R Royal London Mutual Insurance Society Ltd v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | MRS Justice Patterson |
| Judgment Date | 16 October 2013 |
| Neutral Citation | [2013] EWHC 3597 (Admin) |
| Docket Number | CO/319/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 October 2013 |
[2013] EWHC 3597 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mrs Justice Patterson
CO/319/2013
Mr C Lockhart-Mummery QC (instructed by Canings Connolly) appeared on behalf of the Claimant
Mr D Forsdick (instructed by Treasury Solicitor) appeared on behalf of the Defendant
Ms Saira Kabir Sheikh (instructed by TREASURY SOLICITOR) appeared on behalf of the interested party.
This is an application under section 288 of the Town and Country Planning 1990 (1990 Act) to quash a decision letter dated 4 December 2012 on the part of an inspector appointed by the First Defendant to hear an appeal lodged by the applicant under section 195 of the 1990 Act against refusal on the part of the Second Defendant to grant a certificate of lawful proposed use under section 192 of the 1990 Act. The appeal was dismissed. The main issue on the appeal was the proper construction of condition three of a planning permission for a non-food retail development at Bromley Road, Catford.
Background
On 15 June 1999 planning permission was granted for a non-food retail park, now known as the Bromley Road Retail Park in Catford. The planning permission is in the following terms:
"The demolition of the buildings on the sites of 124/138 and 172 Bromley Road, SE6 and the construction of a non-food retail park comprising 5 units totalling 6,736m sq together with a new access from Bromley Road, 313 customer parking spaces, a service yard with 35 staff parking spaces with access from Aitken Road, together with two areas of land reserved for use by Initial Laundry."
Condition (3) on the planning permission provides as follows:
"The retail consent shall be for non-food sales only in bulky trades normally found on retail parks which are furniture, carpets, DIY, electrical goods, car accessories, garden items and such other trades as the council may permit in writing."
The reason for the condition is to ensure that the nature of the scheme will not distract from the vitality and viability of the nearby Catford town centre. The retail park consists of five units. Four are occupied by PC world, Currys, Harveys and Carpetright. The vacant unit was previously occupied by Comet. The park consists of 6,736 square metres of floor space at ground level. In addition, it now includes 1,642 square metres of permitted mezzanine floor space.
Originally, the applicant had submitted an application for a certificate of lawful development in relation to existing use under Section 191, 1990 Act for use of all of the units for sale of any goods, including food (within Class A1 of the Town and Country Planning (Use Classes) Order 1987). After discussion, a further application in identical terms for a certificate of lawful proposed use under section 192 of the 1990 Act was submitted. That was refused by the Second Defendant on 29 June 2012 on the basis that Condition (3) was valid and restricted the use of the retail park to non-food sales only in bulky goods. That refusal was appealed. It was heard at an informal hearing. It resulted in the decision letter of 4 December 2012. The decision letter was of Diane Lewis BA (Hons) MCD MA LLM MRTPI, the inspector appointed by the First Defendant to determine the appeal. It reviews the Use Classes Order, the case law, policy and other decisions, and concluded in paragraphs 29 and 30:
"29. The Appellant reminded me that it is the meaning of the words used that is decisive, not what the intention of the Council might have been. A weakness of the condition in achieving its purpose is the failure to link the restriction on the good sold to the rights in the Use Classes Order. This failure opens the door to the argument that condition 3 was apt to achieve no more than to delimit or circumscribe the ambit of the permitted use. However, as the Council brought out, on a fair interpretation the use of the word 'only' fulfils the job of the phrase 'and for no other purpose', more especially when the condition is read in its entirety. When read alongside the reason and in the context of the permission as a whole, the condition prevents the exercising of rights under the Use Classes Order. On the reasoned arguments presented, there is the something more required by the test in Dunoon.
Conclusion
30. For the reasons given above the Council's refusal to grant a certificate of lawful use or development in respect of an open Class A1 retail use at Bromley Road Retail Park, 138 Bromley Road, Catford was well-founded and the appeal should fail. I will exercise accordingly the powers transferred to me in section 195(3) of the 1990 Act as amended."
It is common ground that as this application involves a matter of legal construction, other parts of the decision letter are not material here in the way that they would normally be in an appeal under section 288 of the 1990 Act.
Legal framework.
Section 192 of the 1990 Act provides:
"192. Certificate of lawfulness of proposed use or development.
(1) If any person wishes to ascertain whether—
(a) any proposed use of buildings or other land; or
(b) any operations proposed to be carried out in, on, over or under land,
Would be lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use or operations in question.
(2) If, on an application under this section, the local planning authority are provided with information satisfying them that the use or operations described in the application would be lawful if instituted or begun at the time of the application, they shall issue a certificate to that effect; and in any other case they shall refuse the application."
Section 195 provides for appeals. The duties of the Secretary of State are set out in subsections 2 and 3. They read:
"(2)On any such appeal, if and so far as the Secretary of State is satisfied —
(a) in the case of an appeal under subsection (1)(a), that the authority's refusal is not well-founded, or
(b) in the case of an appeal under subsection (1)(b), that if the authority had refused the application their refusal would not have been well-founded,
He shall grant the appellant [a certificate under section 191 or, as the case may be, 192] accordingly or, in the case of a refusal in part, modify the certificate granted by the authority on the application.
(3) If and so far as the Secretary of State is satisfied that the authority's refusal is or, as the case may be, would have been well-founded, he shall dismiss the appeal."
Section 288 provides the avenue to challenge a decision within six weeks of a decision letter on the following grounds:
"(i) that the action is not within the powers of this Act, or
(ii) that any of the relevant requirements have not been complied with in relation to that action".
"(5) On any application under this section the High Court—
(a) may, subject to subsection (6), by interim order suspend the operation of the order or action, the validity of which is questioned by the application, until the final determination of the proceedings;
(b) if satisfied that the order or action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that order or action."
A proposed use will be lawful if, among other things, it does not amount to development within the meaning of section 55 of the 1990 Act, as in those circumstances planning permission is not required by virtue of section 57 of the Act. Section 55(2)(f) of the Act provides that the following operations or uses of land shall not be taken to involve development of the land…
"(f) 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… Or other purposes of the same class."
Article 3(1) of the Use of Classes Order 1987 (as amended) provides that:
"Subject to the provisions of this Order, where a building or other land is used for a purpose of any class specified in the Schedule, the use of that building or that other land for any other purpose of the same class shall not be taken to involve development of the land."
Class A1 of the Use Classes Order provides:
"Use for all or any of the following purposes —
(a) for the retail sale of goods other than hot food".
Planning conditions
In the recent case of Telford and Wrekin Council v Secretary of State for Communities and Local Government and Growing Enterprises Ltd [2013] EWHC 79, Beatson LJ summarised the principles in the construction of a planning permission (and of conditions within it) at paragraph 33, as follows:
"33. Although the submissions focused on the Sevenoaks and Hulme cases, a number of other authorities were put before me, including some that were not considered in Hulme's case, and which Mr Lockhart-Mummery said he had been informed by counsel in that case had not been cited to the court. I first summarise my understanding of the effect of the authorities put before me on the construction of a planning permission (and of the conditions in it): -
(1) As a general rule a planning permission is to be construed...
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