Preclusive conditions again

Some readers may be wondering why, having written on several previous occasions about the issue of conditions that appear to preclude the operation of either or both section 55(2)(f) of the 1990 Act and/or permitted development rights under the GPDO (in accordance with Article 3(4) of that Order), I have been so slow to comment on the case of Dunnett Investments Limited v. SSCLG[2016] EWHC 534 (Admin), in which judgment was handed down on 11 March this year. There were two reasons for this. First, Keystone Law had been professionally involved in this case (although we did not have the conduct of the action at trial in the High Court) and it did not seem appropriate to comment on it while the case was still in progress. Secondly, following the judgment in the High Court, I was aware that an application had been made for permission to appeal to the Court of Appeal, and I was waiting to see whether the case might proceed further. At the time of writing, I have no further news of this, so have decided to deal with the case here in any event. I will report on any further developments in the case if or when they occur. [See now the Update printed at the end of this post.]

Until the judgment in Dunnett, in March of this year, no judgment since Dunoon Developments had suggested that permitted development under the GPDO can be excluded by a condition that does not refer specifically to that Order. The cases of RFU and Royal London Mutual Insurance related solely to section 55(2)(f) (and to Article 3(1) of the UCO) and, it has always been my view that they could not properly be cited in support of the proposition that the effect of the GPDO can be excluded by a similarly worded condition (i.e. containing no specific reference to the GPDO).

The facts in Dunnett were somewhat complex, but the wording of the condition in question in that case was:

“The use of this building shall be for purposes falling within Class B1 (Business) as defined in the Town and Country Planning (Use Classes) Order 1987, and for no other purpose whatsoever, without express planning consent from the Local Planning Authority first being obtained.”

and the reason for the imposition of the condition was:

“In order that the Council may be satisfied about the details of the proposal due to the particular character and location of this proposal.”

An application for prior approval was made by the claimant in respect of a proposed residential conversion of this building. It was conceded that the LPA had failed to determine this application within the 56-day period, although they had sent a letter a few days outside this time limit in which they purported to refuse the application on the ground that it was precluded by this condition, in accordance with Article 3(4) of the GPDO. The claimant sought an LDC that it was now entitled to proceed with the proposed development. This was refused by the LPA for the reason previously stated, and an appeal under section 195 was dismissed. It was this appeal decision that was now challenged in the High Court.

The LPA contended that the condition (and the stated reason for its imposition) showed a clear intention to limit the scope of the planning permission to only the use permitted (Class B1), and that this was done to satisfy the Council regarding the details of the proposal on account of its particular character and location. It was therefore the Council’s view that the use of the site remained restricted by this condition to Use Class B1 (business) of the Town and Country Planning (Use Classes) Order 1987 (as amended). It would consequently prevent a change of use to the proposed residential use without express planning permission.

Three submissions were made on behalf of the claimant, each in the alternative –

(1) that a change of use was only precluded by the condition until express planning consent was granted. Planning permission was granted here through the operation of Class J of the 1995 GPDO; it did not mean that only the Council could grant the permission required;

(2) that “express planning consent” included the prior approval procedure under paragraph N of the 1995 GDPO. The effect of the Council’s failure to issue a response to the claimant’s application gave the claimant the right to commence development and so was a planning consent within the terms of the condition;

(3) that the condition did not implicitly preclude the ability to implement a planning permission granted by the GPDO.

Both the claimant and the Secretary of State drew attention to the judgment of the Supreme Court in Trump International Golf Club Scotland Limited v Scottish Ministers [2015] UKSC 74. Although the situation before the Supreme Court in Trump was dealing with a different statutory regime, the judgments of Lord Hodge and Lord Carnwath were found to be of assistance in defining where the law on planning conditions is now. They had moved the law on in relation to implied conditions and may have reformulated some of the previously accepted principles. From their judgments Mrs Justice Patterson distilled the present position to be as follows:

1) Planning conditions need to be construed in the context of the planning permission as a whole;

2) Planning conditions should be construed in a common sense way so that the court should give a condition a sensible meaning if at all possible;

3) Consistent with that approach a condition should not be construed narrowly or strictly;

4) There is no reason to exclude an implied condition but, in considering the principle of implication, it has to be remembered that a planning permission (and its conditions) is “a public document which may be relied upon by parties unrelated to those originally involved”;

5) The fact that breach of a planning conditions may be used to support criminal proceedings means that “a relatively cautious approach” should be taken;

6) A planning condition is to be construed objectively, not by what the parties may or may not have intended at the time but by what a reasonable reader construing the condition in the context of the planning permission as a whole would understand;

7) A condition should be clearly and expressly imposed;

8) A planning condition is to be construed in conjunction with the reason for its imposition so that its purpose and meaning can be properly understood;

9) The process of interpreting a planning condition, as for a planning permission, does not differ materially from that appropriate to other legal documents.

Applying these tests, the judge held, in respect of the first ground of challenge, that there was no “express planning consent” within the meaning of the condition. As the Secretary of State had submitted, “express planning consent” means a planning application resulting in a written consent. The phrase goes further than a Development Order grant as envisaged under section 58 of the 1990 Act.

Furthermore, the condition continued “and for no other purpose whatsoever, without express planning consent from the local planning authority first being obtained.” The reason for the imposition of the condition makes it clear that control is retained by the local planning authority so that it can be satisfied about the details of any proposal due to the particular character and location. In other words, the sensitivity of the area to potentially unsympathetic uses was protected.

Consent can be granted by the GPDO, as the claimant submitted, but that was not the case here. The wording of the condition was clear and precise, not to say emphatic, with its phrase “and for no other purpose whatsoever.” The words used meant that planning permission was granted solely for B1 (business) use and nothing else without obtaining prior express consent from the local planning authority. The words used were unequivocal – they excluded consent being granted by the operation of the statutory provision under the GPDO. Were that to occur under the GPDO, this would be without any reference to “the particular character or location” of the proposal which was the reason for the imposition of the condition. Class J of the 1995 GPDO [added to the GPDO in 2013] was simply not envisaged in 1995, as the claimant accepted. The prior approval scheme under the GPDO circumscribes what the local planning authority can consider to transport and highways impacts, contamination risks and flooding risks. It does not permit an LPA to have regard to the location of the development, save in those three particular areas. On the claimant’s approach, the decision making exercise on the part of the local authority would be circumscribed in a way which was not intended when the condition was imposed.

Further, the condition itself restricted any change of use from Class B1 (business) until after the approval of the local planning authority has been “first…obtained”. The words used in the condition were consistent with the LPA retaining control over any other development that might be contemplated on the site. If that were not the case the words used would be otiose. They set a clear planning purpose for the imposition of the condition.

Ground 2 of the challenge was similarly dismissed.

Under Ground 3, the claimant submitted that, applying the ratio in Dunoon and Carpet Décor, there needs to be something explicit in the condition itself to exclude GPDO rights. Not only that; the wording used in a condition has to be unequivocal, specific and bear in mind the prospect of criminal sanctions if the condition is not complied with. According to this submission, it was clear that the wording used was inadequate to exclude the GPDO. The approach to construction here needs to be cautious as it will result in the exclusion of statutory rights that would otherwise accrue to the claimant.

In considering the condition, the judge pointed out that the first phrase deals with the use of the building and circumscribes that to Class B1 (business). The second part of the condition (“and for no other purpose whatsoever without express planning consent from the local planning authority first being obtained”), in her ladyship’s judgment, was designed to, and did, prevent the operation of the GPDO, for the following reasons:

first, the second part of the condition serves no other purpose. Without that meaning the second part is irrelevant to this condition;

second, “for no other purpose” is a clear prohibition on use for any other purpose. That means that any other purpose otherwise permitted under the GPDO would be contrary to the condition;

third, the word “whatsoever” is emphatic and, in context, refers to any other use, howsoever arising or under any other power. Read together, and considering the plain and ordinary meaning of the words used, in her judgment, it was clear that the GPDO was excluded.

fourth, the last clause required express permission for what would otherwise not require planning permission because of the GPDO. It could only be given a sensible meaning if the condition in fact removed GPDO rights. The words used were sufficiently specific and unequivocal. It was similar to the tailpiece to the condition considered in R (Royal London Mutual Insurance Society) v SSCLG [2014] JPL 458; and

fifth, the reason for the condition confirmed that any other use would need to be the subject of an express application due to the particular character and location of the site.

The judge held that this approach is entirely consistent with the cases of Dunoon and Carpet Decor relied upon by the claimant.

It followed that, in context, the wording of the condition read together with the reason for its imposition was sufficient to exclude the operation of the GPDO.

I confess to having misgivings about this judgment. Whilst it appears on the face of it to be consistent with other recent judgments on this issue, it would seem to continue an unfortunate trend in conflating the arguments relating to two separate statutory provisions (section 55(2)(f) of the 1990 Act, which relates to changes of use within the same use class, and Article 3(4) of the GPDO which precludes permitted development contrary to a condition in a planning permission).

The judgment in Royal London Mutual Insurance was specifically addressed to a condition which excluded the operation of section 55(2)(f) (and of Article 3(1) of the Use Classes Order). Arguably, different considerations should apply to such a condition compared with a condition which is intended to preclude permitted development under the GPDO. The judgment in Dunnett, whilst asserting that the approach adopted in the instant case was entirely consistent with the judgments in Dunoon and Carpet Decor, did not explain how this approach could in fact be reconciled with the clear words of the passages quoted from those judgments.

In my view, a distinction should be drawn between these 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 of 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. Contrary 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, as I have said, been a tendency (exemplified again by the judgment in Dunnett) to conflate the effect of a condition that excludes the operation of section 55(2)(f) with a condition that precludes development which would otherwise be permitted by the GPDO, and 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, such an assumption may not necessarily be correct.

What does not previously appear to have been noticed is that the judicial authorities that are frequently cited in this connection may not be 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).

Bearing in mind that simply 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. The first of these was City of London Corporation v SSE. Two later cases - Rugby Football Union v SSETR [2001] EWHC 927, and R (Royal London Mutual Insurance Society Limited) v SSCLG [2013] EWHC 3597 (Admin)) - were similarly decided. However, the essential point in all these cases 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 are two judgments that provide clear authority for the proposition that the effect of the GPDO can only be precluded by a clear reference to the relevant statutory instrument in the wording of the condition (as was clearly established by Carpet Decor and also by Dunoon Developments).

When one takes these points into account, it does not seem to me that the precise effect of a condition that does not expressly refer to the GPDO, but is alleged to exclude its operation in accordance with Article 3(4) of the Order, has yet been conclusively determined, notwithstanding the judgment in Dunnett Investments. I fear that it may require further litigation, and maybe a trip to the Court of Appeal sooner or later, before this issue is finally laid to rest.

UPDATE: I am very grateful to Giorgio Wetzl, Planning Researcher at Nathaniel Lichfield & Partners, for confirming that the Court of Appeal has granted permission to appeal in the case of Dunnett Investments. I understand that the appeal is due to be heard by the Court of Appeal on 15/16 March 2017. Let us hope that the Court of Appeal may finally settle the matter in their hearing of this appeal.

© MARTIN H GOODALL