Court of Appeal clarifies the role of conditions in planning permission cases

Ref.  Winchester City Council v Secretary of State for Communities and Local Government & Others [2015] EWCA Civ 56

&

 I’m Your Man Ltd v Secretary of State for the Environment [1999] 77 P & CR 251

The case of I’m Your Man Ltd v Secretary of State for the Environment [1999] established that any restriction on use following exercise of a planning permission must be imposed by way of conditions.

The permission will give consent for the works or use outlined in the description of development, but also be subject to the conditions imposed. Any limitation on a permission must be imposed by a condition or else it will be considered void, as a limitation in itself can only be imposed by a development order.

The 1999 case involved a planning permission granted in 1995 for

“Additional use of warehouse / factory for sales, exhibitions and leisure activities for a temporary period of seven years…in accordance with the terms of the application”

No condition was included requiring the use to end after seven years. Several years later, the owner therefore argued that the permission had been permanent. In the absence of a condition for the permission to actually cease, the seven year period was simply a ‘limitation’ and enforceable only by a development order.

The Court agreed with this justification and found in favour of the landlord, which stressed the importance of including proposed conditions explicitly within a planning permission rather than expecting limitations to be adhered to.

In the more recent case of Winchester City Council v Secretary of State for Communities and Local Government & Others [2015], this principle was tested.

Planning permission was granted in 2003 for change of use on an agricultural site to a ‘travelling show-persons site’. Thereafter, six enforcement notices were served by the council claiming breach of conditions, after static caravans and mobile homes appeared on the site.

The planning inspector, however, quashed the enforcement notices. He stated that no explicit condition existed to prohibit such occupancy in the planning permission and the site’s use as a residential area could continue.

The High Court, however, disagreed. It was found that the permission granted was narrow. No residential use had been permitted, only use by travelling show-people, and that the principle of I’m Your Man therefore did not apply.

One final appeal to the Court of Appeal by the occupants of the land has now finally been defeated, upholding the decision of the High Court.

As such, a new set of guidance can be applied to the I’m your man principle and the correct approach now is to ask (1) what use has been granted by the permission and then (2) whether the use being carried out is within this permitted use.

The court established that there is a clear difference between a case involving a restriction on the extent of use and a case concerning restriction of the way a use is exercised (as in I’m your man). The principle is therefore only relevant where a use remains and there is no alleged change of use.

The permission here, for example, had allowed only for change of use from agricultural land to a travelling show-people’s site. No other change of use was permitted.

Following the court’s decision, the case will be returned to the Planning Inspector who will need to consider whether a change of use has occurred and, if so, whether planning permission should be granted for that change.

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SRJ                                                                                                                                    17.07.15

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