Interpreting planning permissions and conditions relating to use classes (Lazari Properties 2 Limited v SoS)

What are the practical implications of this case?

The judgment is an important reminder of the approach taken by Inspectors and courts when interpreting planning permissions and conditions which restrict the use of a development to specific use classes and the impact of any amendments to the UCO 1987 on such conditions.

The court made clear that, when interpreting planning permissions, it will consider the permission as a whole, having regard to the natural and ordinary meaning of its words. In relation to specific conditions on use classes, the court will consider the planning history of the relevant site and will look at the reasons for the condition, identifying whether the local authority had a specific intention to exclude amendments made to the UCO 1987. 

This judgment highlights the importance of carefully reviewing the wording of planning conditions relating to use classes, both during the initial negotiations with the local authority but also at later stages when changes to uses are sought. Specific references to Classes A1, A2 and A3 in planning conditions pre-dating the 2020 Regulations need to be carefully reviewed to ascertain whether the amendments made to the UCO 1987 and the introduction of new Class E allow unrestricted use changes.

What was the background?

This case deals with an appeal against a decision of an Inspector refusing the Claimant’s application for a Certificate of Lawful Existing Use or Development to certify the existing use of the Brunswick Centre ‘within Class E and without compliance with Condition 3 of Planning Permission’ as lawful. 

The Permission included former A1, A2 and A3 uses. Condition 3 of the Permission stated that ‘up to a maximum of 40% of the retail floorspace … is permitted to be used within Use Classes A2 and A3 [of the UCO 1987] … or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order.’ At the time of the Permission, the Town and Country Planning Act (General Permitted Development Order) 1995 (the GDPO) permitted a change from A3 to A1 (also from A3 to A2 and from A3 to A1) without the need for planning permission (but not the reverse). However, the 2020 Regulations introduced the ability to move without restriction between Classes A1, A2 and A3 (now subsumed under Class E).

The Claimant’s overall argument was that Condition 3 did not have the effect of ousting the operation of the amendments introduced by the 2020 Regulations and, therefore, the Claimant was able to change uses between A1, A2 and A3 freely. The Claimant argued that the purpose of Condition 3 was only to govern the initial allocation of space into A1, A2 and A3 (with A2 and A3 limited to 40% of the floorspace) (Interpretation 1). The Claimant also argued that the Permission was a ‘flexible planning permission’, allowing freedom of movement between A1, A2 and A3 within a 10-period from the grant of the Permission. Condition 3 was required to restrict this for the initial 10 years (i.e., only until 2013) (Interpretation 2). 

The court was tasked with determining if the effect of Condition 3 was to exclude the operation of the UCO 1987 (as amended).

What did the court decide?

The court dismissed the Claimant’s appeal and rejected the argument that, with the introduction of the 2020 Regulations and the new Class E, the Claimant was able to move between Class uses A1, A2 and A3 without being restricted by Condition 3. 

The court recited existing case law, which, inter alia, provides that a planning permission must be interpreted as a whole and having regard to the natural and ordinary meaning of its words (Barton Parks v SSHCLG [2022] EWCA Civ 833).  The court also noted that, when interpreting a planning condition, one must have recourse to the planning history of the relevant site and the reason for the condition (Dunnett Investments Ltd v SSCLG [2017] EWCA Civ 192). The ultimate question is whether the words used in the condition, taken in their full context, clearly evince an intention on the part of the local planning authority to exclude the GDPO (which was relevant to Dunnett). 

The court found that Condition 3 included a very precise limitation by reference to a particular percentage of the floorspace (i.e., up to 40%’ for A2 and A3). In addition, according to the court, the reference in Condition 3 to ‘equivalent provisions’ was to stress the particular use concerned (i.e., A2 and A3) as described at the time or the same use described in any later provision. The court also considered the full context of the Permission and the purpose of Condition 3 to safeguard the retail function of the Brunswick Centre. On this basis, the court held that Condition 3 had a clear effect of excluding the amendments made to the UCO 1987.  

In addition, the court rejected Interpretation 1 on the basis that nothing in Condition 3, the Permission nor other planning materials indicated that the condition would only apply at initial allocation.  The court also rejected Interpretation 2, finding that there was nothing in the Permission’s language suggesting that it was flexible.  

The court also dealt with other issues which are not covered in this summary (e.g., the Claimant’s reference to Circular 11/95 and the argument that the Inspector failed to provide adequate reasons).