London Borough of Lambeth v Secretary of State for Communities and Local Government Aberdeen Asset Management and Others (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 03 October 2017 |
| Neutral Citation | [2017] EWHC 2412 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/130/2017 |
| Date | 03 October 2017 |
[2017] EWHC 2412 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/130/2017
Matthew Reed QC (instructed by Lambeth Legal Services) for the Claimant
Sasha Blackmore (instructed by the Government Legal Department) for the Defendant
Christopher Lockhart-Mummery QC (instructed by Freeths LLP) for the Second Interested Party
The First and Third Interested Parties did not attend and were not represented
Hearing dates: 19 & 20 July 2017
The Claimant applies under section 288 of the Town and Country Planning Act 1990 ("TCPA 1990") to quash the decision of the Defendant, made on his behalf by an Inspector on 6 December 2016, allowing the First Interested Party's appeal against the Claimant's refusal to grant a certificate of lawfulness of proposed use or development under section 192(1)(a) TCPA 1990, in respect of 100 Woodgate Drive, Streatham, London SW16 5YP ("the premises").
The Claimant is the local planning authority for the area within which the premises are situated. The Second Interested Party is the owner of the premises. The premises are managed on its behalf by the First Interested Party, who applied for the certificate of lawful use, and appealed against its refusal. The Third Interested Party is the leaseholder of the premises.
The premises comprise a site approximately 0.74 hectare in size, with a frontage onto Streatham Vale, to the north-west. The streets to the south are residential. A DIY store has been constructed on site, with a customer car park. It is currently occupied by Homebase. It retails home and garden improvement, car maintenance, building materials and builders' merchants goods. There is a garden centre to the rear of the store.
The issue is whether the current planning permission, as varied on 7 November 2014, permits unrestricted retail use for the sale of all goods (including food), or whether it restricts retail use to the sale of non-food goods. It is common ground that the retail use was restricted prior to the variation of planning permission in 2014. The dispute centres on how the 7 November 2014 variation of permission ought lawfully to be read and applied.
Permission to apply for statutory review was granted by Holgate J. on 23 February 2017.
Planning history
On 17 September 1985, planning permission was granted on appeal ("the 1985 permission") by the Secretary of State for "the erection of a DIY retail unit for Texas Homecare and an industrial building for Cow Industrial Polymers on land at Streatham Vale, Streatham", subject to a number of conditions.
Condition 6, as set out in the Secretary of State's decision letter, provided:
"6. The retail unit hereby permitted shall be used for the retailing of goods for DIY home and garden improvements and car maintenance, building materials and builders' merchants goods and for no other purpose (including any other purpose in Class I of the Schedule to the Town and Country Planning (Use Classes) Order 1972 or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order)."
In the Decision Letter, the Secretary of State explained the reason for the condition:
"16. …..Because the traffic generation and car parking requirements of certain types of large retail stores are substantially greater than those of the DIY unit proposed and could be excessive at this site, it is necessary to restrict the right to change to other types of retail unit…..".
The permission was implemented by construction of a DIY retail store but not the proposed industrial building.
On 30 June 2010, the Claimant granted planning permission ("the 2010 permission") for:
"Variation of Condition 6 (Permitted retail goods) of planning permission Ref. No 83/01916 (Erection of a DIY retail unit for Texas homecare and an industrial building for cow industrial polymers) granted on 17.09.85 to allow for the sale of a wider range of goods to include DIY home and garden improvements, 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 in Class A1 of the Schedule to the Town and Country Planning (Use Classes) Order 1987 (as amended)."
Thus, the condition in the 1985 permission was varied so as to permit the sale of a wider range of goods, not extending to food goods. The varied condition was set out in the 2010 permission as Condition 1:
"1. 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.
2. Details of refuse and recycling storage …. shall be submitted to and approved in writing by the Local Planning Authority prior to first commencement of any of the additional retail uses hereby permitted. The refuse and recycling storage facilities shall be provided in accordance with the approved details prior to commencement of the development and shall thereafter be retained as such for the duration of the permitted use. ….
3. A strategy for the Management of Deliveries and Servicing shall be submitted to and approved in writing by the Local Planning Authority prior to first commencement of any of the additional retail uses hereby permitted. Deliveries and servicing shall thereafter be carried out solely in accordance with the approved details….."
On 20 November 2013, the Claimant refused an application for variation of Condition 1 of the 2010 permission, to permit the retail sale of food, because of the adverse impact on traffic flow and highway safety in the surrounding area, generated by increased customer visits and parking.
On 7 November 2014, the Claimant granted the disputed planning permission (see below).
On 25 May 2015 the Claimant granted a variation of condition 6 of the 1985 planning permission (as varied by the 2010 permission) to allow the use of 185 square metres of the existing Homebase sales area for the sale of A1 non-food goods by a Catalogue Showroom Retailer.
The disputed planning permission
On 7 November 2014, the Claimant granted planning permission ("the 2014 permission") in the following terms:
" DECISION NOTICE
DETERMINATION OF APPLICATION UNDER SECTION 73. TOWN AND COUNTRY PLANNING ACT 1990
The London Borough of Lambeth hereby approves the following application for the variation of condition as set out below under the above mentioned Act.
In accordance with the statutory provisions your attention is drawn to the statement of Applicant's Rights and General Information attached.
Application Number: 14/02553/VOC. Date of Application 19.05.2014. Date of Decision: 06.11.2014.
Development At: Homebase Ltd 100 Woodgate Drive, London SW16 5YP
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 (Erection of a DIY retail unit for Texas homecare and an industrial building for cow industrial polymers) granted on 17.09.85 to allow for the sale of a wider range of goods to include DIY home and garden improvements, 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 in Class A1 of the Schedule to the Town and Country Planning (Use Classes) Order 1987 (as amended) Granted on 30.06.2010.
Original Wording:
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.
Proposed Wording:
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 or re-enacting that Order with or without modification), for no other goods.
Approved Plans
April 2008, drafted by WYG Transport Open Space Map (110034/1), Transport Assessment Report Dated 08
Summary of the Reasons for Granting Planning Permission:
In deciding to grant planning permission, the Council has had regard to the relevant policies of the development plan and all other relevant material considerations. … Having weighed the merits of the proposals in the context of these issues, it is considered that planning permission should be granted subject to the conditions listed...
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