Nisbet, R (On the Application Of) v Secretary of State for Communities & Local Government & Anor

A planning condition may regulate the consequences of operational development even where it restricts an existing lawful use. The condition must serve a planning purpose, fairly and reasonably relate to the permitted development, and be reasonable. Where operational development creates ready access to land, its combination with an existing use may produce new effects which justify restricting that use. A certificate under section 192 of the Town and Country Planning Act 1990 does not prevent such a condition. Its conclusiveness depends on the use being lawfully instituted and on the circumstances identified in the certificate.

The claimant sought judicial review under section 288 of the Town and Country Planning Act 1990 of an inspector’s decision upholding planning permission for a roof access hatch, subject to a condition preventing use of the flat roof for sitting out or other purposes.

A certificate under section 192 had stated that use of the roof as amenity space would be lawful. The claimant argued that the condition unlawfully restricted that use, that the certificate was conclusive, and that the inspector had acted irrationally and failed to assess the competing interests properly. The central issue was whether planning permission for operational development could lawfully include a condition regulating an existing lawful use.

1. The claim was dismissed. The inspector had lawfully upheld condition 4.
2. Planning permission was sought for operational development, namely the roof access hatch. A condition attached to permission for that development could regulate activities resulting from it, including, in an appropriate case, an existing lawful use. The condition had to satisfy the established tests in Newbury District Council v Secretary of State for the Environment [1981] AC 578: it had to serve a planning purpose, fairly and reasonably relate to the permitted development, and be reasonable.
3. The inspector was entitled to find a planning need for the condition. The ready access created by the hatch, combined with use of the roof as an amenity area, would create new and undesirable effects, including unacceptable overlooking and loss of privacy for neighbouring occupiers.
4. Section 192(4) of the Town and Country Planning Act 1990 did not make the certificate conclusive in the circumstances. The use had not been lawfully instituted before permission was granted for the hatch. The grant of permission for that operational development was a material change before lawful institution of the use.
5. Even if the roof had previously been used by access from a ladder, the result would have been the same. A lawful use, whether certified or lawful independently, may be restricted by condition where there is a planning need. The certificate had to be read as a whole and did not prevent regulation of the consequences of lawful roof access.
6. The approach accorded with R (on the application of) Lambeth London Borough Council v Secretary of State for Communities and Local Government [2007] EWHC 2976 (Admin). The inspector had properly weighed the claimant’s existing use against the interests of neighbouring residents. All four grounds of challenge therefore failed.

First-instance judicial review claim under section 288 of the Town and Country Planning Act 1990. The claim was dismissed.