Implied restrictions in planning conditions

Presiding over Dunnett Investments Ltd v Secretary of State for Communities and Local Government[1], Lord Justice Hickinbottom confirmed a 2005 planning condition which restricted the premises’ use to business purposes was sufficient to remove change of use permitted development rights contained in the Town and Country Planning (General Permitted Development) Order (GPDO).

Full planning consent would ordinarily not have been needed under permitted development rules. However, the planning condition stated that “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”.

Delivered on 27 March 2017, Mr Justice Hickinbottom’s decision – which upholds the verdicts of East Dorset District Council, a planning inspector and the High Court – prevents Dunnett Investments Ltd from subdividing the building into one and two-bedroom flats.

Thrings solicitor Fred Quartermain comments:

The Court of Appeal noted there is no bar to implying terms into planning conditions provided it remains an objective, fact-dependent exercise. The relevant question – as established by Trump International Golf Club Scotland Ltd v Scottish Ministers[2] - is ‘what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole’.

As a result, despite the fact that the condition does not refer specifically to the GPDO, the court reasoned it could only be given sensible meaning if it had the effect of removing the GPDO rights.

Qualifying the decision, the court confirmed that whilst express planning consent "might, in other circumstances, include planning permission granted directly by the GPDO", this is excluded by the requirement that the consent be granted "from the local planning authority (LPA)".

The court also said that the reasons provided by the LPA for the inclusion of the condition made clear the importance of the LPA retaining control over any development that may be contemplated on the site.

Whilst this decision indicates the courts are willing to go further than they have in the past in implying meaning in planning conditions, understanding an implied meaning will always depend on context. When faced with a limiting condition, it will be essential to comprehensively examine the specific wording of the condition and the reason expressly given by the LPA for imposing it before reaching any conclusion.

It is likely that the challenge will probably lie in understanding the meaning to be read in to wording that is more emphatic than ‘limited to’ but less emphatic than ‘for no other purposes whatsoever’.

For further commentary on this case, or to discuss any planning-related issue, please contact a member of Thrings' Planning team.

[1] Dunnett Investments Ltd v Secretary of State for Communities and Local Government ( [2017] EWCA Civ 192)

[2] Trump International Golf Club Scotland Ltd v Scottish Ministers ([2015] UKSC 74)

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