The Supreme Court allowed Lambeth Council’s appeal and held that a 2014 permission under section 73 of the Town and Country Planning Act 1990 continued to restrict a Streatham retail store to non-food goods. Although the decision notice did not restate that limit among its numbered conditions, its natural meaning was that the Council had approved the proposed wording confining sales to non-food goods only and for no other goods.
Planning permission for a retail store in Streatham was granted in 1985 subject to a condition limiting it to specified DIY, home, garden, building and related goods, and to no other purpose. Food sales were excluded because of traffic and parking. In 2010 the Council granted a section 73 permission varying that condition to a wider range of goods, still excluding food and other Class A1 uses, and added conditions requiring refuse and recycling arrangements and a deliveries and servicing strategy.
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On 7 November 2014 the Council granted a further section 73 permission. The decision notice said that the Council approved an application to vary the retail-use condition. It set out the original wording and a proposed wording stating that the unit should be used for the sale and display of non-food goods only and for no other goods. It then said that permission should be granted subject to three conditions concerning a time limit, staff parking and a traffic survey. It did not repeat the non-food restriction, or the 2010 refuse and delivery conditions, among those numbered conditions. The time-limit condition was later held invalid because the store had already been built and brought into use many years earlier.
Changing the categories of goods sold did not itself amount to development. Once the store had been erected and used under the 1985 permission, a change within the relevant use class would not breach planning control unless an effective condition restricted it. In 2015 the second respondent applied under section 192 for a certificate that the lawful use was unrestricted Class A1 use, including food sales. The Council refused, but an inspector granted the certificate because no condition on the 2014 permission restricted the goods that could be sold. The High Court and Court of Appeal upheld that decision.
The Court of Appeal
Lewison LJ accepted that the Council’s broad intention was clear, but said the question was what the notice had actually done. A section 73 decision creates a fresh permission and leaves the earlier permission intact. Read as a free-standing grant, the 2014 notice had neither repeated the relevant earlier conditions nor expressed the new description of the use as a condition. Planning guidance advised that relevant conditions should be repeated for clarity. A reasonable reader familiar with planning practice would distinguish a mere description of use from a condition, notice that only the listed conditions were imposed, and see that the earlier goods restriction had not been repeated. Treating the proposed wording as a condition would add a new condition rather than interpret the words used, and the notice gave no reasons for it. The authorities on implication did not support implying an entirely new condition.
The Supreme Court’s interpretation
Lord Carnwath, with whom Lord Reed, Lady Black, Lord Lloyd-Jones and Lord Briggs agreed, held that the notice should first be read at face value. Drawing on Trump International Golf Club Ltd v Scottish Ministers, he said that a reasonable reader looks for the natural and ordinary meaning of the words in their context, in light of the document’s purpose and common sense. Planning permissions are public documents and may support criminal proceedings, so interpretation should be cautious, but they do not have a wholly separate set of interpretive rules.
The operative part stated that the Council approved the variation of the identified condition “as set out below”, and then set out the original and proposed wording. The proposed wording expressly limited the store to non-food goods and no other goods. Lord Carnwath held that this could only naturally mean that the Council was approving the variation applied for and substituting the proposed wording for the original condition. Nothing suggested an intention to remove the restriction altogether.
Section 73 does not literally empower an authority merely to amend an existing permission. It provides for a new permission for the same development, either unconditionally or subject to different conditions. If that meant the 2014 grant was wholly invalid, the result would not be a valid permission free of the proposed restriction. No timely challenge to validity had been brought, and all parties accepted that there was a valid permission for something. The established, if legally imprecise, usage of section 73 as a power to vary a condition would lead a reasonable reader to understand the notice as granting a new permission subject to the condition in its varied form. The lack of a fresh reason was of little practical importance because the Council was relaxing a restriction whose reason was already known, and absence of reasons would not in any event invalidate the condition.
The later part of the notice could then be read as imposing additional conditions regulating the expanded non-food use, particularly parking and traffic. Lord Carnwath also gave a provisional view, without full argument and on an issue not directly before the Court, that the 2010 refuse and delivery conditions continued to operate under the 2010 permission so far as they were not inconsistent with the 2014 grant. The new permission had not authorised non-compliance with them. He emphasised that good practice, reflected in government guidance, is nevertheless to restate every intended condition expressly in a section 73 permission.
Verdict: The Court unanimously allowed Lambeth’s appeal. The 2014 permission restricted the shop to the specified non-food retail use, and the certificate of lawful use needed to reflect that restriction. The parties were to agree the precise order or make further submissions.
