Town and country planning – Planning permission – Conditions – Second defendant local authority granting planning permission for retail park with restriction on non-food sales – Claimant seeking certificate of lawfulness of proposed use or development including food – Second defendant refusing to grant certificate – First defendant secretary of state dismissing claimant’s appeal – Claimant applying to quash decision – Whether inspector misconstruing restrictive condition attached to planning permission – Whether first defendant acting consistently – application dismissed
In June 1999, the second defendant local authority granted planning permission in relation to a retail business park. The permission was subject to a condition which confined sales to specified bulky goods and a restriction on non-food sales to ensure that the nature of the scheme had no impact on the town centre. The claimant applied to the second defendant for a certificate of lawfulness of proposed use or development for all the units for the sale of any goods, including food within Class A1 of the Town and Country Planning (Use Classes) Order 1987, under section 192 of the Town and Country Planning Act 1990. The second defendant refused to issue the certificate on the ground that the condition was valid and restricted sales to non-food and bulky goods. The claimant appealed against that decision. An inspector appointed by the first defendant secretary of state dismissed the appeal, which was confirmed by the first defendant secretary of state.
The claimant applied to quash that decision pursuant to section 288 of the 1990 Act. It contended that: (i) the inspector had misconstrued the condition attached to the grant of permission and its wording was insufficient to exclude the uses set out in Class A1 of the Town and Country Planning (Use Classes) Order 1987; and (ii) the first defendant had been in breach of his duty to act consistently because a different inspector in another case at the same time had granted a certificate of lawful development having reached the conclusion in relation to a similar condition that it did not impliedly exclude the operation of the 1987 Order.
Held: The application was dismissed.
(1) As a general rule, a planning permission was to be construed together with any conditions and the express reasons for imposing them. A grant of planning permission for a stated use could not, in itself, be sufficient to exclude the operation of the 1987 Order. To exclude the operation of the 1987 Order, it was generally necessary to impose a condition in clear and unequivocal terms. As a matter of construction the disputed condition imposed a clear restriction on non-food sales. The use of the words “shall” and “only” and the listing of the permitted trades and the requirement that other trades required the second defendants’ consent, did not admit of any discretion. That conclusion was reinforced by the stated reason for the condition. The wording was sufficiently clear to exclude the operation of the 1987 Order. To achieve that effect it was not necessary for the condition to contain words such as “for no other use”. The condition in the present case could not sensibly be interpreted as restricting the permission to the listed trades while at the same time allowing the exercise of rights under the 1987 Order. The inspector had been correct to conclude that the operation of the 1987 Order was impliedly excluded: Telford and Wrekin Council v Secretary of State for Communities and Local Government [2013] EWHC 79 (Admin); [2013] 1 EGLR 87; [2013] 17 EG 108 applied; Carpet Décor (Guildford) Ltd v Secretary of State for the Environment [1981] JPL 806; [1982] 1 EGLR 164; (1981) 261 EG 56, Dunoon Developments Ltd v Secretary of State for the Environment [1992] 2 PLR 128, Rugby Football Union v Secretary of State for Transport, Local Government and the Regions [2001] EWHC 927 (Admin), R (on the application of Midcounties Co-operative Ltd) v Wyre Forest District Council [2009] EWHC 964 (Admin); [2009] PLSCS 222 considered.
(2) Since the interpretation of the condition was a matter of law and the inspector had reached the right conclusion, a decision to different effect in another case would not have made any difference to her decision. In any event, as a matter of fact, the decision in the other case had not been issued until after her decision. The inspectorate had the ability to make a general check for outstanding appeals on or near the appeal site but these two cases were in different local authority areas and concerned a certificate of lawful existing use and of lawful proposed use. It would be too onerous to impose on the first defendant a duty to scrutinise the case work of the inspectorate to the degree suggested to discover whether similar appeals existed, particularly when the interpretation of conditions was a question of law. It was unrealistic to suggest that the nature or scale of either appeal required it to be called in by the first defendant and the condition in the other case contained materially different wording giving scope for a different result.
Christopher Lockhart-Mummery QC (instructed by Cannings Connolly) appeared for the claimant; David Forsdick (instructed by the Treasury Solicitor) appeared for the first defendant; Saira Sheikh (instructed by Lewisham London Borough Council) appeared for the second defendants.
Eileen O’Grady, barrister
Royal London Mutual Insurance Society Ltd v Secretary of State for Communities and Local Government and another
Town and country planning – Planning permission – Conditions – Second defendant local authority granting planning permission for retail park with restriction on non-food sales – Claimant seeking certificate of lawfulness of proposed use or development including food – Second defendant refusing to grant certificate – First defendant secretary of state dismissing claimant’s appeal – Claimant applying to quash decision – Whether inspector misconstruing restrictive condition attached to planning permission – Whether first defendant acting consistently – application dismissedIn June 1999, the second defendant local authority granted planning permission in relation to a retail business park. The permission was subject to a condition which confined sales to specified bulky goods and a restriction on non-food sales to ensure that the nature of the scheme had no impact on the town centre. The claimant applied to the second defendant for a certificate of lawfulness of proposed use or development for all the units for the sale of any goods, including food within Class A1 of the Town and Country Planning (Use Classes) Order 1987, under section 192 of the Town and Country Planning Act 1990. The second defendant refused to issue the certificate on the ground that the condition was valid and restricted sales to non-food and bulky goods. The claimant appealed against that decision. An inspector appointed by the first defendant secretary of state dismissed the appeal, which was confirmed by the first defendant secretary of state.The claimant applied to quash that decision pursuant to section 288 of the 1990 Act. It contended that: (i) the inspector had misconstrued the condition attached to the grant of permission and its wording was insufficient to exclude the uses set out in Class A1 of the Town and Country Planning (Use Classes) Order 1987; and (ii) the first defendant had been in breach of his duty to act consistently because a different inspector in another case at the same time had granted a certificate of lawful development having reached the conclusion in relation to a similar condition that it did not impliedly exclude the operation of the 1987 Order.Held: The application was dismissed.(1) As a general rule, a planning permission was to be construed together with any conditions and the express reasons for imposing them. A grant of planning permission for a stated use could not, in itself, be sufficient to exclude the operation of the 1987 Order. To exclude the operation of the 1987 Order, it was generally necessary to impose a condition in clear and unequivocal terms. As a matter of construction the disputed condition imposed a clear restriction on non-food sales. The use of the words “shall” and “only” and the listing of the permitted trades and the requirement that other trades required the second defendants’ consent, did not admit of any discretion. That conclusion was reinforced by the stated reason for the condition. The wording was sufficiently clear to exclude the operation of the 1987 Order. To achieve that effect it was not necessary for the condition to contain words such as “for no other use”. The condition in the present case could not sensibly be interpreted as restricting the permission to the listed trades while at the same time allowing the exercise of rights under the 1987 Order. The inspector had been correct to conclude that the operation of the 1987 Order was impliedly excluded: Telford and Wrekin Council v Secretary of State for Communities and Local Government [2013] EWHC 79 (Admin); [2013] 1 EGLR 87; [2013] 17 EG 108 applied; Carpet Décor (Guildford) Ltd v Secretary of State for the Environment [1981] JPL 806; [1982] 1 EGLR 164; (1981) 261 EG 56, Dunoon Developments Ltd v Secretary of State for the Environment [1992] 2 PLR 128, Rugby Football Union v Secretary of State for Transport, Local Government and the Regions [2001] EWHC 927 (Admin), R (on the application of Midcounties Co-operative Ltd) v Wyre Forest District Council [2009] EWHC 964 (Admin); [2009] PLSCS 222 considered.(2) Since the interpretation of the condition was a matter of law and the inspector had reached the right conclusion, a decision to different effect in another case would not have made any difference to her decision. In any event, as a matter of fact, the decision in the other case had not been issued until after her decision. The inspectorate had the ability to make a general check for outstanding appeals on or near the appeal site but these two cases were in different local authority areas and concerned a certificate of lawful existing use and of lawful proposed use. It would be too onerous to impose on the first defendant a duty to scrutinise the case work of the inspectorate to the degree suggested to discover whether similar appeals existed, particularly when the interpretation of conditions was a question of law. It was unrealistic to suggest that the nature or scale of either appeal required it to be called in by the first defendant and the condition in the other case contained materially different wording giving scope for a different result.Christopher Lockhart-Mummery QC (instructed by Cannings Connolly) appeared for the claimant; David Forsdick (instructed by the Treasury Solicitor) appeared for the first defendant; Saira Sheikh (instructed by Lewisham London Borough Council) appeared for the second defendants.Eileen O’Grady, barrister
