Clarity in conditions

The case of Telford and Wrekin Council v Secretary of State for Communities and Local Government [2013] provides a reminder that local planning authorities should make their conditions crystal clear, and that developers should be on the look out for ambiguities.

In the Telford case, the authority granted planning permission for a garden centre, and imposed a condition which required that details of the types of goods to be sold should be approved by the authority before the garden centre opened for business. The owner submitted a list but the authority failed to respond.  

Later, the owner applied for a certificate of lawfulness to confirm that the authorised use of the land was for retail purposes of any description, and that such use was within Class A1 of the Use Classes Order.

The authority argued that the condition limiting the nature of goods to be sold meant that the Use Classes Order was irrelevant to the scope of the permission.

The Court held that, for a condition to impose a restriction, it must clearly and unambiguously state what it is that is restricted. The condition should have said that no goods were to be sold except [description of goods]. As it stood, the owner had complied with the condition to submit a list; there was no further obligation to sell only those goods on the list. If it was intended that the Use Classes Order should not apply to the site, then the condition should have said so expressly.

The site was therefore held to have a general unrestricted A1 retail use.

Validity of planning obligations

In Westminster City Council v Secretary of State for Communities and Local Government [2013],the High Court considered a document which was referred to as a "unilateral undertaking" for the purposes of s106 Town and Country Planning Act 1990.

The Council had refused permission for the conversion of a residential garage to living accommodation. Permission was required because an earlier permission for the development of a house and garages was subject to a condition which required the garages to be retained as such. This was in the light of the Council's policies dealing with the problem of on-street parking.

The applicant appealed the refusal, and provided a unilateral undertaking stating that the owner would not apply for an on-street parking permit, and would not permit any occupier to apply. The inspector allowed the appeal and granted planning permission for conversion of the garage.

The Council challenged the inspector's decision in the High Court on the basis that the undertaking was not a valid obligation under s106. This would mean that it did not run with the land, it would not bind successors, and it could not be registered as a local land charge.

The Court agreed with the Council. The label on a document is not determinative. The terms of the document must be tested against the provisions of s106. If those terms comply with s106's requirements, the document will be a planning obligation and will run with the land; if they do not comply, the agreement will be a personal undertaking, which will not bind successors.