Part 3 Class J of the Town and Country Planning (General Permitted Development )(England) Order 2015 (“GPDO”) grants, subject to specific land designations and prior notification to the local planning authority, permitted development rights to change the of use of a building from Class B1(a) (office) use, to a use falling within Class C3 (dwelling houses).
The Court of Appeal in Dunnett Investments Ltd v The Secretary of State for Communities and Local Government & Anor , in upholding the judgement of Patterson J in the High Court, held that a planning condition which limited the premises’ use to business purposes can remove permitted development rights being granted by the GPDO. Without permitted development rights arising from the GPDO, full planning consent from the local planning authority will be needed to make the change.
The right of permitted development was found to be disapplied by the condition which stated that the building was to be used for purposes falling within Class B1 (Business), and “for no other purpose whatsoever, without express planning consent from the Local Planning Authority first being obtained.” The reason for this 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.” While the condition did not specifically mention the GPDO, Patterson J in the High Court, stated;
“The wording of the condition is clear and precise, not to say emphatic, with its phrase “and for no other purpose whatsoever.” The words used mean that planning permission was granted solely for B1 (business) use and nothing else without the attaining of prior express consent from the local planning authority. The words used are unequivocal – they exclude consent being granted by the operation of statutory provision under the GPDO.”
The party seeking residential consent under the GPDO challenged the local planning authority’s decision to refuse to grant a certificate of lawfulness on the use change on three grounds:
- The provisions of the GPDO constitute an express planning consent;
- Alternatively, that the prior approval mechanism constituted an express planning consent;
- The condition was insufficiently certain to exclude the application of the GPDO
These submissions were rejected by the Court of Appeal. On ground 3, the court found that the intention of Parliament to grant a permitted development right was subject to the ability of local planning authorities to exclude this. The Court applied the decision of the Supreme Court in Trump International Golf Club Scotland Limited v Scottish Ministers  UKSC 74 and found that the construction of terms into a condition was possible. The condition should be read objectively as a whole. The planning permission deriving from the GPDO was removed by the wording that it should derive ‘from the Local Planning authority’. Hickinbottom LJ in the court of appeal followed Patterson J on this point;
“I do not consider the construction of the condition either difficult or unclear. Read straightforwardly and as a whole, as Patterson J found 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.”
On Grounds 1 and 2, the court noted that from the words “express planning consent from the local planning authority” it was clear that control is retained by the local planning authority over any development that may be contemplated on the site. The prior approval mechanism did not constitute the grant of planning permission under the GPDO: this was granted by the Secretary of State.
Conclusions and Discussion
This case indicates that the Courts will allow for the interpretation of planning conditions which purport to remove permitted development rights. It held that permitted development under the GPDO can be excluded by a condition that does not contain specific reference to the GPDO. However, it was specified that for a court to imply a term into planning conditions, it must remain an objective, fact-dependent exercise, in which it can be found that the sensible meaning had the effect of removing the GPDO rights.
Up until this case the scope to imply terms into planning conditions has been disputed; the case of Decor (Guilford) Limited v Secretary of State for the Environment and Another (1981) was cited in the High Court, which held: “As a general principle, where a local planning authority intend 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 Dunoon Developments v Secretary of State for the Environment and Poole Borough Council , the Court of Appeal accepted there was no mention of the GPDO in the condition and found that the words “limited to” a particular purpose did not remove GPDO rights, but went on to say “the question therefore is whether it [the exclusion of the GPDO] is to be implied from the words themselves, in the context in which they are used, to so exclude them”, Farquharson LJ suggested in this case that the phrase "... 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, was far more emphatic and possibly satisfactory to exclude the operation of the GPDO. In Dunnet, we have a more emphatic phrase still, namely "... and for no other purpose whatsoever...".
Moving forward, it will be crucial to examine the proper construction of words of a limiting condition, which will be judged objectively. The exercise now becomes a search for where the bar lies; while what is as emphatic as ‘for no other purposes whatsover’ removes such GPDO rights, it may be less clear in cases to come.