London Borough of Lambeth v Secretary of State for Housing, Communities and Local Government and others

This appeal concerns the permitted uses of a retail store in Streatham in the area of the London Borough of Lambeth (“the Council”). Planning permission was originally granted by the Secretary of State in 1985, but the use was limited by condition to sale of DIY goods and other specified categories, not including food sales. Following implementation, the permitted categories were extended by later consents (under section 73 of the Town and Country Planning Act 1990), the most recent being in 2014 (“the 2014 permission”), which is in issue in this case. The second respondent sought a certificate from the Council determining that the lawful use of the store extended to sales of unlimited categories of goods including food. A certificate to that effect was refused by the Council, but granted by a planning inspector on appeal, and upheld by the lower courts. The Council, as local planning authority, appeals to this court.

The original permission, granted by the Secretary of State on 17 September 1985 (“the 1985 permission”), was subject to a number of conditions, including:

On 30 June 2010, the Council granted a further planning permission (“the 2010 permission”) expressed to be for “Variation of Condition 6” of the 1985 permission to “allow for the sale of a wider range of goods” as specified, not including food sales, and again excluding other uses within the relevant use class (now Class A1). Although it is common ground that this permission was granted under section 73, there was no specific reference to that section in the document, which referred simply to the 1990 Act. This permission included, as a separate condition 1, the same enumeration of permitted uses and exclusions as in the terms of the grant, and the following reason was given for the condition:

There were in addition two new conditions which had not been in the 1985 permission:

The permission now in issue was granted on 7 November 2014. (The application is not before us.) In this case the grant referred in terms to section 73. It is necessary to set out the operative parts in full:

On 10 June 2015, the second respondent applied to the Council for a certificate of lawfulness of proposed use or development (under section 192 of the 1990 Act) for unrestricted use of the store. This was refused by the Council on 12 August 2015, but the appeal was allowed by the inspector by a decision letter dated 6 December 2016. The letter gave a certificate of lawfulness for use described as -

It is unnecessary to set out the familiar provisions of the 1990 Act relating to the definition of development, and to the granting of planning permission. It is to be noted however that the extension of the categories of goods to be sold within the store did not in itself amount to “development” (within the meaning of 1990 Act section 55) requiring planning permission. The erection of the building and the commencement of sales under the 1985 permission no doubt involved both operational development and a material change of use. Thereafter a change to sale of other categories (at least those within the relevant class under the current Use Class Order) would not involve any breach of planning control unless restricted by an appropriate condition.

Section 73 of the Act, on which the Council relied in granting the 2010 and 2014 permissions, is headed “Determination of applications to develop land without compliance with conditions previously attached”. It provides:

The background to this section (formerly section 31A of the Town and Country Planning Act 1971) was described by Sullivan J in Pye v Secretary of State for the Environment, Transport and the Regions [1998] 3 PLR 72:

Sullivan J’s comment that such applications are “commonly” referred to as applications to “amend” the conditions was echoed by Schiemann LJ, who noted, at para 1, that such an application is commonly referred to as “an application to modify conditions imposed on a planning permission”. This usage is also consistent with the wording used in the statute under which section 31A was originally introduced. It was one of various “minor and consequential amendments” introduced by section 49 and Schedule 11 of the Housing and Planning Act 1986, described as “(d) applications to vary or revoke conditions attached to planning permission”.

It is clear, however, that this usage, even if sanctioned by statute, is legally inaccurate. A permission under section 73 can only take effect as an independent permission to carry out the same development as previously permitted, but subject to the new or amended conditions. This was explained in the contemporary circular 19/86, para 13, to which Sullivan J referred. It described the new section as enabling an applicant, in respect of “an extant planning permission granted subject to conditions”, to apply “for relief from all or any of those conditions”. It added:

Although the section refers to “development” in the future, it is not in issue that a section 73 application can be made and permission granted retrospectively, that is in relation to development already carried out. This question arose indirectly in the courts below, in the context of a dispute about the validity of the time-limit condition (condition 1), which required the “development to which this permission relates” to be begun within three years. The Court of Appeal upheld the inspector’s decision that this condition was invalid, in circumstances where the relevant “development” had been carried out many years before. Lewison LJ said:

I agree with that analysis, which is not I understand in dispute before this court. However, it leaves open the question as to the effect of the new permission on conditions which have already taken effect following implementation of the earlier permission. The section does not assist directly. It envisages 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. It does not say what is to happen if the authority wishes to change some conditions but leave others in place. As will be seen (para 20 below), the Court of Appeal cited government guidance indicating that “to assist with clarity” planning decisions under section 73 “should also repeat the relevant conditions from the original planning permission”. However, as I read this, it was given as advice, rather than as a statement about the legal position. Although the current status of the 2010 conditions is not directly in issue in the appeal, it is of some background relevance and has attracted conflicting submissions. I shall return to this aspect later in the judgment.

For completeness, before leaving this discussion of section 73, I should note that circular 19/86 (referred to above) described its predecessor as “complementing” section 32 of the Town and Country Planning Act 1971 (later, section 63 of the 1990 Act), which at the time made specific provision for retrospective permissions (“Permission to retain buildings or works or continue use of land”). That section has since been repealed and partially replaced by section 73A of the 1990 Act (see Planning and Compensation Act 1991, Schedule 7). Whatever the precise significance of this change, it is not suggested that it has any relevance to the issues in this appeal and neither side has sought to rely on section 73A.

We have received extensive submissions and citations from recent judgments of this court on the correct approach to interpretation. Most relevant in that context is Trump International Golf Club Ltd v Scottish Ministers[2015] UKSC 74; [2016] 1 WLR 85. An issue in that case related to the interpretation of a condition in a statutory authorisation for an offshore wind farm, requiring the developer to submit a detailed design statement for approval by Ministers. One question was whether the condition should be read as subject to an implied term that the development would be constructed in accordance with the design so approved.

In the leading judgment Lord Hodge (at paras 33-37) spoke of the modern tendency in the law to break down divisions in the interpretation of different kinds of document, private or public, and to look for more general rules. He summarised the correct approach to the interpretation of such a condition:

He rejected a submission that implication had no place in this context:

In my own concurring judgment, having reviewed certain judgments in the lower courts which had sought to lay down “lists of principles” for the interpretation of planning conditions, I commented:

In summary, whatever the legal character of the document in question, the starting-point - and usually the end-point - is 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.

It is unnecessary to review in any detail the reasoning of the inspector or the High Court, since the issues, and the competing arguments, are fully discussed in the judgment of the Court of Appeal. Having set out the planning history and the terms of section 73, Lewison LJ (paras 19-22) identified what he saw as the problem. While he acknowledged that it was “clear what Lambeth meant to do in a very broad sense”, he said:

Later in the judgment he addressed the submissions before the court. He noted that Mr Reed QC for the Council put his argument in two ways: first by implication of a condition and second as a matter of interpretation. He thought it more logical to reverse the order, while accepting that the exercise was an “iterative” process, and observing that the objective was

Having referred to the findings of the judge in the court below, he summarised Mr Reed’s submission on the interpretation of the decision notice:

In the critical paragraphs of the judgment, he gave his view of how the “reasonable reader” would have approached the matter:

As a further point he noted the statutory requirement for the notice to state the reasons for any condition imposed. He said:

Lewison LJ went on to deal with the alternative formulation, based on implication of a condition in the same form as the “proposed wording”, holding that it failed to meet the stringent tests laid down by the authorities (paras 63-75). In particular he accepted a submission by Mr Lockhart-Mummery that the judgments in Trump (like the decision on which they relied: Crisp from the Fens Ltd v Rutland County Council (1949-1951) 1 P & CR 48) decided no more than that implication might be made into an extant condition that was incomplete; they did not contemplate the implication of a wholly new condition (para 72).

In this court Mr Reed QC for the Council repeated and developed his arguments in the Court of Appeal. In line with the decision of the High Court in I’m Your Man Ltd v Secretary of State for the Environment [1998] 4 PLR 107, he did not seek to argue that the proposed wording could be treated as an enforceable “limitation”. He accepted the need to establish that the permission was subject to a legally effective condition in that form. In summary he put his case in three ways: (a) as a matter of the correct interpretation of the permission; (b) by correction of an obvious error (by analogy with the contractual principles applied in Chartbrook Ltd v Persimmon Homes Ltd[2009] UKHL 38; [2009] 1 AC 1101); (c) by the implication of a condition in the terms of the proposed wording (applying the principles in Attorney General of Belize v Belize Telecom Ltd[2009] UKPC 10; [2009] 1 WLR 1988). The respondents generally adopted the reasoning of the Court of Appeal. Mr Kolinsky QC for the Secretary of State emphasised the need for clarity and certainty in a public document. For the third respondent (as freehold owner of the site), Mr Lockhart-Mummery reminded us that planning is a creature of statute, in which common law principles have a limited role; and also of the need for clear and specific words to exclude rights granted by provisions such as the Use Classes Order.

With respect to the careful reasoning of the courts below, I consider that an ordinary reading of the decision notice compels a different view. I find it unnecessary to examine in detail the more ambitious alternatives proposed by Mr Reed. However, I observe in passing (in agreement with Mr Lockhart-Mummery’s submission as to the limited scope of the judgments in Trump) that it is difficult to envisage circumstances 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.

On the issue of interpretation, Lewison LJ was of course right to say that the 2014 permission needs to be seen through the eyes of “the reasonable reader”. However, such a reader should be assumed to start by taking the document at face value, before being driven to the somewhat elaborate process of legal and contextual analysis hypothesised in Lewison LJ’s para 52. In essence Mr Reed’s submission, in the simple form recorded by Lewison LJ at para 45 (para 22 above) was in my view correct. It is not necessarily assisted by the varying formulations and citations discussed in his submissions to this court. There is a risk of over-complication.

Taken at face value the wording of the operative part of the grant seems to me clear and unambiguous. The Council “hereby approves” an application for “the variation of condition as set out below …”. There then follow precise and accurate descriptions of the relevant development, of the condition to be varied, and of the permission under which it was imposed. They are followed by statements first of the “Original wording”, and then of the “Proposed wording”; the latter stating in terms that the store is to be used for the sale of “non-food goods only and … for no other goods”. “Proposed wording” in this context must be read as a description of the form of condition proposed in the application and “hereby” approved. In other words, the obvious, and indeed to my mind the only natural, interpretation of those parts of the document is that the Council 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. There is certainly nothing to indicate an intention to discharge the condition altogether, or in particular to remove the restriction on sale of other than non-food goods.

The suggested difficulties of interpretation do not arise from any ambiguity in the terms of the grant itself. Nor do they raise any question about the extent to which it is permissible to take account of extraneous material. It is unnecessary to look beyond the terms of the document. In these respects the case differs from many of the authorities to which reference has been made in submissions. The arguments against this simple view turn, not on any lack of clarity in the grant itself, but on supposed inconsistencies, firstly with its statutory context, and secondly with the treatment of other conditions in the remainder of the document.

In respect of the statutory context, the objection is that this reading is inconsistent with the scope of the power under which the grant was made. Section 73, referred to in terms in the permission, does not give the authority power simply to vary a condition in the previous permission. That purpose could only be achieved by the grant of a new permission, subject in terms to a condition in the revised form. Accordingly, it is said, it was not enough simply to approve the “proposed wording”, without its terms being incorporated into the form of condition as required by section 73(2)(a).

One problem with this argument is that it goes too far for the respondents’ case. If section 73 gave no power to grant a permission in the form described, the logical consequence would be that there was no valid grant at all, not that there was a valid grant free from the proposed condition. The validity of the grant might perhaps have been subject to a timely challenge by an interested third party or even the Council itself. That not having been done, there is no issue now as to the validity of the grant as such. All parties are agreed that there was a valid permission for something. That being the common position before the court, the document must be taken as it is.

It may be that insufficient attention was paid in the submissions below to the background of section 73, as discussed earlier in this judgment. Once it is understood that it has been normal and accepted usage to describe section 73 as conferring power to “vary” or “amend” a condition, the reasonable reader would in my view be unlikely to see any difficulty in giving effect to that usage in the manner authorised by the section - that is, as the grant of a new permission subject to the condition as varied. If the document had stopped at that point, I do not think such a reader could have been left in any real doubt about its intended meaning and effect. The lack of a specific reason for the condition, to which Lewison LJ attached weight, is of little practical significance, given that this was the relaxation of a previous condition for which the reason was well-known, rather than the imposition of a new restriction. In any event the absence of a reason would not affect the validity of the condition (see Brayhead (Ascot) Ltd v Berkshire County Council [1964] 2 QB 303).

Turning to the second part of the notice, it is true that there are some internal inconsistencies. Its heading suggests that it is simply stating the reasons for the permission granted in the first part, rather than imposing a separate set of conditions. Further, the wording of the conditions themselves betrays some ambivalence about what has been approved. In some places it is referred to as “the development to which this permission relates”, or “the proposed development”, in others as “the variation hereby approved” or “the approved variation”. (As I have already noted, the time-limit condition was held by the courts below to be wholly invalid.)

However, reading the document as a whole, and taking the first part in the sense suggested above, the second part can be given a sensible meaning without undue distortion. It is explanatory of and supplementary to the first part. The permitted development incorporating the amended condition is regarded as acceptable, in accordance with the development plan, but only subject to the conditions set out. They are in other words additional conditions. They are designed to regulate the expanded use as permitted by the revised condition, dealing in particular with staff parking, and monitoring of the additional traffic impact.

As I have said, we are not directly concerned in this appeal with the status of the other conditions in the 2010 permission, so far as still potentially relevant, notably conditions 2 and 3 relating respectively to treatment of waste and management of deliveries. However, some comment may be desirable, since the issue was subject to conflicting submissions before the Court of Appeal and in this court. At first sight it would seem surprising if the council, when relaxing the restrictions on sales, had not intended to maintain such requirements. No reason was given for releasing them, and it does not appear to have been requested in the application.

For the Council, Mr Reed’s position seems to have shifted during the course of the appeal below. Lewison LJ (paras 46-47) recorded his initial submission that conditions 2 and 3 should be treated as incorporated into the new permission; the “reasonable reader of the decision notice could not be taken to understand that Lambeth was abandoning them”. However, this argument was not pursued in his oral submissions (judgment paras 48, 51), and he seems implicitly to have accepted that they would cease to be effective. In this court this issue was not dealt with in any detail in the written submissions. Questioned in argument, Mr Lockhart-Mummery QC for the third respondent submitted that conditions 2 and 3, not having been repeated in the new permission, must be taken as having lapsed altogether. In reply Mr Reed for the Council took a rather different position to that initially taken in the Court of Appeal. His submission as I understood it was that the 2010 conditions, so far as still relevant, were not as such incorporated into the new permission; but they continued to have effect under the 2010 permission, so far as not inconsistent with anything in the new grant.

Although we have not heard full argument, my provisional view is that Mr Reed’s current submission is correct. It will always be a matter of construction whether a later permission on the same piece of land is compatible with the continued effect of the earlier permissions (see the principles discussed in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment[1985] AC 132, 144). In this case, following implementation of the 2010 permission, the conditions would in principle remain binding unless and until discharged by performance or further grant. Conditions 2 and 3 were expressed to remain operative during continuation of the use so permitted. The 2014 permission did not in terms authorise non-compliance with those conditions, nor, it seems, did it contain anything inconsistent with their continued operation. Accordingly, they would remain valid and binding - not because they were incorporated by implication in the new permission, but because there was nothing in the new permission to affect their continued operation.

This approach to the interpretation of the decision notice seems to me consistent with the decision of Sullivan J in a case relied on by Mr Reed before the Court of Appeal: Reid v Secretary of State for Transport[2002] EWHC 2174 (Admin). Permission for a transport depot had been granted subject to 12 conditions. The landowner applied for development described as “retention of the use of the land without compliance with condition 2 (improvements to public highway) ...”. The local authority responded with a notice referring to the terms of the application, and expressed in these terms -

Lewison LJ saw this as a case turning on the particular wording of permission, which was held to have the effect that “the conditions attached to the previous planning permission continued to apply to the new one”. He saw it as of no assistance in the present case, particularly given Mr Reed’s abandonment before the Court of Appeal of the argument that the conditions attached to the 2010 permission could be carried forward into the new permission (para 51).

As I read the judgment, however, Sullivan J did not intend to say that the other 11 conditions were by implication to be treated as included in the new permission, or that the old permission was superseded. Rather the new permission, confined as it was to the retention of the use without complying with condition 2, and involving no inconsistency with the old permission and the remaining conditions, had no effect on their continuing effect as conditions subject to which the development had been carried out. The words “Conditions: None” was indicating that there were to be no additional conditions beyond those already having effect under the earlier permission. By contrast, in the present case, the specific conditions in the 2014 permission were intended to be additional both to the varied condition, and to the others remaining in effect under the 2010 permission.

Sullivan J added the following comment:

For these reasons I would allow the appeal. The precise wording of the order should be agreed between the parties, or subject to further submissions.