Limiting a planning permission and the role of conditions

19th June 2015

The Court of Appeal recently clarified the effect of the principle that, when planning permission is granted for a certain use, any limitation on how that use is to be exercised should be imposed via a condition. This has refined the approach previously established in a case that surely ranks in every lawyer’s list of ‘Top 10 Case-Names’: I’m Your Man Ltd v Secretary of State for the Environment [1].

What is the general principle?

I’m Your Man established that any restriction on use following exercise of a planning permission must be imposed by way of conditions. The permission will give consent for the works / use outlined in the description of development, but also be subject to the conditions imposed. Any limitation on a permission must be imposed by a condition or else it will be considered void, as a limitation in itself can only be imposed by a development order.

The I’m Your Man case involved a planning permission granted in 1995 for “additional use of warehouse / factory for sales, exhibitions and leisure activities for a temporary period of seven years…in accordance with the terms of the application”. No express condition was imposed requiring the use to end after seven years.

Several years later, the owner argued that the permission actually authorised a permanent change of use – on the basis of there being no condition stipulating otherwise. The court found in the owner’s favour:

• that the temporary period identified within the planning permission was a limitation (enforceable only by a development order), rather than a condition;
• any limit on the ‘life’ of the planning permission should have been imposed via a condition; and
• therefore, the 1995 permission was a permanent permission.

The case outlined the importance of including proposed conditions within a planning permission, rather than relying on limitations and expecting these to be adhered to.

How has this been clarified by the Court of Appeal?

The Court of Appeal’s recent decision in Winchester City Council v Secretary of State for Communities and Local Government & Others [2] provides assistance in applying this principle.

Background

• In October 2003, planning permission was granted for the “change of use of agricultural land to a travelling show-persons’ site”. No condition was imposed prohibiting occupation by other individuals.
• In 2010, the Council alleged that a breach of planning control had occurred due to non-compliance with a condition / limitation attached to the permission. Six enforcement notices were served, referring to an unauthorised change in use of the land from a travelling show-persons’ site to one containing static caravans and residential mobile homes.
• An appeal was lodged and granted by the Planning Inspector, with the enforcement notices being quashed. The Inspector found there had been no condition attached to the permission restricting occupancy, following the I’m Your Man principle. The site was resultantly allowed to continue as a residential caravan site.

High Court Decision

• The Council appealed the Inspector’s decision to the High Court, which allowed the appeal.
• It was agreed that the planning permission was a narrow and distinct grant. The permission had not been granted to (1) allow use of the site generally as a residential caravan site and / or been coupled with (2) with an ineffective attempt to limit that use to travelling show-people.
• Instead, the permission had just been for the site to be used for travelling show-people. The I’m Your Man principle did not apply.

Court of Appeal Decision

• The Court of Appeal has now upheld the High Court’s approach and dismissed the appeal. It found the correct approach is to ask (1) what use has been granted by the permission, by interpreting the permission’s wording; and then (2) whether the use being carried out is within this permitted use.
• The court established that there is a clear difference between (1) a case involving a restriction on the extent of use and (2) a case where the restriction relates to the way the use is exercised. The restriction in I’m Your Man related to the latter, rather than the former.
• The I’m Your Man principle is only relevant where a use remains and there is no alleged change of use.
• The permission here had allowed for change of use from agricultural land to a travelling show-people’s site. No other change of use (for example, to a residential caravan site) was permitted. As there was no occupancy condition, people who were not travelling show-people could still occupy – there was no prohibition on this.
• As a result of the court’s decision, the case will be returned to the Planning Inspector. If the Inspector finds there has been a material change of use, then there will be a need to consider whether permission for the change should be granted.

Comment

The Winchester case demonstrates an ingenious attempt to utilise the principle that any limitation on the exercise of a permitted planning use should be imposed by a condition.

It serves as a reminder that those granting planning permissions should look closely at a permission’s wording and consider whether the conditions included are suitable, particularly to ensure the scope of a permitted use is reinforced.

For further information or advice on this case and its impact, contact the Planning & Environment team at Walker Morris LLP.

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[1] [1999] 77 P & CR 251
[2] [2015] EWCA Civ 563