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10th November 2016

High Court holds that planning condition prevents change of use

High Court holds that planning condition prevents change of use from office to residential pursuant to General Permitted Development Order.

Hewitsons have been involved in the recent case of Dunnett Investments Limited v Secretary of State for Communities and Local Government, where the High Court held that a condition attached to a planning permission excluded the operation of the General Permitted Development Order for change of use from offices to residential.

The relevant condition restricted the use of the building to Class B1 (Business) “and for no other purpose whatsoever, without express planning consent from the Local Planning Authority first being obtained”. The owner of the building sought to rely on Class J of the General Permitted Development Order permitting change of use from B1 to Class C3 (Dwellinghouses). An application for a Certificate of Lawfulness for the change of use was rejected on appeal and the decision was challenged in the High Court.

The owner sought to argue that express planning consent was effectively granted by way of the General Permitted Development Order. However, the Judge held that the requirement for “express planning consent” means that a planning application to the local planning authority resulting in a written consent is required. She said that the reason for the imposition of the condition, which was “in order that the Council may be satisfied about the details of proposal due to the particular character and location of this proposal”, makes it clear that control is retained by the local planning authority over any development that may be contemplated on the site. However, she did accept that the required “express planning consent” could be granted by the Secretary of State on appeal.

The Judge also rejected the owner’s argument that “express planning consent” includes the prior approval procedure under Class N of the General Permitted Development Order. An application for prior approval for the change of use had been submitted, but it was common ground between the parties that no proper response was made by the Council. However, again, the Judge felt that “express planning consent” required an application for planning permission to be made to the local planning authority.

The Judge also rejected the argument that the planning condition does not implicitly preclude the ability to implement a planning permission granted by the General Permitted Development Order. It is established in case law that, in order to exclude the operation of the General Permitted Development Order, the wording used in a condition has to be unequivocal, specific and bear in mind the prospect of criminal sanctions if the condition is not complied with. However, the Judge held that the words used, first, “for no other purpose”, and second, “whatsoever”, was a clear prohibition on use for any other purposes otherwise permitted under the General Permitted Development Order. In addition, the inclusion of the words “without express planning consent from the Local Planning Authority first being obtained” would be redundant if the condition in fact didn’t remove permitted development rights.

This case indicates that the Courts will adopt a strict approach to the interpretation of planning conditions which purport to remove permitted development rights.

For more information and advice, our specialist Planning Team will be happy to help. Please click here to email Gemma Dudley or call her on 01223 532747.

 

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