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."


“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.

[UPDATE: I noticed after writing this piece that "Annex A" to Circular 11/95 (model conditions) was not cancelled along with the rest of the circular. This was presumably meant to refer to APPENDIX A, where the model conditions quoted above (48 and 50 respectively) are to be found. This further strengthens the point that I sought to make.]



Anonymous said...

"Bit of a minefield really!?" - and taking the opportunity (or liberty) of seeking further opinion, can the LPA impose such a condition on an application made under s191 for an existing/establish use? ie if an A1 use has subsisted for the requisite 10 year period either as an unauthorised use or in Breach of a Planning Condition can the LPA issue a certificate that would 'fetter' the use to the particular activity, thus 'restraining' any change to any other use within the same use class?

Martin H Goodall LARTPI said...

The answer to today’s anonymous query is that a Lawful Development Certificate cannot impose conditions on an existing or proposed use or development that is lawful. The LPA can issue a certificate for less than was applied for, but this must be based on law and fact; it is not a matter of discretion. It is only if the evidence does not show, on the balance of probability, that the entirety of the use or development in respect of which a certificate has been sought is in fact lawful, or if it is in any event limited in some way (by some pre-existing legal constraint, such as the terms of an extant planning permission, for example), that the certificate might be issued for less than was applied for or might be expressed in terms that draw attention to the existing legal constraint that limits the lawful scope of the use or development. Apart from this, the LPA has no power to impose conditions on the LDC or to limit the scope of the lawful use or development beyond any pre-existing constraint that might affect it.

Anonymous said...

Fascinating article.

Would it be correct to interpret your comments that Planning Consent (generated by planning appeal) for a multi-use building (agricultural packing, office and retail) using the Circular 11/95 model clauses to restrict retail use would over-ride the general permission of 'farm gate sales' where farmers/producers can sell their own produce without any consent?

Martin H Goodall LARTPI said...

In answer to the point raised on 2 May - If the condition in question is worded in the same way as model condition 49 in Appendix A to Circular 11/95, then it may well prevent farm gate sales, but it does depend on the precise wording of the condition. Unless the condition has the effect of preventing this, farm gate sales might ordinarily be ancillary to the authorised use (so long as they are functionally dependent on that use). But, as I have said – “it depends”.

If we are looking instead at model condition 48, then I am not sure that this condition would necessarily prevent a use that is strictly ancillary to the authorised uses. This would require further thought, and I am afraid I haven't got the time for this right now.

BMG said...

Martin - Very good and a minefield indeed. The following is a condition attached to the overall original planning permission for a new housing development. Is it enforceable without the reason as you suggest in your article? ie, Does this condition lawfully limit the GPD rights as mentioned, or not? Many thanks.

"4. 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 enlargement of the dwellings hereby permitted, or any building or enclosure within the site curtilage shall be built or shall take place without the prior written permission of the District Planning Authority or the Secretary of State."

Martin H Goodall LARTPI said...

On the face of it this condition appears to be effective in removing permitted development rights for the developments listed. If it is thought to be unreasonable, an application could be made under section 73 to remove it.