Planning Conditions – the Basics
It is fairly common for any planning consent issued by a local planning authority to come with a baggage train of conditions which must be complied with in order that the planning consent can be lawfully implemented. If those conditions are not complied with when implementing the planning consent then this will result in a breach of planning control which may require you to submit a further planning application to regularise the position or which could, in certain circumstances, result in enforcement action being taken against you by the Council.
There are all sorts of planning conditions but they must meet certain requirements, for example, they must serve a planning purpose, they should fairly and reasonably relate to the development to be permitted and they should not be unreasonable.
Preclusive Conditions
It is reasonably common to find planning conditions attached to certain types of planning consent which specifically remove permitted development rights that would normally be available under the Town and Country Planning (General Permitted Development) Order 1995 (as amended) (“the GPDO”). This type of condition, often referred to as a ‘preclusive condition’, is a tool used by local planning authorities to restrict further development of the property concerned or the use to which the development which has been granted consent is put. The condition can be worded in such a way as to prevent the owner of the property from taking advantage of permitted development rights under the GPDO and/or, in some cases, being able to change the use of the property to another use within certain limits prescribed by legislation (“the Use Classes Order”). For example, you may no longer be able to add an extension to your house (within certain limits set out in the GPDO) or change the use of a commercial building you own from a newsagent to a hairdresser (under the Use Classes Order). Both of these scenarios would otherwise be allowed in normal circumstances.
Your Planning Consent
It is important to be aware of any limitations on the grant of a planning consent, in particular any conditions which restrict the use of permitted development rights as these can severely impact future plans, for example, for extending the family home or converting a redundant or obsolete farm building to an alternative and more profitable use.
Losing Your Permitted Development Rights
Normally, where permitted development rights are withdrawn as a condition forming part of a planning consent, this is explicitly set out in the wording of the condition – it will usually refer directly to the Town and Country Planning (General Permitted Development) Order 1995 and will also often name the Schedule and Part of the GPDO for which development rights have been removed.
But not always it seems. The language used in some preclusive conditions doesn’t actually mention the GPDO. Some commentators (citing a number of cases which have come before the courts) suggest that, in order to exclude the benefit of the GPDO and the permitted development rights which flow from the Order, a condition needs to expressly set this out and refer to the GPDO by name.
However, a recent case (Dunnett Investments Ltd v Secretary of State for Communities and Local Government and East Dorset District Council [2017] EWCA Civ 192) which went all the way to the Supreme Court, has cast some doubt on the strength of this argument. In that case, a condition which restricted the use of a building to a particular purpose (Business Use) but which did not expressly refer to the GPDO and the permitted development rights, was nevertheless held to be sufficiently unambiguous and clear so as to infer that permitted development rights had been removed.
Summary
The recent case of Dunnett highlights the need to pay careful attention to the wording of conditions attached to any planning consent, in particular where they may have the effect of restricting or removing altogether permitted development rights. It may not be entirely obvious from a cursory reading of the condition and this could have serious consequences, for example, if you are planning to make alterations or additions to a property or are considering using it for an alternative purpose – development rights you thought you had under the GPDO may have been removed by the implementation of an earlier planning consent.
If you are unsure about the wording of any conditions, either proposed or already in place, or have any other planning queries, please do not hesitate to contact Richard Price.