Lambeth triumphs in Supreme Court retail planning condition appeal

Lambeth Borough Council has won a Supreme Court fight to restrict the type of goods that can be sold from a Homebase store in Streatham. The case made its way through the courts after a planning inspector granted a certificate declaring that the site at 100 Woodgate Drive, Streatham Vale, could be used to sell any goods, including food. Lambeth feared this could enable it to become a general store, causing traffic problems in the area. Planning permission was first granted for the store in 1985, but the use was limited by condition to sale of DIY goods and other specified categories, not including food. The permitted categories were extended by later consents, the most recent of which was in 2014. In that permission, the proposed new wording for the permission included the words: “The retail unit hereby permitted shall be used for the sale and display of non-food goods only and… for no other goods.” However, the conditions did not refer to the restriction on the sale of food goods, or to conditions in the previous permission from 2010. Landowner Aberdeen Asset Management (AAM) sought a certificate from the council determining that the lawful use of the store extended to sales of unlimited categories of goods, including food. The council refused, but a planning inspector allowed AAM’s appeal, finding that no condition was imposed on the 2014 permission to restrict the retail use to specific uses. The inspector’s decision was upheld by both the High Court and Court of Appeal, but now the Supreme Court has unanimously found in Lambeth’s favour. Giving the court’s ruling, Lord Carnwath said that, taken at face value, the wording of the operative part of the 2014 permission was “clear and unambiguous”, and that the only natural interpretation was that the council had approved what was applied for: that is, the variation of one condition from the original wording to the proposed wording. He said: “There is certainly nothing to indicate an intention to discharge the condition altogether, or in particular to remove the restriction on sale of other than non-food goods.” Ben Arrowsmith, planning associate at BDB Pitmans, said: “This case reasserts the need to find the ‘natural and ordinary meaning’ of the words used in a planning permission under section 73 of the Town and Country Planning Act 1990 and goes back to basics by looking at the wording of the governing legislation. Lord Carnwarth’s judgment is salutary to those trying to concoct erudite arguments that try to skew what is clear and unambiguous – namely, in this case, the approval by the council of no more and no less than that which was applied for, ie the substitution of one condition for another.” Katherine Evans, partner and head of planning at TLT, added that it is “helpful” to have confirmation that conditions can continue to be relied on by local planning authorities even following the grant of a new planning permission under section 73, adding: “This is an acknowledgement that some developments have a complex planning background.” Meeta Kaur, partner at Town Legal, said: “The Supreme Court reiterated the approach to be taken to interpreting legal documents – find the natural and ordinary meaning of the words and view them in their particular context, using common sense. But the Supreme Court took a more pragmatic and less complex approach and concluded that the decision notice was clear. The first part set out the relevant planning permission, which condition was to be varied, the original and the proposed wording. The fact the proposed wording was not set out in the list of formal conditions in the second part of the notice did not prevent a reasonable reader being clear that the proposed wording was intended to be a condition as well. “This is obviously good news for local planning authorities and no doubt there are a number breathing sighs of relief.” However, she added: “A potentially unhelpful aspect of the judgment is where it concludes that although the conditions on the original implemented permission were not incorporated into the new permission, they continue to have effect together with any on the new section 73 permission insofar as they are not inconsistent with it. This could be seen as being helpful and pragmatic from a local authority perspective, but is not particularly helpful in ensuring that planning permissions are what they seem to be on the face of the decision notice from the perspective of an external reader or the public.” To send feedback, e-mail jess.harrold@egi.co.uk or tweet @estatesgazette