In May 2018 we reported on the Court of Appeal’s decision in London Borough of Lambeth v Secretary of State for Communities and Local Government and others  EWCA 844 to overturn the decision of an inspector to grant a certificate of lawfulness which allowed for a retail unit to be used without any restriction on sales. The London Borough of Lambeth (the “Council”) appealed to the Supreme Court and the Supreme Court has overruled the previous judgments of the Planning Court and the Court of Appeal. The Supreme Court’s summary provides that "the court’s provisional view is that the 2010 conditions were not incorporated into the new permission, but continued to have effect under the 2010 permission, so far as they are consistent with anything in the new grant". The court added: "The conditions remain valid and binding because there was nothing in the new permission to affect their continued operation."
In 1985 planning permission was granted by the Secretary of State for a retail store (the “Original Permission”). Condition 6 of the planning permission limited the use to the sale of DIY goods and other specified categories but not including food sales. In 2010 an application was submitted to vary condition 6 which granted consent for the sale of a wider range of goods but still excluding food sales (the “2010 Permission”). In 2014 a further application was made and it is the 2014 permission which is in issue in this case (the “2014 Permission”).
Following the 2014 Permission an application was sought for a lawful development certificate determining that the lawful use of the store extended to sales of unlimited categories of goods including food on the basis that a condition was not imposed on the 2014 Permission to restrict the sales of goods. The Council refused the application but the certificate was granted by an inspector on appeal.
Supreme Court Decision
Condition 6 of the Original Permission provided as follows:
“6. The retail unit hereby permitted shall be used for the retailing of goods for DIY home and garden improvements and car maintenance, building materials and builders’ merchants goods and for no other purpose (including any other purpose in Class I of the Schedule to the Town and Country Planning (Use Classes) Order 1972 or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order)”.
Lord Carnwath, who gave the lead judgment, considered that key to the decision was the correct interpretation of the 2014 Permission. Carnwath said section 73 of the TCPA 1990 envisaged two situations: either (a) the grant of a new permission unconditionally or subject to revised conditions, or (b) refusal of permission, leaving the existing permission in place with its conditions unchanged. He pointed out that “It does not say what is to happen if the authority wishes to change some conditions but leave others in place”.
Government guidance, set out in the National Planning Practice Guidance, which was cited by the Court of Appeal, indicates that “to assist with clarity” planning decisions under section 73 “should also repeat the relevant conditions from the original planning permission”. However, in Carnwath’s view, “it was given as advice, rather than as a statement about the legal position”.
Carnwath went on to say that whatever the legal character of the document in question, the starting point – “and usually the end-point” – for interpretation was to find “the natural and ordinary meaning” of the words there used, viewed in their particular context (statutory or otherwise) and in the light of common sense.
Carnwath considered that “taken at face value the wording of the operative part of the grant” the wording seemed to him “clear and unambiguous”. Carnwath considered that the wording “The Council ‘hereby approves’ an application for ‘the variation of condition as set out below….’” followed by the precise and accurate descriptions of the relevant development, of the condition to be varied, and of the permission under which it was imposed meant that “the obvious, and to my mind the only natural, interpretation of those parts of the document is that the Council was approving what was applied for: the variation of one condition from the original wording to the proposed wording, in effect substituting one for the other.”
There was certainly nothing to indicate an intention to discharge the condition altogether, or in particular to remove the restriction on the sale of other than non-food goods and it was on this basis that the Supreme Court held that a reasonable reader would have read the 2014 permission as a simple variation to the original permission and subject to the original conditions.
As practitioners it is hard not to be surprised by the decision in this case - the decision has led to some uncertainty where perhaps there had not been before - however, it is important to note that the case is highly fact specific. The Supreme Court judges made it clear that the outcome of the case rested on its specific facts and that councils should continue to include all conditions they wish to apply in section 73 permissions. Carnwath referred to the 2002 decision of Sullivan J in R (Reid) v Secretary of State for Transport case, where it was stated that ‘it is highly desirable that all the conditions to which the new planning permission will be subject should be restated in the new permission and not left to a process of cross-referencing’. That is still the message that local authorities should take away.
The concern is that Section 73 intends for decisions made to be standalone permissions and in the future there is a potential for difficulties to arise, particularly on sites with a number of successive planning permissions and how to determine which conditions attached to earlier permissions apply.