country Planning (Use Classes) Order 1987 or in any amendment thereof)” (or words to that effect). The question is whether a condition framed in these terms can prevent the operation of the permitted development right granted by Part 3, Class J of the GPDO, as amended in May 2013.

In my original piece, I expressed the view (for the reasons set out there) that this wording does not have the effect of precluding permitted development under Part 3 of the Second Schedule to the GPDO. But I was unable at that time to put my finger on any specific authority to back this up. Since then, our planning law team at Keystone Law has had to get to grips with this question ‘for real’, and I am grateful to my colleague Ben Garbett for having dug out the judicial authority that backs up the view I expressed last October.

In the meantime (as noted in an update to my original post), Steve Jupp had kindly drawn my attention to paragraph 86 of Circular 11/95 which, after making it clear that conditions of this type are officially discouraged, added that a condition restricting changes of use will not restrict ancillary or incidental activities unless it so specifies, and the paragraph ended with this sentence: “Similarly, a general condition which restricts the use of land does not remove permitted development rights for that use unless the condition also specifically removes those rights as well.” Circular 11/95 has now been cancelled, but this sentence was not a statement of ministerial policy; it was a general statement of the law, which continues to be applicable.

The author of Circular 11/95 no doubt had in mind judicial rulings to that effect. The first of these was delivered by Sir Douglas Franks QC in Carpet Decor (Guildford) Ltd v. SSE [1981] JPL 806, where he said:

This case turns on the proper construction of the planning permission. As a general principle, where a local planning authority intends to exclude the operation of the Use Classes Order or the General Development Order, they should say so by the imposition of a condition in unequivocal terms, for in the absence of such a condition it must be assumed that those orders will have effect by operation of law.

The Court of Appeal reached a similar conclusion in Dunoon Developments Ltd -v- SSE [1992] JPL 936 (although the judgment in Carpet Decor does not appear to have been drawn to the attention of the court in that case). Article 3(4) of the GPDO had been called in aid by the LPA, but Farquharson LJ held that :

“The purpose of the General Development Order is to give a general planning consent unless such consent is specifically excluded by the words of the condition. The Schedule [now the Second Schedule to the GPDO] identifies the activities included in this general consent..........Therefore it is apt to include the provisions of this particular planning permission unless the condition was wide enough to exclude it.

He concluded that he recognised that it is necessary to examine the condition with care, bearing in mind the appellants’ submission that that if the LPA were correct in their interpretation, it would deprive the appellants of a development right granted by statute. “It is clear that that the condition makes no express exclusion of the effect of the General Development Order. The question, therefore, is whether it is to be implied from the words themselves, in the context in which they are used, to so exclude them. As already indicated, the condition does not have that wide effect.”

In agreeing with this judgment, the Vice-Chancellor, Sir David Nicholls, added :

Of its nature, and by definition, a grant of planning permission for a stated purpose is a grant only for that use. But that cannot per se be sufficient to exclude the operation of a General Development Order. A grant of permission for a particular use cannot per se constitute a condition inconsistent with consequential development permitted by a General Development Order. If it did, the operation of General Development Orders would be curtailed in a way which could not have been intended. Thus to exclude the application of a General Development Order, there has to be something more. In the present case there is nothing more. Condition 1 delimits or circumscribes the ambit of the permitted use. The condition is not apt to achieve more. It is not apt to achieve more because it is not fairly apparent from the language of the condition, or the document [the planning permission] read as a whole, that Condition 1 is intended to do more than this. If the condition is fairly read, its purpose is, but is only, to define the ambit of the permission granted. There is not explicit or implicit an intention to negative development pursuant to any existing or future Use Classes Order or General Development Order.

I am aware of an earlier decision in City of London Corporation v. SSE (1971) 23 P&CR 169 that appears to have gone the other way but, in light of the more recent judgments in both Carpet Decor and Dunoon Developments, I do not believe that any reliance can now be placed on that earlier decision.

The best that might be said for this type of condition is that it may (if appropriately worded) exclude the operation of section 55(2)(f), i.e. other uses within the same use class (as the condition quoted earlier would appear to do), although the judgments in Carpet Decor and Dunoon Developments make it clear that even the operation of section 55(2)(f) by reference to the Use Classes Order cannot be taken to have been excluded in the absence of clear words specifically referring to the UCO.

However that may be, it is abundantly clear from these judgments that (as was confirmed by paragraph 86 of Circular 11/95) a generally worded condition of the type under discussion here cannot prevent the operation of the General Permitted Development Order, and in particular Part 3, Class J in the Second Schedule. Local Planning Authorities who try to resist permitted development on the basis of such a condition are going to be on a hiding to nothing. Where time and effort had to be expended, we have found, is in persuading them that they are wrong in thinking otherwise and, if they still don’t accept the position, in taking the necessary legal and procedural steps to confirm our clients’ right to carry out the development. We are already working on several such cases, and no doubt more will follow.

© MARTIN H GOODALL

Thursday, 20 March 2014

Subdividing a planning unit


Ben Wharfe recently raised a query with me as a comment on an early post I wrote on “curtilage confusion”. I thought that rather than shunting this, together with my reply, into the comments section of that post, it would justify a wider airing in the main part of the blog.

Ben drew my attention to the Court of Appeal’s judgment in Wakelin v. SSE 1978 JPL 769. His query actually related to the subdivision of a single dwellinghouse, but I don’t think that Wakelin is directly in point here, as the position is clearly governed now by section 55(3)(a) of the 1990 Act, which specifically declares that the use as two or more separate dwellinghouses of any building previously used as a single dwellinghouse involves a material change of use of the building and of each part which is so used.. As the later decision of the Court of Appeal in Arun established, it is the 4-year rule that applies here, even if the breach of planning control is in fact and a breach of condition. To that extent, Wakelin has been superseded, because that case involved just such a breach of condition, and this point was lightly dismissed as a consideration by Lord Denning.

Thus section 55(2)(f) has no application so far as the subdivision of a house is concerned, because the position is entirely governed by section 55(3)(a). However, there is a slight doubt as to the precise effect of section 55(2)(f) in other cases. On one reading of the wording of this sub-paragraph, it may not necessarily apply to subdivision of a planning unit as such, although it certainly covers any change of use within the same use class. So for example, change of use from a butcher’s shop to use as a post office (both within Use Class A1) is not to be taken for the purposes of the Act to involve development of the land. But subdivision or amalgamation of planning units may nonetheless amount to a material change of use if it has the effect of changing the character of the use. The Court of Appeal’s judgment in Wakelin is one example, and the more recent High Court judgment in Richmond upon Thames LBC v SSETR [2001] J.P.L. 84 (involving the amalgamation of seven dwellings so as to re-convert the building to use as a single dwelling) is another example, where the change in the size of the planning unit was held to affect the character of the use in planning terms (in a broad sense, not confined to its possible environmental effects) and was thus a material change of use amounting to development, notwithstanding the fact that the earlier and later uses were all within one and the same use class.

This may come as a surprise to many people, as there seems to be a general assumption that section 55(2)(f) covers subdivision of a planning unit, so long as the use of all of the new planning units created by this subdivision remains within one and the same use class. Richmond clearly established that this is not necessarily so with regard to the amalgamation of two or more planning units, but it seems that the same could equally apply to the sub-division of a planning unit. A material change of use does not necessarily occur upon the sub-division of a planning unit, but if this changes the character of the use (in planning terms) then this may amount to a material change of use, notwithstanding section 55(2)(f). It is quite frankly a ‘grey’ area, and I suppose that, as in so many other cases, it will be ‘a matter of fact and degree’, dependent of the precise circumstances of each such change to the planning unit.

© MARTIN H GOODALL