A planning condition which stated that the property could be used for “no other purpose whatsoever, without express planning consent from the Local Planning Authority first being obtained” was sufficiently clear to exclude the operation of the Town and Country Planning (General Permitted Development) (Amendment) (England) Order 2013.
The applicant (D) applied to quash a decision of the respondent secretary of state, by his planning inspector, to refuse to grant a lawful development certificate.


D proposed to develop a property which had planning permission, issued in 1982, for industrial and office premises. It was currently used for that purpose. The permission was subject to a condition which stated: “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.” The stated reason for the condition was “in order that the Council may be satisfied about the details of proposals due to the particular character and location of this proposal.” D applied for prior approval for change of use from Class B1(a) offices to Class C3 dwellings under the Town and Country Planning (General Permitted Development) (Amendment) (England) Order 2013 (GPDO). It received no proper response from the local authority to its application. D then applied for a lawful development certificate for the proposed change of use. The local authority refused. D’s appeal to the planning inspector was rejected.


D submitted that


(1) the condition only applied until express planning consent was granted, but that could include express planning permission through the operation of Class J of the GPDO;


(2) the phrase “express planning consent” also included the prior approval procedure under Class N of the GDPO;


(3) in order to exclude GPDO rights, a condition had to expressly and unequivocally say so.


HELD: (1) The court summarised the law on planning permission arising from the decision in Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74, [2016] 1 W.L.R. 85, as follows: (a) planning conditions had to be construed in the context of the planning permission as a whole; (b) conditions should be clearly and expressly imposed, and construed in a common sense way; (c) they should not be construed narrowly or strictly; (d) there was no reason to exclude an implied condition but it was important to remember that a planning permission was a public document which might be relied upon by parties unrelated to those originally involved; (e) the fact that breach of a planning condition might be used to support criminal proceedings meant that a relatively cautious approach should be taken; (f) a planning condition was to be construed objectively and not by what the parties 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; (g) a planning condition was to be construed in conjunction with the reason for its imposition; (h) the process of interpreting a planning condition did not differ materially from that appropriate to other legal documents, Trump followed (see para.37 of judgment).


Applying those principles to the disputed condition in the instant case, there was no “express planning consent” within the meaning of the condition. The condition was clearly restrictive and was imposed to enable the local planning authority to exercise proper control over the development, because the site was in an area where new industrial development would not normally be permitted. The condition meant that planning permission was granted solely for B1 (business) use. Nothing else was permitted without obtaining prior express consent from the local planning authority, namely, a grant of planning permission upon receipt of a planning application. That interpretation did not involve reading words into the condition; it was a common sense interpretation of the words used. The word “express” to qualify the term “planning consent” made it clear that what was envisaged was an explicit and unambiguous concept. The second limb of the condition, properly construed, meant that express provision was required for matters which, but for the condition, would be permitted development. The words excluded consent being granted by the operation of statutory provision under the GPDO (paras 38-42, 44).


(2) An approval under the GPDO could not be an “express planning consent” if it was contrary to a condition which had been imposed on any planning permission. The court had already rejected the contention that a grant under the GPDO was an express planning consent. The same reasoning applied in relation to the Class N procedure (paras 52-53).


(3) The second part of the condition (“and for no other purpose whatsoever without express planning consent from the local planning authority first being obtained”), was designed to prevent the operation of the GPDO because: (a) without that meaning the second part was irrelevant to the condition; (b) “for no other purpose” was a clear prohibition on use for any other purpose. That meant that any other purpose otherwise permitted under the GPDO would be contrary to the condition; (c) the word “whatsoever” was emphatic and referred to any other use, howsoever arising; (d) the last clause required express permission for what would otherwise not require planning permission because of the GPDO. The words used were sufficiently specific and unequivocal to exclude the GPDO, Dunoon Developments v Secretary of State for the Environment and Poole BC (1993) 65 P. & C.R. 101 and Carpet Decor (Guildford) v Secretary of State for the Environment (1982) 261 E.G. 56 considered (paras 59-61).


Application refused

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