Never heard of it

In referring to Dunnett Investments Ltd v SSCLG and East Dorset District Council [2016] an inspector dealing with an appeal against the refusal of a certificate of lawfulness to confirm the unfettered A1 retail use of a unit on a retail park in Newcastle has helpfully set out the judge’s summary of the law on conditions. Take a peek here (DCS Number 400-015-376).

A condition on the planning permission relating to the retail unit restricted the amount of floorspace which could be used for the sale of food. The appellant argued that because the condition did not specifically exclude the operation of the Use Classes Order the unit could operate as an unfettered A1 use.

The inspector observed that the principles set out by the judge were straightforward and clear especially “planning conditions should be construed in a common sense way so that the court should give a condition a sensible meaning if at all possible”. In the inspector’s view the condition was unequivocal, it stated that there should be no food sales from the shop units except as described in the condition. No other interpretation of the condition was possible, he ruled, it being entirely unambiguous. The appellant nevertheless argued that regardless of the wording, because the Use Classes Order was not mentioned it could not be excluded and no reasonable person would assume it was excluded. The inspector held that this missed the point; not many reasonable people would have even heard of the Use Classes Order, never mind understood its application. A reasonable person, he decided, would simply understand the condition to be controlling food sales.

The inspector concluded that the condition could only be read so as to preclude the operation of the Use Classes Order as far as the sale of food was concerned, within the terms set out in the condition.

The following DCP section is relevant: 4.4261 and 13.14   

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