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 is a fresh permission, and its conditions must be stated in the new decision notice. The description of the permitted use is distinct from a condition. A court cannot use interpretation or implication to add a wholly new condition, particularly where the statutory reasons and planning judgment are absent. The scope of permission is determined objectively from the document, with limited use of extrinsic material. A change between retail uses within Class A1 is not development under section 55(2), so it cannot be enforced as development under section 171A(1)(a). The appeal was dismissed because no valid condition restricted food sales and the commencement condition was invalid.

Aberdeen sought a certificate of lawfulness for unrestricted Class A1 retail use of a Homebase store. Lambeth’s 2014 section 73 decision notice described the permitted use as the sale and display of non-food goods, but did not repeat earlier conditions or express that limitation as a condition. The Secretary of State granted the certificate, and Lang J dismissed Lambeth’s challenge in [2017] EWHC 2412 (Admin). Lambeth appealed, arguing that the notice should be interpreted or read as containing a condition restricting sales to non-food goods, and that the commencement condition could sustain enforcement control. The central issue was the legal effect of the decision notice and whether a same-class change to food retail was enforceable.

1. Disposition. The appeal was dismissed. Hamblen and Coulson LJJ agreed with the judgment of Lewison LJ.
2. Under section 73 of the Town and Country Planning Act 1990, the grant of permission without complying with earlier conditions is a fresh, free-standing planning permission. The original permission remains intact, so the landowner may choose which permission to implement. The new notice must state the conditions on which the fresh permission is granted.
3. Planning permission is interpreted objectively by asking what a reasonable reader, equipped with relevant planning knowledge, would understand from the natural and ordinary meaning of the words, the consent as a whole, its purpose, relevant conditions and common sense. Because a planning permission is a public document, extrinsic material has limited scope. The notice plainly described the permitted goods as non-food goods, but that description was not itself a condition.
4. The authorities beginning with I’m Your Man did not justify ignoring the description of the permitted use. The distinction is between the scope of the grant and restrictions imposed by condition. Nevertheless, changing from non-food to food retail, where both uses fall within Class A1, was not development under section 55(2) of the Town and Country Planning Act 1990. It therefore could not constitute a breach under section 171A(1)(a). Control could arise only from a valid condition under section 171A(1)(b).
5. Corrective interpretation cannot be used to add a whole new condition where the language is neither arbitrary nor irrational and the real problem is the authority’s failure to exercise a statutory power. A condition could not be implied merely from the parties’ intended purpose. Although implication into a public planning document is possible in principle, it requires restraint and must arise intrinsically from the document or incorporated material. The reason for the condition must be apparent from the permission itself.
6. Planning conditions must be necessary, relevant to planning and the development, enforceable, precise and reasonable. Applying those tests involves planning judgment for the local planning authority, which the court cannot supply through interpretation. The statutory requirement that reasons for conditions be stated also prevented implication of the proposed restriction.
7. Condition 1, requiring commencement within three years, was invalid. The decision notice did not authorise prospective development: the relevant development was the already completed erection and use of the store. Section 91(4)(b) therefore applied, and there was no development on which the condition could operate.

1. Court of Appeal (Civil Division): Appeal dismissed on 20 April 2018.
2. High Court of Justice, Queen’s Bench Division, Planning Court: Lang J dismissed Lambeth’s application to quash the Secretary of State’s decision, in [2017] EWHC 2412 (Admin) .