The case concerned a store in Woodgate Drive, Streatham, formerly occupied as a Homebase branch. Planning permission for the store had been granted by Lambeth Council in 1985 and subsequent amendments specified a wide range of goods that could be sold, but excluding food.
However, a further variation approved in 2014 failed to include the the "non-food goods" proviso in the formal conditions attached to the permission.
On that basis, Aberdeen Asset Management, which manages the property, persuaded a planning inspector that the 2014 amendment permitted unrestricted retail use of the premises, including food sales. The inspector issued a certificate of lawful use to that effect.
Ruling on the council's challenge to the decision, Mrs Justice Lang accepted that a drafting error had probably been made. The likelihood was that the council had intended the restriction on food retailing to continue, she reasoned.
However, she found that, since the requirement had not been included in the variation as a clearly stated condition, the inspector had been right not to imply such terms into the document. In order to imply such a term, she added, it was insufficient to establish that it probably reflected the council's intended purpose.
Recognising the potentially important implications of her decision, Mr Justice Lang granted Lambeth Council permission to challenge her ruling in the Court of Appeal.
London Borough of Lambeth v Secretary of State for Communities and Local Government. Case Number: CO/130/2017