Friday, 18 October 2013

Can conditions preclude Permitted Development?


The immediate answer to this question is that of course they can, and such conditions are quite common. They are usually along the lines that “Notwithstanding [the GPDO – variously referred to] no development shall take place under Part 1, Classes A or E [etc. etc.]” (or as the case may be). Some conditions even exclude all types of PD under the whole of Parts 1 and 2. There is no doubt that if the condition is worded with sufficient precision (and most are) the type of permitted development specified by the condition cannot be carried out, and a planning permission would have to be sought instead. There must, of course, be an objective justification for such a condition, and I have come across rather too many examples of these conditions which were imposed without any such justification. The remedy in such a case is an application under section 73 (and, if necessary, an appeal against a refusal to remove the condition). I have even won costs against the LPA in such appeals.

However, I have recently been asked by a correspondent about the effect of a rather differently worded condition in relation to the recently introduced right to convert an office (Use Class B1(a)) to residential use. In this case, a duly implemented planning permission which had authorised a change of use of premises to office use contained a condition that read: “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).” Does this preclude a change of use to Use Class C3 under the new GPDO provisions (subject to the qualifying criteria and compliance with the prior approval procedure)?

At first sight, it appeared to me that this condition does have that effect – if you simply take the words : “The premises shall be used as an office (Use Class B1a) and for no other purpose. But second thoughts suggested otherwise. It seems to me that this condition does not (and cannot) preclude an application for planning permission for a further change of use. It was designed solely to prevent the use being changed within Use Class B1 in reliance on the terms of section 55(2)(f) of the 1990 Act (whereby such a change of use within the same use class would not constitute development within the meaning of the Act). Any other change of use, to a use outside the scope of Class B1, would have been development in any event, and would have required planning permission. Thus, if planning permission were to be granted for such a further change of use, it would supersede the previous permission (and its conditions). What Part 3 of the Second Schedule to the GPDO does is exactly the same; it grants planning permission (subject to certain requirements being met) for a further change of use. The condition in question cannot therefore have the effect of precluding this.

There are several reasons for reaching this conclusion. First, the condition referred specifically to the Use Classes Order and contained no reference at all to the GPDO. I do not consider that the quoted wording could be stretched to include the GPDO or to be construed so as to do so. Furthermore, if permitted development was intended to be precluded by this condition, this should have been stated in clear terms. It is well settled law that conditions must be clear in their intention and effect; their purpose cannot be implied. Permitted Development cannot be precluded by implication. If an LPA wishes to preclude PD, it must word the condition in such a way as expressly to remove specific PD rights.

I mentioned above that if planning permission were to be granted for a further change of use, it would supersede the previous permission (and its conditions). As I have pointed out, what the GPDO does is to grant planning permission for a further change of use. This is the primary reason for my taking the view that this condition in the previous permission does not preclude the further change of use now authorised by Part 3. For the same reason, I do not consider that the condition would prevent the other change of use permitted by Part 3 (subject to a floorspace limitation) from B1 to B8.

I recall that there used to be some doubt as to whether development carried out as permitted development would be free of conditions under an existing planning permission. The conclusion (although I can’t recall offhand the relevant authority for this) was that the conditions continued to apply to the property as a whole. However, I don’t see that rule as being applicable in this context, where planning permission is given by the GPDO for an entirely different use of the property, at least so far as concerns conditions that were specifically addressed to the actual use of the property. Where the GPDO authorises a change of use under Part 3, it seems to me that any such conditions attached to the earlier permission would no longer apply. The position as regards other conditions (for example as regards car parking) may, however, be more doubtful.

No doubt there are those who would take a different view, and I cannot pretend that the answer I have given above to the question that was posed to me is the last word on this subject. But for what it’s worth, and subject to any contrary statutory or judicial authority that might be brought to my attention, I don’t believe that a condition like the one quoted above would preclude a change of use under the GPDO.

UPDATE: In case anyone didn’t see Steve Jupp’s helpful contribution to this discussion among the comments posted below this item, I thought it might be useful to follow him in drawing attention to paragraph 86 of Circular 11/95 (recently cancelled, I know, but in my view the statements it contained are still relevant and should continue to be applied). This paragraph stated in clear terms that “a general condition which restricts the use of land does not remove permitted development rights for that use unless the condition specifically removes those rights as well.” Q.E.D.

NOTE: This topic is more fully discussed in the author’s new book - ”A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.

© MARTIN H GOODALL

26 comments:

Evan Owen - Snowdonia said...

Interesting, can obligations within a Section 106 agreement have the same effect? Restricting floor area, precluding PD rights?

Chris Anscombe said...

My first reaction was, "that can't be right", but the more I think about it I can't fault your explanation, so I can't disagree with your conclusion in respect of the wording of this particular condition. It restrict changes that are not development but allows those that are permitted development. Just shows how important the wording of conditions has to be.

Steve jupp mrtpi said...

It is relevant to note that paragraph 86 of Circular 10/95 makes it clear that a general condition which restricts the use of land does not remove permitted development rights for that use unless the condition specifically removes those rights as well. The condition clearly does not remove permitted development rights.

Furthermore, the real question is what is the affect of that condition in respect of the later grant of permission affected by the insertion of Class J (s.58(a) TCPA planning permission may be granted by a development order). Class J grants permission for a change from B1(a) to residential provided the preconditions etc. are met. The condition relates to the earlier permission and cannot operate to take away the subsequent grant of pd rights affected by the insertion of Class J. In my view the condition simply operates to restrict the use which existed at the time of grant.

Martin H Goodall LARTPI said...

As regards Evan Owen’s query about the effect of a section 106 agreement, the answer is that it operates in a rather different way. It could (if appropriately worded) preclude future PD, but the LPA would have to enforce the agreement through the courts. It could not prevent the operation of the planning legislation as such, although a landowner would be ill-advised to forge ahead with proposed PD in circumstances in which such development might be restrained if the LPA were to seek to enforce the terms of the section 106 agreement.

John Cullen said...

If the condition also specified a named company (The premises shall be used as an office in connection with the business ******* , and for no other purpose) would that then preclude any change of use to Class C3 under the new GPDO?

Martin H Goodall LARTPI said...

My immediate reaction to John Cullen’s query is that the user condition related solely to the authorised office use, and so it cannot preclude the change of use under Part 3 to residential use.

Dyanne Acorn said...

Do the red line & blue line on a site plan have any significance when it comes to removing pd rights? I have a property where we applied for CoU of garage to office which was approved but the LPA removed all pd rights from class E. However, the red line for the application was only around the building envelope. In this case would the condition bite?

Martin H Goodall LARTPI said...

In answer to Dyanne Acorn (17/02/14), a condition can apply to land outside the red line if the condition meets the relevant legal tests (necessity, reasonableness, enforceability, relevance to planning and relevance to the development the subject of that planning permission), and if it complies in all other respects with the principles set out in Circular 11/95. So, in principle, it seems to me that the condition removing PD rights under Class E of Part 1 from the ‘blue’ land may be justified.

If you disagree, an application under section 73 to lift the condition would appear to be the way forward, followed if necessary by an appeal against a refusal of that application. But you should take proper professional advice as to the appropriateness of the condition in all the circumstances, before committing yourself to the expense of taking these steps.

Jane H said...

I am interested in your statement that There must, of course, be an objective justification for such a condition, and I have come across rather too many examples of these conditions which were imposed without any such justification.

My house has one of these restrictions, but the planning approval has no justification as to why. Does this mean I could challenge it?

Martin H Goodall LARTPI said...

In answer to Jane H - If a condition is unjustified (as quite a few are), an application can be made under section 73 for permission to carry out the development or to use the property without compliance with the condition. A refusal by the LPA to remove or relax the condition can be appealed to the Planning Inspectorate under section 78. In the meantime, the condition must be complied with, unless the condition is actually unlawful, but that is a different question.

Freddie Elwes said...

Can a council impose a S106 obligation cancelling previously granted planning permission. i.e. to get PP to build 1 house in a village, the landlord must agree under a S106 to rescind previously granted PP for two other houses in the same village?

Martin H Goodall LARTPI said...

In answer to Freddie Elwes, a council cannot ‘impose’ a planning obligation under section 106, but they may well refuse to grant planning permission unless the applicant first enters into a planning obligation. It is a recognised way of ensuring that no compensation can be claimed on the revocation of an existing planning permission. This is perfectly legitimate if it would not be acceptable in planning terms for the two planning permissions to subsist at the same time.

Anonymous said...

Does the following condition attached to a change of use from retail to a residential dwelling restrict PD rights for dwellings such as changing windows/extensions at rear, roof lights, lofts etc?

The development shall be carried out strictly in accordance with the details so approved, shall be maintained as such thereafter and no change there from shall take place without the prior approval of the Local Planning Authority

I suspect not as no reference to PD but does preclude changes without LPA approval.

Martin H Goodall LARTPI said...

A very belated response to the anonymous query of 22 November (which seems to have slipped off the radar). It is frankly difficult to answer this question without knowing the full facts. The lack of any reference to the GPDO is not necessarily fatal to the condition. I think that a condition that prevents building operations that would otherwise be permitted development under Part 1 of the Second Schedule to the GPDO is likely to be upheld, notwithstanding the lack of any reference to the GPDO. It is conditions restricting changes of use that usually cause the problem, and which have engaged the attention of the courts on several occasions.

Richard Harlow said...

Martin,

Going slightly off topic, if a property has PD rights to say erect a garage, and then a householder application to made for extensions to the property, however the council in issuing the approval for the extensions remove all PD rights for the property.
If the extensions are not implemented but instead the garage is built first under PD, as I read it as the PD rights are only removed as soon as the extension works are started under the planning permission which have the PD rights removal condition attached to it.

Is this correct? As I assume if it is only the planning is granted and before the extension & garage is started, a certificate of proposed lawful use could be obtained and then the garage built prior to the start of the extension?

Martin H Goodall LARTPI said...

Richard Harlow is correct in what he writes; BUT the PD and the development authorised by planning permission must not be carried out as one continuous campaign. There have been appeal decisions where the consented development was carried out immediately after the permitted development, and it was held that the element of the development that was claimed to be PD was unlawful, and had to be demolished.

I could not say with any certainty how long one would have to wait after completing the PD before starting on the development that has been authorised by planning permission, but to be on the safe side it might be advisable to wait a year after completing the PD before starting on the second phase of development.

The position may be too hypothetical to admit of its being confirmed by means of a Lawful Development Certificate.

K McCusker said...

Martin,

In relation to the question asked by Freddie Elwes above about a section 106 agreement potentially cancelling a previously granted planning permission. Do you think that this could be carried out under a planning condition also? 2 planning permissions both for dwellings are perfectly able to be implemented on the same site but LPA only allow for one dwelling. LPA will not grant new permission without a condition or covenant from the applicant that the previous permission will not be further implemented.

For example, a condition included a planning permission could state "remove all development associated with planning permission x and revert land to x" and "only one dwelling permitted on site".

Many thanks

Martin H Goodall LARTPI said...

In answer to K McKusker (29 June),it is well settled law that the right to carry out development under an existing planning permission can be legitimately removed by a condition in a subsequent permission. There are several examples, the earliest of which was the case of Prossor v. MHLG in 1968.

The developer does, of course, have the option whether or not to implement the later permission, and if they do not do so, then the condition prohibiting development under the earlier permission would not come into effect.

This raises the theoretical possibility that the developer might carry out the original development, and then seek to implement the later permission, in which case the prohibitive condition would by that time have become otiose. However, the LPA ought to be alert to this possibility, and condition the new permission so that in addition to prohibiting the previously consented development, it also prevents reliance on this new permission in circumstances where the new permission is not implemented before the development authorised by the earlier permission is carried out. This would force the developer to choose which development to carry out, while preventing the construction of both developments one after the other.

We are talking here, of course, about conditions attached to a planning permission. A condition of this sort could not be imposed on a prior approval under Part 3, in my view.

ipitman@mac.com said...

Hi Martin, we bought a house with land in 2000 and it had been granted planning consent to demolish the house and build a new one. The decision notice removed permitted development rights. However, we lived in the old house and never implemented the planning to demolish the house. Instead we applied 3 years later for an extension to the old house. This was granted without removing our PDR. My question is, as the previous application for a new build was never undertaken and expired years ago, am I right in thinking that we do in fact retain our PDR as our planning approval didn't mention any planning conditions?
Thanks, Amanda

Martin H Goodall LARTPI said...

A condition in a planning permission has no effect until or unless that planning permission is implemented. So if the earlier permission was never implemented, the condition attached to that permission which would have removed PD rights has never taken effect. If the later permission for an extension (which has been implemented) did not remove any PD rights, then those rights can still be exercised (subject to the limitations and conditions in the relevant Part of the Second Schedule to the GPDO).

Ian Donohue said...

I have a situation where the authority granted permission for extension to a dwelling in the Green Belt. The applicant offered through a UU to remove pd rights for extensions to the roof (part B) and outbuildings (part E).

However the authority did not impose a condition removing the pd rights.

On the basis of the earlier reply about legal agreements if the applicant put a building in his garden (under permitted development) would the authorities only recourse be to challenge through the courts

Thanks Ian

Martin H Goodall LARTPI said...

If there is no condition removing PD rights, then only a restrictive covenant (including a covenant in a planning obligation under section 106) could restrain development under the GPDO. As Ian Donoghue suggests, this would have to be through the courts, not through the statutory planning enforcement process. The outcome would depend on the enforceability of the covenant, and on the court’s being satisfied that an injunction would be an appropriate remedy in the circumstances.

Paul A said...

Hi Martin,

Firstly thanks for taking the time to post all this information, it's really useful.

A question if i may;

I've just been granted planning for a new build on a plot i purchased with outline consent (only for scale) for a 350m2 dwelling with detached garage. The reserved matters application was for the same scale as the outline planning consent, but we had hoped they wouldn't remove our PD rights, which unfortunately they have. We wanted to build an attached double garage on the side of the main house, which, because we had (stupidly) shown the initial plans to a neighbour (before we removed the attached garage to get the build down to 350m2) they were made aware of in the aforementioned neighbours objection. I am sure this is why they have included the condition.

The condition reads as follows;

12. Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 2015 (or any order revoking or re-enacting that order with or without modification), the following development shall not be undertaken:-

- extension to the dwelling
- free standing building within the curtilage of the dwelling
- addition or alteration to the roof
- erection of a porch
- any windows or dormer windows

Reason: To maintain the scale, appearance and character of the development and to safeguard the amenities of the locality.

I have a planning consultant who has advised that we simply apply for a removal of the condition, which is fine, but my main question is how can a local council enforce a condition like this when it would seem to go against government guidelines? I know this may sound overly simplistic.....but it really seems like the tail wagging the dog to me.

The property is on an acre of land in the countryside, and can easily take another 20m2 of attached garage, and ancillary buildings (not that i currently plan on building any). I have read your comments and quite frankly their condition doesn't seem "objective" at all, but more geared towards appeasing the neighbour and the Parish Council (who also objected on behalf of the neighbour).

We're not in a conservation area of any sort, and the closest (and complaining) neighbour's house is at least 450m2 with ancillary buildings, so how they can be justified in removing our PD is a bit beyond me.

Bottom line is, are they lawful in doing this, and is our best chance just to apply for PP for the garage and hope for the best? Obviously the neighbour and PC will object again, but i am hoping clearer heads might prevail at some stage.

Thanks for your advice, and Merry Christmas. :)

Paul.

Martin H Goodall LARTPI said...

In answer to Paul A’s question (22 December), I agree with his planning consultant. A section 73 application is the only way forward, and if this is refused the refusal should be appealed. Failing that, the condition in question will be entirely effective in preventing the specified permitted development.

Anonymous said...

With regard to removal of permitted development rights by condition can you or anyone tell me whether a Local Planning Authority has the authority to remove pd rights (in any class) from one section of the property or does the removal of such rights have to apply to the whole of the property?
I am aware that Planning Inspectors have this power, e.g. one Inspector stated in a successful appeal ".. no windows or other openings shall be inserted in the roof slopes on the eastern or western elevations without the prior written consent of the local planning authority."
I am in a position where all pd rights have been removed regarding the roof (Class B) but I want to submit an application to vary the condition so that it does not apply to the roof of a front projection. Can the LPA consider such an application and have the authority to permit (or refuse)?

Martin H Goodall LARTPI said...

The answer to the anonymous query of 9 November is that a condition may apply to a particular part of a property, rather than the whole, if this is appropriate for planning purposes.

An application under section 73 of the 1990 Act can be made to remove, vary or relax a condition in any way (whether in whole or in part), and so what is proposed is perfectly feasible, although there can be no guarantee that the LPA would necessarily grant permission as asked.

It should also be borne in mind that, whilst a section 73 application cannot jeopardise the planning permission itself, the LPA can review all the conditions attached to the permission and may impose new ones.