Lambeth Borough Council cannot stop the Streatham branch of hardware store Homebase from selling food due to a poorly drafted planning permission notice, the Court of Appeal ruled today.
The case examines “the distinction between a restricted description of the permitted development and the imposition of a condition restricting what has been permitted,” according to Lewison LJ, who wrote the judgment.
Lambeth has 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. The landowner, which started the case, is buyout firm Aberdeen Asset Management.
Over the years Lambeth 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, after a request from Aberdeen Asset Management, 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 saying 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. The High Court agreed. Lambeth appealed again, and today the Court of Appeal again rejected their arguments.
In his ruling, Lewison J said that it was “clear” that Lambeth did mean to restrict the store from selling food. “But that is not the question,” he said. “The question is ‘what did Lambeth in fact do?’”
What they did was to fall into “a technical trap”.
The application “was not seeking specific permission to sell food,” he said, however “the technical trap into which it is said Lambeth fell is that an approval of an application under section 73 leaves the initial planning permission intact, so the landowner has a choice of which one to implement.”
The decision notice in this case did not add a condition explicitly stopping the sale of food.
Therefore Aberdeen Asset Management had the choice of implementing one planning permission that explicitly banned the sale of food as a condition, and another that, although it had a limited description of a permitted use, didn’t.
While this was not Lambeth’s intention, “the reasonable reader of the decision notice must be notionally equipped with some knowledge of planning law and practice,” Lewison J said. “The distinction between a limited description of a permitted use and a condition is a well-known distinction.”
The court dismissed the appeal, leaving the certificate of lawful use intact.
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
Court of Appeal (Lewison LJ, Hamblen LJ, Coulson LJ) 20 April 2018
