Implying terms into planning conditions

Can a whole new term be implied into a planning condition? Sasha Blackmore reports on a significant Planning Court ruling.

Mrs Justice Lang gave judgment in the important case of London Borough of Lambeth v SSCLG and others [2017] EWHC 2412 (Admin) as to the scope for implying a whole new term into a planning condition, following the Supreme Court’s decision in Trump International. Mrs Justice Lang has granted permission to appeal to the Court of Appeal. Mr Justice Holgate had on granting permission marked the case as a “significant planning court case”.

The Court held that in principle a whole new condition could be implied into a planning permission, as the Claimant argued for. The Defendant Secretary of State’s argument that such cases would in practice be rare and this case did not fulfil the legal tests for implication of whole new term was also accepted. The Interested Party’s argument that the scope of Trump was restricted to an “incomplete condition” was rejected. The Court held “Although Lord Carnwath observed, at [47], that the Trump case, together with the cases cited, concerned “incomplete conditions”, I do not consider that his guidance on implication was limited to “incomplete conditions” cases, though in practice such cases will more readily fulfil the legal tests for the implication of terms.”

Mrs Justice Lang, in granting permission, remarked:

I do not accept the Claimant’s critique of my judgment, and the application of the current law to the facts of this case. However, I am left with some unease about the result. The principle established in I’m Your Man Limited v Secretary of State for the Environment 77 P & CR 251, and its application, merits consideration in a higher court which is not bound by precedent in the same way as the High Court. The interpretation and application of the judgments of the Supreme Court in Trump International Golf Club Scotland Ltd & Anor. v The Scottish Ministers [2015] UKSC 74, [2016] 1 WLR 85 is still evolving, and merit consideration by the Court of Appeal in this case.

Further information

The Claimant applied under section 288 of the Town and Country Planning Act 1990 to quash the decision of the Defendant, made on his behalf by an Inspector. The issue was whether the current planning permission, which was varied pursuant to a s.73 application in 2014, permitted unrestricted retail use for the sale of all goods (including food), or whether it restricts retail use to the sale of non-food goods. The retail use had been restricted prior to the variation of planning permission in 2014 by express conditions. The description of use on the varied condition referred to a restriction on the use for the sale and display of non-food goods only, but the conditions which were imposed “subject to the conditions listed below” did not include such a restriction. They were a time limit condition imposed to comply with section 91(a) of the TCPA, a car parking condition, and a traffic survey condition,

The Claimant had three grounds of challenge. The first two grounds of challenge were:

Interpretation of the permission: The Claimant argued that the 2014 permission should be interpreted in a manner which restricted the permission to use for the sale of non-food goods only, which the Claimant argued was consistent with the objective meaning of the words used.

Implication of a condition into the permission: The Claimant argued that a condition should be implied restricting the use of the premises to the sale of non-food goods, to achieve which was obviously intended by the parties and to give “business efficacy” to the grant of planning permission. The Defendant accepted that following thee judgments given by the Supreme Court in Trump International Golf Club Scotland Ltd & Anor. v The Scottish Ministers [2015] UKSC 74, [2016] 1 WLR 85, conditions could in principle be implied into a planning permission, such a course would rarely be appropriate. The Defendant argued that the criteria for the implication of a condition were not met in this case. The Second Interested Party took a narrower view of the effect of Trump and subsequent cases, submitting that they only envisaged implying terms into an existing condition, not adding a new condition.

The Court:

• Rejected that there was a narrower effect to Trump, holding that “Although Lord Carnwath observed, at [47], that the Trump case, together with the cases cited, concerned “incomplete conditions”, I do not consider that his guidance on implication was limited to “incomplete conditions” cases, though in practice such cases will more readily fulfil the legal tests for the implication of terms”
• Noted the Planning Practice Guidance (PPG) contains a “helpful and pithy summary of law and guidance on the scope of section 73”
• Applied I’m Your Man Limited v Secretary of State for the Environment 77 P & CR 251, which held that the 1990 Act did not expressly provide a power for the imposition of limitations on the grant of planning permission. The Court noted that the reasoning in I’m Your Man had been upheld by the Divisional Court in R (Altunkaynak) v Northamptonshire Magistrates Court [2012] EWHC 174 (Admin) (Richards LJ) and by the Planning Court in Cotswold Grange Country Park LLP v Secretary of State for the Environment & Anor [2014] EWHC 1138 (Admin) (Hickinbottom LJ). Both these cases concerned substantive limitations on the permission granted, not merely temporal ones. The Court noted that Mr Reed QC did not seek to distinguish this line of authorities, or invite the Court to depart from the principle expressed therein. The Court held that applying the I’m Your Man principle to this case, the 2014 permission failed to limit retail sale to non-food goods, because it did not include a condition to that effect. The Court held that “as a matter of interpretation, a reasonable reader of the 2014 permission, aware of the principle established in I’m Your Man, would conclude that there were no restrictions on retail sale”.
• The Court rejected that a “tail piece” should be added to the “car parking” condition, on the basis that there was “no rational basis for adding it to Condition 2, as a condition specifying the classes of goods which could be sold had no connection to a condition in relation to staff parking”.
• Rejected that a freestanding condition should be implied into the 2014 permission, on the basis that “I accept the Defendant’s submission that, in order to imply a term, it is not sufficient that it probably reflected the local planning authority’s intended purpose, or that it would be fair as between the parties to do so”.  
• Rejected the Claimant’s argument that the implication was necessary to give the 2014 permission “business efficacy”. The permitted use was a retail use, subject to the conditions imposed. The Court held “This outcome does not lack “commercial or practical coherence” even though it is probably not that which the Claimant intended”.
• The Court expressly considered Lord Hodge’s guidance in Trump at [35] that the court “will exercise great restraint in implying terms into public documents which have criminal sanctions”. The Court also expressly noted that such “restraint was demonstrated in Government of the Republic of France v Royal Borough of Kensington and Chelsea [2017] EWCA Civ 429”.
• The Court also considered that Government of France was “on all fours” with the position in France. The 2014 permission was explicit as to the three conditions it imposed (and no more), just as in Government of France only the conditions set out on the relevant consent were imposed.

There was also a third ground of challenge. The Claimant also submitted that Condition 1 was valid, as the “development” in issue was not the implementation of the initial 1985 permission but the implementation of the 2014 permission, permitting a variation of use. Such a condition could be imposed under the general power in section 72 TCPA 1990, even if it was not required pursuant to section 91(1) TCPA 1990. The three year time limit expired in November 2017.

The Court rejected this ground of challenge, on the basis that on an application under s.73(1) the only “development” was the principal development to which the condition is attached. In this case, the principal development was the construction and use of the DIY store pursuant to the 1985 permission. Further, it was clear from the face of the 2014 permission that Condition 1 was imposed pursuant to section 91(1) TCPA 1990, not section 73 TCPA 1990. Section 91(4) TCPA 1990 excluded the application of the section “to any planning permission granted for development carried out before the grant of that permission”. It was of no effect.

Sasha Blackmore is a barrister at Landmark Chambers and appeared for the Secretary of State.

Matthew Reed QC appeared for the Claimant and Christopher Lockhart-Mummery QC appeared for the Second Interested Party. Both are also at Landmark Chambers.