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

This appeal concerned the proper construction of a decision notice granting permission under section 73 of the Town and Country Planning Act 1990 to vary a previous condition restricting the goods that may be sold from a retail unit. The court held that the decision notice should be read at face value: it approved the proposed substitution of wording restricting the use to non-food goods, and did not discharge the earlier condition. The judgment explains the correct approach to interpretation of planning permissions and conditions: start from the natural and ordinary meaning of the words in their document context, read from the perspective of a reasonable reader, and be cautious about implying wholly new conditions. The court also addressed the effect of a later section 73 grant on other conditions in an earlier permission, holding that earlier conditions remain in force so long as the later permission is not inconsistent with them.

Background and facts. The site benefitted from an original planning permission granted in 1985 which limited the retail unit to a specified range of non-food goods. Subsequent permissions under section 73 of the 1990 Act extended the categories of permitted goods, the most recent being a 2014 decision notice which is in dispute. The Council refused an application for a certificate of lawfulness (section 192) seeking an unrestricted A1 use; an inspector granted the certificate on appeal and the certificate was upheld in the lower courts.

Nature of the claim and procedural posture. The Council appealed to the Supreme Court against the Court of Appeal's decision ([2018] EWCA Civ 844). The second respondent had applied for a certificate of lawful use or development under section 192 of the 1990 Act for unrestricted sale of goods within Use Class A1; the certificate was refused by the Council, allowed by the inspector (decision dated 6 December 2016) and that decision was upheld by the courts below.

Issues framed by the court.

• How should the 2014 section 73 decision notice be interpreted: did it in effect substitute a new condition restricting the sale to non-food goods, or did it discharge the restriction?
• Is it permissible to imply a wholly new condition into the 2014 permission?
• What is the effect of the 2014 permission on other conditions of the 2010 permission (notably conditions governing refuse/recycling and delivery management)?

Reasoning and conclusions. The court applied the ordinary objective approach to interpretation: the reasonable reader takes the document at face value and the natural and ordinary meaning of its words is decisive. The 2014 decision notice, read as a whole, approved the proposed wording and thereby substituted the previous restrictive wording with the proposed restriction to non-food goods; it did not discharge the restriction altogether. The court rejected the implication of a wholly new condition where none was expressed, observing that implication is an exceptional remedy and not appropriate to supply an entire new condition. On the ancillary point, the court held that conditions in an earlier implemented permission remain binding so long as the later permission is not inconsistent with them; accordingly, the 2010 conditions dealing with refuse, recycling and management of deliveries continued to have effect insofar as they were not inconsistent with the 2014 permission. The court allowed the Council's appeal.

Practical note. The court emphasised good practice: decision notices under section 73 should, for clarity, set out all conditions to which the new permission will be subject.

Appeal allowed. The Supreme Court held that the 2014 decision notice should be read at face value as approving the substituted wording restricting sales to non-food goods; it did not discharge the previous restrictive condition. The court favoured ordinary objective interpretation and rejected implication of a wholly new condition. Earlier conditions in an implemented permission remain binding unless the later permission is inconsistent with them.

The Council refused an application by the second respondent for a certificate of lawfulness under section 192 (refusal 12 August 2015). An inspector allowed the appeal and granted a certificate of lawfulness (decision dated 6 December 2016). The inspector’s decision was upheld by the courts below, including the Court of Appeal ([2018] EWCA Civ 844). The Council appealed to the Supreme Court, which allowed the appeal ([2019] UKSC 33).