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

A planning permission is interpreted objectively. The starting point, and usually the end point, is the natural and ordinary meaning of its words, read in their particular context and with common sense.

A permission under section 73 of the Town and Country Planning Act 1990 is an independent permission for the previously authorised development, subject to the revised conditions. A notice expressly approving the proposed wording of a varied condition may therefore impose that condition even though it is omitted from a later, separately headed list of conditions.

Earlier conditions may remain binding where the later permission neither authorises their breach nor is inconsistent with their continued operation. Nevertheless, good practice requires every condition governing a new section 73 permission to be restated clearly.

The Council granted planning permission in 1985 for a retail store, subject to a condition restricting the goods sold and excluding food. Further permissions enlarged the permitted range. In 2014 the Council issued a decision under section 73 of the Town and Country Planning Act 1990 which approved proposed wording limiting the store to non-food goods. That restriction was not repeated in the separately listed conditions.

The second respondent later sought a certificate under section 192 permitting unrestricted Class A1 retail use. The Council refused it, but a planning inspector allowed the appeal because the 2014 permission contained no separately expressed retail restriction. The High Court and the Court of Appeal, in London Borough of Lambeth v Secretary of State for Housing, Communities and Local Government and others [2018] EWCA Civ 844, upheld that conclusion.

The central issue was whether, on its proper interpretation, the 2014 notice granted permission subject to the approved non-food condition.

Appeal allowed unanimously. Lord Carnwath delivered the judgment, with which Lord Reed, Lady Black, Lord Lloyd-Jones and Lord Briggs agreed.

1. A public planning document is interpreted objectively. The court asks what a reasonable reader would understand from the words used, having regard to their natural and ordinary meaning, the document as a whole, its purpose, its legal and factual context, and common sense. The need for caution because planning permissions are public documents and may support criminal proceedings does not create a separate system of interpretation. The approach in Trump International Golf Club Ltd v Scottish Ministers [2015] UKSC 74 was applied.

2. Section 73 of the Town and Country Planning Act 1990 does not amend an existing permission. It produces an independent, alternative permission for the same development, subject to different conditions or no conditions. The original permission remains intact. The conventional description of a section 73 application as one to vary or amend a condition is therefore legally inexact, but a reasonable reader may understand it as shorthand for the statutory mechanism.

3. Read at face value, the operative part of the 2014 notice was clear. It approved an application to vary an identified condition and set out both its original wording and the proposed replacement. The only natural interpretation was that the proposed non-food wording had been approved as the substituted condition. Nothing suggested that the Council intended to discharge the restriction or permit unrestricted food sales.

4. The conditions listed later in the notice were additional conditions regulating the expanded use. Their separate presentation did not negate the varied retail condition already approved. The absence of a separately stated reason was of little significance because the condition relaxed an existing restriction. In any event, failure to state a reason did not invalidate the condition. The court found it unnecessary to imply a wholly new condition and observed that implication would rarely be appropriate for that purpose, as opposed to completing or interpreting an existing condition.

5. Although the point was not directly in issue, the court provisionally concluded that conditions attached to an implemented earlier permission remain binding unless discharged by performance or a further grant. Whether a later permission is compatible with their continued operation is a question of construction. The 2014 permission neither authorised breach of the relevant 2010 conditions nor conflicted with them. The court approved the guidance in Reid v Secretary of State for Transport [2002] EWHC 2174 (Admin) that all conditions governing a new section 73 permission should be restated.

6. The parties were directed to agree the precise form of the order, failing which further submissions would be received.

• United Kingdom Supreme Court: In London Borough of Lambeth v Secretary of State for Housing, Communities and Local Government and others [2019] UKSC 33, the court unanimously allowed the Council’s appeal and displaced the Court of Appeal’s interpretation of the 2014 permission.
• Court of Appeal: In London Borough of Lambeth v Secretary of State for Housing, Communities and Local Government and others [2018] EWCA Civ 844, the court upheld the conclusion that the 2014 permission contained no effective restriction on the categories of goods sold.
• High Court: The court upheld the planning inspector’s decision. The citation is not stated in the judgment.
• Planning inspector: The inspector allowed the appeal from the Council’s refusal and granted a certificate of lawfulness for unrestricted Class A1 retail use.