Lazari Properties 2 Ltd v Secretary of State for Levelling Up, Housing and Communities & Anor

A planning condition may exclude the operation of the Use Classes Order or permitted development rights even without express exclusionary words. The question is whether, read as a whole and in context, the condition clearly evinces that intention.

The court considers the natural and ordinary meaning of the condition, the permission as a whole, its planning purpose, relevant conditions and informatives, planning history, and common sense. A condition limiting specified uses to a maximum percentage may have continuing effect where that is necessary to safeguard the character and function of the site. A later change in the statutory use-class regime does not, without more, displace the condition.

The claimant appealed under section 288 of the Town and Country Planning Act 1990 against an Inspector’s refusal of an application for a certificate of lawful existing use or development under section 191(1)(a). The application concerned the Brunswick Centre and sought certification of Class E use without compliance with a condition in a 2003 planning permission.

The Inspector rejected the appeal on two grounds: ambiguity in the description of the use and the continuing effect of the condition. Permission to pursue the second ground was later granted, although the issue was academic as to the Inspector’s decision and declaratory relief only was available. The central issue was whether the condition excluded the operation of the amended Use Classes Order and, alternatively, whether it ceased to have effect after ten years.

1. Appeal dismissed. The Inspector’s decision was upheld. The condition continued to restrict the use of the Brunswick Centre.
2. The interpretation of a planning permission and its conditions is an objective exercise. The permission must be read as a whole, including its conditions and reasons. The court asks what a reasonable reader would understand from the natural and ordinary meaning of the words in their statutory and planning context, having regard to the overall purpose of the consent, relevant conditions, planning history and common sense.
3. A condition can exclude the operation of the Use Classes Order or the General Permitted Development Order expressly or by implication. A grant for a particular use alone is insufficient, but words which, in their full context, clearly evince an intention to exclude those rights are effective. The condition need not use a particular formula.
4. Condition 3 imposed a precise maximum of 40 per cent of defined retail floorspace for A2 and A3 uses. The words “up to a maximum” and “is permitted”, read with the reference to equivalent later provisions, operated as a continuing negative restriction. The stated purpose of safeguarding the centre’s retail function and character would have been futile if the restriction were temporary or if the Use Classes Order could freely enlarge the permitted uses.
5. The proposed interpretations were rejected. Nothing in the permission confined Condition 3 to initial allocation. The ratchet could not be assumed to remain static despite later statutory changes. Nor was the permission a flexible planning permission under paragraph E of Part 3 of Schedule 2 to the GPDO. The ten-year argument therefore failed.
6. The guidance in Circular 11/95 did not assist the claimant. Even if relevant to interpretation, the condition was necessary, precise, tailored and reasonable, and the circumstances supplied a clear planning purpose for restricting otherwise permitted changes of use.
7. The reasons challenge failed. The Inspector identified the applicable law, addressed the arguments advanced, explained the purpose and continuing effect of Condition 3, and gave clear and intelligible reasons.

1. High Court (Planning Court): Ground 2 of the statutory appeal was heard substantively after permission was granted on renewal. The appeal was dismissed and the Inspector’s decision stood.