This is an appeal pursuant to Section 288 of The Town And Country Planning Act 1990 (“the Act”) brought against the decision of the Planning Inspector made on 27 July 2022. By that decision the Inspector refused the application made by the Claimant, Lazari Properties 2 Limited (“Lazari”) to the Local Planning Authority (‘LPA’), here the London Borough of Camden (‘Camden’), for a Certificate of Lawful Existing Use or Development (“LDC”) pursuant to s.191(1)(a) of the Act. The property in question is the Brunswick Centre, a well-known, very large and iconic Grade II listed structure in Central London. It essentially comprises residential units, but has always had retail and other uses too, including a cinema.

The LDC applied for was, as stated in paragraph 6 of the Inspector’s Decision Letter (“the DL”), an “Application to certify that the existing use of the Brunswick Shopping Centre within Class E and without compliance with Condition 3 of Planning Permission: PSX0104561 is lawful.” In the event, Camden failed to determine the application, and so the matter came before the Inspector as an appeal pursuant to s.195 of the Act. As Camden stated in its Appeal Statement dated 2 September 2021, had it determined the application, it would have refused it.

The planning permission which contained Condition 3 was granted on 1 September 2003. It was for the extensive refurbishment of and alterations to the Brunswick Centre, along with the creation of new units and re-landscaping (“the Permission”). The Permission included what was then A1, A2 and A3 use under the Town and Country Planning (Use Classes) Order 1987 (“the UCO”). Class A1 use was Shops, Class A2 use was Financial and Professional Services and Class A3 use was Restaurants and Café’s. I should add that class B1 use was Business.

Condition 3 stated that:

The reason for Condition 3 was stated to be:

The reference in the application for the LDC to Class E was to the new Class E to be found within the Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 (“the 2020 Regulations). One of the amendments made by the 2020 Regulations to the UCO was that Parts A and D of Schedule 2 thereto were revoked and replaced by a new, amended, Schedule 2 providing for a new Class E. This new single class, subsumed within it the previous use classes A1, A2, A3, and B1. Within the new Class E, A1 is now E (a), A2 is now E(c) and A3 is in broad terms replaced by E(b).

Under s.55(2)(f) of the Act, there is no “development” for the purposes of the Act

That is mirrored in Article 3 of the UCO.

At the time of the original planning permission in 2003, the Town And Country Planning Act (General Permitted Development Order) 1995 (“the GPDO”) permitted a change from A3 to A1 use without the need for further planning permission but not the reverse. Similarly a change of use was permitted from A3 to A2 and from A3 (If the building was on a ground floor or had a display window) to A1, but again not the reverse. See paragraphs A, C and D of Schedule 2 to the GPDO. In other words the GDPO permitted Class A to change “up” but not “down”. This is known colloquially as the “ratchet”. So, to this limited extent, there could be movement between classes as well as within them.

Regulation 7 of the 2020 Regulations provides that:

The upshot of all this is that there is now the ability to move between what were Classes A1, A2, and A3 without this constituting development and without the restriction of the ratchet. This is because they are all subsumed under a single class E.

This was an important change, designed to make it easier to switch between different commercial uses of buildings. So far as the Brunswick Centre is concerned, it is common ground that absent Condition 3, there would in principle be no obstacle to the movement of uses between what were A1, A2 and A3. It is not in dispute that Lazari wants its commercial tenants have maximum flexibility over the use of their individual units, and in particular the ability to engage in restaurant and café activity which generally has become much more prevalent.

However, all of this would only be possible if the new Class E effectively superseded the restrictions imposed by Condition 3; or, to put it more accurately, if the effect of Condition 3 was not to exclude the operation of the UCO (as amended). That is the underlying issue in this case.

The appeal before the Inspector raised essentially two issues:

Following hearings on 15 March and 8 June 2022, the Inspector rejected the appeal on both grounds.

Lazari then sought to appeal, under s. 288 of the Act, in relation to both grounds. On paper, on 11 October 2022, Sir Ross Cranston refused permission for both. On 21 February 2023, following an oral renewal hearing, Lane J held that Ground 1 was unarguable, but Ground 2 was arguable. Because of his decision on Ground 1, however, the Inspector’s ultimate decision to reject the application could not be impeached and his decision would stand. Nonetheless, Lazari was given permission to continue the appeal, even though academic as to the Inspector’s actual decision. This is because the determination of Ground 2 remains of importance going forward in respect of tenancies of various units in the Brunswick Centre. But the relief is now limited to declaratory relief only. That is how and why Ground 2 now comes before me for substantive determination.

I should add that there is also a Reasons challenge which I shall deal with after considering the substantive issue.

The overall contention made by Lazari is that whatever the position before, since the introduction of the 2020 Regulations and the new Class E, it is now able to move uses as between A1, A2 and A3 in particular, untrammelled by Condition 3. In particular, it could let out units for A2 and A3 use which would in total amount to more than 40% of the total retail floor space, such that shops could be replaced to a significant extent by restaurants and cafés within the Brunswick Centre.

It is common ground that this result could not be obtained if the new Class E and the concomitant ability to move between different parts of it (“the Class E Permitted Use”) have no application here because they are excluded by Condition 3.

Lazari’s position is that the Class E Permitted Use does indeed operate here while Camden contends that it does not. The Inspector also found that it did not - see paragraphs 49-61 of the DL.

It is of course the case that the Class E Permitted Use was not in existence at the time of the original planning permission. However, that does not mean that Condition 3 could not oust its operation. It all depends on the proper construction of that condition which is at the heart of the dispute before me.

The overarching submission made by Lazari is that, on its proper construction, Condition 3 did not have the effect of ousting the operation of the amendments to the UCO put in place by the 2020 Regulations, in particular the new Class E. I shall refer to this as “the exclusionary effect” It is common ground that if Condition 3 did not have this effect, then the Inspector’s decision was wrong and going forwards, there would be no restriction in moving uses, as it were, between Classes A1 to A3, as I shall continue to describe them.

Lazari has deployed various arguments to support that conclusion but they are now reduced to two.

The first argument is that Condition 3’s purpose was only to govern the initial allocation of the relevant space into A1, A2 and A3 use; here, A2 and A3 use was limited to 40% of the relevant floorspace. However, it had no effect beyond this. Accordingly it did not have the exclusionary effect. I refer to this, as did Lazari, as “Interpretation 1”; this particular argument was not run by Lazari at the appeal before the Inspector. However, Lazari says that it was the interpretation presented by Camden in its Summary Grounds of Defence (“SGD”) on the appeal before me. That suggestion is not really accurate because paragraph 36 of Camden’s SGD states that the purpose of Condition 3 was to control the initial occupation of the units on the plan for A1/A2 A3 but also to exclude the unfettered operation of the UCO “on an ongoing basis”. Indeed, Camden was in any event simply responding to Lazari’s Statement of Facts and Grounds (“SFG”). These referred, at paragraph 73, to possible approaches which may have been taken by the Inspector being “flexibility in the initial occupation of the units” and “ongoing flexibility” and the heading reference “i) Initial Occupation” and references thereto at paragraphs 76, 78, 80 and 82, as distinct from “on an ongoing basis” in paragraph 82 (a). In any event, Interpretation 1 only emerged in Lazari’s Skeleton Argument for this appeal.

Lazari’s second argument, in the alternative, is that Condition 3 was imposed because the Permission was in truth a “flexible planning permission”. I refer to this as “Interpretation 2”. The expression “flexible planning permission” is not itself a defined term for the purpose of the Act, the UCO or the GPDO. However, it arises as a result of what was then paragraph E of Part 3 of Schedule 2 to the GPDO. This provision allowed a change of use from that permitted by the relevant permission “to another use which that permission would have specifically authorised when it was granted”. However any such change of use had to be made within the period of 10 years after the grant of the permission. See paragraph E1 (b). It should also be noted that paragraph E1(c) provided that the development which would otherwise be permitted by paragraph E would not be so permitted if it would result in the breach of “any condition, limitation or specification contained in the planning permission…”.

Interpretation 2 goes on to say that the unfettered operation of this paragraph E would mean that with such a flexible permission, there would be complete freedom of movement between Classes A1, A2 and A3 (perhaps even to exclude A1 use altogether). Accordingly, a condition like Condition 3 was necessary to give effect to the intended protection of retail use under A1. However, after 10 years, the paragraph E flexibility would cease to have effect and at that point, a condition like Condition 3 would no longer be required. So, while (unlike Interpretation 1) Condition 3 applied beyond the initial allocation of units for occupation, it would only last 10 years. This would mean that as from 1 September 2013 Condition 3 no longer applied, and once more, the new Class E applied instead.

I should add a further, different argument had also been run before the Inspector which was that the wording of the last part of Condition 3 specifically provided for the incorporation of the new Class E in place of the reference to A1, A2 and A3 in which case, again, the 40% limit would not now apply. However, the Inspector rejected this particular argument (see paragraphs 52-54 of the DL) and it has not been revived before me.

Camden disagrees with both Interpretation 1 and Interpretation 2.

The relevant principles were recently summarised by the Court of Appeal in Barton Parks v SSHCLG [2022] EWCA Civ. 833. The lead judgment, given by Sir Keith Lindblom SPT stated as follows:

In UBB v Essex County Council [2019] EWHC, Lieven J also stated:

The general approach just described applies here. A useful example of the application of this approach is the decision of Patterson J in Royal London Mutual Insurance Society v SSCLG [2013] EWHC 3597 (Admin). Here, the relevant condition read as follows:

The question there, as here, was whether this condition excluded the operation of the UCO. Patterson J held that it did. She agreed in paragraph 34 of her judgement that it was logically inconsistent to construe the condition as carefully limiting A1 use on the one hand but then to say that A1 use is unrestricted and permitted on the other. The condition only made sense if there was an implied exclusion of the UCO and Class A1 rights. That was achieved by the words used in the condition.

She went on to say at paragraph 36:

That decision was approved by the Court of Appeal in the leading case of Dunnett Investments Ltd v SSCLG [2017] EWCA Civ 192. Here, the condition read:

The issue as to the interpretation of the condition arose because the claimant sought to take advantage of the new GPDO rights to convert offices to residential use.

In the lead judgment given by Hickinbottom LJ, he said the following:

I appreciate that this is a lengthy quotation, but it will be apparent from it that Dunnett has a particular resonance for the case before me. It emphasises that recourse can be had to the planning history of the relevant site and the reason for making the condition. It also stressed that the modern trend rejects a “myopic focus” on the words used without proper regard to their full context. It also rejects a claimed purpose advanced for the condition (which would not involve the exclusionary effect) which was merely illusory or artificial. The ultimate question, which is sensitive to the facts of each case, is whether the words used in the relevant condition, taken in their full context, clearly evince an intention on the part of the local planning authority to exclude the GDPO.

I would make two further points about Dunnett:

Finally, although it is not “law” as such, I turn to certain parts of Circular 11/95 headed “Use of conditions in planning permission” which is relied on by Lazari. I refer first to paragraphs 14-17 which deal with the imposition of conditions generally, and in part state the effect of well-known decisions like that of the Court of Appeal in Newbury District Council v SSE [1978] 1 WLR 1241, as follows:

I then turn to those paragraphs which deal specifically with conditions which seek to restrict later permitted development rights under the GPDO or UCO.

The reason why Lazari invokes 11/95 is not because it now seeks unrealistically to challenge the validity of Condition 3. Rather it is because if the exclusionary effect contended for by Camden would have been in breach of 11/95, the putative reasonable reader of Condition 3 would interpret it in a way which would not involve such a breach but prefer instead Interpretation 1 or 2.

This reliance on 11/95 was not raised before the Inspector. Rather it emerged in Lazari’s Grounds for a Rehearing dated 18 October 2022 following the refusal on paper of permission by Sir Ross Cranston. It did not feature in the original opinion of Mr Tucker KC or that of Mr Taylor KC, although Camden had referred to 11/95 in its Appeal Hearing Statement of 2 September 2022 though not as an aid to interpretation.

It has to be remembered that 11/95 is guidance only. It is not something which was referred to in Dunnett, for example. Nonetheless, I will deal in context below with the arguments based on 11/95 raised by Lazari.

The Officer’s Report prepared for the Planning Committee shortly before the grant of the Permission (“the Report”) recommended approval with conditions, one of which was Condition 3. Some parts of it are relevant.

Paragraph 1.1 describes the Brunswick Centre as follows:

In Section 6, headed Assessment, the Report stated as follows:

Policy SH1 of Camden’s March 2000 Unitary Development Plan emphasised the need to consolidate and improve local shopping centres and the protection of the shopping function of existing centres. Policy SH2 encouraged the improvement of the quality of the general shopping environment and facilities. Policy SH18 noted that when considering planning permission for A3 use, the number and distribution of A3 uses and their relationship with other uses would be taken into account. Camden would seek to avoid a cumulatively harmful effect on the loss of retail outlets among other things. In this context, paragraph 8.56 recognised the high level of demand for uses within A3 and that such uses can contribute towards leisure and employment provision and the attractiveness of shopping centres. However it had become increasingly concerned about a proliferation of restaurants and café is and would seek to ensure that they did not predominate to the detriment of the shopping function of centres or cause any significant loss of amenity.

It should be stressed that the application for the Permission was on the basis of treating the Brunswick Centre as a whole, and this is mirrored in the Report. It is also reflected in Lazari’s LDC application.

It is also worth referring to some other parts of the Permission. First, other conditions illustrate the very particular control over retail use which was imposed; see Conditions 6-8. This is also shown in Informative 6 and Informative 13 which itself refers back to Condition 3:

The Inspector dealt with the substantive issue, as argued before him, in the DL as follows:

I turn first to the language of Condition 3 itself. It does not expressly exclude the operation of the UCO but as the case-law makes clear, this is not necessary. On the other hand there is a very precise limitation by reference to a particular percentage of a defined floorspace area, which is in fact further explained by Informative 13. This acts as a clear qualification to that part of the Permission which allows for A1 to A3 use.

I accept that Condition 3 is perhaps not as emphatic as the condition in Dunnett which stated that the express consent of the Council was required for any change of use. On the other hand, this is not a simple restriction to particular uses; rather it is a restriction on the extent of such uses, so the language was bound to be different. Here one notes the use of the phrase “up to a maximum” which is emphatic, in my view as to the applicable limit. The expression “is permitted” has to be read in that context which is part of the same sentence. Taken in that context, this is more than simply a permission for a particular use without more (cf paragraph 38.(1) above). In truth, this was a clear negative condition.

Next, the reference at the end of Condition 3 to “equivalent provisions” does in my judgement stress the particular use concerned i.e. A2 and A3 as then described or the same use as described in any later provision. In other words, one can simply “translate” A2 and A3 use into “financial and professional services”, and “restaurants and cafés”. It is upon these activities that the 40% limit is imposed. Once one does that exercise, the import of Condition 3 becomes even clearer and in my view, by itself, points to an exclusionary effect.

However, one should go further and consider the full context. The most immediate contextual matter is the stated reason for having Condition 3, set out at paragraph 5 above. In my view, that is a very significant pointer towards an exclusionary effect. The only way to “safeguard” the retail function and character of the Brunswick Centre was to have a condition that was of permanent, and not merely temporary effect. Otherwise the intended “safeguarding” is meaningless. When one puts that in the context of the historic significance of the Brunswick Centre and its character, since it was designated and built with a strong neighbourhood retail element, the force of the stated purpose becomes yet stronger.

In my judgment, there are clear parallels here with the approach taken by Patterson J in Royal London.

In this context, Camden pointed also to those parts of the Report which I have quoted at paragraphs 45 and 46 above, and which reinforced the importance of the reason for having Condition 3. However, Mr Taylor KC submits that this is “extrinsic evidence” and cannot be resorted to, unless the permission in question is ambiguous. He refers here to the decision of Keene J in Ashford v Shepway [1999] PCLR 12, cited by Lieven J at paragraph 26 of her judgment in UBB. The external material in question there was the planning application.

I am not sure that this approach would entirely rule out references to an officer’s report, certainly where they explain or emphasise particular features or characteristics of the building in question which may be highly pertinent (as here) to the reason why a condition was necessary. Here, I think that the relevant passages in the Report which I have quoted do serve that function. However, this point is not determinative and my decision would be the same even without recourse to the Report. Moreover, if there was anything in the points made by Lazari as to alternative meanings, it would be legitimate to look at the Report anyway on the basis that Condition 3 was ambiguous. In the event, I do not think that it is.

The restriction imposed by Condition 3 is not, of course, absolute. Its partial or complete removal could be effected by an appropriate express planning permission if that had been sought (Lazari has not done so to date). I accept that the very existence of Condition 3 could be used as an argument against the grant of a permission which has the effect of restricting or removing it. Nonetheless, it is but one factor which would be considered in any future application for planning permission.

For those reasons, and having regard to the language of Condition 3 and the reason for it, without more, in my view it clearly has the exclusionary effect. It evinced an intention to have that effect and would be futile without it. The Inspector correctly summarised the law and came to the same conclusion for largely the same reasons in paragraphs 49-57 of the DL.

Having said that, the analysis cannot end here. This is because Lazari contends that Interpretation 1 or 2 (they are mutually exclusive) show that all that was really necessary was something less whereby, certainly after 2013, Condition 3 no longer needed an exclusionary effect.

As already noted this (new) argument is said to arise because part of the purpose of Condition 3, according to Camden, was to control initial allocation of units. Lazari then raises from this the proposition that there was no need for any further restraint in order to serve the purpose of preserving 60% of the space for A1 use.

As developed in oral argument, Lazari’s core point was this: it was only necessary to apply Condition 3 to the initial occupation of units because thereafter, any change of use short of one obtained by an express planning consent would be governed by the GPDO current at the time. But that GPDO only permitted a change of use on a ratchet basis - i.e. the amount of A1 space could be increased but not decreased. See paragraph 9 above. So in fact, it was not possible anyway to increase the amount of A2 and A3 space following an initial allocation of 40%. Therefore, the only need for Condition 3 was at the outset and not beyond. Moreover a condition which was in fact unnecessary should not have been made at all and would infringe 11/95. The reasonable reader, being aware of this, would prefer an interpretation which had this much more limited effect. I refer to this as “the ratchet point”.

I do not accept Interpretation 1.

First, there is nothing in Condition 3 itself, or in any other part of the Permission including the reasons and informatives, which indicate that it would apply only at initial allocation. Nor does this appear anywhere else in the planning materials. I do not accept the suggestion made by Lazari that paragraph 6.7 of the Report (see paragraph 46 above) could be read as referring to initial allocation only. There is no basis for reading it that way.

Second, the ratchet point involves the objective reader of the Permission assuming that the UCO or GPDO current at the time would remain static and never change. That is unrealistic. This point also runs against paragraph 38 (viii) of Dunnett referred to at paragraph 38.(2) above.

Finally, on Interpretation 1, Lazari argued that Condition 3 could not endure beyond the initial allocation of units because thereafter, the Permission itself was “spent”. Here, Lazari relies on the decision of the Court of Appeal in Cynon Valley BC v Secretary of State for Wales and Oi Lam (1986) 53 P&CR 68. In that case, the original planning permission was for the use of the premises as a fish and chip shop. They were not in fact so used at the outset due to the ill-health of the proprietor who let them temporarily for use as an antique shop. She later recovered possession and sought planning permission for use as a Chinese takeaway. While the LPA refused permission, the Inspector held that permission was not required anyway. This was for two reasons. The Court of Appeal agreed with one of his reasons, and so the appeal from the Inspector was dismissed. However, most of the judgment was concerned with the other reason. This was to the effect that permission was not needed because the premises had simply returned to their original permitted use.

The Court of Appeal disagreed and said that the original permission had become “spent” once the proprietor changed the use of the premises to that of an antique shop. That change was itself a material change of use which would have required planning permission, except that it was covered by the then GPDO. And the change back to the sale of hot food was a material change of use, but which did not fall to be permitted by the GPDO.

I follow all of that but I fail to see how it applies here. There was no subsequent change of use after the initial allocation pursuant to the Permission at the Brunswick Centre. Its use under Class AI, A2 and A3 continued as before up to the present. This is not a case about reverting to some previously permitted use. So this point does not take Lazari any further.

In my judgment, Interpretation 1 is simply an artificial construct and should be rejected.

In the event, Lazari placed more emphasis on this interpretation. Its necessary starting point is that the Permission was a flexible one, i.e. one which fell within paragraph E of the GPDO. See paragraph 25 above. If that starting point is incorrect, then Interpretation 2 can go no further.

The argument that the Permission was a flexible permission was not in Lazari’s original Appeal Statement of 2 September 2021. However, it emerged in some form in the course of the first hearing on 15 March 2022. It prompted the Inspector to email Lazari on 21 March 2022 to require it to set out fully the “new line of argument” which he had detected. Prior to the resumed hearing on 8 June, the point was then addressed in writing by both sides.

In my judgment, the Permission was not a flexible permission. First, there was nothing in its language to suggest that it was. While the Permission obviously encompassed a variety of uses and while Condition 3 permitted a degree of flexibility in respect of A2 and A3 use up to the 40% maximum, this did not, without more, entail a flexible permission. Indeed, I was provided with 6 examples of permissions granted by Camden which were flexible. In each case they contained the specific expression “flexible use” to describe the permission. Further, they contained informatives which made reference to the flexible use being for 10 years, after which the lawful use would revert to whatever use was in place at the time. Nothing of that kind is in the Permission.

A point made by Lazari here relies on an officer’s report made on 14 September 2017, in respect of a further planning application relating to the Brunswick Centre (“the 2017 Report”). At paragraphs 6.2-6.4, the officer says that the Permission had granted flexible permissions in respect of the use of ground floor commercial units and it referred to Condition 3. He then said that this flexible permission ceased to have effect after 10 years. Since then (i.e. 2013) any change of use required express planning consent unless permitted by the GPDO.

However, the expression of that view is hardly determinative of what the Permission objectively meant when granted in 2003. The officer concerned may simply have got it wrong. Indeed, in 2010, another officer’s report in respect of a different planning application affecting Brunswick Centre quoted Condition 3 but made no mention of any flexible permission. The application here was for a change of use from A1 to A3 which would have been within the 10 year period had it been a flexible permission. In fact, the application was refused on grounds concerning the over-use of A3 activities. Further, there was a report from 2018 by the same officer who wrote the 2017 report. Again this was in respect of an application for change of use from A1 to A3. On this occasion there was no reference to a flexible permission or a 10 year period. The application was refused and that decision was upheld on appeal.

So I do not think that anything can be drawn from what one officer said in the 2017 Report as to the proper interpretation of Condition 3.

The ratchet point (see paragraph 62 above) was also raised by Lazari in the context of Interpretation 2. Here it was submitted that since the flexible element of the permission came to an end after 10 years, during which Condition 3 was necessary, the ratchet would operate once more. Since the ratchet did not permit any reduction in A1 use, Condition 3 was no longer necessary. And the reasonable reader would understand this at the date of the Permission.

It is correct that the Inspector did not deal with this point expressly in the DL. However, he did not need to because he rejected the argument that this was a flexible permission anyway for the reasons he gave at paragraphs 58-60 of the DL. He obviously did not deal with the ratchet point in relation to Interpretation 1 since this had not been raised before him.

In any event, the ratchet point is wrong - see paragraph 64 above.

For the reasons given above, I reject Interpretation 2.

On that basis, it does not seem to me to be necessary to address the points made by Lazari deriving from 11/95, set out at paragraphs 39 and 40 above. However, for the sake of completeness, I do so briefly as follows.

First, it seems to me that if Condition 3 had the exclusionary effect, it would satisfy all the tests referred to in paragraph 14 of 11/95. It was both necessary and tailored to a particular concern associated with this particular building. It was not unreasonable in form or substance. And it is plain from the report that the Permission would not have been granted without its imposition.

As for paragraph 87, the reference to “exceptional circumstances” must now be read in the light of the case-law and in particular, Dunnett. While a number of hurdles must be overcome before a condition can be interpreted as having the exclusionary effect, it would not be right, in my view, to focus on one sentence of paragraph 87. If one looks at the third sentence, there was here clear evidence (dealt with in the Report) that effectively unrestricted A2 and A3 use would have serious effects on amenity and on the environment (with reference to the Brunswick Centre’s historic features and character and local retail needs). Condition 3 would serve a clear planning purpose. Moreover, notwithstanding the GPDO as it was in 2013, there were no other forms of control which could fulfil this need to restrict A2 and A3 use into the future. The obvious choice was a condition.

For all of those reasons, even if the reasonable reader of Condition 3 could have had any doubts about its meaning, resort to how it would have fared under 11/95 would only serve to favour the exclusionary effect, not run counter to it.

Accordingly, Lazari’s reliance on 11/95 does not assist it.

Finally, I should address a point that arose, somewhat tangentially, about whether the Brunswick Centre is to be treated as a single planning unit for all purposes.

This was not something dealt with in the Skeleton Arguments as such but arose out of the statement made by Lazari in paragraph 32 of its skeleton argument as follows:

I think that what Lazari was here focusing on was the “ratchet” restriction which was operative as at 1 September 2003. Certainly, as far as that is concerned, I did not understand Camden to disagree about its existence. Rather it said that this restriction of movement between Classes A1, A2 and A3 was not a factor militating against the exclusionary effect of Condition 3.

However, in its Skeleton Argument at paragraph 48, Camden said that paragraph 32 of Lazari’s Skeleton Argument was not correct. Having regard to what paragraph 48 actually said, I think that the parties may have been at cross-purposes as to what was agreed or not agreed. Camden’s key point in paragraph 48 was that Condition 3’s necessary purpose was to control the proportion of A2 and A3 use into the future. There was some flexibility within the 40% limit but the Inspector was not asked to address the particular boundaries of that.

Camden did also make the point at paragraph 48 (3) that whether a particular change of an area of floorspace over such a large area was material was a question of planning judgment, taking into account the appropriate planning unit. Lazari read this as Camden saying that actually, planning permission would not be required for every change of use because it would not necessarily be material. So one of the purposes of Condition 3 would be to restrict that change of use even if it otherwise would have been permitted. That then led to a debate about whether, for such purposes, the relevant planning unit was the Brunswick Centre as a whole, as Camden maintained, or rather the individual unit in question, as Lazari maintained. For the latter proposition, Lazari relied on a decision of R. Gray QC, sitting as a Deputy High Court Judge in Church Commissioners for England v SSE (1995) 71 P&CR 73. Here, the Judge held that in relation to the large-scale Metro Centre in Gateshead with over 300 units and other facilities, an application for an LDC in respect of one particular unit, the relevant planning unit was that unit, not the Metro Centre as a whole. Equally, and as the Inspector there had held, a block of flats is not to be treated as the relevant planning unit when it came to a change of use of an individual flat.

Lazari then contended that insofar as Camden was saying that the Brunswick Centre as a whole was a single planning unit which would somehow support Camden’s argument that Condition 3 was necessary, it was wrong. In fact, it was not clear to me that Camden was making that argument. But in any event, I do not consider it necessary to resolve this particular debate. Camden’s main point was clearly that this was all about an area restriction which was intended to endure into the future, and for good reason. That being so, precisely what may or may not have been otherwise permitted by reference to the planning regime at the date of the Permission was not conclusive. I agree with that proposition.

Accordingly, and for the reasons given above, I think it is plain that Condition 3 had the exclusionary effect contended for by Camden.

I can deal with this shortly. Lazari submitted that the Inspector did not provide any adequate or intelligible reasons for explaining why Condition 3 was lawfully imposed, evinced an intention to exclude the UCO and the GPDO and would only make sense if it had the exclusionary effect. As a result of those failures, Lazari says that it has been substantially prejudiced because it cannot understand how and why reached his conclusion.

There is nothing in this point. As can be seen from the relevant part of the DL, set out at paragraph 50 above, reasons were given which were clear and concise. They were also intelligible. Here, of course, one needs to bear in mind that some points made to the Inspector were not repeated before me, and other points (like the reliance by Lazari on 11/95 and Interpretation 1), while made before me were not made before him.

In the DL, the Inspector correctly identified the relevant law at paragraphs 49 and 50. He then set out the arguments made by Lazari at paragraphs 52, 53, 56 and 58. Paragraphs 51, 53-57 and 59-61 then set out his analysis leading to his conclusion. He correctly identified the purpose of Condition 3 and explained how A2 and A3 were to be read, namely as their underlying uses. He explained why the absence of any express exclusionary wording did not matter and that, in accordance with Dunnett this was also a case where the condition clearly evinced an intention to create the exclusionary effect. He then gave particular reasons for rejecting Interpretation 2.

Accordingly, there was no insufficiency of reasons. Even if there had been, and the Inspector was asked to provide more, the result would inevitably have been the same. The Reasons challenge therefore fails.

It follows that I must dismiss Lazari’s appeal. I am grateful to Counsel for their assistance and submissions.