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 relevant condition – Appellant refusing application for CLEUD – First respondent secretary of state allowing appeal against refusal – Appellant appealing – Whether permission containing condition restricting sales to non-food items as matter of interpretation or implication – Appeal dismissed
The second respondent management company applied to the appellant local authority for a certificate of lawful use or development (CLEUD) under section 192(1)(a) of the Town and Country Planning Act 1990 to the effect that it would be lawful to use a building fronting Streatham Vale, and currently used as a Homebase store, 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 contained a condition restricting 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 that could be 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 on the basis that no condition had been imposed on the 2014 permission to restrict the nature of the retail use.
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 appellant appealed.
Held: The appeal was dismissed.
(1) The process of interpreting a planning permission did not differ materially from that appropriate to other legal documents. However, differences in the nature of documents would influence the extent to which the court might look at the factual background to assist interpretation as third parties might have an interest in a public document. As a result, there was only limited scope for the use of extrinsic material in the interpretation of a public document, such as a planning permission. However, the ultimate question was still the same: what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole. That was an objective exercise in which the court would have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense: Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74; [2015] PLSCS 362, R (Skelmersdale Limited Partnership) v West Lancashire Borough Council [2016] EWCA Civ 1260; [2016] PLSCS 346 and Dunnett Investments Ltd v Secretary of State for Communities and Local Government [2017] EWCA Civ 192; [2017] PLSCS 80 followed.
(2) The reasonable reader would not understand the words of the decision notice to mean that the planning permission limited the goods permitted to be sold to “non-food goods”. The appellant could only prevent the change of use, and hence the grant of the CLEUD, if it could successfully argue that the change of use would be a breach of condition. That went beyond interpretation as it meant adding a whole condition, which had a completely different legal effect to the words that the appellant in fact used. The appellant had gone wrong in failing to exercise a power that it had under the 1990 Act. Planning conditions should only be imposed where they were necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects. Whether a condition met those tests was essentially a question of planning judgment to be exercised in relation to the particular application under consideration. It could not be exercised by the court in seeking to interpret a planning permission where there was no evidence that the local planning authority had carried out that exercise: Cherry Tree Investments Ltd v Landmain Ltd [2012] 2 EGLR 141 applied.
(3) In the sphere of private contracts, there were two routes to implying a term: either the term had to be necessary to give business efficacy to the contract or it had to be so obvious that it went without saying. Business efficacy would not be achieved if, without the implied term, the contract would lack commercial or practical coherence. In that context, the relevant purpose was the purpose of the contract, not simply the purpose of one of the contracting parties. Although the form of the decision notice did not achieve the appellant’s secondary purpose, as a document it did not lack practical or commercial coherence. Although the reasonable reader might wonder whether the appellant had made a mistake in 2014 in not restating the conditions attached to the previous permissions, it was not so obvious that it went without saying: Impact Funding Solutions Ltd v Barrington Support Services Ltd [2017] AC 73 considered.
Matthew Reed QC (instructed by Lambeth Legal Services) appeared for the appellant; Sasha Blackmore (instructed by the Government Legal Department) appeared for the first respondent; Christopher Lockhart-Mummery QC (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
