Planning Conditions

April 4th, 2017 by James Goudie KC

In Dunnett Investments Ltd v SoS for CLG and East Dorset Council (2017) EWCA Civ 192 a site had planning permission for new industrial and office premises, but subject to strict conditions, and was used as a business centre. The Claimant sought to develop the site for dwelling houses.

The planning permission was subject to a condition that the site could be used for “no other purpose whatsoever, without express planning consent from the Local Planning Authority first being obtained”. The issue was as to the lawfulness of this condition. In particular the question arose whether it was sufficiently clear. The Judge and the Court of Appeal held that it was sufficiently clear and was lawful.

The Court of Appeal held that the condition clearly excluded the operation of the General Permitted Development Order, as amended (“the GPDO”). It stated (paragraph 37) that the starting point for consideration of the correct approach to the interpretation of planning conditions was that, as long as appropriate caution was exercised, there was no bar to implying words into conditions, in a planning context as much as any other.  In interpreting a planning condition which was said to exclude the operation of the GPDO, the following themes could be discerned from the authorities: (a) a planning condition could exclude the application of the GPDO; (b) exclusion might be express or implied, however, a grant for a particular use could not in itself amount to an exclusion; (c) to exclude the application of the GPDO, the words used in the relevant condition, taken in their full context, must clearly evince an intention on the part of the local planning authority to make such an exclusion.

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