Interpreting Planning Conditions to restrict Changes of Use
We are increasingly advising on the interpretation of planning conditions restricting change of use arising from confusion as to the proper interpretation of exclusions.
It is has long been established that it is a question of construction whether a planning condition has impliedly removed permitted development rights or the benefit of the Use Classes Order 1987 (UCO 1987). In the City of London Corporation v Secretary of State for the Environment (1972) 23 P. & C.R. 169, a planning condition stated that “premises shall be used as an employment agency and for no other purpose”. [NB: our italics] and this was held exclude the operation of the Use Classes Order 1963. A similar stance was taken in the later case of The Rugby Football Union v Secretary of State for Local Government, Transport and the Regions,  EWHC 927 (Admin)  J.P.L. 740. The judge considered a condition relating to stands at Twickenham Rugby Football Ground which stated that the stands “shall only be used ancillary to the main use of the premises as a sports stadium and for no other use”. He rejected the argument that these words did not exclude the UCO 1987:
"The words “for no other use” are clear. They have no other sensibly discernible purpose than to prevent some other use which might otherwise be permissible without planning permission. The Use Classes Order is an obvious source of such a permission."
However, the words “for no other use” should not also be interpreted as also excluding the General Permitted Development Order ("GPDO") because this equates to a grant of planning permission not a permission for a use without planning permission. This interpretation is supported by guidance within Circular 11/95: Use of Planning Conditions in Planning Permissions. This Circular was revoked by the NPPF but nonetheless contains useful commentary as in Paragraph 86 it was recognised that conditions may be used to impose restrictions on changes of use under the UCO but that a general condition that restricted the use of land did not remove permitted development rights unless the condition "specifically removes those rights as well":
"It is possible, exceptionally, to impose conditions to restrict further development which would normally be permitted by a development order, or to restrict changes of use which would not be regarded as development (whether because the change is not a "material" change within the terms of section 55(1) of the Act, or by reason of section 55(2) and the provisions of the Town and Country Planning (Use Classes) Order 1987) (SI 1987/764). Changes of use can be restricted either by prohibiting any change from the use permitted or by precluding specific alternative uses (see model conditions 48--49). It should be noted, however, that a condition restricting changes of use will not restrict ancillary or incidental activities unless it so specifies (see paragraph 91 below). Similarly, a general condition which restricts the use of land does not remove permitted development rights for that use unless the condition specifically removes those rights as well."
Accordingly, for certainty within any new planning conditions it is best if Councils expressly refer to both the UCO 1987 and the GPDO 2015 if they wish these exclusions to apply and ideally to specify the relevant provisions. This position is underlined by Paragraph 17 of the National Planning Practice Guidance which states that:
"Conditions restricting the future use of permitted development rights or changes of use will rarely pass the test of necessity and should only be used in exceptional circumstances. The scope of such conditions needs to be precisely defined, by reference to the relevant provisions in the Town and Country Planning (General Permitted Development) (England) Order 2015, so that it is clear exactly which rights have been limited or withdrawn."
Hopefully, going forward there will be better drafting and less uncertainty which is especially important given the reliance developers are currently placing on the ever increasing extensions to permitted development rights that the Government are introducing. In particular, given the shortage of housing, the permitted development rights to change from office to residential use.