London borough wins Supreme Court battle over retail store and restrictions on use

The Supreme Court has unanimously allowed an appeal by the London Borough of Lambeth in a dispute over whether use restrictions continued to apply to a retail development.

The appeal in London Borough of Lambeth (Appellant) v Secretary of State for Housing, Communities and Local Government and others (Respondents) [2019] UKSC 33 concerned the permitted uses of a retail store in Streatham.

Planning permission was 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. 

The permitted categories were extended by later consents (under section 73 of the Town and Country Planning Act 1990 (‘the 1990 Act’)). The most recent was in 2014, which was in issue in the case. 

In that permission, the proposed new wording for the permission included:

The retail unit hereby permitted shall be used for the sale and display of non-food goods only and … for no other goods.

The conditions in the 2014 permission did not refer to the restriction on the sale of food goods, or to conditions in the previous permission from 2010.

The second respondent, Aberdeen Asset Management, sought a certificate from Lambeth 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, on the basis that no condition was imposed on the 2014 permission to restrict the nature of the retail use to specific uses falling within Use Class A1. This was upheld by the lower courts including the Court of Appeal.

Lambeth, as the local planning authority, appealed to the Supreme Court.

The case was heard by Lord Reed (Deputy President), Lord Carnwath, Lady Black, Lord Lloyd-Jones and Lord Briggs.

The Supreme Court unanimously allowed the appeal. The certificate should be amended to exclude uses within the scope of the “Proposed wording” in the decision notice, it said.

Lord Carnwath, who gave the lead judgment, said section 73 of the TCPA 1990 envisaged 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,” he pointed out.

Government guidance, cited by the Court of Appeal, indicated that “to assist with clarity” planning decisions under section 73 “should also repeat the relevant conditions from the original planning permission”.

But Lord Carnwath said that, as he read it, “it was given as advice, rather than as a statement about the legal position”.

The Supreme Court judge said that whatever the legal character of the document in question, the starting point – “and usually the end-point” – for interpretation was 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.

Lord Carnwath observed “in passing” that it was 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.

The Supreme Court judge said: “On the issue of interpretation, Lewison LJ [who gave the judgment in the Court of Appeal] 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 [counsel for Lambeth’s] submission, in the simple form recorded by Lewison LJ…..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.”

Lord Carnwath found that “taken at face value” the wording of the operative part of the grant seemed to him “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, Lord Carnwath continued, “the obvious, and to my mind the only natural, interpretation of those parts of the document is that the Council was approving what was applied for: the variation of one condition from the original wording to the proposed wording, in effect substituting one for the other.”

There was certainly nothing to indicate an intention to discharge the condition altogether, or in particular to remove the restriction on the sale of other than non-food goods. 

The Supreme Court judge said: “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….. There is no issue now as to the validity of the grant as such. All parties are agreed there was a valid permission for something. That being the common position before the court, the document must be taken as it is.”

Lord Carnwath said it may have been that insufficient attention was paid in the submissions below to the background of section 73. “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 the 2014 permission] in the manner authorised by the section – that is, as the grant of a new permission subject to the condition as varied.”

The lack of a specific reason for the condition, to which Lewison LJ attached weight, was 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”, the Supreme Court judge said. “In any event the absence of a reason would not affect the validity of the condition.”

Lord Carnwath said there were some internal inconsistencies in the second part of the notice, but reading the document as a whole, the second part can be given a sensible meaning without undue distortion. “It is explanatory of and supplementary to the first part.”

He added: “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.”

Lord Carnwath said the Supreme Court was not directly concerned with the status of the other conditions in the 2010 permission, but added that the court’s provisional view was that the 2010 conditions were not incorporated into the new permission, but continued to have effect under the 2010 permission, so far as they were consistent with anything in the new grant. The conditions “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.”

The Supreme Court judge added that there was nothing in the present judgment that was intended to detract from the advice, contained in the decision by Sullivan J in R (Reid) v Secretary of State for Transport [2002] EWHC 2174 (Admin), at paragraph 59, that “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”.

[This article was based in large part on the Supreme Court's press summary]