A recent Planning Inspector's decision has highlighted the need for planning officers to draft conditions with care. Polly Reynolds reports.
An applicant had applied for a lawful development certificate for the existing use of the retail space for any under Use Class A1 following the imposition of a restrictive planning condition.
Planning permission was granted to a retail park in 1994 but subject to a planning condition providing that the "retail floorspace… shall not be used… for the sale of food for consumption off the premises, clothes and footwear, stationery and jewellery goods".
The issue for the Inspector to determine, was whether the planning condition acted to restrict the use of the premises from being used in any manner as expressly set out in the condition or whether the condition acted to exclude the operation of the Use Classes Order (UCO) in its entirety. The law provides that the use of a building within the same use class under the UCO is not classed as development and no planning permission would be required.
The parties referred the Inspector to the High Court case of Telford and Wrekin Council v SSCLG and Growing Enterprises Ltd from 2013. This case provided the authority that for a planning condition to restrict the impact of the UCO, the condition must be expressed in "unequivocal terms".
The Inspector in his decision drew upon examples to which the judge in the Telford case had made reference. Examples of the types of planning conditions that were to be interpreted in a manner that excluded the UCO and conversely, planning conditions that were taken to not exclude the UCO, were discussed by the Inspector and explained.
A condition that provided that the premises "shall be limited to the display, sale and storage of new and used cars" did not restrict the UCO. Whereas, the provision that "stands were only to be used ancillary to the main use of the premises as a sports stadium, and for no other use…" was found to have successfully excluded the operation of the UCO.
The Inspector concluded that the wording of the condition in this case did not restrict the operation of the UCO as the wording did not expressly provide for the UCO to cease to have effect and that it was certainly not articulated in 'unequivocal terms'.
The Inspector also reasoned that the wording of the condition was not as restrictive as other similar conditions. An example of a similar planning condition was put forward and highlighted how such a condition could be couched in more restrictive terms, "the retail consent shall be for non-food sales only in bulky trades." It was noted that the word 'only' had the impact of excluding the UCO but in the current case no such limiting wording was used. Consequently, the Inspector resolved to issue a certificate of lawful use for Class A1 Uses.
The detailed analysis of the wording contained within various planning conditions and the impact that such wording can have on the use of land, demonstrates the care that local planning authorities need to display when drafting such conditions. In order to exclude the UCO, precise wording will be required.
On the other hand, landowners with land subject to such planning conditions, should be encouraged to carefully review the wording of the condition as loose drafting might open the door for the availability of the land to be used in a manner more flexibly than anticipated.