We held a dinner party for clients this week and after a certain amount of wine and gossip the conversation turned to a deeper question.
What really is the meaning of Lambeth?
The Supreme Court judgment’s judgment in London Borough of Lambeth v Secretary of State (Supreme Court, 3 July 2019) had been handed down that day.
Who hasn’t felt the same helplessness? You’re faced with a planning permission which does not say what the local planning authority plainly meant it to say. Do you go by what the document says? Or is its literal meaning changed by reference to what the authority intended?
Spoiler alert: Lambeth doesn’t provide the answer. It is specific to its facts. However it does provide another pointer as to the courts’ likely reaction to these sorts of issus. Following the approach of the Supreme Court in Trump International Golf Club Limited v Scottish Ministers (Supreme Court, 16 December 2015), Lord Carnwath indicates:
“In summary, whatever the legal character of the document in question, the starting-point – and usually the end-point – is to find “the natural and ordinary meaning” of the words there used, viewed in their particular context (statutory or otherwise) and in the light of common sense.”
The facts of Lambeth are well set out in the Supreme Court’s press summary. A section 73 permission was issued which recited in the description of development the precise change that was authorised to be made to a condition on a previous 2010 permission restricting the types of goods that could be sold from a Homebase store but the local planning authority, whilst reimposing some conditions that were on the 2010 (including a condition imposing a three years’ implementation deadline) neglected to reimpose the condition restricting what types of goods could be sold and neglected to reimpose to other conditions (in relation to refuse and recycling and in relation to management of deliveries and servicing).
I summarised Lang J’s first instance ruling in my 14 October 2017 blog post Flawed Drafting: Interpreting Planning Permissions. She restricted herself to a formalistic interpretation of the permission. There was no condition restricting the types of goods to be sold. The description of development on the permission does not operate as a condition. There was therefore no operative restriction – there was nothing to prevent the shop being turned into, for instance, a food superstore. Some mistake on the part of the authority. Some windfall for the owner of the store, Aberdeen Asset Management. I speculated that the ruling might be overturned by the Court of Appeal but in fact they took the same line, in a judgment by Lewison LJ (Court of Appeal, 20 April 2018).
However, the Supreme Court has allowed the authority’s appeal. It found that the very nature of a section 73 permission is that it grants permission subject to a condition as varied. The document was “clear and unambiguous”, with the description of development setting out the “original wording” of the condition to be varied and the “proposed wording”. ““Proposed wording” in this context must be read as a description of the form of condition proposed in the application and “hereby” approved. In other words, the obvious, and indeed to my mind the only natural, interpretation of those parts of the document is that the Council was approving what was applied for: that is, the variation of one condition from the original wording to the proposed wording, in effect substituting one for the other. There is certainly nothing to indicate an intention to discharge the condition altogether, or in particular to remove the restriction on sale of other than non-food goods.”
This reasoning will apply to other situations where the nature of the amendment proposed to a condition is set out precisely in the description of development. Where there is not that precision, clearly there will still be room for argument.
What about the two conditions which were not reimposed? I find this part of the court’s reasoning difficult, or at least potentially opening up further areas of uncertainty:
“It will always be a matter of construction whether a later permission on the same piece of land is compatible with the continued effect of the earlier permissions…In this case, following implementation of the 2010 permission, the conditions would in principle remain binding unless and until discharged by performance or further grant. Conditions 2 and 3 were expressed to remain operative during continuation of the use so permitted. The 2014 permission did not in terms authorise non-compliance with those conditions, nor, it seems, did it contain anything inconsistent with their continued operation. Accordingly, they would remain valid and binding – not because they were incorporated by implication in the new permission, but because there was nothing in the new permission to affect their continued operation.”
So a potentially difficult exercise is required on a site with successive permissions (including section 73 permissions) – of working out which conditions from previous permissions continue to apply, even though the planning permission itself may have been superseded.
Two last points:
⁃ What of the reimposed time limit condition? People sometimes get themselves in an intellectual knot in relation to section 73 permissions granted after the physical development authorised by the previous permission has been completed. Does the section 73 permission need to be implemented in some way? Can an authority in fact grant a section 73 permission in these circumstances. Thankfully, the Supreme Court didn’t have any concerns along these lines. It agreed with the Court of Appeal that the condition was invalid, in circumstances where the development had already been carried out.
⁃ another worry sometimes – was the purported permission such a nonsense that it was of no legal effect despite no-one having challenged its validity in the six weeks’ JR time limit? Again, the Supreme Court showed no worries on that score:
“If section 73 gave no power to grant a permission in the form described, the logical consequence would be that there was no valid grant at all, not that there was a valid grant free from the proposed condition. The validity of the grant might perhaps have been subject to a timely challenge by an interested third party or even the Council itself. That not having been done, there is no issue now as to the validity of the grant as such. All parties are agreed that there was a valid permission for something. That being the common position before the court, the document must be taken as it is.”
On the facts I do support the outcome. The lower courts’ approach seemed to fly in the face of common sense – of the meaning that any reader of the document (other than a planning lawyer perhaps!) would have given to it. But I do recognise the difficulties that can arise, as identified in a post by Zack Simons.
The tension between literal versus “following the formalities regardless of the words” interpretation will always be there. We have all seen so many variants of permissions that do not quite say what they are meant to say, and who can blame planning officers for sometimes not getting it quite right.
For instance, despite the provision in section 73(5) of the 1990 Act, preventing section 73 permissions from varying the time limits that were imposed on the original permission for implementation or reserved matters submissions, the restriction is overlooked from time to time and fresh time limits are set. Once free from the risk of JR, can the new time limits be relied upon? On the approach in Lambeth, my provisional view is that I don’t see why not. The natural and ordinary meaning of the permission is clear and once free from legal challenge surely there is a valid permission. Even where a permission is issued in a flawed state without legal authority, as in the Thornton Hotel case (see my 18 May 2019 blog post Slow Claim Coming: Limiting JRs https://simonicity.com/2019/05/18/slow-claim-coming-limiting-jrs/ ), the courts will apply strict criteria before the validity of a permission to be challenged after the usual deadline.
Two more planning law cases are heading to the Supreme Court. Whilst permission to appeal was refused in the air quality case, Shirley, we can look forward to the Supreme Court justices applying their minds on 22 and 23 July to the vexed area of community benefits in Resilient Energy and, on a date to be fixed, to the question of what is a listed building in Dill.
Aren’t I the life and soul of the dinner party?
Simon Ricketts, 4 July 2019
Personal views, et cetera
It’s a sign.