Dunnett Investments Ltd v Secretary of State for Communities and Local Government & Anor

Planning conditions are construed objectively, in the context of the permission as a whole and the reason for imposing the condition. They should receive a sensible, common-sense meaning, although the court must adopt a cautious approach because breach may attract criminal sanctions. A condition may exclude permitted development rights where its wording is sufficiently clear, specific and unequivocal. A condition restricting use to a specified class and requiring prior express planning consent from the local planning authority for any other purpose can exclude the operation of the Town and Country Planning (General Permitted Development) Order 1995. The prior approval procedure under that Order does not constitute the required express planning consent.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s dismissal of its appeal against refusal of a certificate of lawfulness. The proposed development was a change from Class B1(a) office use to Class C3 dwelling houses. An existing condition restricted use to Class B1 business purposes and prohibited any other purpose without express planning consent from the local planning authority.

The claimant argued that the proposed residential use was authorised by Class J of the Town and Country Planning (General Permitted Development) Order 1995, or alternatively by the prior approval procedure under articles J.2 and N. The central issue was whether the condition excluded those permitted development rights.

1. The claim was dismissed. The court held that the condition had to be construed objectively, by reference to the planning permission as a whole, its natural and ordinary meaning, common sense, and the reason for imposing it. The approach was informed by Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74.
2. The condition’s history and stated purpose showed that the local planning authority was to retain control over any change of use because of the site’s particular character and location. The words restricting use to Class B1 business purposes, followed by “for no other purpose whatsoever” without prior express planning consent from the local planning authority, were clear and emphatic.
3. “Express planning consent” meant an explicit grant of planning permission by the local planning authority following a planning application. It did not include planning permission granted by the operation of a development order. The statutory right to appeal to the Secretary of State was not excluded merely because the condition referred to consent from the local planning authority.
4. The condition therefore excluded the operation of the GPDO. The reasoning was consistent with Dunoon Developments v Secretary of State for the Environment and Poole Borough Council [1993] 65 P&CR 101 and Carpet Decor (Guilford) Ltd v Secretary of State for the Environment (1981) 261 EG 56, because the present wording was sufficiently specific and unequivocal. The court also regarded the wording as similar to the tailpiece considered in R (Royal London Mutual Insurance Society) v Secretary of State for Communities and Local Government [2014] JPL 458 at [35].
5. The Class N prior approval procedure could not supply the required consent. Article N(9) merely allowed development to begin after the specified period if no notification was given; it did not convert the development order permission or the prior approval procedure into express planning consent. Article 3(4) independently prevented development under the GPDO contrary to the existing condition.

The claimant appealed to an inspector against the local planning authority’s refusal of a certificate of lawfulness. The inspector dismissed that appeal on 30 September 2015. The High Court dismissed the statutory challenge under section 288 of the Town and Country Planning Act 1990.