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Dunnett Investments Ltd v SSCLG: the Interpretation of Conditions and Restriction on GPDO Rights

DATE: 06 Apr 2017

The Court of Appeal (Patten and Hickinbottom LJJ) has delivered an important judgment in Dunnett Investments Ltd v Secretary of State for Communities and Local Government [2017] EWCA Civ 192, upholding the judgment of Patterson J in the High Court. 

The judgment is the Court of Appeal’s latest decision as how a condition should be construed, so will be of general interest to practitioners, and also is only the second Court of Appeal case to consider Trump International Golf Club Scotland Ltd v Scottish Ministers [2016] 1 WLR 85.  It is also relevant in relation to appeals around conversion of office buildings into residential, and the nature of the type of words which restrict such conversions. 

The appeal centred on the interpretation of a condition, which reads:

"The use of this building shall be for the 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 Appellant wished to use rights under the GPDO to change the use of a building from office to residential use. The local planning authority refused to grant a certificate of lawfulness to this effect, and an Inspector dismissed an appeal against this refusal.  The Inspector’s decision was challenged before the High Court and then the Court of Appeal, on three grounds:

i)    The provisions of the GPDO constituted an express planning consent;
ii)   Alternatively, that the prior approval mechanism constituted an express planning consent;
iii)  The condition was insufficiently certain to exclude the application of the GPDO. 

The Court of Appeal rejected these submissions and dismissed the appeal. Taking Ground 3 first, the Court found that the intention of Parliament to grant a permitted development right (in this case, to change the use of B1 offices to residential) was subject to the ability of local planning authorities to exclude this. When the condition had been drafted this new PD right did not exist. The Court applied the decision of the Supreme Court in Trump International and found the construction of the condition to be neither difficult nor unclear. The condition should be read as a whole. The words ‘from the Local Planning authority’ excluded the grant of planning permission through the GPDO. The condition was not merely emphatic. Its intention was to be restrictive, including of the GPDO. 

Grounds 1 and 2 were dealt with shortly by the Court. Whilst 'express planning consent' "might, in other circumstances, include planning permission granted directly by the GPDO", this was excluded by the requirement that the consent be granted "from the Local Planning Authority". The prior approval mechanism did not constitute the grant of planning permission under the GPDO: this was granted by the Secretary of State. 

In the Court of Appeal, Christopher Katkowski QC and Alistair Mills appeared for the Appellant; Sasha Blackmore appeared for the Respondent Secretary of State.