A poorly drafted planning permission notice caused Lambeth Borough Council to lose a legal battle with buyout-firm owned DIY store Homebase.
Planning judge Mrs Justice Lang ruled today that the hardware store’s Streatham, SW16, branch should be allowed to sell food. The legal battle, which referred to high-profile test cases such as Trump International v the Scottish Ministers, and Government of the Republic of France v Royal Borough of Kensington and Chelsea, was ultimately lost by Lambeth because the judge said it hadn’t explicitly banned the sale of food in its planning permission notice.
According to today’s ruling, Lambeth had sought to limit the use the retail unit in question (100 Woodgate Drive, Streatham) since 1985, because it feared allowing it to become a general store would cause traffic problems in the area.
However, over the years, it agreed to loosen planning regulations to allow the unit to be used to sell items other than DIY and hardware goods, but had not allowed it to sell food.
In 2014, the council further loosened the restrictions to the original 1985 permission. The permission notice contained a section called “Proposed Wording” restricting the retail use of the unit to non-food goods.
A year later, the unit’s owners applied for a certificate of lawful use to allow “unrestricted A1 retail”. Lambeth refused, the owners appealed, and a planning inspector overturned Lambeth’s decision.
The inspector found that “no condition was imposed” by the 2014 permission restricting what could be sold.
Lambeth appealed to the High Court, arguing that the notice did restrict the unit. Lawyers for the unit’s operators argued that restrictions must be clearly stated and therefore couldn’t be construed.
In a ruling today, Lang J agreed. She said that “it seems probable” on “my reading” of the 2014 permission that Lambeth had sought to restrict sale from the unit to non-food goods. “The terms of the ‘Proposed Wording’ were sufficiently clear and precise to form the basis of a condition.”
“However, [Lambeth’s] intended purpose was not given legal effect by the wording of the 2014 permission because of flawed drafting”.
Lang J said that she agreed with the planning inspector’s statement that “while… it may have been the intent of the council that the overall purpose of the consent was to restrict the sale of goods at the time, it did not result in an objectively construed condition on the 2014 permission”.
London Borough of Lambeth v Secretary of State for Communities and Local Government and 1: Aberdeen Asset management; 2: Nottinghamshire County Council 3: HHGL Limited
Planning Court (Lang J) 3 October 2017