Telford and Wrekin Council v Secretary of State for Communities and Local Government & Anor

A planning condition must clearly and expressly impose any restriction on the use of land or the goods that may be sold. A planning permission is construed primarily within its own terms, including its conditions and stated reasons, and from the perspective of a reasonable reader. Conditions may receive a benevolent, common-sense construction, but the court cannot imply a condition or add an enforcement or prohibition requirement. To exclude the operation of the Town and Country Planning (Use Classes) Order 1987, unequivocal wording is generally required. An ambiguous condition may be construed in the context of the permission as a whole, but that approach did not convert a condition requiring submission of product details into a restriction on the products which could be sold.

The Council challenged under section 288 of the Town and Country Planning Act 1990 an Inspector’s decision allowing Growing Enterprises Ltd’s appeal under section 195. The Inspector had granted a certificate under section 192 confirming that the garden-centre premises could lawfully be used for any purpose within Class A1 of the Town and Country Planning (Use Classes) Order 1987.

The dispute concerned condition 19 of the original planning permission. It required details of the proposed types of products to be sold to be submitted to and agreed in writing by the Council before opening. The central issue was whether that condition restricted sales to the products listed by the operator, thereby excluding the default operation of the Use Classes Order.

1. Application dismissed. The Inspector had not erred in concluding that condition 19 did not restrict the premises to sales of only the products on the submitted list and that the approved use was general Class A1 retail use.
2. A planning permission is generally construed within its four corners, including its conditions and the express reasons for them. It must be read as a public document capable of being understood and relied on by later owners and members of the public. The question is what a reasonable reader would understand the local planning authority to have permitted, not what the parties intended.
3. Conditions must be clearly and expressly imposed. They should be interpreted benevolently and given a common-sense meaning, and ambiguity should be resolved by reference to the underlying planning purpose. A condition is void for uncertainty only if it has no meaning or no sensible or ascertainable meaning. These principles do not permit the implication of a condition or the addition of an obligation to an existing condition.
4. Where the Town and Country Planning (Use Classes) Order 1987 would otherwise permit movement within a use class, exclusion of that operation generally requires an unequivocal condition. A grant for a stated use alone is insufficient. Condition 19 required the submission of product details before opening, but contained no prohibition on selling other goods and no implementation or enforcement clause. The wording therefore could not be enlarged to create such a restriction.
5. Hulme v Secretary of State for Communities and Local Government [2011] EWCA Civ 638 did not require a different result. That case concerned an ambiguous condition which could be construed with the decision letter as an integral part of the permission. Condition 19 was unambiguous, and the other conditions in this permission demonstrated that implementation requirements were expressly stated when intended.
6. The Inspector was entitled to distinguish “should” from “shall” and had found that the condition’s requirements were discharged. Since the condition imposed no ongoing restriction, the Council’s additional challenge concerning discharge did not arise.

Not stated in the judgment.