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.

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

15 comments:

Anonymous said...

Hello,

It might be worth noting that Circular11/95 (other than the model conditions in Annexe A) was cancelled on 6/3/14 now that the Planning Practice Guidance Suite has been published. See

https://www.gov.uk/government/publications/guidance-documents-cancelled-by-the-planning-practice-guidance-suite

BD

Martin H Goodall LARTPI said...

I am fully aware that Circular 11/95 has been cancelled. The NPPG does cover the same ground to some extent, but I think the principles were far better explained in the Circular and, so far as I am concerned, those principles continue to be relevant, even though the text of the circular itself no longer has De-CLoG’s imprimatur.

RichardW said...

I agree with the principle that conditions can do no more than they say on their face.

But I worry about generalising in the way you have.

In our authority for example the standard condition used through the 80's and 90's added the word "only", as in

The premises shall ONLY 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

The judgement you quote is clear enough that the case turned on "the language of the condition" in question but I think it is dangerous ground to try and draw from this a general principle that conditions somewhat like this - but that may not be exactly like this - will have the same legal effect.

By-the-by, do you have the exact phrasing of the condition in the case quoted? Is it directly analogous to your typical example quoted?


Mike Sumner said...

Dear Mr. Goodhall, I found this blog of particular interest as the permission we were granted for a replacement dwelling in isolated countryside (our nearest neighbour and closest public road are over half a mile away) in August last year contains the following condition:

2.
Notwithstanding the provisions of the Town & Country Planning (General
Permitted Development) Order 1995, (or any Order or Statutory Instrument
revoking and re-enacting that Order), no garages, car ports or house
extensions shall be erected within the curtilage of the dwelling on the site
without the prior written consent of the Local Planning Authority.
Reason: To ensure that the Local Planning Authority retains control over the
future extension of the development, in the interests of its architectural and
visual integrity and the visual amenity and character of the area within
which it is set. This condition is imposed in accordance with Policies A5 and
DC5 of the East Lindsey Local Plan Alteration 1999.

I have read your comments on this matter a couple of times but as a lay person, I have been unable to conclude from it whether or not this is a valid condition. The condition also uses curtilage as a reference rather than planning unt as discussed frequently in your blog, so I would be interested to hear what you make of this.

Regards,
Mike Sumner
mike@msumner.co.uk

Steve jupp mrtpi said...

as a slight aside to this issue there is an interesting appeal decision from Winchester CC wherein a s78 appeal was determined [in this case permission was required for the COU from office to dwelling as the subject building was listed].
The COU was contrary to policy, hence the appeal.
Paragraph 15 of the decision letter makes interesting reading as to the approach being taken by inspectors. here the inspector states:
"But when I am determining this appeal I do so “standing in the shoes of the Secretary of State”. As such I have to give the Government’s clear intention, to relax this kind of change of use, very significant weight. Indeed, because of the continued need to boost the economy, it appears to me that, assuming heritage concerns would be satisfied (as they would appear to be, in the light
of listed building consent being granted for the proposed change of use and building works) then this recent national change in land use planning should take precedence over the polices of the DP. My conclusion on this main issue, on its own, is sufficient justification to override the normal presumption in favour of the policies of the DP and grant planning permission."
The appeal was allowed.
[ref: APP/L1765/A/13/2202937]
Steve Jupp MRTPI

Martin H Goodall LARTPI said...

As I explained in the post I published on Wednesday, 2 April, there has been an inevitable hiatus in the publication of the blog for the past fortnight, and this has also affected the moderation of comments. So I am sorry that Richard W’s comment of 26/03/14 has had to wait until today before it appeared.

He raises an interesting and important point, and it is one to which I intend to return in the blog when time permits. There is an unfortunate lack of clarity in the judicial authorities on this topic, and the position is not as straightforward as one might wish.

On the other hand, as Steve Jupp has pointed out, inspectors seem to be taking a purposive approach to issues of this type, so maybe the strict approach for which I have been contending will in practice be adopted in the determination of appeals.

Martin H Goodall LARTPI said...

Mike Sumner’s comment of 26/03/14 has also had to wait an unconscionable time to see the light of day. In this case, I rather fear that the condition is effective to remove PD rights.

The reference to the curtilage is perfectly correct, as PD rights under Part 1 apply only within the domestic curtilage.

However, a section 73 application (followed, if necessary, by an appeal against any refusal to remove the condition) might be a way forward, if it can be shown that there is no proper justification for the condition.

Anonymous said...

Our local authority has taken to adding a condition to each granted planning permission which states
"The development hereby permitted shall be carried out strictly in accordance with the details shown on the application form, site location plan and approved drawings". If I build not in accordance with the submitted plans am I deemed to have built unauthorised development with it's 4 year enforcement rule or am I in breach of condition with it's 10 year enforcement rule?

Martin H Goodall LARTPI said...

In answer to my anonymous correspondent of 18 January, it will very much depend on the facts of the case. If the departure from the approved drawings and details is comparatively minor (so that the development is still substantially of the same form and nature as the development authorised by the planning permission), this will probably be seen simply as a breach of condition, and this breach of condition will be subject to the 10-year rule. If, on the other hand, the departure from the consented schemed is so substantial that it cannot properly be said to be the development that was authorised by the planning permission, then the breach of planning control is likely to be seen in those circumstances as the erection of a building without planning permission, which is subject to the 4-year rule. It really will be ‘a matter of fact and degree’ in each case, and one cannot say in advance exactly where one should draw the line between one and the other.

If the former applies, then the Breach of Condition Notice or Enforcment Notice will simply require the alteration of the development so as to comply with the condition, but if the latter then the enforcement notice may well require the entire removal of the whole development. Such notices have certainly been served in some cases, and have been upheld on appeal.

palmtree said...

Once the development is completed "strictly in accordance with submitted drawings" and any other conditions, can subsequent alterations such as recladding; additional porch/extension in accordance with current commercial GDPO be undertaken, or do such conditions limit PD in perpetuity?

Martin H Goodall LARTPI said...

A condition that a development is to be carried out strictly in accordance with the approved drawings does not, in my view, prevent the subsequent exercise of any PD rights that might apply (subject, of course, to these PD rights not having been removed in any other way). However, the right to carry out permitted development under Part 1 can only arise once the development has been substantially completed (in accordance with the decision of the House of Lords in Sage - i.e. properly finished). Trying to make alterations before this would not be PD and might well represent a breach of the condition to which ‘palmtree’ refers.

Anonymous said...

I have a 1987 planning permission that states that the property is to be used for b2 purposes and for no other purpose whatsoever

The unit is a large unit and I would want to use some of it for storage (b8) pruposes). Does this condition restrict that or does it mean that the use has been changed to B2 but my permitted development rights are still in tact

Kind regards


Suryana YASIN

Martin H Goodall LARTPI said...

In answer to Suryana Yasin, “It depends.” I would need proper instructions to advise, and at the very least we would need to see the whole of the planning permission. Any such advice would be subject to the usual professional charges.

Andrew Spooner said...

I am looking forward to receiving your book tomorrow. It may assist me or throw some light on my current situation... that a designated B1 only use granted by the Planning Inspectorate (1998, 2 acre site, 3 stone buildings, one as a dwelling tied/occupancy/class conditions) and within PD, can in a Prior Notification meeting be overturned by the Peak District National Park. They have decided to ignore the planning inspectorate decision and impose SUI Generis on the site in order to defeat ANY application for a PD within the park.

Martin H Goodall LARTPI said...

If Andrew Spooner (29 December) would like to email me, a member of Keystone Law’s planning law team may well be able to advise on the situation Andrew describes.

In this case, we would need to see the precise terms of the LDC issued in 1998, and we would also need to be informed of any changes in the circumstances relating to the site since then (e.g. further built development, any subsequent change in the use of the site, etc.)

In view of the fact that Andrew has posted his query under this blog post, we would also need to know whether there are any conditions attached to any planning permission relating to this site that might have (or be intended to have) the effect of precluding permitted development on this site.

All relevant designations affecting the site would also need to be considered (National Park obviously, but also any listed buildings, a conservation area, etc. would also be relevant).