Dunnett Investments Ltd v The Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom,Lord Justice Patten |
| Judgment Date | 29 March 2017 |
| Neutral Citation | [2017] EWCA Civ 192 |
| Docket Number | Case No: C1/2016/1383 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 March 2017 |
[2017] EWCA Civ 192
Lord Justice Patten
and
Lord Justice Hickinbottom
Case No: C1/2016/1383
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT (QUEEN'S BENCH DIVISION)
THE HON MRS JUSTICE PATTERSON
Royal Courts of Justice
Strand, London, WC2A 2LL
Christopher Katkowski QC and Alistair Mills (instructed by Hewitsons LLP) for the Appellant
Sasha Blackmore (instructed by Government Legal Department) for the First Respondent
The Second Respondent neither appeared nor was represented
Hearing date: 16 March 2017
Introduction
This appeal concerns a narrow issue of construction of a planning condition in the following terms:
"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.
2. In order that the Council may be satisfied about the details of proposal due to the particular character and location of this proposal."
The Secretary of State contends that this condition excludes the right to change the use of the relevant land under the Town and Country Planning (General Permitted Development) Order 1995 (SI 1995 No 418) as amended ("the GPDO"). The Appellant contends that it does not.
The issue has arisen as follows.
The relevant land is situated on Cobham Road, Ferndown, Dorset ("the Site"). On 1 March 1982, planning permission was granted for the Site for new industrial and office premises, but subject to strict conditions, including, so far as relevant to this appeal:
"6. The buildings shall be first used by [the applicant] for carrying on of their undertaking of the design, manufacture and marketing of precision electronic automatic test equipment.
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 said to be:
"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 25 February 2005, on an application to the Second Respondent ("the Council") as the local planning authority, condition 7 was varied to allow "Full B1 Use", i.e. any use as described as Use Class B1 in Schedule 1 Part 2 of the Town and Country Planning (Use Classes) Order 1987 (SI 1987 No 764) as amended ("the UCO"), namely (a) offices other than for financial and professional services, (b) research and development, or (c) any industrial process, in each case "being a use which can be carried out in any residential area without detriment to the amenity of that area…". That variation was made with the condition as set out above. It is uncontroversial that paragraph 2 of that in fact gives the reason for the new condition set out in paragraph 1. The following Informative Note was also attached to the new permission:
"This permission should be read in conjunction with the planning permission dated the 1 March 1982 for the erection of the building…, 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."
After the informative, under the heading "Notes to the Applicant: Appeals to the Secretary of State", the right of appeal to the Secretary of State under section 78 was confirmed, and the procedure for appealing set out.
The buildings on the Site thereafter changed to office use, in effect being used as a business centre.
On 17 January 2014, the Appellant applied to the Council, under Part 3 of Schedule 2 to the GPDO, for a determination as to whether prior approval would be required for the change of use of the Site from Class B1(a) (offices) to Class C3 (dwelling houses). The application letter referred to Class J in that part of the GPDO, which generally permits such a change of use, but which requires the developer to apply to the local planning authority before beginning the development for a determination as to whether prior approval would be needed in respect of various specified matters.
On 17 March 2014, the Council purported to refuse the Appellant's application, because of the condition imposed on 25 February 2005. The Council said that:
"It is considered that this condition restricts the use of the building to B1 and for no other use whatsoever, and removes permitted development rights to change to any other use that may ordinarily be undertaken under the [GPDO]".
It is common ground that, although that letter purported to refuse the application for prior approval, it did not properly do so – so that the Council never properly responded to that application – but that letter made clear that the Council did not consider that the proposal fell within the GPDO at all, because rights under the GPDO had been excluded by the condition.
On 2 July 2014, the Appellant applied to the Council for a lawful development certificate for a proposed use for the Site, namely Use Class C3. The Council refused that application on 28 October 2014. In doing so, 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 [Site] remains restricted by this condition to Use Class B1…. 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 Appellant appealed, but, on 30 September 2015, its appeal was dismissed by an inspector appointed by the Secretary of State.
The Appellant applied under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") to quash the inspector's decision. That application was dismissed by Patterson J in a judgment dated 11 March 2016 ( [2016] EWHC 534 (Admin)).
The Appellant, through Christopher Katkowski QC and Alistair Mills of Counsel, now appeals against that judgment.
The Grounds
Mr Katkowski relies upon three, interrelated grounds. He contends that the judge erred in restricting the meaning of "express planning consent", as used in the condition, in that (i) she wrongly found that it was restricted to planning permission granted by the local planning authority and/or granted on an application (Ground 1); or, in the alternative, (ii) she wrongly found that the Appellant's application for prior approval fell outside the term (Ground 2). Finally, he submits that the judge erred in finding that the condition precluded reliance upon permitted development rights granted under the GPDO (Ground 3).
In granting permission to appeal, Lindblom LJ indicated that he considered the question likely to be determinative of this appeal was that most starkly raised in Ground 3, namely whether the condition, properly construed, excludes the operation of the GPDO. I agree; and, after setting out the relevant legal framework, it is to that question I shall first turn.
The Legal Background
All statutory references in this judgment are to the 1990 Act, unless otherwise appears.
Save for exceptions irrelevant to this appeal, sections 55(1) and 57(1) of the 1990 Act provide that planning permission is required for any "development" of land, including any material change of use. Section 58(1) sets out how planning permission may be obtained. It provides, so far as relevant to this appeal:
"Planning permission may be granted—
(a) by a development order…;
(b) by the local planning authority (or, in the cases provided in this Part, by the Secretary of State) on application to the authority in accordance with a development order;
…"
Section 59 provides, under the heading "Development orders: general":
"(1) The Secretary of State shall by order (in this Act referred...
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