The Importance of Conditions when Restricting Development

Freeths recently acted for the owner of a retail store in the Supreme Court hearing in London Borough of Lambeth v the Secretary of State for Housing, Communities and Local Government [2019] UKSC 33 which ruled on 3 July 2019 that a planning permission granted by Section 73 of the Town and Country Planning Act 1990 should be interpreted to include a condition restricting retail sales to non-food goods even though no such condition was listed in the conditions.

Background

Planning permission was granted in 1985 for the construction of a large retail store subject to a condition restricting the range of goods to DIY that could be sold. In 2014, the London Borough of Lambeth (“Lambeth”) granted a planning permission via Section 73 to allow an area for non-food goods by a catalogue showroom retailer restricting the range of goods to be sold. This was not restricted by including a condition in the list of conditions, but by purporting to restrict the development to non-food retail sales in the description of development on the permission.

In line with the traditional thought in cases such I'm Your Man Ltd, restrictions on development can only be imposed in the conditions. The owner applied for a certificate of lawful use for unrestricted A1 use which was refused by Lambeth and granted on appeal by a Planning Inspector on the basis that the 2014 permission could not be interpreted as including a non-food goods condition and a condition could not be implied into the 2014 permission. Lambeth applied to the High Court and appealed to the Court of Appeal to quash the inspector's decision, both courts dismissed the case. Lambeth appealed to the Supreme Court.

Decision

Section 73 of the Town and Country Planning Act 1990 enables the local planning authority to grant permission unconditionally or subject to different conditions, or refuse the application. The Supreme Court has ruled as follows:

1. The only natural interpretation of the permission is that Lambeth was approving what was applied for: that is, the variation of one condition from the original wording to the proposed wording, in effect substituting one for the other.
2. It is difficult to envisage circumstances under Trump International Golf Club Ltd [2015] UKSC 74 in which it would be appropriate to use implication for the purpose of supplying a wholly new condition, as opposed to interpretation of an existing condition.
3. Even though the 2014 permission could have been successfully legally challenged within the 6 week legal challenge period, it was now beyond challenge and a valid grant of consent for something;
4. The absence of a reason for a condition would not affect the validity of the condition or interpreting the permission in a manner to include the condition;
5. Although the Court did not hear full arguments on the issue, its provisional view was that the general approach to a Section 73 permission should be that it is a matter of interpretation whether a Section 73 permission on the same piece of land is compatible with the continued effect of the earlier permissions. On the interpretation of the 2014 permission, the conditions in the earlier planning permission would remain binding and enforceable unless and until discharged by performance or further grant because the 2014 permission did not in terms authorise non-compliance with those conditions, nor, contain anything inconsistent with their continued operation; and
6. Nothing in the judgment is intended to detract from the good practice that when issuing a fresh planning permission under section 73, 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; and
7. The decision placed reliance on Reid v Secretary of State for Transport [2002] EWHC 2174 (Admin), the ability of a Section 73 to 'vary' or 'amend' a condition and the way the Section 73 decision notice was drafted. Lord Carnworth considered that the reasonable reader would take the document at face value on the basis that the decision notice stated that application is for a variation of certain conditions only, described the development and the corresponding notice.

The Supreme Court, therefore, ruled in favour of Lambeth in interpreting the 2014 permission to include a condition preventing non-food retail sales.

Commentary

The case is a pertinent reminder of:

1. Following the relevant Planning Practice Guidance when issuing a Section 73 permission, so all conditions (unless discharged) to which the new planning permission will be subject are restated in the new permission and cross referencing not relied upon;
2. When considering any Section 73 permission, previous consents should now be considered and any previous conditions reviewed to see whether they have been discharged or are still in effect; and
3. If a Section 73 permission is granted with an error such as a proposed condition missing, the applicant should seek clarity on whether it still applies if the position is not clear and apply for a certificate of lawfulness if necessary, whereas the Council or a third party should seek to take action such as to quash the permission during the 6 week legal challenge period otherwise lengthy court proceedings could ensue.

Whilst the outcome may seem fair and equitable in the circumstances and no doubt that weighed on the mind of the Supreme Court, it does now mean that the effect and interpretation of some Section 73 permissions has become less clear and more uncertain, which will no doubt have consequences to developments and property transactions in practice. This is particularly the case on the Court's provisional view on carrying forward conditions from previous consents.

This may be almost unworkable in practice for some Section 73 permissions if there are a chain of Section 73 permissions that mean all of the earlier consents and their particular circumstances need to be scrutinised to see whether conditions from each earlier permission have been carried forward. It may mean that more certificates of lawfulness are needed in order to establish certainty, but this may not practically be available in time for people purchasing property before the exchange of contracts. Where there is a significant and serious concern, the purchaser may need to pay for additional insurance if available. The owner's legal team was led by planning partner Robert Bruce and assisted by planning associate Jennifer Roe who instructed Christopher Lockhart-Mummery QC and Yasser Vanderman of Landmark Chambers.

Please get in touch with our planning team for advice on the matter.