London Borough of Lambeth v. Secretary of State for Housing, Communities and Local Government and others

United Kingdom

03.07.2019

Civil

If provision gave no power to grant permission in form described, then, there is no valid grant

Present appeal concerns the permitted uses of a retail store in Streatham in the area of the London Borough of Lambeth (“the Council”). Planning permission was originally granted by the Secretary of State in 1985, but the use was limited by condition to sale of DIY goods and other specified categories, not including food sales. Following implementation, the permitted categories were extended by later consents (under Section 73 of the Town and Country Planning Act, 1990), the most recent being in 2014 (2014 permission), which is in issue in present case.

The second Respondent sought a certificate from the Council determining that, the lawful use of the store extended to sales of unlimited categories of goods including food. A certificate to that effect was refused by the Council, but granted by a planning inspector on appeal, and upheld by the lower Courts. The Council, as local planning authority, appeals to present court.

Section 73 of the 1990 Act, envisages two situations: either (a) the grant of a new permission unconditionally or subject to revised conditions, or (b) refusal of permission, leaving the existing permission in place with its conditions unchanged. It does not say what is to happen if the authority wishes to change some conditions but leave others in place. Government guidance indicating that “to assist with clarity” planning decisions under Section 73 “should also repeat the relevant conditions from the original planning permission” was given as advice, rather than as a statement about the legal position.

The 2014 permission needs to be seen through the eyes of a reasonable reader, who is assumed to start by taking the document at face value. The wording of the operative part of the grant is clear and unambiguous. The Council approves an application for “the variation of condition as set out below”, which is followed by precise and accurate descriptions of the relevant development, of the condition to be varied, and of the permission under which it was imposed.

There is 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. The suggested difficulties of interpretation do not arise from any ambiguity in the terms of the grant itself. Nor do they raise any question about the extent to which it is permissible to take account of extraneous material. It is unnecessary to look beyond the terms of the document.

If Section 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 Council itself. That not having been done, there is no issue now as to the validity of the grant as such. All parties are agreed that there was a valid permission for something. That being the common position before the court, the document must be taken as it is.

The permitted development incorporating the amended condition is regarded as acceptable, in accordance with the development plan, but only subject to the conditions set out. They are in other words additional conditions. They are designed to regulate the expanded use as permitted by the revised condition, dealing in particular with staff parking, and monitoring of the additional traffic impact.

Nothing in the present judgment is intended to detract from the advice, contained in the decision by Sullivan J in R (Reid) v Secretary of State for Transport, that “it is highly desirable that, all the conditions to which the new planning permission will be subject should be restated in the new permission and not left to a process of cross-referencing”. Appeal allowed.

Tags : Planning permission Grant Legality

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