Implied conditions in planning permissions: exclusion of GPDO rights

On 29 March 2017 the Court of Appeal handed down judgment in the case of Dunnett Investments v SSCLG.

This has confirmed that a particular form of planning condition had the far-reaching repercussions of removing the developer’s right to rely upon permitted development rights for office to residential development under the ‘GPDO’. The Court was able to find this ‘implied’ meaning even though the condition made no specific reference to the GPDO and was imposed many years before those rights actually came into existence.

One can argue that this is a poor result for a host of reasons. Sadly, the courts seem to be stuck on a certain path which had more justification when it was first decided long ago that the Use Classes Order could be excluded in this way. Techniques of legal interpretation which rely upon implied terms should strive to find a fair and lawful meaning, but the result of Dunnett exposes landowners to having their permitted development rights taken away in harsh circumstances. It does not seem to have occurred to the Court that affected landowners will not, at the time these conditions are imposed, have had a fair opportunity to legally challenge their full implications.

The problem starts with the mistaken belief that local planning authorities always have good cause to impose restrictive use related conditions, but the reality, of course, is somewhat different. In my view, the interpretation has become much too strained and the balance has tilted too far against the unfortunate landowners who suffer in these cases.

Whatever the notional constraints upon implied terms laid down by the courts, this does not reflect in the practice of interpretation applied by planning authorities, where the exclusion of the GPDO will often be claimed readily in opportunistic fashion. However, ‘context is king’ and so before accepting this outcome it would be wise to legally examine the specific wording of the condition and any ‘reason’ expressly given for imposing it.