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Clarity in drafting planning permissions is vital

Following the London Borough of Lambeth’s appeal, the Supreme Court has ruled that the interpretation of the planning permission should restrict the planning permission in the way intended by the local authority.

Background

Planning permission was originally granted by the Secretary of State for a retail store in Streatham in 1985.  The use was limited by Condition 6 to the sale of DIY goods and other specified categories, not including food sales. 

In 2010 an application to vary Condition 6 was granted by the Council to allow a wider range of goods to be sold but still not including food sales.  Two further conditions were imposed (Conditions 2 and 3) that required various details to be submitted and approved, with the development required to comply with those approved details thereafter. 

In 2014 a further application to vary Condition 6 was granted by the Council without any reference to Conditions 2 and 3.  In August 2015, an application for a Certificate of Lawfulness for an unrestricted use was refused by the Council but at appeal in 2016, the certificate was granted on the basis that the 2014 permission did not contain any condition restricting the nature of the retail use. This appeal decision was challenged by the Council but the decision was upheld in the Court of Appeal.

Supreme Court decision

The case put forward by Lambeth Council identified three points for determination:

  1. What was the correct interpretation of the new permission?
  2. Could an obvious error be corrected in accordance with contractual principles?
  3. Could a condition be implied?

Carnwath J considered that this was a question of the correct interpretation of the 2014 permission so did not go into detail in respect of the remaining two points save to comment that "it is difficult to envisage circumstances in which it would be appropriate to use implication for the purpose of supplying a wholly new condition, as opposed to interpretation of an existing condition".

Carnwath J also considered the question as to the effect of the new permission granted under Section 73 Town and Country Planning Act 1990 on conditions that have already taken effect following implementation of an earlier permission (in this case the 2010 permission).  In particular he considered that it would have been surprising if the Council when relaxing restrictions on sales had not intended to maintain the requirements of existing conditions.  The Court held that the 2014 permission did not authorise non-compliance with the conditions attached to the 2010 permission and that they would remain valid and binding. 

The Supreme Court's ruling confirmed that a decision under S73(2) leaves the original planning permission intact and un-amended and that the applicant may choose whether to implement the original planning permission or the new planning permission. 

Although Lambeth Council will be satisfied with the decision of the Supreme Court, this case reiterates the importance of clarity in drafting planning permissions, especially those granted under S73. 

From a practitioner's perspective, the imposition of conditions through implication would have led to less, rather than more certainty in planning decisions. Although Carnwath J's words do confirm that the circumstances where a condition could be implied would be few, he does not rule it out and does not clarify what those circumstances might be. 

It is helpful, however, to have confirmation that conditions can continue to be relied upon by local planning authorities even following the grant of a new planning permission under S73. This is an acknowledgement that some developments have a complex planning background.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at June 2019. Specific advice should be sought for specific cases. For more information see our terms and conditions.

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