London Borough of Lambeth v Secretary of State for Housing, Communities and Local Government and others [2019] UKSC 33

Lambeth Council granted permission under section 73 of the Town and Country Planning Act 1990 to vary a condition restricting retail sales at a Streatham store. The decision notice stated 'proposed wording' but did not expressly reimpose it as a condition. The Supreme Court held the permission should be read as imposing the varied condition, allowing the Council's appeal.

Facts

The case concerned a retail store in Streatham operated under a planning permission originally granted by the Secretary of State in 1985. Condition 6 of the 1985 permission limited use to the sale of DIY goods, building materials, and related products, expressly excluding food sales and other Class I uses. The reason given was concern about traffic generation and car parking requirements of larger retail stores.

In 2010, Lambeth granted a further permission under section 73 of the Town and Country Planning Act 1990, varying condition 6 to permit a wider range of non-food goods. In 2014, a further section 73 permission was granted, again purportedly to vary the condition. The 2014 decision notice set out the ‘Original Wording’ of the restriction and a ‘Proposed Wording’ confining use to ‘non-food goods only and … for no other goods’. However, the proposed wording was not expressly set out as a numbered condition in the conditions section of the notice, which contained only three other conditions relating to time limits, staff parking and traffic surveys.

The second respondent applied under section 192 for a certificate of lawful use for unrestricted retail use. The Council refused, but a planning inspector granted the certificate, finding no condition had been imposed restricting the nature of the retail use. The High Court and Court of Appeal upheld the inspector’s decision.

Issues

The central issue was whether the 2014 permission, properly construed, imposed a condition restricting the store to non-food goods, or whether the store could lawfully be used for any purpose within Use Class A1, including food sales. Subsidiary issues concerned:

• The correct approach to interpreting a planning permission granted under section 73;
• Whether a condition could be implied into the permission;
• The status of conditions 2 and 3 of the 2010 permission (refuse/recycling and delivery management) which were not repeated in the 2014 permission.

Arguments

Appellant (Lambeth Council)

Mr Reed QC argued that the 2014 permission should be interpreted as imposing the ‘proposed wording’ as a condition. He advanced this in three ways: (a) correct interpretation of the permission; (b) correction of an obvious error applying Chartbrook v Persimmon Homes; and (c) implication of a condition applying Attorney General of Belize v Belize Telecom.

Respondents

The Secretary of State emphasised the need for clarity and certainty in public documents. The third respondent submitted that planning is a creature of statute with a limited role for common law principles, and that clear words are needed to exclude rights under the Use Classes Order. The respondents adopted the Court of Appeal’s reasoning that a section 73 permission takes effect as a fresh permission, and the decision notice failed to express the restriction as a condition.

Judgment

Lord Carnwath (with whom Lord Reed, Lady Black, Lord Lloyd-Jones and Lord Briggs agreed) allowed the Council’s appeal.

Approach to interpretation

The Court reaffirmed the approach set out in Trump International Golf Club Ltd v Scottish Ministers [2015] UKSC 74: the court asks what a reasonable reader would understand the words to mean in context, having regard to the natural and ordinary meaning, overall purpose, other conditions, and common sense. Lord Carnwath summarised that ‘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 … and in the light of common sense.’

Section 73 framework

Drawing on Pye v Secretary of State [1998] 3 PLR 72 and Powergen v Leicester City Council [2000] JPL 1037, the Court confirmed that a section 73 permission takes effect as an independent permission for the same development subject to new or amended conditions, leaving the original permission intact. Though commonly referred to as permissions to ‘vary’ or ‘amend’ conditions, this usage, while legally inaccurate, is well-established.

Interpretation of the 2014 permission

Lord Carnwath held that the ordinary reading of the decision notice compelled the conclusion that the varied condition had been imposed. Taken at face value, the operative part approved an application for ‘variation of condition’, accurately described the condition to be varied, and set out both the original and proposed wording. The only natural interpretation was that the Council was approving the variation by substituting the proposed wording for the original. There was nothing to indicate any intention to discharge the restriction on non-food sales altogether.

The Court rejected the argument that the supposed inconsistency with section 73 produced a different result. If section 73 did not authorise this form of grant, the consequence would be invalidity of the grant altogether, not a valid grant free of the condition. All parties accepted there was a valid permission, so the document had to be taken as it stood.

The lack of a separately stated reason for the condition was of little significance, given this was the relaxation of an existing condition whose reason was well known; in any event, absence of a reason would not affect validity (Brayhead (Ascot) Ltd v Berkshire County Council [1964] 2 QB 303). The second part of the notice, containing three numbered conditions, was properly read as imposing additional conditions supplementary to the varied condition.

Status of 2010 conditions

Though not directly in issue, Lord Carnwath expressed the provisional view that conditions 2 and 3 of the 2010 permission remained binding. Following implementation, they continued in effect unless discharged or superseded by inconsistent grant. The 2014 permission did not authorise non-compliance, so those conditions continued to apply under the 2010 permission. This was consistent with Sullivan J’s decision in Reid v Secretary of State for Transport [2002] EWHC 2174 (Admin).

Implication

The Court expressed doubt, agreeing with Mr Lockhart-Mummery’s submission, that implication could be used to supply a wholly new condition as opposed to interpreting an existing one, but found it unnecessary to decide the point given the conclusion on interpretation.

Implications

The decision confirms a practical, common-sense approach to interpreting planning permissions, particularly those granted under section 73. Where a decision notice clearly identifies a condition being varied and sets out the proposed new wording, a reasonable reader will ordinarily understand that wording to have been imposed as a condition, even if not formally restated in a conditions list.

The judgment reaffirms that the reasonable reader of a planning permission is to be taken as starting with the document at face value, rather than embarking on elaborate technical analysis. Lord Carnwath cautioned against ‘over-complication’ in interpretation.

The case has significance for local planning authorities and developers in the drafting of section 73 permissions. Lord Carnwath endorsed Sullivan J’s advice in Reid that, as a matter of good practice, all conditions to which a new section 73 permission will be subject should be restated in the new notice, not left to cross-referencing. The Court also endorsed the Planning Practice Guidance to that effect. Poor drafting creates uncertainty and litigation risk, as demonstrated here.

On the continuing status of earlier conditions, the Court’s provisional view is that conditions from an earlier permission that has been implemented remain binding after a section 73 permission unless the new permission is inconsistent with them. This is grounded in the principles discussed in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132.

The decision also limits the scope for using implication to supply wholly new conditions into a planning permission, suggesting that implication under Trump is primarily available for completing or clarifying existing conditions rather than creating new obligations – though the Court did not finally decide the point.

The case is important in the wider legal context because planning permissions are public documents relied upon by third parties and capable of supporting criminal enforcement. The judgment balances the need for clarity and certainty with a practical refusal to allow drafting imperfections to defeat the evident purpose of a grant where the document, read naturally, conveys that purpose clearly.

Verdict: Appeal allowed. The Supreme Court held that, on its natural and ordinary meaning, the 2014 permission imposed a condition restricting the use of the store to the sale of non-food goods only, in the terms of the ‘proposed wording’. The certificate of lawful use for unrestricted Class A1 use granted by the inspector could not stand.

Source: London Borough of Lambeth v Secretary of State for Housing, Communities and Local Government and others [2019] UKSC 33