Supreme Court causes uncertainty with section 73 decision

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

What is this decision about?

The case related to the permitted use of a retail unit.

Permission was originally granted subject to a condition which restricted the types of goods that could be sold from the unit.  As a consequence of a permission granted under section 73 of the Town and Country Planning Act 1990, which failed to include a similar restrictive condition (the "section 73 permission"), an argument ensued as to whether it would be lawful to sell unlimited categories of goods from the unit, including food.

The local planning authority (the "LPA") thought it would not be, whilst the Planning Inspectorate, High Court and the Court of Appeal disagreed.

The Supreme Court was asked to determine who was correct.

Key facts

In 1985, planning permission was granted for the construction of a retail unit.  The use of the unit was restricted (by way of a planning condition) to the retailing of certain specified goods, including those for DIY home and garden improvements.

In 2010, a further planning permission was granted pursuant to section 73, which extended the range of goods that could be sold from the unit, but excluded food (the "2010 permission").

In 2014, the section 73 permission was granted.  The description of development referred to permission being granted for the variation of the condition of the 2010 permission which restricted the retail offering.  The condition from the 2010 permission and the proposed amended condition (which permitted the sale of non-food goods only) were both set out the in description of development, but the amended condition was not replicated alongside the other conditions.

In 2015, an application was made to the LPA for a certificate of lawfulness of proposed use or development for the unrestricted use of the unit.  The LPA refused the application, but this decision was overturned on appeal on the basis that no condition was imposed to restrict the nature of the retail unit to specific uses.

The LPA challenged this decision in both the High Court and Court of Appeal, but both courts dismissed the challenge and upheld the appeal decision.

The LPA took its fight to the Supreme Court.

Decision of the Supreme Court

In a surprising decision, the Supreme Court allowed the appeal and held that the permission did operate to effectively prevent the sale of food from the retail unit.

The court took the view that a common sense approach meant that the decision had to be read as a whole, and as such, the operative part of the grant was clear and unambiguous and did nothing to suggest an intention to remove the restriction on the sale of food.

It noted that whilst it would be difficult to envisage circumstances in which it would be appropriate to imply the imposition of a wholly new condition, that was not the position here.  Instead, it held that the description of use should be read as if it were the condition.

The court found no issue with the fact that the permission lacked a specific reason for the condition and found that the absence of a reason would not affect the validity of the condition.  However, it failed to explain how this analysis sits with the statutory requirement to ensure that decision notices state clearly and precisely the full reasons for each condition imposed.

It also noted that whilst it was desirable for all conditions to which a new planning permission will be subject to be restated in that permission, this was not a legal requirement.

Finally, and of most concern in our view, the court held that certain of the conditions contained in the 2010 permission which were not replicated in the section 73 permission would continue to have effect on the basis that they were not inconsistent with the new grant.

Implications

Rather than providing certainty as to how planning permissions should be interpreted, this case does the opposite in that it:

• puts a question mark over what is a condition, by suggesting conditions don't necessarily need to sit in the conditions section of a decision notice;
• ignores the statutory requirement for reasons to be clearly stated on the face of a decision notice; and
• suggests that when trying to ascertain which planning conditions affect a property, one must embark on a paper trail to ascertain if any historic permissions contain conditions that could continue to have effect, on the basis that they are not inconsistent with the extant consent.

Given that criminal sanctions could follow as a result of a breach of such 'hidden' conditions, this position is less than satisfactory and will mean that it is not safe to assume that the most recently implemented permission is the only operative one.  Further checks and enquiries will be necessary to ensure inadvertent breaches do not take place.

Author: Sarah Batterton, Senior Expertise Lawyer.