Guidance on planning conditions restricting the occupancy of land and buildings
The invalid condition imposed by the local planning authority (“LPA”) in R (on the application of Sienkiewicz) v South Somerset District Council (see PP 2014/5), with the intention of restricting the occupancy of the land and building to the applicant, was – to say the least – unhappily worded. In considering its effect or otherwise, the court also referred to the guidance contained in Circular 11/95: The Use of Conditions in Planning Permissions.
The effect of section 75(1) of the Town and Country Planning Act 1990 is that any grant of planning permission to develop land inures for the benefit of the land and of all persons for the time being interested it, except insofar as the permission otherwise provides. It is accepted generally that, if a personal restriction is to be imposed, it should be done so by means of an express condition. Words of limitation otherwise expressed, such as within the description of the permitted development, may not be similarly construed and would not, in any event, enable a breach of condition notice to be served by way of enforcement.
The invalid condition imposed by the local planning authority (“LPA”) in R (on the application of Sienkiewicz) v South Somerset District Council (see PP 2014/5), with the intention of restricting the occupancy of the land and building to the applicant, was – to say the least – unhappily worded. In considering its effect or otherwise, the court also referred to the guidance contained in Circular 11/95: The Use of Conditions in Planning Permissions. The effect of section 75(1) of the Town and Country Planning Act 1990 is that any grant of planning permission to develop land inures for the benefit of the land and of all persons for the time being interested it, except insofar as the permission otherwise provides. It is accepted generally that, if a personal restriction is to be imposed, it should be done so by means of an express condition. Words of limitation otherwise expressed, such as within the description of the permitted development, may not be similarly construed and would not, in any event, enable a breach of condition notice to be served by way of enforcement. Paragraph 93 of Circular 11/95 states that such conditions should be seldom imposed, while still recognising that there may be occasions where it is proposed exceptionally to grant permission for the use of a building or land for some purpose that would not normally be allowed on the site, simply because there are strong compassionate or other personal grounds for doing so. The wording of the related model condition set out in Appendix A of Circular 11/95 also envisages the permission being granted for a term only. This is because paragraph 93 goes on to advise that a condition of this kind will scarcely ever be justified in the case of a permanent building. The recommended wording is as follows: 35. The use hereby permitted shall be carried on by [x] and shall be for a limited period being the period of [y] years from the date of this letter or the period during which the premises are occupied by [x] whichever is the shorter. 36. When the premises cease to be occupied by [x] or at the end of [y] years, whichever shall first occur, the use hereby permitted shall cease and all materials and equipment brought onto the premises in connection with the use shall be removed. Needless to say, paragraph 93 points out that a permission personal to a company is inappropriate, because its shares can be transferred to other persons without affecting the legal personality of the company. John Martin
