The consequences of failing to restrict use by imposing a condition are highlighted in the High Court’s decision to uphold a certificate of lawfulness granted in respect of a DIY retail unit in London Borough of Lambeth v Secretary of State for Communities and Local Government & Others [2017] EWHC 2412 (Admin).
Retail planning permissions had been granted subject to conditions restricting sale of non-food goods. A permission granted under Section 73 of the Town and Country Planning Act 1990 was intended to ‘vary’ the restriction but simply failed to impose it. The interested party sought a lawful development certificate in respect of unrestricted Class A1 retail use. Despite the lack of a condition restricting use, the council refused.
The interested party appealed on the basis that any limitation imposed on a grant of permission must be done by condition (I’m your Man v Secretary of State [1999] 77 P. & C.R. 251). The inspector – allowing the appeal – rejected the authority’s arguments that the original conditions should be incorporated by reference to the previous permissions (or should be implied).
Lang J held that the principle of incorporating the previous conditions could not apply where the condition being ‘varied’ had been drafted badly (as opposed to the previous conditions simply not being carried across, distinguishing R (Reid) v Secretary of State for the Environment Transport and the Regions [2002] EWHC 2174). The permission functioned without an implied condition for the purposes of the business efficacy test (Trump International Golf Club Scotland Ltd & Another v The Scottish Ministers (Scotland) [2015] UKSC 74 and Marks and Spencer plc v BNP Paribas Securities Trust Co (Jersey) Ltd [2015] 3 WLR 1843). The fact that it was not what the authority had intended did not change that. The permission was explicit about the conditions it imposed and did not displace the “great restraint” needed, given that it is a public document on which parties unrelated to those originally involved may rely (Government of the Republic of France v Royal Borough of Kensington and Chelsea [2017] EWCA Civ 429).
The judgment also addressed the question of whether a time limit condition imposed on a Section 73 permission could restrict the implementation of the permission. Lang J upheld the inspector’s view that a new time limit condition was invalid given that the principal development had begun long ago. The condition was imposed under Section 91(1) TCPA 1990 (sub-section (4) of which excludes the application of the section “to any planning permission granted for development carried out before the grant of that permission”).
Roy Pinnock is a partner in the planning and public law team at Dentons
