Negative thoughts

In GPDO overrides use condition we reported an appeal case in which an inspector found that a condition stating that ‘the premises shall be used only for purposes falling within Class B1’ did not prevent the exercise of GPDO rights to convert the former barn to a dwelling. A recent court case, Dunnett Investments Ltd v Secretary of State for Communities and Local Government 29/3/17 appears to support his view.

In the case before the Court of Appeal a condition imposed on the office development stated “The 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 judge ruled that in interpreting a planning condition which was said to exclude the operation of the order, three factors are relevant. Firstly, a planning condition can exclude the application of the GPDO. Secondly, exclusion might be express or implied, but a grant for a particular use cannot in itself amount to an exclusion. Thirdly, to exclude the application of the GPDO, the words used in the relevant condition, when taken in their full context, must clearly evince an intention on the part of the local planning authority to make such an exclusion. In his view, the condition excluded planning permission granted by Parliament under the terms of the GPDO. He opined that the first part of the condition set out the scope of the permission and the phrase “and for no other purpose whatsoever” was a clear and specific exclusion of GPDO rights.

The lesson here, perhaps, is that in order to withdraw permitted development rights by means of a condition it’s best to think negative – the condition needs to say “and for no other purpose whatsoever”. A positive construction – “shall be used only for purposes…” isn’t going to be enough.

The following DCP chapter is relevant: 10.3131

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