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Conditions, conditions…

A recent Court of Appeal decision serves as a cautionary tale for local planning authorities – and will no doubt result in landowners dusting down their historic permissions…

In 1985 LB Lambeth, the planning authority, granted permission for a DIY retail store at Streatham Vale. The permission was subject to a condition which restricted the range of goods which could be sold.

25 years later in 2010, permission was granted pursuant to Section 73 of the 1990 Act, to vary the condition to allow the sale of a wider range of goods. The Section 73 permission was granted subject to a condition which set out the terms of what could and could not be sold. The sale of food and drink was a no-no.

In 2014, Lambeth granted a further Section 73 permission (varying the 2010 permission) to allow an even wider range of uses. The planning permission described the range of uses and stated that “the retail unit permitted shall be used for the sale and display of non-food goods only and… for no other goods.” Although this restriction was set out on the decision notice, it wasn’t secured by a planning condition.

Having secured the 2014 permission, the owner of the property applied for a certificate of lawfulness of proposed use or development (“CLOPUD”) for open, unrestricted Class A1 retail purposes.

Lambeth refused that application, but the Secretary of State granted the certificate on appeal. Lambeth, none too pleased with that decision, applied to the High Court to have it quashed. When the High Court upheld the Secretary of State’s decision, Lambeth appealed to the Court of Appeal.

The Court of Appeal dismissed the appeal.

The Court found that, whilst it would be wrong to conclude that the decision notice permitted the sale of goods other than non-food goods, this didn’t matter in practical terms. A change of use from the retail sale of non-food goods to the retail sale of food (both of which are in Class A1) would not require planning permission.

The only way that Lambeth could prevent the change of use (and therefore the grant of the CLOPUD) was to show that the change of use would be a breach of condition.

Unfortunately for Lambeth, the permission didn’t contain a condition to trigger such a breach. Worse still, the Court couldn’t apply a “corrective” interpretation of the 2014 permission to include such a condition, and nor could it imply such a condition: although the decision notice hadn’t achieved what Lambeth had intended it to do, it hadn’t, as a document, lacked practical and commercial coherence. Lambeth’s failure to restate the conditions attached to the previous permissions was not so obvious a mistake that it went without saying.

So, what can we take away from this?

  • Don’t forget that applications to vary or remove conditions under Section 73 result in a fresh planning permission.
  • Planning permissions are to be read as a standalone document. The courts are rightly reluctant to imply conditions where they do not exist.
  • As such, planning authorities should take care when granting consent and remember that restrictions (such as those on permitted use) need to be dealt with by an express planning condition. It’s not sufficient simply to rely on a description of the use.

And for landowners? Perhaps it’s time to dig out those dusty permissions and look again at the purported use restrictions…

London Borough of Lambeth v Secretary of State for Communities and Local Government and others [2018] EWCA Civ 844