Clearance in UK Law

In my opinion nothing in either the Clyde & Co. case or in the Westminster Council case is properly to be interpreted as laying down that the competing needs test exists as a matter of law. The most that can be extracted from the two cases is that the desirability of preserving an existing use of land is a consideration material to be taken into account under that subsection, provided there is a reasonable probability that such use will be preserved if permission for the new use is refused.

Therefore, in considering whether to grant planning permission for a proposal (use B) which will pre-empt the possibility of the desirable future use (use A), the relative desirability of the two uses have to be weighed. In striking the balance, the likelihood of use A actually coming about is doubtless a highly material consideration.

However it is important under the CPR to have in mind the overriding principles when considering whether to lift an order made under CPR 31.22. The most important consideration must be the interest of justice which involves considering the interest of the party seeking to use the documents and that of the party protected by the CPR 31.22 order. As Lord Oliver said each case will depend upon its own facts.

It is possible that the use of the word "limitation" in the judgments has contributed to the misunderstanding of the effect of the I'm Your Man line of authorities. The simple proposition which should not be lost sight of is that the use for which a planning permission is granted must be ascertained by interpreting the words in the planning permission itself.

I realise that what takes place on the ground cannot be conclusive and agree with Ms Robinson's submission that caution has to be exercised because landowners may choose not to implement the whole of a planning permission, and may carry out development in breach of planning control. But if the documentary evidence is sparse, I do not see why the purported implementation of a planning permission on the ground, if done without any complaint over many years, should be altogether ignored.

In consequence, I consider that the 2014 permission was ambiguous on its face. Despite the stated approval of the variation of the condition as to use, which restricted sale to non-food goods, the "Conditions" in the permission did not include any condition restricting use to the sale of non-food goods. Because of the ambiguity I conclude that it is permissible to consider the 1985 and 2010 permissions, and application for the variation in 2014.