Planning decision errors see council lose Court of Appeal battle over retail store

Errors in a planning decision by the London Borough of Lambeth have seen it lose a Court of Appeal case over how a large retail store in Streatham may be used.

Lord Justice Lewison said investment firm Aberdeen Asset Management. had applied to Lambeth for a certificate of lawful use for a building used as a Homebase store to become usable for unrestricted class A1 retail purposes, other than hot food.

Lambeth refused the certificate, but the Secretary of State granted it on appeal and Lambeth then went to the appeal court.

In London Borough of Lambeth v Secretary of State for Communities And Local Government & Ors [2018] EWCA Civ 844 the judge noted: “The problem arises because of the way in which Lambeth dealt with an application to vary a condition attached to a previous planning permission which had been granted subject to a condition restricting the range of goods permitted to be sold from the site.

“In a very loose sense it is clear enough what Lambeth meant to do. It meant to extend the range of goods permitted to be sold, but not to grant unrestricted permission for class A1 use.

“However, it purported to restrict the range of goods permitted to be sold, not by imposing a condition, but by a restricted description of the permitted development.”

He said Aberdeen’s application was to vary a condition attached to the 2010 grant of permission.

“The technical trap, into which it is said that Lambeth fell”, the judge said was that approval of an application under section 73 of the Town and Country Planning Act 1990 requires fresh planning permission, rather than a variation of an existing one.

That meant the decision notice issued is a free-standing grant of planning permission, the judge said, even though it failed to repeat any of the conditions imposed on the previous planning permissions and failed to express the new description of the use as a condition, rather than as a limited description of the permitted use.

He said this could not be changed by a corrective interpretation, a course not available in a public law case.

Since the decision notice did not grant permission for any development but only for widening the classes of goods sold it followed that conditions dependent on development were invalid.

Mark Smulian