The consequences of failing to restrict use by imposing a condition were highlighted in a recent appeal decision concerning a DIY retail unit in South West London.
Both the original planning permission for the retail unit and a subsequent section 73 permission (granted in 2010) included a condition to restrict the sale of non-food goods. However, the final section 73 permission granted in 2014 contained no such condition.
In 2015, the appellant sought a lawful development certificate permitting use of the premises for purposes within Use Class A1 without restriction on the goods that could be sold. Notwithstanding the lack of a condition restricting use, the Council refused. Consequently, the applicant appealed citing the decision in I’m your Man v Secretary of State  77 P. & C.R. 251, which held that where a limitation is to be imposed on a permission granted pursuant to an application, it must be done by condition.
The Council contended that the original conditions were incorporated by reference to the previous permissions or should be implied, referring to the Reid case which held that it is permissible to impose conditions by reference to an earlier planning permission.
However, the Inspector rejected the Council’s arguments, finding that the principles from Reid could not reasonably be extended to the creation and incorporation of an entirely new condition which does not appear on the 2014 permission other than in the description, in accordance with the decision in Dunnett Investments. The Inspector held that no condition restricting the nature of the retail use to specific uses falling within Use Class A1 had therefore been imposed on the final planning permission. Accordingly, the appeal was allowed and the lawful development certificate issued.
So what can we take away from the case?
- The importance of conditions controlling use.
The decision in Reid confirmed that, in the case of planning permissions granted under section 73, conditions can be imposed in various ways:
- impose fresh conditions mirroring the original conditions save for the variation; or
- impose only the varied condition and incorporate the unaffected conditions by cross-reference to the original permission.
However, whichever method is used, any differing conditions must be incorporated in full in the new permission. For certainty, LPAs must adopt a ‘belts and braces’ approach and set out all the conditions to which the new planning permission will be subject, restating any unchanged conditions in full rather than relying on cross-referencing.
- The myth that the description of development can be varied by way of a section 73 application persists.
Confusion often arises as a result of overly complex and unclear descriptions of development, which applicants and local authorities seek to amend to accord more closely with the section 73 proposals. However, there is no formal ability under section 73 to amend the description of development. It is therefore better to avoid references to the use classes, floor areas and number of units in the description of development (where possible), as it invariably acts to constrain the ability to lawfully use section 73 amendments to amend schemes post approval.
Steering clear of amendments to the description of development can help to maintain the focus on varying the relevant conditions, reducing the potential for LPAs to fall foul of this issue. As is clear from the present case, LPAs cannot rely on undefined conditions being imposed or implied into new permissions granted under section 73.
As a final note, we are willing to bet that I’m Your Man will be overturned at some point by the Courts or will be ousted by legislation. A failure to constrain by condition something that was clearly described as limited in the description of development should not, as a matter of fairness, lead to a windfall for the owner and a cost to the community.