Monday, 28 December 2015

Conditions preventing Permitted Development


I have written on this topic before, and it is covered in my book (in Appendix A), but, as a result of discussions with my colleague Ben Garbett, it has become clear that a distinction needs to be drawn between a condition excluding the effect of section 55(2)(f) of the 1990 Act, and a condition which has the effect of precluding permitted development under the GPDO thus engaging Article 3(4) of that Order (which rules out permitted development contrary to any condition imposed by any planning permission).

We are dealing here with two separate statutory provisions, which differ not only in their wording but also in their purpose and effect. For this reason, it should not be assumed that a condition that appears on the face of it to preclude the use of a building or land for a purpose other than that which is expressly authorised by the terms of that planning permission necessarily has the effect of excluding the operation of both of these statutory provisions.

Section 55(2)(f) provides that in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section [i.e. the Use Classes Order], the use of the buildings or other land, or of any part of the buildings or other land, for any purpose in the same class is not to be taken for the purposes of the Act to involve development of the land. Article 3(1) of the Use Classes Order contains a similar provision. However, it should be noted that neither if these provisions grants any form of planning permission. They simply provide that any change of use from one use to another within the same use class is not development at all.

In contrast to this, Article 3(1) of the GPDO grants planning permission for the classes of development described as permitted development in Schedule 2 to the Order. This is an important distinction. In contrast to the position under section 55(2)(f), development is involved here. These are changes of use for which planning permission is required, and it is the GPDO that grants that permission.

There has been a tendency (not least on the part of planning inspectors in their appeal decisions), to conflate the effect of a condition that excludes the operation of section 55(2)(f) with a condition that precludes development that would otherwise be permitted by the GPDO. I confess that I may have been guilty of doing this in the past myself – it is all too easy to see the effect of a preclusive condition as applying equally to the operation of section 55(2)(f) and to permitted development under the GPDO. However, as I hope to show in this article, such an assumption is incorrect.

Let’s get a couple of preliminary points out of the way first. A planning permission which specifies the authorised use in the description of the development will thereby limit the initial use of the development (e.g. Wilson v. West Sussex CC [1963] 2 Q.B. 764 – “an agricultural cottage” and East Suffolk CC v. Secretary of State for the Environment (1972) 70 L.G.R. 803 - “a detached bungalow or house for occupation by an agricultural worker”). However, in the absence of an express condition attached to the permission, this will not prevent a different use being implemented subsequently, provided it does not amount to a material change of use constituting development. (See I’m Your Man Ltd v. SSE [1998] P.L.C.R. 107, also Uttlesford DC -v- SSE (1989) JPL 685). Thus in a case such as those cited above, where the planning permission authorises a development that creates a single private dwellinghouse, the description of the development authorised by the planning permission cannot, by itself, prevent a subsequent change of use to unrestricted residential use, if the use of the dwelling continues to fall wholly within Use Class C3. Section 55(2)(f) will operate in such a case (subject to the rule in Kwik Save Discount Group Ltd v. SSW [1981] J.P.L. 198, where it was held that a change of use authorised as permitted development under Part 3 of the Second Schedule to the GPDO could not lawfully be made less than two months after the original use had been implemented; the original use had to be more than purely nominal.)

The second point is that a condition, if appropriately worded, can restrict the use or uses to which the development authorised by a planning permission can be put. It is beyond dispute that if a condition is expressly worded so as to preclude the effect of either or both of section 55(2)(f) [and Article 3(1) of the UCO] or the GPDO, then it will be effective to limit the use of the property in that way.

The model conditions recommended in Appendix B to Circular 11/95 (which remain extant, although the rest of the circular was cancelled in March 2014) read:

"[48] 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

“[50] Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 1995 [2015] (or any order revoking and re-enacting that Order with or without modification) no..... .[specified development]........shall be [carried out].”

If so worded, there can be no doubt that such conditions do preclude the operation of these statutory provisions. However, difficulty arises (and has been the subject of litigation) where the allegedly preclusive condition does not refer explicitly either to section 55(2)(f) (and/or to Article 3(1) of the UCO) or to the GPDO.

What has not previously been noticed (and I am grateful to Ben Garbett for drawing attention to this point) is that the judicial authorities that are frequently cited in this connection are not universally applicable to the preclusion of both categories of statutory provision mentioned above. Certain judgments relate specifically to conditions that exclude the effect of section 55(2)(f); others relate solely to conditions that exclude (or purport to exclude) permitted development.

Bearing in mind that, as I pointed out above, negativing the effect of section 55(2)(f) does not have the effect of removing a planning permission that would otherwise enure for the benefit of the land, it is understandable that in this case, the condition in question need not necessarily refer expressly to section 55(2)(f) or to Article 3(1) of the UCO. This is confirmed by those judicial authorities that have dealt with this issue. For example, in City of London Corporation v. SSE (1971) 23 P&CR 169, 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.

Similarly, in Rugby Football Union v SSETR [2001] EWHC 927, a condition relating to stands at Twickenham Rugby Football Ground required 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.

R (Royal London Mutual Insurance Society Limited) v. SSCLG [2013] EWHC 3597 (Admin)) was similarly decided. This case related to planning permission for the construction of a non-food retail park comprising five 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 Court upheld an inspector’s decision that 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 for the imposition of the condition 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 (to use the premises for other purposes falling within Use Class A1). 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 essential point in all the cases cited above is that they related solely to the exclusion of section 55(2)(f) [and Article 3(1) of the UCO]. None of these cases related to a condition that had the effect of precluding permitted development under the GPDO.

Although a condition worded like those in the City of London, RFU and Royal London Mutual Insurance cases may be sufficient to exclude the effect of section 55(2)(f), there is very clear judicial authority that a similarly worded condition does NOT exclude the effect of Article 3(1) of the GPDO, granting planning permission for the classes of development described as permitted development in Schedule 2 to the Order, unless the condition contains a specific reference to the GPDO (like Standard Condition 50).

There are two judgments that provide clear authority for the proposition that the effect of the GPDO can only be precluded by express reference to the relevant statutory instrument in the wording of the condition. As Sir Douglas Franks QC put it in Carpet Decor (Guildford) Ltd v. SSE [1981] JPL 806:

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.

In light of the judgments in City of London, RFU and Royal London Mutual Insurance, Sir Douglas Franks’ inclusion of the UCO in the requirement for express words in the condition, mentioning the relevant Order, can no longer be taken as authoritative so far as the UCO itself is concerned, but in relation to the GPDO, the Court of Appeal subsequently concluded in Dunoon Developments Ltd -v- SSE [1992] JPL 936 that Article 3(4) of the GPDO was not engaged by a condition which contained no reference to the GPDO. 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 2015] 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.

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 our seminar in November, Ben Garbett made the point that no judgment since Dunoon Developments has suggested that permitted development under the GPDO can be excluded by a condition that does not refer specifically to that Order. The later cases of RFU and Royal London Mutual Insurance related solely to section 55(2)(f) [and to Article 3(1) of the UCO], and cannot properly be cited in support of the proposition that the effect of the GPDO can be excluded by a similarly worded condition. On the contrary, Carpet Decor and Dunoon Developments remain the leading (and indeed the only) authorities so far as the exclusion of the GPDO is concerned.

In our view, a number of planning appeals in prior approval cases have been wrongly decided as a result of Inspectors concluding that conditions that do not expressly mention the GPDO can nevertheless have the effect of precluding permitted development in accordance with Article 3(4). Thus in one case, the condition in question required that the premises were to be for office use only and not for any other purpose (including any other activity associated with an undertaker’s funeral business). The stated reason for the imposition of the condition was that any other use would be inappropriate and could place “unacceptable pressures” on the site and locality. It was argued on behalf of the appellant that in the absence of any mention in the condition of development under the GPDO it did not have the effect of removing the permitted development rights under Article 3(4), but the Inspector wrongly determined that the judgment in Royal London Mutual Insurance applied in this situation, and that the condition was therefore effective to remove permitted development rights in accordance with the Article 3(4).

Keystone Law’s planning law team are therefore in no doubt that any future appeal decisions which (in reliance on City of London, RFU or Royal London Mutual Insurance) conclude that a condition that does not explicitly refer to the GPDO nevertheless brings Article 3(4) of the GPDO into operation would be open to legal challenge in the High Court under section 288 and are likely to be quashed.

Happy New Year!

© MARTIN H GOODALL

17 comments:

Jim said...

Martin,

Another fantastic article, and very timely! I am working on the conversion of an old barn with a lawful use as a storage unit to a residential dwelling under Class P of the GPDO. Attached to the original consent was the following condition which I had feared would preclude permitted development:

'the barn shall only be used for storage purposes with an element of repair/maintenance of any stored equipment being ancillary to the main use of storage’

If my reading of your article is correct the wording of this condition does not expressly mention the GPDO and thus it cannot preclude permitted development. I have remained silent on this point thus far but should the LPA raise it I shall replay on this basis.

King Regards and Merry Christmas,

Jim

passerby said...

Thanks once again Martin.

My brain is fairly addled at this point by a genial concoction of mince pies, cava, brandy, and endless Bond re-runs, so apologies for stumbling on a couple of points:

- What is ‘unrestricted residential use’?

- Where you say “excluding the operation of both of these statutory provisions”, does that mean the same as “excluding the operation of the second of these statutory provisions”?

Anonymous said...

Another interesting article - but what about amendments to the GPDO made after the permission with the restricting condition was implemented. Is it reasonable to assume the decision maker could forsee future changes to the GPDO such as office to residential and so restrict them by explicit mention of the GPDO in a condition? The judicial authorities seem to refer only to restrictions that could be foreseen by the drafter of the condition (as they were in force at the time of the original decision) and so may not be so authoratative in the current rapidly changing climate?

RichardW said...

Hi Jim

I would have thought that any conditions on the storage PP would fall away as soon as the new Class P conversion was implemented. It's what we planners call a new chapter in the planning history.... but I'm sure Martin will know the legal precedent behind this.

Martin - when I started in local government best practice was to very precisely reference the section or class and part that the condition was intended to counteract but more recently (since Parliament have been tinkering on an almost daily basis with the scope of PD etc and to pick up instances where there is an interplay between S55, the UCO and the GPDO) I have been tempted to cover all the bases simply by stating that a preculsive condition is "Notwithstanding any provision of the TCPA including any secondary legislation derived thereof..." Any thoughts on this approach?

Martin H Goodall LARTPI said...

I agree with Jim’s view in respect of the condition he quotes. I also agree with Richard that this condition will in effect fall away when the change of use is made under the GPDO.

Turning to Richard’s further point – whilst the government has certainly messed around with the UCO and the GPDO over the years, I still think the wording of Standard Conditions 48 and 50 is legally watertight, and that these two conditions do have the effect of excluding the UCO (and section 55(2)(f)) and of the GPDO respectively. Planning officers would therefore be well advised to stick to this wording, rather than using some vaguer form of words.

Martin H Goodall LARTPI said...

In response to the anonymous comment this morning, I consider that the wording of Standard Condition 50 is sufficiently wide to preclude permitted development under ant later widening of the relvant part of the GPDO (such as the expansion of Part 3 that we have seen over the past couple of years). This condition makes it clear that it is intended to exclude the permitted development specified in the condition, and if appropriately worded, including a reference to “any order revoking and re-enacting the GPDO with or without modification”, it should in my view preclude not only the provisions of the GPDO at the time the condition took effect but also any widened permitted development rights under the specified part(s) of the GPDO.

It should, of course be clearly understood that a preclusive condition that refers only to Parts 1 and 2 of the Second Schedule to the GPDO cannot prevent permitted development under Part 3. In my experience, conditions very rarely purport to exclude all development under the GPDO, but are usually more specific in referring to the Parts (or Classes) of development that they are intended to preclude. If a condition precludes changes of use under Part 3, then (provided it also refers to future amendment of the GPDO) it will preclude any widened categories of development introduced into that Part of the Second Schedule after the condition takes effect.

Martin H Goodall LARTPI said...

I regret that I seem to have responded to recent comments in reverse order. Turning to Passer-By’s comment of 31 December, in the context in which I used it, “unrestricted residential use” means use for all purposes as a single private dwellinghouse under Use Class C3, and not restricted to use as “an agricultural cottage” or to use “for occupation by an agricultural worker” or whatever (other than at the outset – see Wilson and East Suffolk.

When I referred to the incorrect assumption that a generally worded condition might have the effect of excluding the operation of both of these statutory provisions, I did mean both the UCO and the GPDO. As I explained in the article, it seems that the effect of the UCO (and of section 55(2)(f)) may perhaps be precluded by a less precisely worded condition (as per the cited judgments), but my contention is that the GPDO can only be precluded by a condition that expressly refers to the GPDO.

Anonymous said...

What about para 56 of RFU?
"The words “for no other use” are clear. They have no other sensibly discernible purpose than to prevent some other use which might otherwise be permissible without planning permission. The Use Classes Order is an obvious source of such a permission."
...and the GPDO would of course also be another "obvious source of such a permission".

Anonymous said...

Also, para 23 of Royal London:
"The condition is clear and unambiguous. The use of the word “only” makes it clear that anything apart from the trades listed is excluded. The requirement for the consent of the local planning authority to any trades other than those listed would not be necessary and would be meaningless if permitted development or use classes rights were not excluded."
Again, this refers to both the UCO and the GPDO.

Martin H Goodall LARTPI said...

I have come to the view that the words in Royal London Mutual Insurancecan be taken to refer only to the UCO, and not to the GPDO, in light of the very clear judicial authority provided by the decision of the Court of Appeal in Dunoon Developments in relation to the removal of a planning permission granted by statute (i.e. by the GPDO).

The position under the UCO (and section 55(2)(f)) is arguably different – hence decisions such as Royal London Mutual Insurance. However, even that judgment cuts down the scope for a condition negativing the effect of section 55(2)(f) (and Art. 3(1) of the UCO), by insisting that a clear and overriding planning reason must be stated justifying the imposition of the condition.

Martin H Goodall LARTPI said...

As in the case of Royal London Mutual Insurance, I have come to the view that the words quoted from RFU can be taken to refer only to the UCO, and not to the GPDO, in light of the decision of the Court of Appeal in Dunoon Developments.

However, there is another case to which my attention has been drawn since my article on this topic was published earlier this week, and I propose to write another article in a few days’ time deling with that other case.

Andrew White said...

This is an incredibly helpful article, thank you. I am about to submit a notification to the LPA as required by Para R.3(1)(a) of the GPDO regarding a proposed flexible use. However, the 2002 permission for the ag building states:

"The building hereby permitted shall be sued only for ag purposes as defined under Section 336(1) of the TCP Act, 1990 and if at any time the building ceases to be sued or required for such purpose it shall be removed and the site reinstated to the satisfaction of the PA."

This doesn't preclude permission granted by the GPDO as far as I can see?? Many thanks.

Martin H Goodall LARTPI said...

Andrew White’s query demonstrates very clearly the problems that conditions worded in this way can cause. I maintain what I said in my article, but could only advise on a particular case on the basis of full professional instructions and detailed supporting information.

Howard Coakley said...

Interpretation of 'building' in the GPDO:

This is a great resource and a great book. Thank you.
South Hams LPA have recently refused prior approval for 80% of my 1920s ex-reservoir building (B8 storage and distribution) for conversion to c3 under Part P.

I took advice from an ex-planner on this as the interpretation of the word 'building' in the order states that it "includes any structure or erection and, except in Class F of Part 2, Class B of Part 11, Classes A to I of Part 14, Classes A, B and C of Part 16 and Class T of Part 19, of Schedule 2, includes any part of a building:"

As 20% (one bay) of the structure has a seperate entrance and been internally walled-off for more than 4 years, and, during that time, contained items which the LPA previously considered not to fall within B8 use, this seems to be a watertight interpretation. However, the LPA have just refused it, - considering it to be "a perverse interpretation of the rules".

Do you think I will have difficulty succeeding with an appeal based on this reason for refusal? I am fairly sure that the interpretation exists to take care of large structures that contain a number of different types of businesses, - possibly split into separate units and even owned or leased by different individuals/organisations. I wonder if you think this seems reasonable?

Martin H Goodall LARTPI said...

I cannot give a definite answer to Howard Coakley’s query of 3 May without knowing the full facts, but the definition of a building for the purposes of the GPDO does indeed include part of a building. If I have understood the question correctly, the building is divided into separate planning units, and the part of the building that is not the subject of the current prior approval application forms a separate planning unit that has not itself been in purely B8 use. However, being a separate planning unit, it would seem that the use of that unit ought not to affect the position so far as the part of the building which is the subject of the prior approval application is concerned.

It is the use within Use Class B8 for at least 4 years (as per paragraph P.2(a)) of the planning unit that is the subject of the prior approval application that matters. The position would, however, be different if the part of the building the subject of this application did in fact form part of a larger planning unit that was not in use exclusively within Use Class B8 at any time within the past 4 years.

I have not been told the precise reasons stated by the LPA for refusing the prior approval application, but if the refusal depends solely on the identity and extent of the planning unit in question within the last 4 years, then they might have some difficulty in defending their refusal. Clearly, proper professional advice will be required in connection with any appeal, and (as the standard disclaimer that applies to the whole of this blog clearly states), my remarks must not be treated or relied upon as legal advice. I cannot be held responsible for any damage or expense that may result from this disclaimer being ignored.

baldip basi said...

Martin,

Perhaps a slightly different query, but with the above in mind, would a condition on a prior approval (office to resi conversion) requiring implementation by 30 May 2016 trump the recently introduced PD rights which effectively allow implementation within 3 years from prior approval date?

Martin H Goodall LARTPI said...

In answer to the point raised by Baldip Basi, a condition imposed by an LPA on a prior approval under Part 3 requiring commencement or completion by any stated date would not be lawful. The scope for extra conditions imposed on prior approvals by LPAs is strictly limited by the terms of the GPDO. This point should not therefore arise in practice.