London Borough of Lambeth v Secretary of State for Communities and Local Government & Ors

A planning permission granted under section 73 of the Town and Country Planning Act 1990 must be interpreted objectively in its statutory and documentary context. A limitation on the permitted use must ordinarily be imposed by a clear condition; it cannot be derived merely from the description of the development. Extrinsic documents may be considered where the permission is ambiguous or incorporates them by reference. A term may be implied into a planning permission only where necessary to give it commercial or practical coherence, and the court must exercise great restraint. Where the original development was already carried out, the statutory time-limit condition cannot validly be imposed on a later section 73 permission.

The local planning authority challenged an Inspector’s decision allowing an appeal against refusal of a certificate of lawfulness. The certificate concerned the use of a DIY retail premises for unrestricted Class A1 retail purposes, including food.

The authority argued that a 2014 section 73 permission varied an earlier retail condition so as to permit only non-food sales, either by proper interpretation or by implication. It also challenged the Inspector’s conclusion that the permission’s three-year commencement condition was invalid. The central issues were the legal effect of the wording of the 2014 permission and the application of sections 73 and 91 of the Town and Country Planning Act 1990.

1. The application was refused. The Inspector’s decision granting a certificate for unrestricted Class A1 retail use was not quashed.
2. A section 73 permission must be read in its statutory context. It is a new permission sitting alongside the original permission, and the decision notice should repeat the relevant conditions. The 2014 notice referred to a proposed non-food wording but expressly set out only three conditions. That created an ambiguity, making it permissible to consider the earlier permissions and the application material.
3. Objectively construed, the proposed wording probably reflected the authority’s intention to retain a non-food restriction. However, that intention was not given legal effect. The statutory principle identified in I’m Your Man Limited, and applied in R (Altunkaynak) and Cotswold Grange, required a substantive limitation on a permission to be imposed by condition. The 2014 permission contained no such condition.
4. The proposed wording could not be implied as a tailpiece to the parking condition, since there was no rational connection. Nor could it be implied as a freestanding condition. The permission remained commercially and practically coherent without the restriction. The restraint required when implying terms into public documents carrying potential criminal consequences also applied.
5. Condition 1, imposing a three-year commencement period, was invalid. Under section 73, the relevant development was the principal development authorised by the original 1985 permission, namely the construction and use of the DIY store. That development had already been carried out. Section 91(4)(b) therefore excluded the statutory time-limit provision.

First-instance statutory review under section 288 of the Town and Country Planning Act 1990. The court refused to quash the Inspector’s decision dated 6 December 2016.