London Borough of Lambeth v Secretary of State for Communities and Local Government

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Lewison,Lord Justice Hamblen,Lord Justice Coulson
Judgment Date20 Apr 2018
Neutral Citation[2018] EWCA Civ 844
Docket NumberCase No: C1/2017/2870

[2018] EWCA Civ 844

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEALFROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION PLANNING COURT

MRS JUSTICE LANG

CO/130/2017

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Lewison

Lord Justice Hamblen

and

Lord Justice Coulson

Case No: C1/2017/2870

Between:
London Borough of Lambeth
Appellant
and
(1) Secretary of State for Communities and Local Government
(2) Aberdeen Asset Management
(3) Nottinghamshire County Council
(4) HHGL Limited
Respondent

Mr Matthew Reed QC (instructed by Lambeth Legal Services) for the Appellant

Ms Sasha Blackmore (instructed by the Government Legal Department) for the 1 st Respondent

Mr Christopher Lockhart-Mummery QC (instructed by Freeths LLP) for the 3 rd Respondent

Hearing dates: 21 & 22 March 2018

Judgment Approved

Lord Justice Lewison

Introduction

1

Under section 192 of the Town and Country Planning Act 1990 (“the Act”) if a person wishes to ascertain whether any proposed use of buildings or other land would be lawful he may apply to the planning authority for a certificate to that effect (“a CLEUD”). Section 191 (2) provides that a use is lawful if no enforcement action may be taken against it. In the case of a change of use that would be the case if the change of use did not involve development; or did not require planning permission. In the present case Aberdeen Asset Management Ltd (“Aberdeen”) applied to Lambeth LBC for a CLEUD to the effect that it would be lawful to use a building fronting Streatham Vale, and currently used as a Homebase store, for unrestricted retail purposes within class A1 of the Town and Country Planning (Use Classes) Order 1987. That class encompasses the retail sale of goods, other than hot food, where the sale is made to visiting members of the public. Lambeth refused the certificate, but the Secretary of State granted it on appeal. Lambeth's application to quash that decision failed before Lang J, whose judgment is at [2017] EWHC 2412 (Admin); [2017] PTSR 1494. With her permission Lambeth appeals.

The problem

2

The problem arises because of the way in which Lambeth dealt with an application to vary a condition attached to a previous planning permission which had been granted subject to a condition restricting the range of goods permitted to be sold from the site. In a very loose sense it is clear enough what Lambeth meant to do. It meant to extend the range of goods permitted to be sold, but not to grant unrestricted permission for class A1 use. However, it purported to restrict the range of goods permitted to be sold, not by imposing a condition, but by a restricted description of the permitted development.

3

The significance of the distinction between a restricted description of the permitted development and the imposition of a condition restricting what has been permitted lies in the consequences for planning control. Section 171 A of the Act provides:

“(1) For the purposes of this Act—

(a) carrying out development without the required planning permission; or

(b) failing to comply with any condition or limitation subject to which planning permission has been granted,

constitutes a breach of planning control.”

4

It can be immediately seen that there are two distinct forms that a breach of planning control may take. One is the carrying out of development without planning permission, where planning permission is required. The other, which occurs whether or not development takes place, is a failure to comply with a condition. A change of use may amount to the carrying out of development, but only where the change of use is material: section 55 (1). However, section 55 (2) provides that certain activities are not to be taken to amount to development. Among these are:

“in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section, the use of the buildings or other land or, subject to the provisions of the order, of any part of the buildings or the other land, for any other purpose of the same class”

5

It follows that a change from one retail use to another, for example by extending or changing the nature of the goods sold, does not amount to development, as long as both uses fall within class A1. It cannot, therefore, be the subject of enforcement action under section 171A (1) (a).

The facts

6

I can take the planning history largely from the judge's careful judgment.

7

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.

8

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).”

9

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…..”.

10

The permission was implemented by construction of a DIY retail store but not the proposed industrial building.

11

On 30 June 2010, Lambeth 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).”

12

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…..”

13

It will be seen that in addition to the condition restricting use, there were two other conditions.

14

On 20 November 2013, Lambeth refused an application for variation of Condition 1 of the 2010 permission which would inferentially have permitted the retail sale of food. The first reason given for the refusal was that:

“The applicant has not demonstrated to the Council's satisfaction that the potential trip generation and related traffic impact that could occur through the opening of a food retailer which the variation would permit, would not lead to an adverse impact on traffic flow and highway safety on the surrounding highway network where traffic flow already reaches unacceptable levels at peak times. In particular the council considers that the increase in potential trip generation has been underestimated …”

15

On 7 November 2014, Lambeth granted planning permission (“the Decision Notice”) 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...

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    ...at the purported use restrictions… London Borough of Lambeth v Secretary of State for Communities and Local Government and others [2018] EWCA Civ 844 [View David Wood function JDS_LoadEvent(func) { var existingOnLoad = window.onload; if (typeof window.onload != '...

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