Court of Appeal judgment about whether a condition removes permitted development rights under Part 3 of the GPDO (29/03/2017) …

Introduction:

The following Court of Appeal judgment about whether a condition removes permitted development rights under Part 3 of the GPDO (i.e. "Changes of use") was handed down on 29/03/2017:

  • Dunnett Investments Limited v Secretary of State for Communities and Local Government, and East Dorset District Council [2017] EWCA Civ 192 (29 March 2017).
    [Note: The transcript for the above Court of Appeal judgment is available as a free-to-view transcript on the Bailii.org website (link)].

The above judgment relates to the issue of how to interpret a condition (on a previous planning permission) that restricts the use of the property but doesn't refer to the GPDO. In my opinion, the above judgment supports the interpretation that such a condition (if appropriately worded) does remove permitted development rights under Part 3 of the GPDO.

Background information:

The above Court of Appeal judgment relates to the appeal decision "APP/U1240/X/15/3005687" (pdf) (link), which is listed within the "All Other LDC Appeal Decisions" document on this website. This appeal dealt with the issue of how to interpret the following condition (on a previous planning permission):

  • Condition: "This 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.".
  • Reason: "In order that the Council may be satisfied about the details of proposal due to the particular character and location of this proposal."

The question was whether the above condition, which restricts the use of the property but doesn’t refer to the GPDO, removes permitted development rights under Part 3 Class J of the GPDO 1995 (which subsequently became Part 3 Class O of the GPDO 2015). In my opinion, the conclusions of the above judgment are also applicable (i.e. more generally) to the other Classes of Part 3 of the GPDO (i.e. "Changes of use").

Key quotes from the above Court of Appeal judgment:

The key paragraphs within the above Court of Appeal judgment are the following [note: my emphasis in bold]:

[38.] "ii) Looking first at the words used, I do not consider the construction of the condition either difficult or unclear. Read straightforwardly and as a whole, as Patterson J found (notably at [43]-[44]), the natural and ordinary meaning of the words used is that the condition allows planning permission for other uses but restricted to that obtained upon application from the Council as local planning authority, and excludes planning permission granted by the Secretary of State by means of the GPDO. In particular, with due respect to Mr Katkowski's submissions [for the appellant] to the contrary, in my view, "express planning consent from the Local Planning Authority" cannot sensibly include planning permission granted by the Secretary of State through the GPDO. It means what it says, i.e. planning permission granted by the local planning authority."

[...]

[38.] "vii) The first part of the condition sets out the scope of the permission. I respectfully agree with Patterson J (at [60]), the second part ("...and for no other purpose whatsoever...") is not, as Mr Katkowski [for the appellant] would have it, merely emphatic of the scope of the planning permission, but is rather a clear and specific exclusion of GPDO rights. Whilst, as I have described, each case depends upon its own facts, it is noteworthy that, in Dunoon Developments (at pages 105-6), in finding that the words "limited to" a particular purpose did not exclude GPDO rights, Farquharson LJ compared that phrase with "... and for no other purpose..." as considered in the earlier case of The City of London Corporation v Secretary of State for the Environment (1971) 23 P&CR 169, which he considered was far more emphatic and (he suggested) possibly sufficient to exclude the operation of the GPDO. In this case, we have a more emphatic phrase still, namely "... and for no other purpose whatsoever...". Further, although we are concerned with rights under the GPDO and not the UCO, the interpretation of that phrase to exclude the operation of the GPDO is at least consistent with R (Royal London Mutual Insurance Society) v Secretary of State for Communities and Local Government [2013] EWHC 3597 (Admin); [2014] JPL 458, in which Patterson J held that a condition which restricted use to "only" particular uses within Use Class A1 excluded the right to use the land for other Class A1 uses, because it effectively evinced an intention to identify acceptable uses within the class whilst prohibiting other unacceptable uses within that class unless and until the merits of such use had been tested by the planning authority upon an application for planning permission (see also The Rugby Football Union v The Secretary of state for Local Government, Transport and the Regions [2001] EWHC Admin 927; [2002] JPL 740, in which Ouseley J, at [56], found that the words "for no other use" had similar effect, on the basis that such words "have no other sensibly discernible purpose than to prevent some other use which might otherwise be permissible without planning permission"). The third part of the condition before this court makes it the more abundantly clear that automatic or direct GPDO rights are excluded, by requiring a planning application if such uses are to be pursued."

[...]

[38.] "ix) Furthermore, the context in which the condition must be construed includes the planning history of the Site – which, importantly, shows that the Council was anxious to maintain close control over the planning use to which the Site was put – and, more importantly still, the reason for the condition as set out in its own paragraph 2. That confirms that it was imposed to enable the Council to maintain control over the use of the Site, by considering the merits of any proposal, in the light of its "particular character and location". In other words, as Patterson J put it (at [40]), "the sensitivity of the area to potentially unsympathetic uses was protected". That is inconsistent with reliance by an applicant upon rights under either the GPDO or the UCO. Again, I do not see any force in the submission that that clear reason is undermined by the reason expressed in the 1982 permission for the use then permitted, namely "to enable the [Council] to exercise proper control over the development and because the site is in an area where new industrial development would not normally be permitted" (emphasis added). The 1982 use was highly restricted, and the reason explained why a very narrow industrial use was being permitted. In my view, it does not undermine the clear words of the reason given for the more relaxed, but nevertheless considerably restricted, use permitted in 1995."

[...]

"41. In respect of Ground 1, Mr Katkowski [for the appellant] submits that the judge was wrong to restrict "express planning consent" to planning permission granted, upon application, by the Council as local planning authority. Whilst I accept that "express planning consent" might, in other circumstances, include planning permission granted directly by the GPDO, in this case the condition was for "express planning consent from the Local Planning Authority". For the reasons I have given, I consider that is restricted to planning permission granted as a result of an application made to the planning authority.

42. Nor do I consider there is any force in Ground 2, in which Mr Katkowski [for the appellant] submits that Patterson J erred in finding that the Appellant's application for prior approval fell outside the term "express planning consent from the Local Planning Authority". Although the local planning authority has a role to play in prior approval under the GPDO (and that role requires it to take into account national planning policy), the planning permission is nevertheless granted, not by the authority, but by the Secretary of State as a result of the direct effect of the GPDO. Again, in my view, this ground does not add anything of substance to Ground 3."

Notes:

  • A more detailed summary of the above Court of Appeal judgment is provided by this post on "Martin Goodall's Planning Law Blog".
  • The Planning Jungle website does not normally summarise court judgments. This is because a number of other websites already provide such a service, whereas the Planning Jungle website primarily summarises appeal decisions (particularly "LDC Appeals" relating to Part 1 of the GPDO). For such appeal decisions, where an Inspector refers to a court judgment within their decision notice, then this will normally be shown within the summary on the Planning Jungle website (because each summary normally includes quotes from the decision notice).
  • In accordance with the "Important Disclaimer" within the "Planning Jungle Limited - Membership Terms and Conditions", please note that the information within this post (like all of the information provided by Planning Jungle Limited) does not constitute legal or other professional advice, and must not be relied on as such.