Planning permissions: omission doesn’t mean omission

The case of London Borough of Lambeth v Secretary of State for Housing, Communities and Local Government and others [2019] has turned heads in the planning community. While planning lawyers might have advised that all conditions relating to the use of land be explicitly repeated in future variations to planning permissions, the Supreme Court’s recent decision shows the value placed on the reasonable reader’s understanding of the language used.

The facts

The council’s original retail permission excluded food sales because of a restrictive condition allowing for “DIY home and garden improvements … and for no other purpose...”

In 2010, the council granted a variation to the original permission, including a new condition allowing for the sale of a wider range of goods but still “not including food sales” and excluding other uses within retail Use Class A1 of the Town and Country Planning Act 1990 (the Act). It added a further two conditions controlling refuse and recycling storage and deliveries.

Further down the line, in 2014, a new consent by the council extended the permitted categories for the retailer. The Supreme Court had to decide the effect of the 2014 permission decision notice, which proposed new wording. While not mentioning the restriction relating to Retail Use Class A in name, the new wording included that the retail unit was permitted to sell and display ‘non-food goods only’.

A separate list of planning conditions followed without mentioning any restrictive conditions and no reason was given for the change to the ‘unlisted’ condition. The restrictions relating to refuse, recycling storage and deliveries from the 2010 permission were also not repeated.

The issue

In 2015, the council refused the landowner’s application for a certificate of lawfulness under section 192 of the Act for unrestricted retail use of the development with food sales. The Planning Inspectorate reversed this on appeal, deciding that “no condition was imposed in the 2014 permission to restrict the nature of the retail use to specific uses falling within Use Class A1”.

The council challenged that decision in the High Court and Court of Appeal. These courts accepted the arguments of the landowner and the Secretary of State, holding that the certificate ought to have been granted because the 2014 decision notice failed to repeat the restrictive non-food condition imposed in the previous planning permissions. It also failed to express the new description of the use as a condition.

The decision

Unsatisfied with the rulings, Lambeth Council took the decision to the Supreme Court, which overturned the Court of Appeal’s decision, finding that the wording in the 2014 decision was sufficient to give effect to Lambeth’s intention.

The test was to determine what a reasonable reader would understand by the language used. The court held that the decision was clear and unambiguous: the new permission was granted subject to the condition as varied by the new wording - i.e. that the sale of food goods was forbidden. It also ruled that the varied 2014 planning permission included the unmentioned 2010 planning conditions by default. There was no real doubt about its intended meaning and effect.

Interestingly, the lack of a specific reason for the condition did not affect the validity of the condition.

What it means

The Supreme Court’s application of the ‘reasonable reader’ test in this case underlines the value of carefully scrutinising a site’s planning history. A council’s omission of an earlier condition in a new section 73 planning permission does not automatically result in it ceasing to apply as a matter of law. As such, the most recent permission for a site may not disclose the entirety of the existing planning conditions or restrictions that apply to the use of land.

For further commentary on this case, or to discuss your planning needs, please contact Matt Gilks or member of the Planning team or Rural Planning and Development team.

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