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

A planning condition may exclude permitted development rights expressly or by necessary implication. The condition must, read objectively in its full legal and factual context, clearly evince that intention. A permission limited to a stated use does not alone suffice.

Words requiring premises to be used for a specified class “and for no other purpose whatsoever” without express consent from the local planning authority excluded permission granted directly by a development order. Prior approval by the authority did not alter the source of that permission. Construction should give the condition sensible content and may take account of its stated purpose and the planning history.

The appellant wished to change offices to dwelling houses under permitted development rights. A condition attached to the planning permission restricted the building to Class B1 use “and for no other purpose whatsoever” unless express planning consent was first obtained from the local planning authority.

The local planning authority refused a certificate of lawful proposed use. An inspector dismissed the appellant’s appeal. Patterson J then dismissed an application under section 288 of the Town and Country Planning Act 1990: [2016] EWHC 534 (Admin).

The central issue in the Court of Appeal was whether the condition excluded planning permission granted directly by the Town and Country Planning (General Permitted Development) Order 1995, including the office-to-residential permission subject to prior approval.

1. Appeal dismissed. Hickinbottom LJ, with whom Patten LJ agreed, held that the condition excluded the operation of the Town and Country Planning (General Permitted Development) Order 1995.

2. A planning condition is construed objectively by asking what a reasonable reader would understand from its words, read with the permission as a whole. The court considers the natural and ordinary meaning, purpose, relevant contextual conditions and common sense. Implication remains available as a restrictive technique of interpretation. The public nature of planning permissions and the possibility of criminal enforcement justify caution but do not create a distinct method of construction. The court applied Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74.

3. A condition may expressly or impliedly exclude permitted development rights. Merely granting permission for a specified use does not achieve that result. Something more is required. The words, considered in their full context, must clearly evince an intention to exclude those rights.

4. The natural meaning of “express planning consent from the Local Planning Authority” was permission obtained following an application to that authority. It did not include permission granted directly by the Secretary of State through the development order. A statutory appeal following an application did not undermine that construction because the appeal right arose automatically and the condition focused on the source and route of permission.

5. The words “and for no other purpose whatsoever” were a clear and specific exclusion of permitted development rights. Treating them as merely emphatic would deprive the condition of sensible content. The stated reason and the site’s planning history confirmed an intention that the authority should retain control by considering the merits of any proposed change of use.

6. Prior approval did not amount to express planning consent from the local planning authority. Although the authority determined specified prior-approval matters, the underlying planning permission was granted by the Secretary of State through the development order. Grounds 1, 2 and 3 therefore failed.

1. Court of Appeal (Civil Division): The appeal was dismissed: [2017] EWCA Civ 192 .
2. High Court (Queen’s Bench Division, Administrative Court): Patterson J dismissed the application under section 288 of the Town and Country Planning Act 1990 to quash the inspector’s decision: [2016] EWHC 534 (Admin) .
3. Planning inspector: The inspector appointed by the Secretary of State dismissed the appeal against the local planning authority’s refusal of a certificate of lawful proposed use.
4. East Dorset District Council: The Council refused the application for a certificate of lawful proposed use.