Lazari Properties 2 Ltd v The Secretary of State for Levelling Up, Housing and Communities
[2023] EWHC 353 (Admin)
Lazari Properties 2 Ltd v Secretary of State for Levelling Up, Housing and Communities & Anor
4 August 2023
[2023] EWHC 2026 (Admin)
High Court
A company tried to use a new law to allow more restaurants in a shopping center, but an old rule stopped them. The court said the old rule was still in effect because its purpose was to protect the shops, and allowing the change would defeat that purpose.
Key Facts
- •Lazari Properties 2 Limited appealed a Planning Inspector's refusal of a Certificate of Lawful Existing Use or Development (LDC) for the Brunswick Centre.
- •The LDC application sought to certify that existing uses within Class E (introduced by the 2020 Regulations) were lawful, despite Condition 3 of a 2003 planning permission limiting A2 and A3 uses to 40% of retail floorspace.
- •Condition 3 aimed to safeguard the Brunswick Centre's retail function.
- •The 2020 Regulations subsumed previous use classes (A1, A2, A3, B1) under Class E, allowing flexibility between these uses.
- •The appeal focused on whether Condition 3 ousted the operation of the amended Use Classes Order (UCO) and the new Class E permitted use.
Legal Principles
Planning permissions must be interpreted as a whole, considering the grant, conditions, and reasons for imposition.
Barton Parks v SSHCLG [2022] EWCA Civ. 833
A planning condition can exclude the application of the GPDO or UCO, either expressly or impliedly; the intention to exclude must be clearly evinced.
Dunnett Investments Ltd v SSCLG [2017] EWCA Civ 192
Conditions should be interpreted according to their natural and ordinary meaning, considering their purpose and context. If an interpretation renders a condition meaningless, it's unlikely to be correct.
Royal London Mutual Insurance Society v SSCLG [2013] EWHC 3597 (Admin)
Guidance in Circular 11/95, while not law, is relevant to interpreting conditions, particularly those restricting permitted development rights.
Circular 11/95
Outcomes
Lazari's appeal was dismissed.
Condition 3, on its proper construction, had an exclusionary effect, preventing the operation of the amended UCO's Class E permitted use. The condition's purpose was to safeguard the retail function of the Brunswick Centre, a purpose that would be undermined if the Class E flexibility were allowed to override it. Neither of Lazari's proposed interpretations of Condition 3 (limiting its effect to initial allocation or tying it to a now-expired 'flexible planning permission') was persuasive.
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