London Borough of Lambeth v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Lord Carnwath,Lord Reed,Lady Black,Lord Lloyd-Jones,Lord Briggs |
| Judgment Date | 03 July 2019 |
| Neutral Citation | [2019] UKSC 33 |
| Court | Supreme Court |
| Date | 03 July 2019 |
[2019] UKSC 33
Lord Reed, Deputy President
Lord Carnwath
Lady Black
Lord Lloyd-Jones
Lord Briggs
Appellant
Matthew Reed QC
Matthew Henderson
(Instructed by Lambeth Legal Services)
First Respondent
Daniel Kolinsky QC
Sasha Blackmore
(Instructed by The Government Legal Department)
Third Respondent
Christopher Lockhart-Mummery QC
Yaaser Vanderman
(Instructed by Freeths LLP)
Respondents:
(1) Secretary of State for Housing, Communities and Local Government
[(2) Aberdeen Asset Management]
(3) Nottinghamshire County Council
[(4) HHGL Ltd]
Heard on 21 May 2019
( with whom Lord Reed, Lady Black, Lord Lloyd-Jones and Lord Briggs agree)
This appeal concerns the permitted uses of a retail store in Streatham in the area of the London Borough of Lambeth (“the Council”). Planning permission was originally granted by the Secretary of State in 1985, but the use was limited by condition to sale of DIY goods and other specified categories, not including food sales. Following implementation, the permitted categories were extended by later consents (under section 73 of the Town and Country Planning Act 1990), the most recent being in 2014 (“the 2014 permission”), which is in issue in this case. The second respondent sought a certificate from the Council determining that the lawful use of the store extended to sales of unlimited categories of goods including food. A certificate to that effect was refused by the Council, but granted by a planning inspector on appeal, and upheld by the lower courts. The Council, as local planning authority, appeals to this court.
The original permission, granted by the Secretary of State on 17 September 1985 (“the 1985 permission”), was subject to a number of conditions, including:
“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).”
The exclusion of use for other purposes, including those within Use Class 1, had the effect of excluding (inter alia) food sales. The following reason was given in the decision letter (para 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 …”
On 30 June 2010, the Council granted a further planning permission (“the 2010 permission”) expressed to be for “Variation of Condition 6” of the 1985 permission to “allow for the sale of a wider range of goods” as specified, not including food sales, and again excluding other uses within the relevant use class (now Class A1). Although it is common ground that this permission was granted under section 73, there was no specific reference to that section in the document, which referred simply to the 1990 Act. This permission included, as a separate condition 1, the same enumeration of permitted uses and exclusions as in the terms of the grant, and the following reason was given for the condition:
“In order to ensure that the level of traffic generation is such as to minimise danger, obstruction and inconvenience to users of the highway and of the accesses.”
There were in addition two new conditions which had not been in the 1985 permission:
“2. Details of refuse and recycling storage to serve the development 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.”
Reasons were given for each condition.
The permission now in issue was granted on 7 November 2014. (The application is not before us.) In this case the grant referred in terms to section 73. It is necessary to set out the operative parts in full:
“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 …
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 … 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 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.]
Approved Plans
…
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 below.
Conditions
1. The development to which this permission relates must be begun not later than the expiration of three years beginning from the date of this decision notice.
Reason: To comply with the provisions of section 91(1)(a) of the Town and Country Planning Act …
2. Prior to the variation her[e]by approved being implemented a parking layout plan at scale of 1:50 indicating the location of the reserved staff car parking shall be submitted to and approved in writing by the Local Planning Authority. The use shall thereafter be carried out solely in accordance with the approved staff car parking details.
Reason: To ensure that the approved variation does not have a detrimental impact on the continuous safe an[d] smooth operation of the adjacent highway …
3. Within 12 months of implementation of the development hereby approved details of a traffic survey on the site and surrounding highway network shall be undertaken within one month of implementation of the approved development date and the results submitted to the local planning authority. If the traffic generation of the site, as measured by the survey, is higher than that predicted in the Transport Assessment submitted with the original planning application the applicant shall, within three months, submit revised traffic modelling of the Woodgate Drive/Streatham Vale/Greyhound Lane junction for analysis. If the junction modelling shows that junction capacity is worse than originally predicted within the Transport Assessment, appropriate mitigation measures shall be agreed with the council, if required, and implemented within three months of the date of agreement.
Reason: to ensure that the proposed development does not lead to an unacceptable traffic impact on the adjoining highway network …”
There was no specific reference to conditions 2 and 3 of the 2010 permission.
On 10 June 2015, the second respondent applied to the Council for a certificate of lawfulness of proposed use or development (under section 192 of the 1990 Act) for unrestricted use of the store. This was refused by the Council on 12 August 2015, but the appeal was allowed by the inspector by a decision letter dated 6 December 2016. The letter gave a certificate of lawfulness for use described as —
“The use of the premises … for purposes within Use Class Al of the Town and Country Planning (Use Classes) Order 1987 (as amended) without restriction on the goods that may be sold.”
The reason given was:
“No condition was imposed on [the 2014 permission] to restrict the nature of the retail use to specific uses falling within Use Class A1 …”
It is unnecessary to set out the familiar provisions of the 1990 Act relating to the definition of development, and to the granting...
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