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.