Supreme Court backs council in dispute over planning condition variation

Out-Law News | 05 Jul 2019 | 7:38 am | 3 min. read

The UK Supreme Court has overturned a planning inspector's ruling that a former DIY store could be used for food retail, thanks to an error introduced when the local authority varied the planning permission at the site.

Lambeth Council had originally granted planning permission in 1985, but use of the site was limited to the sale of DIY products and other specified non-food categories of goods. The permitted categories were later extended using the variation procedure set out at section 73 of the 1990 Town and Country Planning Act (1990 Act), first in 2010 and then in 2014. However, the 2014 permission omitted the "non-food goods" condition attached to the formal planning permission.

The current owners of the site sought a certificate from the council stating that the store could lawfully be used for the sale of unlimited categories of goods including food. The council refused, but a planning inspector granted the certificate sought on appeal on the grounds that no restrictions on use were included in the 2014 permission. The High Court and Court of Appeal both upheld the planning inspector's decision, albeit while "sympathetic" to the council's position.

However, the Supreme Court found that an "ordinary reading" of the 2014 permission supported the council's argument. The document stated that the council "hereby approves" an application for "the variation of condition as set out below", and was "clear and unambiguous" when "taken at face value", the court said in its judgment.

Planning law expert Mike Pocock of Pinsent Masons, the law firm behind Out-Law, said: "By adopting a sensible ordinary meaning to the interpretation of the section 73 permission the Supreme Court has provided some comfort to planning authorities who may not always get the technical details on a planning decision notice right or follow good practice".

"This decision also sends a clear message to the lower courts that they should be taking a more sophisticated approach in rejecting legal arguments which seek to distort the true intention behind planning decisions. This should serve as a warning to potential claimants that mere technical challenges to planning decisions are less likely to succeed," he said.

Lambeth Council had expanded on its reasoning for restricting the types of goods that could be sold at the site in its original 1985 decision letter. The restriction was necessary, it said, "because the traffic generation and car parking requirements of certain types of large retail stores are substantially greater than those of the DIY unit proposed and could be excessive at this site".

Giving the judgment of the Supreme Court, Lord Carnwath said that the lower courts had been "driven to [a] somewhat elaborate process of legal and contextual analysis" that was unnecessary when viewing the 2014 permission through the eyes of the so-called 'reasonable reader'. The 2014 decision letter stated that the council "hereby approves" an application to vary the conditions set out in the previous planning permission, he said.

"[T]he obvious, and indeed to my mind the only natural, interpretation of those parts of the document is that the council was approving what was applied for: that is, the variation of one condition from the original wording to the proposed wording, in effect substituting one for the other. There is certainly nothing to indicate an intention to discharge the condition altogether, or in particular to remove the restriction on sale of other than non-food goods," he said.

Lord Carnwath acknowledged that there were some "internal inconsistencies" in the 2014 permission. However, these were easily dealt with when "reading the document as a whole", he said.

Sue Chadwick, strategic planning adviser at Pinsent Masons, said that although the decision would be welcomed by some as it "prioritised the intention of the local authority over the technical deficiencies in the permission granted", it would be frustrating for the site operator, "who quite reasonably hoped to rely on permission that had no conditions restricting the range of goods that could be sold".

"For the wider planning community, there are two different views of how a permission should be read: the Court of Appeal said that the reader should be assumed to be 'notionally equipped' with planning knowledge; but the Supreme Court ruled that the document should simply be taken at 'face value'. It is unlikely that we have heard the last of the 'reasonable reader' in this context," she said.