SECTION 73 OF THE 1990 ACT
LONDON BOROUGH OF LAMBETH V SECRETARY OF STATE FOR HOUSING, COMMUNITIES AND LOCAL GOVERNMENT AND OTHERS  UKSC 33
3rd July 2019
The Supreme Court has reversed the decision of the Court of Appeal in this matter and decided that on a proper approach to the interpretation of a permission granted under section 73 of the 1990 Act and an ordinary reading of the decision notice, the permission restricted the use of a store to sale and display of non-food goods even though there was no express condition to that effect. The judgment can be found here: https://www.supremecourt.uk/cases/docs/uksc-2018-0099-judgment.pdf
The case concerned the use of a retail store in Streatham, within the London Borough of Lambeth. Planning permission had been granted for the store in 1985 but its use was limited by condition, (condition 6), to the sale and display of DIY goods and other specified items not including food. Food sales had been excluded for the reason of the greater traffic generation and parking requirements of such use.
The scope of permitted goods was extended by various consents under section 73 of the Act, including in 2010, which also prevented the sale and display of non-food goods, (condition1), and subsequently in 2014 which was the subject matter of the proceedings. The 2014 consent granted permission for variation of the wording of the condition relating to the retail use of the store (conditions 1), but in doing so it failed to impose a condition restricting the use to the sale and display of non- food goods only.
On the basis of the 2014 permission, in 2015, the Second Respondent, Aberdeen Asset Management, applied for a certificate of lawful use for the unrestricted use of the store. The Council refused the application but it was granted on appeal in December 2016. The reason for the grant of the certificate was that “No condition was imposed on [the 2014 permission] to restrict the nature of the retail use to specific uses falling within Use Class A1 …”
Lambeth appealed the decision but their challenge to the Inspector’s decision was dismissed. The Court of Appeal considered that it was clear what Lambeth had meant to do, namely restrict the use of the store to the sale of non-food goods, but in omitting to impose the condition it had failed to do so. In the Court of Appeal, Lewison LJ summarised the position (paras 19-22) as follows:
“The question is: what did Lambeth in fact do? The application was an application for the variation of a condition attached to the 2010 permission …
… the technical trap, into which it is said that Lambeth fell, is that approval of an application under section 73 requires the grant of a fresh planning permission, rather than merely a variation of an existing one …
It follows from this that the decision notice must be read as a free-standing grant of planning permission. However, it failed to repeat any of the conditions imposed on the previous planning permissions and, more importantly, failed to express the new description of the use as a condition, rather than as a limited description of the permitted use …”
On appeal to the Supreme Court, Lambeth challenged the C of A’s decision and claimed that the 2014 permission was subject to a legally effective condition limiting the retail use to non-food goods as with the 2010 permission. Three grounds were advanced:
(a) the condition existed as a matter of the correct interpretation of the permission;
(b) by correction of an obvious error (by analogy with the contractual principles applied in Chartbrook Ltd v Persimmon Homes Ltd  UKHL 38;
(c) by the implication of a condition in the terms of the proposed wording (applying the principles in Attorney General of Belize v Belize Telecom Ltd  UKPC 10.
The Supreme Court concluded that on an ordinary reading of the decision notice and its correct interpretation, it incorporated the condition in the 2010 permission. Lord Carnwath referred to the 2014 permission in full. In considering the grant of permission, he noted that it referred to both the original wording of the condition and the proposed wording as follows:
“For: Variation of condition 1 (Retail Use) of Planning Permission Ref: 10/01143/FUL (Variation of Condition 6 (Permitted retail goods) of planning permission Ref 83/01916 … Granted on 30.06.2010.
The retail use hereby permitted shall be used for the retailing of DIY home and garden improvements and car maintenance, building materials and builders merchants goods, carpets and floor coverings, furniture, furnishings, electrical goods, automobile products, camping equipment, cycles, pet and pet products, office supplies 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) or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order).
The retail unit hereby permitted shall be used for the sale and display of non-food goods only and, notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 1995 (or any Order revoking and re-enacting that Order with or without modification), for no other goods.
[I should note in passing that the reference in the revised form of condition to the General Development Order, rather than the Use Classes Order, appears to be a mistake, as Mr Lockhart-Mummery QC for the third respondent suggested. Neither he nor any of the parties saw it as significant to the issues in the appeal.]”
Between paragraphs 15 and 19 of the judgment, Lord Carnwath sets out a summary of the principles to be applied to the interpretation of a permission and concludes as follows:
“. In summary, whatever the legal character of the document in question, the starting-point – and usually the end-point – is to find “the natural and ordinary meaning” of the words there used, viewed in their particular context (statutory or otherwise) and in the light of common sense.
On the basis of this, the Court concluded that an ordinary reading of the decision notice, the permission included a condition in the form of the proposed wording as set out on the face of the decision notice. At paragraph 29 of the judgment Lord Carnwath states that:
“Taken at face value the wording of the operative part of the grant seems to me clear and unambiguous. The Council “hereby approves” an application for “the variation of condition as set out below …”. There then follow precise and accurate descriptions of the relevant development, of the condition to be varied, and of the permission under which it was imposed. They are followed by statements first of the “Original wording”, and then of the “Proposed wording”; the latter stating in terms that the store is to be used for the sale of “non-food goods only and … for no other goods”. “Proposed wording” in this context must be read as a description of the form of condition proposed in the application and “hereby” approved. In other words, the 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.”
The case therefore appears to have turned upon a proper interpretation of the words of the grant of a permission without the need to look at extrinsic materials or otherwise. The Court held that the starting point for interpretation is to find ‘the natural and ordinary meaning’ of the words used, viewed in their context and on this basis the permission included the condition in the form of the “proposed wording” referred to on the face of the decision notice. In so doing it was considered that it has been normal and accepted usage to describe section 73 as conferring power to ‘vary’ or ‘amend’ a condition, so the reasonable reader would not see any difficulty in giving effect to the varied 2014 permission.
What about implied conditions and correction of obvious errors?
As a consequence of deciding the case on the issue of interpretation, there was no need for the Court to consider the second and third grounds of Lambeth’s submissions although as regards the issue of implication of a condition, at paragraph 28, Lord Carnwath observed in passing that:
“. However, I observe in passing (in agreement with Mr Lockhart-Mummery’s submission as to the limited scope of the judgments in Trump) that it is difficult to envisage circumstances in which it would be appropriate to use implication for the purpose of supplying a wholly new condition, as opposed to interpretation of an existing condition.”
Whilst the issue of implying a wholly new condition has not been conclusively determined, as a result of the decision, it still appears that the view that a new permission granted under section 73 had to contain all the conditions within it. However, in deciding what those conditions were it does not appear that it has to expressly set them out in the form which is usually expected. There remains scope, in an appropriate case, to argue that on a proper construction of the wording of the permission, the conditions are present even if they are not set out in the traditional way. For those seeking to rely upon the omission of conditions on planning permissions, it appears that there may be the need to look in greater detail at the grant of the permission rather than simply claiming that a condition does not appear in a numbered list of conditions, which is of course the usual approach to such matters. By contrast, local planning authorities may take some comfort from this decision where they have accidentally omitted express reference to conditions in the usual way when granting a section 73 application. However, the Supreme Court repeated the advice of Sullivan J in Reid v Secretary of State for Transport  EWHC 2174 (Admin) as follows:
“When issuing a fresh planning permission under section 73, it is highly desirable that all the conditions to which the new planning permission will be subject should be restated in the new permission and not left to a process of cross-referencing”.
Local planning authorities should continue to follow that approach.