Town and country planning – Certificate of existing lawful use or development (CLEUD) – Conditions – Appellant local planning authority intending to grant permission for sale of non-food goods only – Variation of planning permission failing to incorporate restriction – Appellant refusing application for CLEUD – First respondent secretary of state granting certificate – Lower courts upholding decision – Appellant appealing – Whether permission containing condition restricting sales to non-food items as matter of interpretation or implication – Appeal allowed
The second respondent management company applied to the appellant local authority for a certificate of lawful use or development (CLEUD) to the effect that it would be lawful to use a building fronting Streatham Vale for unrestricted retail purposes, including the sale of food, within class A1 of the Town and Country Planning (Use Classes) Order 1987. That class encompassed the retail sale of goods, other than hot food, where the sale was made to visiting members of the public. The appellant refused the certificate on the ground that the current planning permission for the premises, as varied in 2014, restricted retail use to the sale of non-food goods.
The second respondent appealed to the first respondent secretary of state arguing that, although previous variations of the planning permission had restricted sales to non-food goods, the 2014 permission contained no such restriction. A decision notice on an application under section 73 of the Town and Country Planning Act 1990 to vary the condition to widen the types of goods sold had failed to incorporate any of the conditions imposed by the earlier planning permissions. An inspector appointed by the first respondent granted the certificate.
The appellant applied under section 288 of the 1990 Act to quash that decision contending that a condition restricting the nature of the retail use should be read into the 2014 permission either as a matter of interpretation or by implication. The High Court rejected that argument and upheld the decision to grant the CLEUD: [2017] EWHC 2412 (Admin). The Court of Appeal dismissed an appeal against that decision: [2018] EWCA Civ 844; [2018] PLSCS 73. The appellant appealed.
Held: The appeal was allowed.
(1) Section 73 of the 1990 Act envisaged either: (i) the grant of a new permission unconditionally or subject to revised conditions; or (ii) refusal of permission, leaving the existing permission in place with its conditions unchanged. It did not say what would happen if the authority wished to change some conditions but leave others in place. Government guidance indicating that “to assist with clarity” planning decisions under section 73 “should also repeat the relevant conditions from the original planning permission” was advice, rather than a statement about the legal position. Whatever the legal character of the document in question, the starting point for interpretation was to find “the natural and ordinary meaning” of the words there used, viewed in their particular context and in the light of common sense.
(2) The 2014 permission needed to be seen through the eyes of “the reasonable reader” who was assumed to start by taking the document at face value. The wording of the operative part of the grant was clear and unambiguous. The appellant “hereby approves” an application for “the variation of condition as set out below …”. There then followed precise and accurate descriptions of the relevant development, of the condition to be varied, and of the permission under which it was imposed. They were followed by statements of the “original wording”, and then of the “proposed wording”; the latter stating that the store was to be used for the sale of “non-food goods only and … for no other goods”. “Proposed wording” in that context had to be read as a description of the form of condition proposed in the application and “hereby” approved. The obvious, and the only natural, interpretation was that the appellant was approving what was applied for: the variation of one condition from the original wording to the proposed wording, in effect substituting one for the other. There was nothing to indicate an intention to discharge the condition altogether, or to remove the restriction on sale of other than non-food goods.
(3) If section 73 gave no power to grant a permission in the form described, the logical consequence would be that there was no valid grant at all, not that there was a valid grant free from the proposed condition. As all parties now agreed that there was a valid permission for something, the document had to be taken as it was. Once it was understood that it had been normal and accepted usage to describe section 73 as conferring power to “vary” or “amend” a condition, the reasonable reader would be unlikely to see any difficulty in giving effect to that usage as authorised by the section: as the grant of a new permission subject to the condition as varied. The lack of a specific reason for the condition was of little practical significance, given that that was the relaxation of a previous condition, rather than the imposition of a new restriction. In any event the absence of a reason would not affect the validity of the condition. Although there were some internal inconsistencies in the second part of the notice, reading the document as a whole, the second part could be given a sensible meaning without undue distortion. It was explanatory of and supplementary to the first part. The permitted development incorporating the amended condition was acceptable, in accordance with the development plan, but only subject to the conditions set out. They were additional conditions designed to regulate the expanded use as permitted by the revised condition.
(4) Although this appeal did not concern the status of the conditions in the 2010 permission, the court’s provisional view was that the 2010 conditions were not incorporated into the new permission, but continued to have effect under the 2010 permission, so far as they were consistent with anything in the new grant. The conditions would in principle remain binding unless and until discharged by performance or further grant because there was nothing in the new permission to affect their continued operation: Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1984] 2 EGLR 183 considered.
Matthew Reed QC and Matthew Henderson (instructed by Lambeth Legal Services) appeared for the appellant; Daniel Kolinsky QC and Sasha Blackmore (instructed by the Government Legal Department) appeared for the first respondent; Christopher Lockhart-Mummery QC and Yaaser Vanderman (instructed by Freeths LLP) appeared for the third respondent; the second and fourth respondents did not appear and were not represented.
Eileen O’Grady, barrister
Click here to read a transcript of Lambeth Council v Secretary of State for Housing, Communities and Local Government
