Legal Viewpoint: Ruling highlights scope for error on repeat conditions

A recent High Court decision on a case in London highlights how complex section 73 permissions can be and how errors can so easily be made when granting permission and applying conditions.

It also confirms that the description of a development is not sufficient to impose restrictions on the permitted use.

The property concerned is a Homebase store in Streatham. Permission was granted in 1985 for a DIY store and a condition restricted the range of goods that could be sold, preventing food sales. The permission was varied in 2013 and the condition was amended for a wider range of goods, again restricted to non-food items.

In 2014, a further variation was granted subject to conditions, but the restriction on goods condition was not included. The permission did not refer to inclusion of the earlier condition. However, the description of development did state that the "retail unit hereby permitted shall be used for the sale and display of non-food goods only and, notwithstanding the provision of the General Permitted Development Order, for no other goods". The claimant applied for a lawful use certificate for an unrestricted retail use. The council refused the certificate, but an inspector subsequently granted it.

In the High Court, the council sought to overturn that decision. It was agreed that the 2014 application did not seek to remove the restricted condition. The court appeared to accept that the parties’ intention was to widen the condition but not to allow food use and failure to apply the restriction as a condition was probably an error by the council. It took a very strict approach to interpretation of the permission and was not persuaded that the intention of the parties or the description of the development were sufficient to impose or imply a condition.

The case raises an interesting legal quandary – can applicants be granted planning permission for a use that is wider or different from what they have applied for? In this case, due to the council’s error, this is the outcome. The matter may now be resolved in the Court of Appeal. Mrs Justice Lang granted leave to appeal against the judgement, acknowledging that she is "left with some unease about the result". In the meantime, errors of this type on section 73 permissions are all too common. Woe betide the council that gets it wrong.

London Borough of Lambeth v Secretary of State for Communities and Local Government and Others; Date 3 October 2017; Ref: [2017] EWHC 2412 (Admin).

James Blackwell is a senior associate at Osborne Clarke LLP

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