Dunnett Investments Ltd v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Patterson |
| Judgment Date | 11 March 2016 |
| Neutral Citation | [2016] EWHC 534 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 March 2016 |
| Docket Number | Case No: CO/5357/2015 |
[2016] EWHC 534 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mrs Justice Patterson DBE
Case No: CO/5357/2015
Christopher Katkowski QC (instructed by Hewitsons LLP) for the Claimant
Sasha Blackmore (instructed by Government Legal Department) for the First Defendant
No appearance or representation for the Second Defendant
Hearing date: 3 March 2016
Introduction
On 30 September 2015 an inspector appointed by the first defendant, the Secretary of State for Communities and Local Government, dismissed an appeal by the claimant against a refusal to grant a certificate of lawful use for proposed development by the second defendant, East Dorset District Council. This is a challenge under section 288 of the Town and Country Planning Act 1990 ("TCPA") to that decision.
Central to the decision is the proper interpretation of a planning condition which reads:
"1. This 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, and for no other purpose whatsoever, without express planning consent from the Local Planning Authority first being obtained.
The reason for the imposition of the condition was
"In order that the Council may be satisfied about the details of proposal due to the particular character and location of this proposal."
It is common ground that interpretation of the condition is a matter of law for the court. Because of that it is agreed that the inspector's reasoning in his decision letter of 30 September 2015 is not material in the way that it would be in a standard challenge to an inspector's decision letter under section 288.
Factual Background
On 1 March 1982 planning permission was granted under reference 3/81/1657 for "New industrial and office premises at land at Cobham Road, Ferndown, Hampreston."
The permission was conditional. Conditions relevant for these purposes are conditions 7, 8 and 10. They read:
"7. This permission shall enure for the benefit of the applicant for the five years from the date hereof and thereafter it shall enure for the benefit of the applicant or of a company or person engaged in the design, manufacture and marketing of precision electronic automatic test equipment only provided that in the event of the applicant being liquidated whether voluntary or otherwise, or otherwise ceasing trade within the said five years of the date hereof then this permission shall enure for the benefit of a company or person engaged in the design, manufacture and marketing of precision electronic automatic test equipment.
8. Notwithstanding the provision of the Town and County Planning General Development Orders 1977 to 1981 there shall be no direct means of vehicular or pedestrian access to the development hereby permitted from Brickyard Lane, other than the maintenance only access shown on the plan hereby approved provided to serve the public utilities proposed to be in the south- east corner of the development.
…
10. Notwithstanding the provisions of the Town and Country Planning General Development Orders 1977 to 1981 the level of land hatched green on the approved plan shall be lowered so that the land and anything on it shall not be more than 0.600m above the level of the carriageway; and the resultant visibility splays shall be kept free of all obstructions at all times."
The reason for the imposition of condition 7 was "to enable the local planning authority to exercise proper control over the development and because the site is in an area where new industrial development would not normally be permitted." The reason for the imposition of conditions 8 and 10 was that they were in the interests of highway safety.
On 23 December 1994 Schlumberger Technologies Limited applied to the local planning authority under section 73 of the TCPA to vary condition 7 on consent 81/1657. That was granted in the terms set out above. An informative was placed on that planning permission which reads:
"This permission should be read in conjunction with the planning permission dated the 1 March 1982 for the erection of the building (granted under reference 3/81/1657), including the planning conditions which remain in full force and effect with the exception of Condition No. 7 which has been varied by planning consent hereby permitted."
On 17 January 2014 the claimant applied to East Dorset District Council for prior approval under paragraph N(2) of the Town and Country Planning (General Permitted Development) Amendment Regulations (England) Order 2013 ("GPDO") for the change of use from Class B1(a) offices to Class C3 dwelling houses at Pear Tree Business Centre, Cobham Road, Ferndown, Dorset.
The letter accompanying the application said that the building was presently in lawful use as a business centre, principally used as offices (Class B1(a)) with ancillary conference rooms and a café/restaurant. 32% of the office suites were said to be vacant. The proposal was to subdivide the office building into a total of 127 studios, one bedroom and two bedroom units. The letter referred to Class J of the GPDO which required a developer to apply to the local planning authority before beginning the development for a determination as to whether prior approval would be required in respect of transport and highways impacts of the development, contamination risks on the site and flooding risks on the site. All three matters were addressed within the body of the letter which concluded:
"We note that the Council has 56 days following the receipt of this application to notify the applicant as to whether prior approval for the change of use is required.
Based on the above, i.e. that the building subject to the change of use was principally used as Class B1(a) offices on 30 May 2013 (or vacant units were principally last used as such), and that the change of use to residential would not result in any impacts in respect of transport and highways, contamination and flooding, we consider that prior approval of the change of use is not required."
In a letter dated 17 March 2014 the Council purported to refuse the claimant's application. The letter said that the proposal was not permitted development as the condition in force prevented permitted development rights being exercised.
It is agreed that the letter of 17 March 2014 purporting to refuse the application did not in fact do so. Thus, no proper response was made to the application for prior approval.
On 2 July 2014 the claimant applied to the Council for a lawful development certificate in the following terms:
"The proposed change of use of Pear Tree Business Centre, Cobham Road, Ferndown from use Class B1(a) offices to use Class C3 (dwelling houses)."
On 28 October 2014 the Council refused that application. Having set out the condition it said:
"This condition and reason shows a clear intention to limit the scope of the planning permission to only the use permitted (Class B1), and that this was done to satisfy the Council regarding the details of the proposal on account of its particular character and location.
It is the Council's view that the use of the Peartree Business Centre remains restricted by this condition to Use Class B1 (business) of the Town and Country Planning (Use Classes) Order 1987 (as amended). It consequently prevents a change of use to the proposed C3 (dwellings) use without express planning permission.
A planning application is therefore required for the proposed use, and the application for a Certificate of Lawful development/Use must fail, as any works to implement the proposal would be unlawful."
The claimant lodged an appeal which was heard before Inspector Hand on 2 September 2015.
On 30 September 2015 the inspector issued his decision letter dismissing the appeal.
The Claimant's Case: An Overview
Mr Katkowski QC for the claimant has three submissions. In overview they are:
i) Whatever condition 1 precludes is only precluded until express planning consent is granted. It does not mean that only the Council can grant the permission required. Express planning permission was granted here through the operation of Class J of the GPDO as amended.
ii) If that submission does not succeed, the first alternative submission is that "express planning consent" includes the prior approval procedure under Class N of the GDPO. The effect of the Council's failure to issue a response to the claimant's application gave the claimant the right to commence development and so was a planning consent within the terms of condition 1.
iii) If that submission does not succeed, then the claimant's second alternative, is that condition 1 does not implicitly preclude the ability to implement a planning permission granted by the GPDO.
For ease I propose to deal with the grounds in the same order as they were developed before me.
Legal Framework
Section 192 of the TCPA provides for the provision of a certificate of lawfulness of proposed use or development. It reads:
"(1) If any person wishes to ascertain whether—
(a) any proposed use of buildings or other land; or
(b) any operations proposed to be carried out in, on, over or under land,
would be lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use or operations in question.
(2) If, on an application...
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