The thorny issue of the drafting of conditions went before the High Court in the recent case of R (oao) Teresa Sienkiewicz v South Somerset District Council and Probiotics International Limited.
The case concerned the grant of consent for the erection of a building for B1, B2 and B8 uses, which the applicant contended was necessary to enable the expansion of its business.
Despite being contrary to the relevant development plan (being just outside the area allocated for employment use), the local authority determined that the application was in accordance with the NPPF, which supports the expansion of businesses in rural areas, and granted consent. The summary reasons for grant referred to an “adequate justification to allow an expansion of Probiotics” and a condition was imposed that read: “The building hereby permitted shall only be carried out by Probiotics International Ltd (or any successor company) during its occupation of the land subject to this permission. Reason: the local planning authority wishes to control the uses on this site to accord with the NPPF”.
Among other grounds of challenge, the claimant argued that the above condition was unlawful because it was ambiguous and unenforceable, or irrational or did not fairly and reasonably relate to the development. The Court agreed and, as the parties agreed that the condition was not severable from the rest of the consent, the permission fell to be quashed.
The Court, having considered the guidance in Circular 11/95 on the use of conditions in planning, considered the ambiguity in whether the condition was intended to relate to the erection of use of the building, and also what “or any successor company” meant. While a view could be taken on the first, in light of the reason given, the latter was more difficult to agree on. If the defendant’s view was taken, that this was meant to refer to any company or individual that acquired the shareholding in Probiotics, the condition did not appear to do what it set out to do – it did not limit the use to which the land could be put (as it permitted any B1, B2 or B8 building) but merely sought to control the identity of the person carrying on the use. No reason had been given why an unconnected company could not carry out the permitted use.
The case concerned the grant of consent for the erection of a building for B1, B2 and B8 uses, which the applicant contended was necessary to enable the expansion of its business.
Despite being contrary to the relevant development plan (being just outside the area allocated for employment use), the local authority determined that the application was in accordance with the NPPF, which supports the expansion of businesses in rural areas, and granted consent. The summary reasons for grant referred to an “adequate justification to allow an expansion of Probiotics” and a condition was imposed that read: “The building hereby permitted shall only be carried out by Probiotics International Ltd (or any successor company) during its occupation of the land subject to this permission. Reason: the local planning authority wishes to control the uses on this site to accord with the NPPF”.
Among other grounds of challenge, the claimant argued that the above condition was unlawful because it was ambiguous and unenforceable, or irrational or did not fairly and reasonably relate to the development. The Court agreed and, as the parties agreed that the condition was not severable from the rest of the consent, the permission fell to be quashed.
The Court, having considered the guidance in Circular 11/95 on the use of conditions in planning, considered the ambiguity in whether the condition was intended to relate to the erection of use of the building, and also what “or any successor company” meant. While a view could be taken on the first, in light of the reason given, the latter was more difficult to agree on. If the defendant’s view was taken, that this was meant to refer to any company or individual that acquired the shareholding in Probiotics, the condition did not appear to do what it set out to do – it did not limit the use to which the land could be put (as it permitted any B1, B2 or B8 building) but merely sought to control the identity of the person carrying on the use. No reason had been given why an unconnected company could not carry out the permitted use.