Standing conditions

An inspector has refused to issue a certificate of lawfulness for the use of a children’s nursery in Bournemouth without restrictions, after explaining the effect of the court’s decision in Lambeth LBC v SSCLG & Aberdeen Asset Management, Nottinghamshire CC & HHGL Ltd [2017] (DCS Number 400-026-339).

The inspector judged that the appeal turned on the construction and effect of various planning permissions and whether by accidental omission the council had inadvertently left the nursery school with no enforceable planning conditions. The appellants’ argument was that the various planning permissions granted by the council had superseded the original planning permission for the development. Some of those planning permissions were never implemented and those that were had no conditions on them thus, it was contended, leaving the nursery without restrictions.

The inspector recorded that in the past, it was often considered that a permission granted under s73 was a new planning permission which superseded any previous planning permissions and should therefore be subject to any conditions that would continue to be relevant. More recently, however, the Supreme Court in the Lambeth case made it clear that an application under s73 to remove a condition from an existing planning permission was limited to that matter. Assuming the later permission was compatible with the continued effect of the earlier permission then the original conditions could remain binding, he explained. The original conditions would only be affected if they were discharged or removed. As long as there was nothing in the new permission to affect the continued operation of the old conditions then they remained in effect.

The dispute between the parties was whether or not certain planning permissions were ever implemented and the ongoing effect of that lack of implementation. After careful analysis of the planning history of the site the inspector came to the conclusion that it would not be lawful to use the children’s nursery without restrictions and he dismissed the appeal.

Section 4.416 of DCP Online covers the subject of the removal or amendment of conditions.