Lawful use authorised by certificate frustrated by condition on operational planning permission

A grant of an operational planning permission may be a material change in circumstances affecting the efficacy of a certificate of established use.

Regardless of the certificate, if planning permission were applied for and granted for operational purposes, conditions can be attached to the permission in order to regulate the consequences arising from a combination of the existing use with those operations. This may mean the law taking back with one hand what it has just given with the other.

In Nisbet, R (On the Application Of) v Secretary of State for Communities & Local Government & Anor [2014] 37 Belgrave Mews, North London formed part of a terrace of mews houses. The claimant wished to utilise a roof space at 37 Belgrave Mews as a roof terrace for sitting out and for other amenity purposes. Applications for planning permission for a roof access hatch were refused.

The claimant then got a certificate of lawfulness of a proposed use under section 192 of Town and Country Planning Act 1990 for use of the flat roof as an amenity space as the use of the flat roof for amenity space purposes would not constitute a material change of use as it would be incidental to the enjoyment of the single family dwelling house and so did not require planning permission. The certificate said “For the avoidance of doubt this certificate does not include the unauthorised roof works including the air conditioning unit, the roof lights or any balustrade.”

The claimant then applied for planning permission for permission to retain the roof access hatch. That was granted but subject to a condition that the flat roof could not be used for sitting out as it invaded neighbour’s privacy.

An appeal against that condition concluded that the planning permission would be unacceptable without that condition as the living conditions of neighbours would be seriously harmed. At the appeal the inspector said the removal of the condition would conflict with the relevant local policies.

The High Court said, given the existing use of the flat roof space for amenity purposes, there had to be a planning need to justify the imposition of the condition. In fact it was the inspector’s lawful entitlement to consider the effect on neighbours.

Although the certificate existed it could not be relied on as the use could not be instituted without an operation for which no planning permission had existed namely the installation of the access hatch. The certificate was not conclusive as to lawfulness of the use that it proposed, in the changed circumstance that the claimant was applying for planning permission for the roof hatch and other items.

Would it have made a difference if the claimant had made some use of the roof space, before getting the planning permission e.g. by means of a ladder, thereby instituting the use and making the certificate conclusive?

The court said it would not have made a difference. Whether the certificate was there or not, the use was a lawful use. An authority could impose a condition on a certificate restricting a lawful use if there is a planning need to do so.

Secondly, the certificate made it clear that it was granted on the basis that it did not include the unauthorised roof works. There would have had to be an application for planning permission for the roof works otherwise there would be a breach of planning control.

The certificate was not intended to restrict the ability of the local planning authority to impose a condition on the use which they considered necessary in planning terms. It was the planning permission for the operational development of the roof access hatch, combined with the use of that flat roof for amenity purposes, which would result in new and undesirable affects that needed to be lawfully addressed by the imposition of a condition such as that condition if the authority or the inspector considered it necessary in planning terms.

This blog has been posted as a matter of general interest. It does not remove the need to get bespoke legal advice in individual cases.