Monthly Archives: April 2017

Planning Condition excluded the General Development Order

It is widely known that a planning condition on a planning consent can exclude the application of the Town and Country Planning (General Permitted Development) Amendment Regulations (England) Order 2013 (“GPDO”).

In the High Court case of Dunnett Investments Ltd v Secretary of State for Communities and Local Government & Anor [2016] the claimant applied to East Dorset District Council for prior approval under paragraph N(2) of the GPDO for a change of use from Class B1(a) offices to Class C3 dwelling houses at Pear Tree Business Centre, Ferndown, Dorset. The proposal was to subdivide the office building into a total of 127 studio, one bedroom and two bedroom units.

The Council purported to refuse the claimant’s application. The letter said that the proposal was not permitted development as a planning condition in force prevented permitted development rights being exercised.

Condition 1 of the original planning consent to B1 use had said:

“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.”

The reason for the condition was:

“In order that the Council may be satisfied about the details of proposal due to the particular character and location of this proposal.”

The court said consent could be granted by the GPDO, but that was not the case here. The wording of the condition “and for no other purpose whatsoever” meant planning permission was granted solely for B1 (business) use and nothing else without getting prior express planning consent from the local planning authority.

The reason for the imposition of the condition made it clear that control had been retained by the local planning authority so that it could be satisfied about the details of any proposal due to the particular character and location. In other words the sensitivity of the area to potentially unsympathetic uses was protected.

Further, the condition itself restricted any change of use from Class B1 (business) until after the approval of the local planning authority had been “first…obtained” the words used in the condition were consistent with the local planning authority retaining control over any other development that might be contemplated on the site. If that were not the case the words used would be superflous. There was a clear planning purpose behind the imposition of the condition.

The Court of Appeal has just upheld the High Court decision saying:

“…and for no other purpose whatsoever…” is not, as Mr Katkowski would have it, merely emphatic of the scope of the planning permission, but is rather a clear and specific exclusion of GPDO rights.”

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

No bar to the existence of recreational easements

There was no English (or Scottish) precedent authoritatively deciding whether or not an easement can legally exist to use a golf course, swimming pool or tennis court etc.

In the High Court case of Regency Villas Title Ltd & Ors v Diamond Resorts (Europe) Ltd & Anor [2015] the court ruled that there is no legal impediment to the grant of such an easement, provided the intention to grant an easement, as opposed to a merely personal right, is clear when interpreting the grant in the light of the material surrounding circumstances.

The case concerned the 1981 grant of a “right for the Transferee its successors in title its lessees and the occupiers from time to time of the property to use the swimming pool, golf course, squash courts, tennis courts, the ground and basement floor of Broome Park Mansion House, gardens and any other sporting or recreational facilities …. on the Transferor’s adjoining estate”.

The High Court said there was nothing vague or excessively wide about the rights.

They clearly extended to all recreational and sporting facilities on the estate, and to the gardens, and must include facilities that were not present or planned in 1981, or which may have been significantly improved since then.

To interpret the rights as limited to the actual facilities which were on site or planned in 1981 was unrealistic and might inhibit the servient owner from introducing improvements or replacements or adding facilities which would benefit everyone. After all if the rights did not extend to the new or replacement facilities, any alteration to the facilities, might amount to a substantial interference with the claimants’ existing rights. That could not have been intended on any sensible interpretation of the rights.

Worse still to interpret the rights in such a restrictive way would have allowed the estate landowners or their predecessors to profit from their own default in having filled the outdoor pool before the current estate owners had constructed a new one in the basement of the Mansion House. The point had been rendered academic as the rights under the 1981 Transfer expressly extended to the basement, where the pool now happened to be.

On appeal to the Court of Appeal the court said it was necessary to interpret the actual words of the grant of the right “to use the [existing sporting and recreational facilities] and the ground and basement floor of [the Mansion House], [the] gardens and any other sporting or recreational facilities … on the [defendants’] adjoining estate”.

The most natural meaning of these words was that what was intended was a grant of the right to use the garden, the existing sporting and recreational facilities, and any sporting or recreational facilities only to be found at the date of the grant on the ground or basement floors of the Mansion House.

There was no element of futurity in the words used, so it could not include any future sporting or recreational facilities that might later be provided by the defendants on their land.

The lack of futurity in the grant contrasted to the second grant which was the “right to the full and free passage of gas water [etc.] … now in under or over the [Transferor’s] adjoining land or constructed within 80 years of the date hereof”.

Could a new or improved facility replacing an existing facility of the same type on the same area of ground be covered. Yes. The easement was granted for so long as the dominant and servient tenements existed, so that it would make no sense to grant the right to use the present tennis courts, but not any rebuilt tennis courts later provided on the same ground.

The grant could not be interpreted widely enough to cover any major extensions, substitutions or moved facilities. The grant was to use “the” swimming pool, not any swimming pool anywhere on the servient land. The same must apply to the other facilities.

It was perfectly possible that the golf course might be extended on to some acres of new land also forming part of the Estate or that further tennis courts might be built adjoining the existing ones. But the court could not see how such extensions could be covered, because the essence of an easement was the land over which it is granted.

The court said in passing that a minor or de minimis extension to the land used by the existing or replacement facilities amounting to an incremental increase in the land used by the golf course or, say, a small extension to the existing land used by the swimming pool or to the run back used by the tennis courts, would be covered on the proper interpretation of the grant.

A completely new facility on new ground would not be covered, but a replacement facility, even one that had been slightly extended beyond the ground used by the original facility, would be.

In the absence of the most specific words, a grant would not be interpreted as entitling the dominant owner to use any facility that might be constructed anywhere on the servient tenement.

Here the grant was only a grant to use the existing facilities as they stood at the date of 1981 transfer, together with any new, improved or replacement facilities of the same kind replacing the existing facilities on the same areas of land, subject only to minor or de minimis extensions, but not any substantial extensions of such facilities on additional areas of land.

The claimants argued that, because there already existed an easement over the whole of the basement of the Mansion House, the building of a pool there in place of the existing facilities could not affect that easement.

To amount to an easement the grant had to be more than of a personal right to use chattels and services provided by the defendants in the ground floor and basement e.g the television or restaurant on the ground floor or a sun bed or sauna.

Since mere personal rights of that nature (but no valid easement) were granted over the basement of the Mansion House in 1981, there can be no valid easement of a swimming pool built after the grant on the same land. Neither could the new swimming pool be regarded as a direct substitute for the old one, elsewhere on the Estate, that the defendants had filled in in the year 2000. The easement was in respect of the land on which the old outdoor pool had been constructed in 1981, and mere personal rights (not amounting to any valid easement) had been granted over the basement of the Mansion House where the new swimming pool was now situated.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.