Planning permission: condition restricting use of premises

On its ordinary and natural meaning, planning permission granted in 2014 under s 73 of the Town and Country Planning Act 1990, concerning a retail store in London, had to be interpreted as containing a condition restricting the use of the store. The Supreme Court, in allowing the appellant local authority’s appeal, held that the 2014 permission had to be seen through the eyes of ‘the reasonable reader’. The court considered that, taken at face value, the wording of the operative part of the grant was clear and unambiguous and that there was nothing to indicate an intention to discharge a condition restricting use altogether or, in particular, to remove a restriction on sale of other than non-food goods.

Legislation

Section 73 of the Town and Country Planning Act 1990 (TCPA 1990), so far as material, provides: ‘(1) This section applies, subject to subsection (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted. (2) On such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted, and (a) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly, and (b) if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application.’

The proceedings concerned the permitted uses of a retail store in Streatham in the area of the London Borough of Lambeth (the authority).  

In 1985, the then Secretary of State for Housing, Communities and Local Government granted planning permission in respect of the store, but the use was limited by condition to sale of DIY goods and other specified categories, not including food sales. The permitted categories were extended by later consents, under TCPA 1990 s 73, including: (i) in 2010, to allow for the sale of a wider range of goods, as specified, not including food sales, and again excluding other uses within the relevant use class (currently Class A1); and, (ii) in 2014 (the 2014 permission), the proposed wording of which stated that ‘The retail unit hereby permitted shall be used for the sale and display of non-food goods only and … for no other goods’ (see [5] of the judgment).

In 2015, the second respondent applied to the authority for a certificate of lawfulness of proposed use or development (under TCPA 1990 s 192) for unrestricted use of the store from the authority, determining that the lawful use of the store extended to sales of unlimited categories of goods, including food. The authority refused to grant a certificate to that effect, but a planning inspector granted it on appeal, having found that no condition had been imposed on the 2014 permission to restrict the nature of the retail use to specific uses falling within Class A1, such as food sales. The lower courts upheld the planning inspector’s decision. 

The authority appealed to the Supreme Court. 

Appeal allowed.

Issues and decisions

Whether a condition restricting the use of the premises should be implied into the 2014 permission. Alternatively, whether it should be interpreted as containing such a condition.

A permission under TCPA 1990 s 73 could only take effect as an independent permission to carry out the same development as previously permitted, but subject to the new or amended conditions. A s 73 application could be made and permission granted retrospectively, that was in relation to development already carried out (see [11], [12] of the judgment). 

Section 73 envisaged two situations: either (i) the grant of a new permission unconditionally or subject to revised conditions; or (ii) refusal of permission, leaving the existing permission in place with its conditions unchanged. It did not say what was to happen if the authority wished to change some conditions, but leave others in place. The Court of Appeal, Civil Division, had cited government guidance indicating that, to assist with clarity, planning decisions under s 73 should also repeat the relevant conditions from the original planning permission. However, it had been given as advice, rather than as a statement about the legal position (see [13] of the judgment). 

Whatever the legal character of the document in question, the starting-point (and usually the end-point) 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 (see [19] of the judgment). 

In the present case, with respect to the careful reasoning of the courts below, an ordinary reading of the decision notice compelled a different view (see [27] of the judgment).

The 2014 permission needed to be seen through the eyes of ‘the reasonable reader’. Taken at face value, the wording of the operative part of the grant seemed clear and unambiguous. The authority ‘hereby approves’ an application for ‘the variation of condition as set out below …’. There then followed precise and accurate descriptions of the relevant development, of the condition to be varied, and of the permission under which it was imposed. They were followed by statements, first, of the ‘Original wording’, and then of the ‘Proposed wording’; the latter stating in terms that the store was to be used for the sale of ‘non-food goods only and … for no other goods’. ‘Proposed wording’ in that context had to be read as a description of the form of condition proposed in the application and ‘hereby’ approved. In other words, the obvious and only natural, interpretation of those parts of the document was that the authority was approving what had been applied for, namely, 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 sale of other than non-food goods (see [28], [29] of the judgment).

If s 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. The validity of the grant might perhaps have been subject to a timely challenge by an interested third party or even the authority itself. That not having been done, there was no issue as to the validity of the grant as such. All parties were agreed that there was a valid permission for something. That being the common position before the court, the document had to be taken as it (currently) was. Once it was understood that it had been normal and accepted usage to describe s 73 as conferring power to ‘vary’ or ‘amend’ a condition, the reasonable reader would be unlikely to see any difficulty in giving effect to that usage in the manner authorised by the section, namely, as the grant of a new permission, subject to the condition as varied. The absence of a reason for the condition would not affect the validity of the condition (see [33] of the judgment).

Turning to the second part of the notice, it was true that there were some internal inconsistencies. However, reading the document as a whole, and taking the first part in the sense suggested above, the second part could be given a sensible meaning without undue distortion. The permitted development, incorporating the amended condition, was regarded as acceptable, in accordance with the development plan, but only subject to the conditions set out. They were, in other words, additional conditions (see [34], [35] of the judgment).

Further, following implementation of the 2010 permission, the conditions remained valid and binding, not because they had been incorporated, by implication, in the new permission, but because there was nothing in the new permission to affect their continued operation (see [38] of the judgment).

In the present case, the specific conditions in the 2014 permission were intended to be additional both to the varied condition, and to the others remaining in effect under the 2010 permission (see [41] of the judgment).

Nothing in the present judgment was intended to detract from the advice in Reid v Secretary of State for Transport [2002] All ER (D) 77 (Oct), nor from the importance of ensuring that applications and grants under s 73 were couched in terms which properly reflected the nature of the statutory power (see [42] of the judgment).

R (on the application Reid) v Secretary of State for Local Government and the Regions [2002] All ER (D) 77 (Oct) explained; Brayhead (Ascot) Ltd v Berkshire County Council [1964] 1 All ER 149 applied; Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1984] 2 All ER 358 considered; Pye v Secretary of State for the Environment [1998] 3 PLR 72 considered; I’m Your Man Ltd v Secretary of State for the Environment [1998] All ER (D) 418 considered; R v Leicester City Council, ex p Powergen UK Ltd [2000] All ER (D) 696 considered; Trump International Golf Club Ltd v Scottish Ministers (Scotland) [2017] 1 All ER 307 considered.

Decision ofthe Court of Appeal [2018] EWCA Civ 844 Reversed.

Matthew Reed QC and Matthew Henderson (instructed by Lambeth Legal Services) for the authority.

Daniel Kolinsky QC and Sasha Blackmore (instructed by the Government Legal Department) for the Secretary of State.

Christopher Lockhart-Mummery QC and Yaaser Vanderman (instructed by Freeths LLP) for the third respondent.

Carla Dougan-Bacchus - Barrister.