This is the first decision by the Court of Appeal to expressly decide whether or not a whole new condition should be implied into a planning consent, following the decision of the Supreme Court in Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74 [2016] 1 W.L.R. 85 where the Supreme Court had held (obiter) that it was “too absolute” to hold that “there can never be an implied condition in a planning permission” (Lord Hodge, para 36) and Lord Carnwath explained (para 60) “There is no reason in my view to exclude implication as a technique of interpretation, where justified in accordance with the familiar, albeit restrictive, principles applied to other legal documents. In this respect planning permissions are not in a special category”.
The Court of Appeal rejected the Appellant’s, Lambeth Borough Council’s, appeal. Lambeth had argued that on the facts of this case either the planning consent should be interpreted so as to provide for a condition restricting the permitted use, or a whole new condition should be implied. Lord Justice Lewison gave the leading judgment. The Court of Appeal rejected both these arguments.
The Court held that neither of Lambeth’s two grounds should succeed. It was held in summary that:
- The permission could not be construed as containing the desired restriction as a condition. The reasonable reader would have understood the general structure of a planning permission, and how conditions were to be expressly set out. The consent stated that the conditions were “subject to the conditions listed below”. It was not appropriate to undertake a corrective interpretation of the permission to read in a whole new condition, the effect of which would be to add a whole new condition, which “has a completely different legal effect to the words that Lambeth in fact used”. Lord Justice Lewison held that “Although the Decision Notice probably did not achieve the result that Lambeth wanted it to achieve, I do not consider that it can be said that the result is arbitrary or irrational. Nor, in my judgment, has anything gone wrong with the language of the Decision Notice. What went wrong was Lambeth's failure to exercise a power that it had under the Act.”
- Such a condition could not be implied. The permission without the condition was an effective retail permission, and thus it could not be said that ”as a document it lacked practical or commercial coherence”, and it was not “so obvious that it went without saying” that such a condition should be implied, where the reasonable reader would have “some knowledge of planning law and practice” and would not read the consent as containing such a condition. The lack of a stated reason for the claimed condition in breach of the statutory requirement under article 31 (1) (a) of the Development Management Procedure Order 2010 was a further factor against implication.
Lambeth are seeking permission from the Supreme Court to appeal these findings. There was also a third ground of challenge which is not pursued.
The judgment is
here.
The judgment of Mrs Justice Lang is
here.
The parties were represented by Matthew Reed QC (for Lambeth), Sasha Blackmore (for the Secretary of State) and Christopher Lockhart-Mummery QC (for the 3
rd Respondent), all of Landmark Chambers.
Background
The Council had granted a section 73 permission on an application which sought a variation of a restrictive sale of goods condition (to a non-food condition). The varied goods restriction applied for was set out as a description of what had been applied for on the consent, but no such restriction was specified in any of the three express conditions imposed, the consent clearly stating “
subject to the conditions listed below”. These three conditions were a time limit condition imposed to comply with section 91(a) of the TCPA, a car parking condition, and a traffic survey condition, Thus, there was no effective condition imposed to restrict a widening of the retail use to any retail use. On a section 195 appeal an Inspector held that the failure to specify the proposed variation as a condition resulted in an open A1 permission, in accordance with long established planning law principles.
The specific provisions are set out in the Court of Appeal’s judgment at paragraph 15.
