Planning conditions vs permitted development rights relevant to changes within use classes

Summary

This Law-Now considers a recent case which addressed the circumstances in which the range of uses allowed by Class E could be limited by a planning condition which restricted the use of premises and removed permitted development rights.  In particular, the court considered whether such a condition needed to contain express wording to specifically remove the operation of the Town and Country Planning (Use Classes) Order 1987 (“UCO”).

In Lazari Properties 2 Limited v Secretary of State for Levelling Up, Housing and Communities v. The London Borough of Camden ([2023] EWHC 2026 (Admin) the High Court found that the restricting condition in this case, although not expressly excluding the operation of the UCO, did exclude its application and the introduction of Class E did not change the effect of the condition to restrict the use of the property.

This case provides useful guidance on how to interpret planning conditions restricting the use of land but needs to be read in its context and the specific facts of the case. 

The Background

Lazari Properties 2 Limited (the “Claimant”) challenged a Planning Inspector’s decision to refuse an appeal made by the Claimant to the London Borough of Camden (“Camden”), for a Lawful Development Certificate ("LDC") Pursuant to s191 (1) (a) of the Town and Country Planning Act 1990.

By way of background, planning permission had been granted on 1 September 2003 for the extensive refurbishment of and alterations to the Brunswick Centre, along with the creation of new units and re-landscaping (the “Permission”). The Permission was granted subject to a number of conditions including Condition 3, which provided:

"Up to a maximum of 40% of the retail floorspace equating to 3386m2 (excluding the supermarket and eye-catcher) is permitted to be used within Use Classes A2 and A3 of the Town and Country Planning (Use Classes) Order, 1987, or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order.

Reason: To safeguard the retail function and character of the Brunswick Centre in accordance with policies SHI, SH2, of the London Borough of Camden Unitary Development Plan 2000."

Following the introduction of Use Class E (Commercial, Business or Service Uses) the Claimant made an application to Camden to certify that the existing use of the Brunswick Shopping Centre was within Class E and that it was no longer necessary to comply with Condition 3 of the Permission.

The law

At the time when the Permission was granted, the uses with the then UCO included:

• Class A1 (Shops) use;
• Class A2 (Financial and Professional Services) use;
• Class A3 (Restaurants and Café's) use; and
• Class B1 (Business) use.    

At the same time, the Town and Country Planning (General Permitted Development Order) 1995 (the “GPDO”) permitted a change from A3 to A1 use without the need for further planning permission, but not the reverse. Similarly, a change of use was permitted from A3 to A2 and from A3 (if the building was on a ground floor or had a display window) to A1, but again not the reverse.

The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 (the “2020 Regulations”) made some significant amendments to the UCO, the most notable of which was the creation of a new class, Class E. As a result, the previous use classes A1, A2, A3, and B1 were subsumed under this class so that:

• A1 became E (a),
• A2 became E(c),
• A3 broadly became E(b)
• B1 became class E(g).  

Regulation 7 of the 2020 Regulations provided that after 1 September 2020, any building or other land which is situated in England and is being for the purpose of classes A1, A2, A3 and B1, will be treated as being used for a purpose specified within Class E. The effect of this change is that since the introduction of Class E, movements (either way) between uses formerly within A1, A2 and A3, can take place without the need for planning permission because they now constitute movements within the same use class.

However, if a condition is attached to a planning permission to prohibit changes within a use class, then planning consent is required. Such conditions are generally imposed by Local Planning Authorities where a planning harm would result from certain changes of use which would otherwise be permitted by the UCO and GPDO. 

The grounds of dispute

In this case, the Claimant’s main argument was that on its proper construction, Condition 3 was superseded by the amendments to the UCO by virtue of the 2020 Regulations, in particular the creation of Class E. The wording of Condition 3, following the Claimant’s argument, included specific provision to incorporate Class E into Condition 3 (i.e. arguing that the references to Class A2 and A3 were now automatically replaced by Class E). Furthermore, Condition 3 contained no express wording to remove the usual operation of the UCO so as to prevent changes of use within a given use class. In the Claimant’s submission, the effect of the changes to the UCO now made it possible to move uses between A1, A2 and A3, notwithstanding Condition 3.

The Inspector rejected the Claimant’s arguments. Having examined the natural and ordinary meaning of the words used in Condition 3 and the context in which Condition 3 had been imposed, the Inspector determined that A2 and A3 could not now be interpreted to mean any land use now within Class E, but instead had to be read as the specific uses described by the UCO when the condition was imposed.

Furthermore, the Inspector, relying on Dunnett Investments Ltd v SSCLG [2017] EWCA Civ 192, found that Condition 3 was an indication that Camden wanted to exclude the operation of Use Classes Order and that Condition 3 would only make sense if there was an implied exclusion of the UCO.

The Decision

Following a challenge to the Inspector’s decision to the High Court Waksman J broadly accepted the Inspector’s findings and dismissed the claim.

Even though the wording of Condition 3 did not expressly exclude the operation of the UCO, the judge found that it was not required to do so by law.

The judge further found that Condition 3 was a negative one, restricting the extent of the use rather than particular uses. “Equivalent provisions” referred to in Condition 3, did not relate to use classes A2 and A3; rather, they referred to the activities these classes described, i.e. “financial and professional services” and “restaurants and cafes” respectively. It was upon these activities that the 40% limit was imposed not the use class by which they happened to be described at the time the condition was imposed.

Great significance was also placed on the context in which Condition 3 had been imposed, which in the opinion of the judge provided the immediate contextual background and it was a very significant pointer to indicate that Condition 3 intended to exclude the application of UCO. Otherwise, the judge submitted that Camden would not be able to safeguard the retail function and character of the Brunswick Centre (being the given reason for the imposition of Condition 3 on the planning permission).

Last but not least, the judge accepted that the restriction imposed by Condition 3 was not absolute and that its partial or complete removal could be effected by an appropriate express planning permission. If a new planning application was submitted to remove this condition, the existing Condition 3 would be a material consideration in the determination of that application but if the planning circumstances had changed it might be possible for the restriction to be removed or modified.

Conclusions

This case reinforces the importance of reviewing existing planning permissions to ensure that planning conditions do not exist to restrict the normal operation of the UCO to make the use more restrictive than would be the case without the condition.

 The case is important because it confirms that conditions restricting certain uses do not have to specifically exclude the application of UCO to remain effective even after later amendments to the UCO. The wording of the conditions and the context in which such conditions were imposed can be critical to allow them to remain effective.

In Lazari, the special character of Brunswick Centre, as an area of significance for Camden, together with the existence of local policies which provided specific safeguards to retain this character, were key to the outcome of this decision. These considerations were further recorded in the relevant officer’s report and were summarised as a reason for the imposition of the condition and were taken into account by the judge.

In this case, Condition 3 specifically restricted the extent of the uses in question as described by the UCO at the time of the condition. The Court dismissed the Claimant’s arguments that the wording “equivalent” referred to a use class replacing classes A2 and A3 in a later version of the UCO.

So, in short, developers, when agreeing planning conditions, should take great care to understand their full meaning, scope and impact and think carefully about how a condition might be interpreted following future changes to the UCO and in particular whether the intention is to permanently to exclude the effect of the UCO in the future.

Local Planning Authorities, on the other hand, should use clear and unambiguous language, and impose conditions which pass the test of necessity, providing and recording clear reasons and the context of the condition in order to ensure that such conditions will last and overcome any legislative amendments in the future. Where the intention of the condition is in fact to exclude the effect of the UCO they should expressly achieve this in the condition to avoid disputes later.