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  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  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.
NOTE: This topic is discussed more fully 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