The recent Court of Appeal decision in London Borough of Lambeth v Secretary of State for Communities and Local Government and others[2018] EWCA 844(20 April 2018) has highlighted the importance for Local Planning Authorities to ensure that any restrictions on the use of land or buildings needs to be imposed by conditions. Reliance on the description of a development will not be sufficient.

The Facts

In the Lambeth case planning permission was granted in 1985 for a DIY retail unit with a condition restricting use as follows:

"the retailing of goods for DIY home and garden improvements and car maintenance, building materials and builders' merchants goods and for no other purpose".

In 2010 planning permission was granted to vary the original permission so as to permit the sale of a wider range of goods, the condition restricting the use was as follows:

"and for no other purpose (including the retail sale of food and drink or any other purpose in class A1 of the Schedule to the Town and Country Planning (Use Classes) Order 1987 (as amended)…".

In 2013, Lambeth granted planning permission under S73 of the TCPA 1990 (the 2014 permission). The permission stated that the retail unit:

"….shall be used for the sale and display of non-food goods only and, notwithstanding the General Permitted Development Order in force for no other goods."

The 2014 permission listed 3 conditions dealing with commencement, staff parking layout and the mitigation of any increase in traffic.

In 2015 and application was made for a CLOPUD "for open/unrestricted A1 retail purposes", on the basis the 2014 permission had no restriction on the type of goods which could be sold from the premises. Lambeth refused the CLOPUD and the owner appealed to the Secretary of State.

The planning inspector allowed the appeal because no condition had been imposed on the 2014 permission to restrict sales. Lambeth appealed to the High Court to quash the inspector's decision but the appeal was dismissed. Lambeth appealed to the Court of Appeal.

Court of Appeal

The Court of Appeal dismissed the appeal.

The enlargement of the range of goods sold would not amount to a breach of planning control. The only way that the LPA could prevent the extended range of goods sold was to impose a planning condition. No such condition was imposed. The legal effect of the 2014 permission was that there were no restrictions on retail sale.

Corrective Interpretation

The CoA held that it was not possible to apply a corrective interpretation thus deriving the existence of a condition. A corrective interpretation could only be used where something had "gone wrong" with the language as opposed to something having been mistakenly forgotten to include.

Implied Condition

The CoA was not prepared to imply a condition. The 2014 permission may not have achieved the LPA's intentions, however, the permission itself did not lack practical or commercial coherence.

Comment

This case is an important reminder to LPAs to take care when granting planning permissions, particularly those applied for pursuant to S73. An express planning condition is required if a permitted use is to be restricted. The description of the use is not sufficient.

The Court in this case did comment that the LPA has statutory powers to modify the 2014 permission, but compensation would have been payable.