Dunnett: conditions excluding permitted development
Dunnett Investments Limited v Secretary of State for Communities and Local Government and East Dorset District Council [2017] EWCA Civ 192 concerns a common practical problem: a proposal appears to fit a permitted development class, but an older planning condition restricts the property’s use.
The Court of Appeal upheld the refusal of a proposed lawful development certificate. On its proper interpretation, the condition prevented reliance on the office-to-residential permitted development right.
Important legal note: Planning Geek is a planning consultancy, not a law firm. This page provides general planning information and is not legal advice. Case law must be read in its factual and legal context and may be affected by later judgments, legislation or policy. Where the original judgment is available, it remains the authoritative source. If the outcome matters to a live case or dispute, take advice from an appropriately qualified planning solicitor or barrister.
Copyright and licensing: Crown copyright and other rights in judgments and source material remain with the relevant rights holders. Where a judgment is reproduced from Find Case Law, it is used under the Open Justice Licence and the source should be acknowledged. Material obtained from other sources is reproduced only where the applicable terms permit it. Planning Geek does not claim copyright in the text of court judgments.
- Neutral citation
- [2017] EWCA Civ 192
- Court
- Court of Appeal (Civil Division)
- Judgment date
- 29th March 2017
- Judge
- Patten LJ and Hickinbottom LJ
- Case number
- C1/2016/1383
The wording went beyond simply allowing B1 use
The site was a business property in Ferndown. A condition required the building to be used for purposes within the then Class B1, and for no other purpose whatsoever without express planning consent from the local planning authority first being obtained.
Dunnett sought to rely on the historic Class J office-to-residential right in the 1995 GPDO. The dispute ultimately reached the court through a refusal of a proposed lawful development certificate.
The developer argued that the condition did not exclude permission granted by the GPDO. The court rejected that interpretation and dismissed the appeal.
No single phrase should be read in isolation
Following Trump International, the court read the condition objectively, having regard to its ordinary language, the permission as a whole, its purpose and common sense.
A permission for a stated use does not, simply by stating that use, exclude the GPDO. Something more is needed. But the condition does not have to recite the name of the GPDO if its meaning in context clearly excludes the relevant rights.
Here the combination of the emphatic restriction and the requirement for express consent from the authority showed that future changes were to be considered on application, rather than authorised automatically by the development order.
Prior approval is not a separate express permission
The court also rejected the argument that an application for prior approval could satisfy the condition’s requirement for express planning consent from the council.
Although the council has a role in the prior approval process, the planning permission is granted by the GPDO. The authority’s decision on the specified prior approval matters is not itself the separate grant of permission contemplated by this condition.
This distinction is useful when reading permissions and deciding which planning procedure is actually available. Completing a prior approval process cannot simply be assumed to overcome an incompatible condition.
What Dunnett does not establish
The judgment is not a list of magic words. It does not mean that every condition containing the word ‘only’, or every reference to a use class, removes all permitted development rights.
Equally, the absence of an express reference to the GPDO does not settle the matter in the developer’s favour. The complete wording and legal context must be examined.
The B1 and Class J provisions in the judgment are historical. They should not be copied into advice as a description of the permitted development classes available today.
Why it matters before relying on permitted development
Check the planning history as well as the development order. The relevant restriction may be in an older permission or a later variation, and the reason for the condition can help explain its purpose.
Our guide to planning conditions is a useful starting point. Dunnett supplies the more specific authority on interpreting a condition said to exclude a GPDO right.
Read the Dunnett judgment
Gold Members can read the complete Court of Appeal judgment in the protected library.
Dunnett Case Law Page Updated: 12th September 2026