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.