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18/07/2019

Legal landscape: As the local authority intended

DIY store

A Supreme Court ruling about the interpretation of planning permissions at a Streatham DIY store reinforces that clarity is essential when drafting, says Katherine Evans

The Supreme Court has ruled that the interpretation of a planning permission should be restricted in the way intended by the local authority. This comes following the London Borough of Lambeth’s appeal on whether a condition restricting the use of premises should be implied into a planning permission granted by the council.

Background

The source of the dispute was a 2014 application under the Section 73 Town and Country Planning Act 1990; to change a condition from a previously approved planning permission to use premises in Streatham for non-food retail goods where this had previously been restricted.

Lambeth Council extended the range of goods permitted to be sold but did not intend to provide unrestricted permission for class A1 use and in particular not to permit the sale of food.

Following success in the Court of Appeal for the four respondents, which included the Secretary of State for Housing, Communities and Local Government and Aberdeen Asset Management, Lambeth Council appealed to the Supreme Court.

The ruling

The ruling confirmed that a decision under S73(2) leaves the original planning permission intact and un-amended, and that the applicant may choose whether to implement the original planning permission or the new planning permission.

Although S73 permissions are often described as varying or amending earlier permissions, this is legally inaccurate as a planning permission granted under S73 can only take effect as an independent planning permission – to carry out the same development as previously permitted, but subject to the new or amended conditions.


In brief

1. A dispute over a section 73 application to extend the range of goods that could be sold from a retail outlet in Streatham reached the Supreme Court. The retail outlet in question was a Homebase DIY store - read the full judgement here (pdf).

2. The retailer argued that the new permission implied conditions attached to the old permission no longer applied, and they could sell anything in use class A1

3. The judge ruled that the permission must be interpreted as intended by the council, not as might be implied by its wording

4. The case reiterates the importance of clarity in drafting planning permissions


What was considered?

The case put forward by Lambeth Council identified three points:

  • What was the correct interpretation of the new permission?
  • Could an obvious error be corrected in accordance with contractual principles?
  • Could a condition be implied?

Carnwath J considered that this was a question of the correct interpretation so did not go into detail with respect to the latter two points, save to comment 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".

The judge also considered the effect the new permission would have on conditions that have already taken effect following implementation of the earlier permission. In particular, he stated that it would have been surprising if Lambeth Council, when relaxing restrictions on sales, had not intended to maintain the requirements of the existing conditions.

Therefore, it was held that the 2014 permission did not authorise non-compliance with the conditions attached to the 2010 permission and that they would continue to remain valid and binding.

Why does this matter?

Although Lambeth Council will be satisfied with the decision of the Supreme Court, this case reiterates the importance of clarity in drafting planning permissions, especially those granted under S73.

From a practitioner's perspective, the imposition of conditions through implication would have led to less rather than more certainty in planning decisions. Indeed, although Carnwath J's words do confirm that the circumstances where a condition could be implied would be few, he does not rule it out and does not clarify what those circumstances might be.

It is helpful, however, to have confirmation that conditions can continue to be relied upon by local planning authorities even following the grant of a new planning permission under S73. This is an acknowledgement that some developments have a complex planning background.  

Katherine Evans is partner and head of planning at law firm TLT

Photo | Shutterstock

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