Elizabeth Dwomoh analyses a case that turned on the proper meaning of the popular phrase “live/work”
Key point
- Depending on the facts of the case, the phrase “live/work” can mean to live and/or work
The “live/work” concept was introduced by planning authorities as a means to encourage mixed-use developments and the development of vacant buildings in designated employment areas. Different planning authorities have taken differing approaches to the concept of “live/work”.
It is often deemed to be a concept of its own kind which cannot be classified under a single class within the Town and County Planning (Use Classes) Order 1987. In AHGR Ltd v Kane-Laverack and another [2023] EWCA Civ 428; [2023] PLSCS 71, the Court of Appeal was asked to construe the meaning of the phrase “live/work” within a 999-year lease.
The planning documentation
The appellant, AHGR Ltd, was the freehold owner of Bickels Yard, Bermondsey, London SE1. The first respondent, Luke Kane-Laverack, a doctor, purchased the lease of unit 8 in 2009 for a term of 999 years. He occupied the premises with his brother, a barrister, the second respondent, Peter Kane-Laverack.
In February 1999, the London Borough of Southwark approved supplementary planning guidance that identified a range of requirements for live/work developments in the area. Paragraph 4.2.2 of the SPG provided that “the workspace should be identified on submitted drawings and physically delineated from the residential element”.
An application for planning permission was lodged for the development of Bickels Yard in August 2000. Two plans were submitted at different times in respect of unit 8. Plan 304D clearly demarcated the working and living spaces of the premises. The working space was shaded as “B1 use”. Plan 304D was superseded by plan 404A, which showed the whole premises as shaded. The key defined the shaded area as “live work” space. Planning permission was granted in February 2001. The planning permission was said to be in accordance with the August 2000 application and drawings. The drawing included in respect of unit 8 was plan 404A.
The problem
The user covenant in clause 2.4 of the lease provided that the leaseholder was “not to use or permit the use of the demised premises or any part thereof otherwise than as a live/work unit in accordance with the terms and conditions set forth in the planning permission dated 23 February 2001…”
From October 2009 to October 2013, unit 8 was used exclusively by the Kane-Laveracks as a single dwellinghouse. The Kane-Laveracks also used unit 8 as a base for writing speeches, written submissions, triaging, phone consultations and consultancy services to a charity. In October 2013, they applied to Southwark Council for a certificate of lawful use of the premises as a single dwellinghouse residential flat. AHGR sued the respondents for breach of covenant on the basis that clause 2.4 of the lease required the Kane-Laveracks to live and work at unit 8. Further, AHGR argued that the grant of planning permission should be read in light of the SPG, which supported this interpretation of the phrase “live/work”.
The respondents contended that clause 2.4 required them to live and/or work at unit 8 and the grant of planning permission should not be construed in light of the SPG.
The decisions below
At first instance and on appeal to the High Court, the phrase “live/work” in clause 2.4 of the lease was construed as meaning to live and/or work.
Both the county court and the High Court were unpersuaded that the grant of planning permission should be construed in light of the SPG. The SPG had neither been incorporated into nor referred to in the grant of planning permission. AHGR appealed.
The second appeal
The Court of Appeal had regard to the authorities relating to the interpretation of grants of planning permission. It emphasised that interpreting grants of planning permission was an objective exercise, based on what a reasonable reader would understand the words to mean. Planning permission was not personal to the applicant and was a public document on which third parties were entitled to rely. Accordingly, correspondence passing between parties would not be considered.
In upholding the decision of the High Court, the Court of Appeal found that the phrase “live/work” in clause 2.4 of the lease and the grant of planning permission should be construed as meaning to live and/or work.
It was common ground between the parties that the use of the phrase in the lease was ambiguous. Further, plan 404A which formed part of the planning permission did not demarcate separate live and work areas for unit 8. This meant it would be for the leaseholders to determine where to live and where to work. Leaving such matters to the leaseholder pointed to a permissive approach to the phrase that could enable the leaseholder to choose to solely live at the premises if so desired.
Enforcement action and potential criminal proceedings could be taken against a leaseholder who was found to be in breach of planning permission. Accordingly, if it was intended that lawful use of the premises required it to be used for both living and working, one would expect that to be clearly expressed in the lease and grant of planning permission.
The Court of Appeal also agreed that a reasonable reader of the grant of planning permission would not have had regard to the SPG because it was neither incorporated nor referred to in the grant of planning permission.
Elizabeth Dwomoh is a barrister at Lamb Chambers
