Friday, 4 May 2018

Implied conditions – Court of Appeal backs High Court

On Wednesday 1 November 2017, I drew attention to the case of Lambeth LBC v SSCLG [2017] EWHC 2412 (Admin). The case concerned a permission granted under section 73 which, in allowing a relaxation of one of the conditions in the original planning permission, had failed to reimpose one of the restrictions that had been contained in the original planning permission. It is well settled law that a permission under section 73 takes effect as a fresh permission, so that where this occurs any conditions that were not reimposed fall away.

The problem for Lambeth in this case was that, although in the section 73 permission they had referred in the description of the development to variation of the condition so as to allow a wider range of non-food retail uses, they had not included a condition in this new permission that expressly ruled out the retail sale of food. The landowner sought an LDC under section 192 that it would now be lawful to sell an unrestricted range of retail goods (including food). The LPA refused to grant the LDC, arguing that the section 73 permission was not intended to have this unrestricted effect, but an appeal was allowed against that refusal. The LPA sought to challenge this appeal decision in the High Court, but their claim was dismissed as noted in my previous blog post on this topic. The council then took the case on to the Court of Appeal, which gave judgment on 20 April - [2018] EWCA Civ 844.

Lambeth, in attempting to establish that the relevant restriction still applied, could not challenge the well-established legal effect of section 73, and were therefore driven back on seeking to interpret the section 73 permission more restrictively than appeared on its face.

I don’t propose to go into this case in any detail. Briefly, the council’s arguments were that the section 73 decision notice itself should be interpreted in a restrictive manner and, second, that a condition preserving the restrictive effect of the original planning permission could be implied in the permission. The LPA’s argument was that the section 73 permission should be interpreted as if it contained the missing condition, to the effect that “the use shall be carried on in accordance with the conditions attached to the 2010 permission as stated to have been varied by this permission.” My interest in this case lies solely in this argument over implied conditions.

It has always been my view that the obiter remarks of Lord Carnwath JSC in Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74 do not allow the implication of an entirely new condition in a planning permission which had been entirely omitted from that permission, as opposed to the implication of a term in a condition which the permission already contains so as to give effect to the true intention of that condition. This argument was put to the Court of Appeal by Christopher Lockhart-Mummery QC in Lambeth. The Court accepted this submission, and agreed with the judge at first instance that a new condition cannot be implied as the LPA had argued.

This judgment is therefore further confirmation (if it were needed) that the effect of what was in any event an obiter observation in Trump International is limited to ‘correcting’ an existing condition, so as to give proper effect to its intention. The obvious example is a condition requiring approval of certain matters by the LPA which does not in terms require that, upon such approval being given, the development must then be carried out in accordance with those approved details. Clearly, in light of Trump International, a term can be implied in this condition requiring compliance with these approved details. Without such an implied term, the condition would not achieve its intended purpose.

UPDATE (3 May 2019): The Supreme Court is due to hear an appeal on 21 May against this Court of Appeal decision.



  1. Hi Martin. Do you have a view on the form in which conditions attached to a S73 should be drafted? I have always understood that each condition from the orginal consent had to be studied carefully and reapplied in its original or in a varied form (with any approved docs added to the approved docs condition) dependng on whether it has been discharged. However I am currently reviewing a list of standard conditions held by my authority and they include a 'conditions reiterated condition' worded as follows: The conditions attached to and specified upon the notice of planning permission no. ^IN; relating to this development are reiterated and are still in force insofar as the same have not already been discharged to the satisfaction of the Local Planning Authority.

    Is this practice adequate in your view? I haven't been able to find any commentary on this issue in our usual resources. Thanks in advance

    1. A permission granted under section 73 constitutes a fresh planning permission. It follows from this that, in order to avoid difficulty, it is clearly advisable that conditions in the original permission that have not been removed or relaxed should be re-imposed in the section 73 consent, with the exception only of those conditions that are known to have been fully complied with (whether or not any formal discharge of those conditions has been issued).

      My own instinct would be to repeat word for word those conditions that should still apply, rather than relying on the shorthand form of words my unknown correspondent proposes. I am not saying that the formula he proposes would necessarily be ineffective, but caution suggests that the wording of the unaffected conditions should ideally be repeated word-for-word. No reference need then be made to the original permission, nor any rubric about their discharge.