The Lambeth case – Conditions in a section 73 permission

I have been very busy recently on another major writing project (of which more anon), which has prevented my posting anything on this blog recently. Now that I have a few moments, I have taken the opportunity to look at the Supreme Court decision in Lambeth LBC v SSHCLG [2019] UKSC 13.

It is important to understand what this decision was about, and what it was not about. This case concerned a permission issued pursuant to an application under section 73. It was not about an original ‘stand-alone’ permission for development as such. This is the key to the decision reached by the Supreme Court, and this factor confines the significance of the judgment to cases under section 73. It does not affect the well-established law relating to conditions in planning permissions generally. Thus it does not disturb the long line of authorities starting with the Walton Charities case in the early 1960s, which confirm the general rule that a condition cannot be implied in a planning permission in the entire absence of such a condition on the face of the permission.

This rule has been refined in recent years by the decision of the Supreme Court in Trump International Golf Club Ltd v Scottish Ministers [2015] UKSC 74, to the effect that where a condition does appear on the face of the permission, but is so worded that its intended effect is not fully spelt out in the condition itself, then the missing words in that condition can be implied so as to give proper effect of the intention of the condition. The obvious example is a condition requiring that certain details of a development must be submitted to and approved by the LPA, but which does not go on to say explicitly that the development must be carried out in accordance with those approved details. In light of Trump International, a term to that effect can be implied in that condition, but Trump International does not disturb the general rule that where an intended condition has been wholly omitted from a planning permission it cannot be implied.

The recent judgment in the Lambeth case, does not disturb the previous authorities cited above. What happened in this case is that the LPA granted permission in 1985 for a retail store (i.e. an A1 use), subject to a condition that the retail unit thereby permitted was to be used for the retailing of goods for DIY home and garden improvements and car maintenance, building materials and builders’ merchants goods and for no other purpose. A further planning permission was then granted in 2010, under section 73, which varied the conditions as to the retail uses to which the store could be put, but otherwise reimposed the conditions in the earlier permission. There was then a further section 73 application, granted in 2014, under which the LPA approved a proposed re-wording of Condition 1 so that the store could in future be used “for the sale and display of non-food goods only”, but this appeared only in the operative words of the permission as then issued, and not in the actual conditions attached this 2014 permission. Two other conditions (about refuse storage and the management of deliveries) that had been imposed on the 2010 permission were also omitted from this 2014 section 73 permission.

This prompted the building’s owner to a apply for an LDC, claiming that the effect of the 2014 permission was to give them an unrestricted A1 use of the premises. The LPA’s refusal of that application was overturned by an inspector on appeal, and the LPAs challenge to the Inspector’s decision was dismissed both by the High Court and by the Court of Appeal. I don’t propose to rehearse the arguments in the courts below, but reference was made (among other cases) to I’m Your Man Limited v Secretary of State for the Environment 77 P & CR 251, which I have always regarded as the classic case relating to failure to impose a condition, but ruling out the suggestion that such a condition was intended and should therefore be implied. In that case a permission had been granted which, in its operative words, was stated to be for a limited period, but there was no condition in the permission to that effect, requiring that the use should cease at the end of the stated period. The permission therefore took effect as an open-ended permission, unlimited as to time.

Lambeth LBC’s mistake was a classic one, which all LPAs should avoid. The 2014 permission should not have been framed as a permission to vary the 2010 permission. It is well settled law that a section 73 permission takes effect as a fresh permission and, as a matter of good practice, it should be in substantially the same form as the permission whose conditions it varies, and all those conditions should be expressly included in the new permission, subject only to the omission and/or variation of those conditions that the LPA has agreed to remove or vary, because a permission under section 73 can only take effect as an independent permission to carry out the same development as previously permitted, but subject to the new or amended conditions. The new permission can, of course, contain additional conditions if appropriate. However, both the High Court and the Court of Appeal held that in wording the section 73 permission as they did, and in failing to include a condition that governed the future use in the manner intended by the permission, the LPA had actually granted an unconditional permission, so far as the extent of the retail use of the premises was concerned.

The Supreme Court did not attempt to go behind this aspect of the decisions in the courts below. Instead they concentrated on the effect of the section 73 relative to the previous permission. Whilst the new permission expressly varied the wording of a condition in the 2010 permission, it did not discharge it. When a planning permission is implemented, all its conditions then take effect, and remain in effect until or unless discharged or unless removed or varied by a later permission under section 73. The 2010 permission was undoubtedly implemented, and so its conditions, including Condition 1 limiting the scope of retail sales on the premises, had taken effect and remained in effect.

The court derived support for this from the judgment in Reid v Secretary of State for Transport [2002] EWHC 2174 (Admin). Permission in that case had been granted for a transport depot subject to 12 conditions. The landowner applied under section 73 for development described as “retention of the use of the land without compliance with condition 2 (improvements to public highway)”. The LPA granted permission as asked, but imposed no conditions on this new permission. However, in giving judgment on the disputed effect of the section 73 permission, Sullivan J held that the grant of the new permission did not mean that the other conditions were no longer effective. On the other hand, he did not intend to say that the other 11 conditions were by implication to be treated as included in the new permission, or that the old permission was superseded. Rather the new permission, confined as it was to the retention of the use without complying with Condition 2, and involving no inconsistency with the old permission and the remaining conditions, had no effect on their continuing effect as conditions subject to which the development had been carried out.

This does involve two planning permissions being extant in relation to the same planning unit at the same time, but (as Lord Carnwath JSC put it) it will always be a matter of construction whether a later permission on the same piece of land is compatible with the continued effect of the earlier permissions (see the principles discussed in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132, 144). In the present case, following implementation of the 2010 permission, the conditions would in principle remain binding unless and until discharged by performance or further grant. Conditions 2 and 3 were expressed to remain operative during continuation of the use so permitted. The 2014 permission did not in terms authorise non-compliance with those conditions, nor did it contain anything inconsistent with their continued operation. Accordingly, they would remain valid and binding - not because they were incorporated by implication in the new permission, but because there was nothing in the new permission to affect their continued operation.

This Supreme Court judgment is a useful clarification of the legal effect of a planning permission granted under section 73. Whilst the conditions in the earlier permission cannot be taken to be implied in the new permission if they are omitted from it, they nevertheless continue to have effect (except to the extent that the section 73 permission has varied them). Nevertheless, it is still good practice, which all LPAs should follow, to repeat in the section 73 permission all the unamended conditions from the earlier permission, as well as those that have been amended.

© MARTIN H GOODALL