England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		16 October 2013

1. MRS JUSTICE PATTERSON: 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

2. 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."

3. 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."

4. 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.
5. 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."

6. 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.

7. 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."

8. 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."

9. 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."

10. 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...
11. "(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."
12. 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

13. 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 within the four corners of the consent itself, ie including the conditions in it and the express reasons for those conditions, unless another document is incorporated by reference or it is necessary to resolve an ambiguity in the permission or condition: R v Ashford DC, ex p Shepway DC [1998] PLCR 12 at 19 (Keene J); Carter Commercial Developments v Secretary of State [2002] EWCA Civ 1994 at [13] and [27] (Buxton and Arden LJJ); Sevenoaks DC v First Secretary of State [2004] EWHC 771 (Admin) at [24] and [38](Sullivan J); R (Bleaklow Industries) v Secretary of State for Communities and Local Government [2009] EWCA Civ 206 at [27] (Keene LJ); R (Midcounties Co-operative Limited) v Wyre Forest DC [2010] EWCA Civ 841 at [10] (Laws LJ).

(2) The reason for the strict approach to the use of extrinsic material is that a planning permission is a public document which runs with the land. Save where it is clear on its face that it does not purport to be complete and self-contained, it should be capable of being relied on by later landowners and members of the public reading it who may not have access to extrinsic material: Slough Estates v Slough Borough Council [1971] AC 958 at 962 (Lord Reid); Carter Commercial Developments v Secretary of State at [28] (Arden LJ); R (Bleaklow Industries) v Secretary of State for Communities and Local Government [2009] EWCA Civ 206 at [27] (Keene LJ); Barnet v Secretary of State [2009] EWCA Civ 476 at [16] - [21] (Keene LJ, approving Sullivan J at first instance); R (Midcounties Co-operative Limited) v Wyre Forest DC [2010] EWCA Civ 841 at [10] (Laws LJ).

(3) It follows from (2) that in construing a planning permission: -

A. The question is not what the parties intended but what a reasonable reader would understand was permitted by the local planning authority, and

B. Conditions must be clearly and expressly imposed, so that they are plain for all to read.

As well as the cases cited at (2), see Sevenoaks DC v First Secretary of State [2004] EWHC 771 (Admin) at [38] and [45] (Sullivan J).

(4) Conditions should be interpreted benevolently and not narrowly or strictly (See Carter Commercial Development Ltd v Secretary of State for the Environment [2002] EWHC 1200 (Admin) at [49], per Sullivan J) and given a common-sense meaning: see Northampton BC v First Secretary of State [2005] EWHC 168 (Admin) at [22](Sullivan J).

(5) A condition will be void for uncertainty only 'if it can be given no meaning or no sensible or ascertainable meaning, and not merely because it is ambiguous or leads to absurd results': Fawcett Properties v Buckingham County Council [1961] AC 636, 678 per Lord Denning. In Hulme's case Elias LJ stated this was an application of the benevolent construction principle.

(6) If there is ambiguity in a condition it has to be resolved in a common sense way, having regard to the underlying planning purpose for it as evidenced by the reasons given for its imposition: Sevenoaks DC v First Secretary of State [2004] EWHC 771 (Admin) per Sullivan J at [38] accepting the submission at [34].

(7) There is no room for an implied condition in a planning permission. This principle was enunciated in Trustees of Walton on Thames Charities v Walton and Weighbridge District Council (1970) 21 P & C R 411 at 497 (Widgery LJ), in the following terms:

'I have never heard of an implied condition in a planning permission and I believe no such creature exists. Planning permission enures for the benefit of the land. It is not simply a matter of contract between the parties. There is no place, in my judgment, within the law relating to planning permission for an implied condition. Conditions should be express, they should be clear, they should be in the document containing the permission.'.

This principle also precludes implying an obligation by way of an addition to an existing condition: Sevenoaks DC v First Secretary of State [2004] EWHC 771 (Admin) at [45] (Sullivan J).

(8) Where planning permission containing conditions has been granted in a decision by an Inspector allowing an appeal, and a condition is ambiguous, it is possible to construe it in the context of the decision letter as a whole: Hulme case at [13(a)]. Doing this does not involve impermissible 'implication' from an extrinsic source, but is best described as a question of 'construction': Hulme's case at [37]. In Hulme's case, Elias LJ stated at (at [37]) that even 'if it can be described as an implied condition it is very different in nature from that envisaged in the Trustees of Walton case.'

(9) In the context of what suffices to exclude the operation of the UCO: -

A. A grant of planning permission for a stated use is a grant of permission only for that use, but could not, in itself, be sufficient to exclude the operation of the UCO because if it did the operation of the UCO would be curtailed in a way which could not have been intended: Dunoon Developments Limited v Secretary of State for the Environment [1992] JPL 936 at 107 (Sir Donald Nicholls V-C).

B. In general, to exclude the operation of the UCO, it is necessary for the local planning authority to do so by the imposition of a condition in unequivocal terms: Carpet Décor (Guildford) Ltd v Secretary of State for the Environment [1981] JPL 806 at 808 (Sir Douglas Frank QC)."

14. Those principles are not in dispute between the parties. In addition, the defendant emphasises that to remove permitted development or Use Class Order rights the condition should be clear but there is no requirement for such rights to be expressly removed in the condition and the exclusion of such rights may be implied. The question is whether the form of words used in its context achieves that exclusion. No particular form of words is required.

The Claimant's Challenge

15. The Claimant brings its challenge on two grounds. Firstly, that the inspector misconstrued condition 3 which properly construed should allow all retail sales from the Bromley Road Retail Park. Secondly, that the First Defendant breached his duty to act consistently in discharge of his planning functions by allowing inspectors to reach diametrically opposed conclusions on, effectively, the same legal issue, and in effect, simultaneously.

Ground 1: Whether the inspector erred in her construction of Condition (3) and her conclusion that it excluded rights under the Use Classes Order (as amended), so that the Retail Park could not be used for unrestricted Class A1 use?

16. The claimant submits that Condition (3) is quite ineffective to achieve its intended purpose. It defines the ambit of the planning permission and no more. It does not provide the essential requirement that the premises shall only be used for a restricted purpose and it does not specify that only a limited range of bulky goods are to be sold. The courts have made it clear that the exclusion of the Use Classes Order can only be done by a condition in clear and unequivocal terms. In the City of London Corporation v Secretary of State for the Environment (1971), 23 P & CR 169, the wording of the condition was, "premises shall be used as an employment agency and for no other purpose." That was held to operate effectively to exclude the operation of the Use Classes Order. In Carpet Décor (Guildford) Ltd v Secretary of State for the Environment [1981] JPL 806 Sir Douglas Frank said:

"As a general principle, where a local planning authority intend to exclude the operation of the Use Classes Order or the General Development Order, they shall say so by an imposition of a condition in unequivocal terms, for in the absence of such a condition it must be assumed that those orders will have effect by operation of law."

17. That principle was developed further by the Court of Appeal in Dunoon Developments Limited v the Secretary of State for the Environment and Poole Borough Council [1992] JPL 936. The planning permission there contained conditions which provided that the use of the proposed premises:

"... shall be limited to the display, sale and storage of new and used cars... that no heavy repairs, panel beating, cellulosing, crash vehicle repairs or lorry repairs shall be carried on and that no machine tools or noisy plant and equipment shall be installed in these buildings."

18. The specific issue was whether the conditions excluded the operation of the General Development Order. Farquharson LJ said:

"Of course, it turned on the construction of the first condition and the effect of the word 'limited' in its context...

The terms of the condition do not exclude the operation of the General Development Order in this case. First, one should point out that the words used in condition 1 are clearly less emphatic than those used in the City of London case. Secondly, the appearance of the word 'limited' in its context is not conclusive against the operation of a General Development Order...

In other words, 'limited' ... is not addressed to the question of whether the planning permission should be excluded from the General Development Order of 1988 or [included] any statutory order at all. The purpose of the General Development Order was to give a general planning consent unless such consent was specifically excluded by the words of the condition."

The Vice Chancellor stated:

"Condition 1 delimited or circumscribed the ambit of the permitted use. The condition was not apt to achieve more. It was not apt to achieve more because it is not fairly apparent from the language of the condition, or the document read as a whole, that condition 1 was intended do more than this. If the condition fairly read its purpose was, but was only, to define the ambit of the condition granted. There was not explicit or implicit an intention to negative development pursuant to any existing or future Use Classes Order or General Development Order."

19. The Claimant submits that the position is similar here. Condition (3) does no more than delimit or circumscribe the ambit of the permission granted. It does not provide any negative restriction on the sale of goods beyond those listed. The benefit of the Use Classes Order was not expressly excluded. Planning permission was granted for buildings for use for retail sales without preventing the freedom of movement within Class A1.
20. Further, in the case of The Rugby Football Union v Secretary of State for Local Government, Transport and the Regions [2001] EWHC 927 the court considered a condition relating to stands at Twickenham Rugby Football Ground, which was worded that the stands, "shall only be used ancillary to the main use of the premises as a sports stadium and for no other use." The argument that the words did not exclude the Use Classes Order was rejected as follows:

"The words 'for no other use' are clear. They have no sensibly discernible purpose than to prevent some other use which might otherwise be permissible without planning permission. The Use Classes Order is an obvious source of such a permission. I am satisfied that those words meet the test of being sufficiently clear for the exclusion of the Use Classes Order in relation to the free stance in question. The test is set out in Dunoon Developments."

21. The claimant submits that the court did not appear to consider the word 'only' as sufficient to exclude the Use Classes Order. It was the phrase "and for no other use" which implicitly excluded the Use Classes Order. As a result, the Claimant contends that the Inspector mis-directed herself in equating the meaning of the word "only" with "for no other purpose" and thereby finding that the Use Classes Order was impliedly excluded. Condition (3) permitted "the retail consent shall be for" only bulky food sales but was ineffective to prevent a later change to a wider class of use.
22. The Claimant submits that the condition is clear. As such, there is no need to look at the reason for its imposition as an aid to construction. The Claimant further submits that the tailpiece of the condition must be approached with care. The Claimant reminds the court of the decision of Ouseley J in Midcounties Co-operative Limited v Wyre Forest District Council [2009], EWHC 964, which held that a similar tailpiece to a condition was unlawful. Here, the claimant submits that what is permitted is a list of specified goods and such other trades as the council may permit. The tailpiece, therefore, offers more than the grant of permission and not less. It is not directed at whether the Use Classes Order should be excluded. I should note that although the Midcounties Co-operative case went on appeal, the part which deals with the tailpiece was unaffected.
23. The defendant submits that the non-food retail element of the park was central to the consideration and material to whether planning permission should be granted. It was material also to the vitality and viability question raised under the then current retail policy. Condition (3) was a mechanism to secure that the uses permitted were limited to those sought on the application. Any trades other than those listed require the written consent of the local planning authority. That was to ensure that the nature of the scheme did not detract from the viability and vitality of nearby Catford town centre. The condition was clearly necessary to protect the vitality and viability of the nearby town centre. Reading the condition with the reason for it can only mean that any other bulky trades and especially food were excluded from the consent because of their vitality and viability impacts.
24. The condition is clear and unambiguous. The use of the word "only" makes it clear that anything apart from the trades listed is excluded. The requirement for the consent of the local planning authority to any trades other than those listed would not be necessary and would be meaningless if permitted development or use classes rights were not excluded. The subject matter of the condition is the entire ambit of Class A1 uses. The Use Class Order is also the whole of Class A1. The condition only makes sense if there is an implicit exclusion of the Use Classes Order or else it has no purpose.
25. Further, Condition (3) is of continuing effect. It unequivocally prohibits variations from the particulars in the application. To construe the condition otherwise is directly contrary to its express terms and purpose. Anyone reading the permission would know that they could trade only in certain bulky items. If they wanted to go outside the limited range they had to seek the consent of the local planning authority, rather than rely on rights under Class A1. A reasonable reader of the condition would know why the condition was imposed from the reason for its imposition. The tailpiece further demonstrates that the restricted A1 uses are excluded as it serves no other purpose than to say that the planning permission does not convey unrestricted A1 rights. The overall formulation of the condition is much stronger than in the case of Dunoon. Condition (3), with its use of the word "shall", is an imperative and delivers no discretion. The reason for the condition is entirely consistent with that analysis.
26. The interested party adopts the defendant's arguments and emphasises that the planning permission needs to be read as a whole. It submits that the unlawfulness of the tailpiece does not take the Claimant any further. It is obvious, from looking at the permission what, a reasonable developer can do and therefore it comes within the terms of paragraph 47 of Carter Commercial Developments Limited (In Administration) v Secretary of State for Transport, Local Government and the Regions [2002] EWCA Civ 1994.

"47. Thus a reasonable developer having this condition in his hand and saying to himself, 'What will I be able to do without risking some prosecution?' would, in my judgment, be able confidently to say to himself, 'I cannot open this store without first having prevented the site for which the permission is given from flooding; secondly, having ensured that the flood risk affecting that site is reduced to such a level that it will permit the development on that site in a way that there is no risk of unacceptable flooding; and thirdly, having ensured that I am not going to cause flooding elsewhere.' That is, in my judgment, the ordinary, natural meaning of the clause. It was correctly so identified by the judge."

Discussion

27. It is agreed by all parties that the construction of Condition (3) is a matter of law. The starting point then is the planning permission granted on 15 June 1999. What was permitted was the construction of a non-food retail park comprising five units and totalling 6,736 square metres.
28. The disputed Condition (3), in my judgment, is clear. It imposes a restriction on the nature of non-food sales that are permitted at the Bromley Road Retail Park. That is clear from three main factors. First, the use of the words "Shall be for" which permit of no discretion. Second, the use of the word "only" in relation to non-food sales, which means solely or exclusively, and third, the clear iteration of the permitted bulky trades on the retail park. Any trades other than those set out on the face of the permission, namely, furniture, carpets, DIY, electrical goods, car accessories and garden items could only be sold if the council gave its written consent. The list of trades whose goods are permitted to be sold are clearly defined, as is evident from the use of the words "which are" preceding their listing. It is not, as is the case in certain other permissions, including that in the Hayes decision letter referred to under ground two, a list of examples which indicate a non-exclusively exclusive list.
29. Here is a precise definition which does not, without the obtaining of written consent from the local planning authority, permit of further extension. The condition operates, therefore, with two ratchets. The first is by imposing a clear restriction on the nature of the goods to be sold by stipulating that they shall be for non-food sales only. The second is by listing bulky trades within which sales are permitted on the appeal site. That is evident from the use of the words "which are" before listing the specific bulky trades.
30. That conclusion is reinforced by the reason for the condition which is to ensure that the nature of the scheme will not detract from the vitality and viability of Catford town centre. In other words, sales within the stipulated trades were compatible with the on-going vitality and viability of Catford town centre. I do not accept the submission that if the condition is clear there is no need to look at the reason for it as an aid to construction. As a general rule, the planning permission is to be construed within the four corners of the consent itself, including the conditions and the express reasons for them: See Telford and Wrekin Council v Secretary of State for Communities and Local Government and Growing Enterprises Ltd, paragraph 33(1).
31. The reason for imposing a condition is important in understanding the objective of the condition and is, therefore, an important facet. It is publicly available as part of the planning permission. To ignore it or to fail to have regard to the reason would operate as an unnatural and unnecessary constraint on an interpretation of the condition. The condition, therefore, provides an on-going mechanism to maintain the retail health of Catford town centre and, if necessary, to keep it under review. In my judgment, that is what a reasonable reader of the condition would discern, a non-food retail consent only with sales permitted of bulky goods within certain main sectors so as not to cause any material harm to the retail health of Catford town centre.
32. That analysis then raises the question of whether the wording of the condition is insufficiently clear and unequivocal terms to exclude the operation of the Use Classes Order.
33. The use of the word "only". I regard it as emphatic. It means solely or exclusively. That is its plain and ordinary meaning. That would prevent any retail sales other than those stipulated of a non-food nature. Mr Lockhart-Mummery contends that in The Rugby Football Union case the wording "only" was insufficient to take the use outside the reach of the Use Classes Order. It was the words "for no other use" which secured that objective and they are missing here. It was those words which meant that there was no sensibly discernible purpose other than to exclude the Use Classes Order. I do not regard that submission as a full and fair reading of The Rugby Football Union case. What that case was addressing was whether the language used in that planning permission was sufficiently clear to exclude the Use Classes Order. It did not expressly consider the use of the word "only" and find it wanting. Whilst it is correct that emphasis was placed on the words "for no other use", that was after the consideration of planning permission as a whole and in the context of what was permitted. The judgment was, therefore, considering the Dunoon test as to whether the exclusion of the Use Classes Order could be implied from the words used in the context that they were used. It did not determine that a certain magic attached to the words "for no other purpose", but not to the word "only". In the Dunoon case there was nothing more to exclude the Use Classes Order; in The Rugby Football Union case there was.
34. In the instant case there is also the planning permission which read as a whole, including Condition (3), sets out what is permitted. Condition (3) restricts the ambit of Class A1 uses. I accept the submission of Mr Forsdick that it is logically inconsistent to construe Condition (3) as carefully limiting A1 uses, on the one hand, but then to argue that A1 use is unrestricted and permitted on the other. The condition only makes sense if there is an implied exclusion of the Use Classes Order and Class A1 rights. That is achieved with the words used in the condition.
35. As to the tailpiece of the condition, that has not been challenged as being unlawful here. As such, it remains as part of the planning permission unless and until it is quashed. Its continued existence is inconsistent with the claimant's submission. It serves no other purpose than to emphasise that there were no other A1 rights, other than those granted by the planning permission and specified in Condition (3).
36. In any event, the condition makes it clear, per adventure, that the planning authority addressed its mind to those A1 uses which were permissible as evidenced by the list in Condition (3). The condition draws a clear distinction between acceptable and unacceptable A1 uses. That is what the reasonable reader would understand was permitted by the condition. That reading is reinforced for the reason for imposing the condition, which would be a nonsense if the Claimant's submission were correct. If an unrestricted A1 use was granted through Condition (3) there would be a direct threat to the health of Catford town centre. The out-of-centre site would be in direct competition with the town centre. As it is, though, the words of the condition, even excluding the tailpiece, have no other sensibly discernible purpose than to prevent some other use that might otherwise be permissible without planning permission.
37. In my judgment, the words of the condition cannot live with the continuing subsistence of the Use Classes Order. The inspector here properly construed Condition (3). There is no error in her decision letter.

Ground two: Whether the First Defendant breached his duty to act consistently in the discharge of his planning functions by allowing the inspectorate to reach diametrically opposed conclusions on the same legal issue, and in effect, simultaneously?

38. On the same day as the hearing in the present case, on 30 October 2010, a hearing took place in relation to an appeal under section 195 of the Town and Country Planning Act in relation to Unit 6 at Lombardy Retail Park in the London Borough of Hillingdon. The condition in issue in that case reads:

"Unit 6, hereby approved, shall only be used for the sale of bulky goods, such as DIY articles, garden materials and goods, building and decorating materials and related equipment.

The reason for its imposition was:

"To enable the local planning authority to retain adequate control over the proposed use."

39. That appeal was allowed and a lawful development certificate granted to the effect that the lawful use of the premises was for any use falling within Class A1 of the Use Classes Order. The inspector there expressed the reason for his decision as follows, in paragraph 13:

"... taken together, put simply, the condition and its reason seek to restrict sales to only bulky goods and to retain adequate control over the use and no more than that. The condition does not explicitly refer to the Use Classes Order. Acknowledging that it does not necessarily have to, its language does not implicitly exclude the operation of the Use Classes Order either. Condition (3)1 does not do what the council argues. On its face it only defines the ambit of the permission granted."

40. In addition, the inspector in that case awarded the Appellants their costs to be paid by the local planning authority. The reason for that is set out in paragraph 10 of the cost decision letter:

"...while each case needs to be judged on its merits, the parameters for considering such cases have already been established by the courts. All of this information was with the Council when the application was determined. This was clearly a case which should not have needed to come to appeal."

Legal framework

41. As a matter of law, the maker of a planning decision must have regard to a previous planning decision to the extent that like cases should be decided in a like manner so that there is consistency in the appeals process. The leading authority is the judgment of Mann LJ in North Wiltshire District Counsel v Secretary of State for Environment (1992) 65 P & CR 137 at 145.

"One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest, and it would be wrong to do so, that like cases must be decided alike. An inspector must always exercise his own judgment. He is, therefore, free, upon consideration, to disagree with the judgment of another, but before doing so he ought to have regard to the importance of consistency and to give reasons for the departure from the previous decision."

42. The Claimant accepts that the inspector in the instant case did not have available to her the decision in the Hayes case. The Hayes' decision was issued on 7 December 2012, three days after that in the instant case. The Claimant became aware of it after it had been issued and during the six week period when an appeal could be lodged in the instant case. Further, the Claimant accepts that the issue of consistency has previously been used in cases which involve planning merits and not in cases which involve legal issues such as that before the court. The Claimant submits that the First Defendant and the planning inspectorate, acting as his agent, must have known or be taken to have known that two appeals were before them raising the same legal issue. The appeal in the instant case was lodged on 26 July 2012. The refusal in the Hayes case was issued on 31 May 2012. It is not known when the appeal was lodged in the Hayes case but it is suggested, broadly, it must have been within the same time as the instant case. For about four months, therefore, the First Defendant and the planning inspectorate had knowledge that they had before them appeals raising the same legal issue. The duty to act consistently, therefore, arose.
43. It is submitted, therefore, firstly, that the same inspector should have been appointed to determine each appeal, or secondly, that there should have been recovery by the First Defendant in the exercise of his jurisdiction to determine the appeals.
44. The defendant submits, firstly, that there is no question of the inspector having to have regard to the Hayes decision, as it did not exist at the date of issuing her own decision; secondly, that the Hayes decision is not the same as that in the instant case, and therefore, the issue on consistency does not arise. As the wording and context are different, there is no necessity for the planning permission to be construed in the same way. Thirdly, the construction of a condition is a matter of law for the court; it is not one of planning judgment. If there is any inconsistency it is clear that the inspector in each case properly applied the law and reached the correct decision.
45. The interested party submits the same.

Discussion

46. I have already found that the construction of Condition (3) by the inspector in the instant case is correct. It took into account the right legal principles and construed the condition in its own context. The inspector's decision would not, therefore, have been any different, had she known about the then on-going Hayes appeal. As a matter of fact, however, it was impossible for the inspector to be aware of the Hayes decision letter, as it was not issued until after her own. She could not, therefore, take it into account. As for the suggestion that the First Defendant or the planning inspectorate should have picked up that there were two appeals on-going about the correct legal interpretation of similar conditions in their respective planning permissions. As a result of a question that I asked, it does appear that the inspectorate are able to identify the numbers of outstanding appeals under section 195 of the 1990 Act (20, on or before 30 October 2012), and within those the number that relate to sales of goods (5, altogether and three relating to open A1 applications). A general check is done for appeals on or nearby the appeal site, but as the appeals here involve different local planning authorities, that would not have picked up these two appeals. Further, the descriptions were different. One was for a certificate of lawful proposed use and the other for a certificate of lawful existing use.
47. It is too onerous, in my judgment, to expect the planning inspectorate or the First Defendant to scrutinise the case work to the degree that the Claimant suggests, especially when the ultimate question is one of law which will in each case turn upon the particular condition in the same context. Likewise, it is not realistic here, to contemplate that either of these two appeals were of such a scale and nature to invoke the criteria for the Secretary of State to invoke the recovery criteria and determine the appeals himself.
48. Most significantly, though, in terms of the disputed conditions, they are, in my judgment, materially different. That in the Hayes case is in considerably looser language than the appeal condition. I do not accept Mr Lockhart-Mummery's submission that it is more onerous. It contains only one restriction, namely, that Unit 6 shall only be used for bulky goods. There is no other restriction, as there is in the appeal condition. The bulky goods listed are examples only and therefore prefaced by the words "such as". There is no attempt to itemise an exclusive list, as in the appeal condition. In other words, there is nothing requiring the consent of the planning authority in addition, in writing or otherwise, for further goods to be sold. The use classes order cannot be said in the context of the Hayes permission to be excluded, as the inspector there found.
49. That is very different to the context of the appeal condition, as I have set out above. It follows that there is nothing in this ground and this application is dismissed.
50. MR FORSDICK: My Lady, I am grateful. In those circumstances I seek an order that the Claimant pays the Secretary of State's costs. I hope there is a schedule that has made it up to your Ladyship.
51. MRS JUSTICE PATTERSON: I am afraid to say it has not. I have had the schedule for those who are instructing Mr Lockhart-Mummery but I have not, I am afraid, had one from the Treasury Solicitor.
52. MR FORSDICK: £5,416 is sought. I understand there is no application from the interested party.
53. MRS JUSTICE PATTERSON: That is extremely sensible.
54. MR LOCKHART-MUMMERY: My Lady, there is no issue on those costs.
55. MRS JUSTICE PATTERSON: Thank you, very much. I order that the Claimant do pay the costs of the First Defendant and that there is no order in relation to payment of costs of the Second Defendant.
56. MR LOCKHART-MUMMERY: My Lady, may I ask for permission to appeal, only in relation to ground one, not ground two. I put it very shortly. My Lady, on these grounds, first there has been no previous decision expressly in relation to the word "only", which was the main pointer in your Ladyship's judgment. I accept that it is not the only pointer to the construction that you have reached. Of course, one observes what you have said in relation to the Rugby Football Union case, but that did not explicitly, in my submission, deal with the word "only", as we have in the present case. My Lady, secondly, there has not, obviously, been consideration by the Court of Appeal of a modern form of sale of goods condition relating to retail warehouse parks. Dunoon, of course, is relating to an entirely different context.
57. MRS JUSTICE PATTERSON: Yes.
58. MR LOCKHART-MUMMERY: My Lady will know, and I referred to this in opening, of the very great repercussions that this judgment will have in the retail development sector. I submit that it is in the public interest that the Court of Appeal be afforded what would be the first opportunity to deal, as I say, with current retail warehouse conditions along the lines of the present case. My Lady, thirdly, I placed great emphasis on what the Secretary of State thinks about the whole topic of this case in his long-established Circular 1195. My Lady has chosen not to refer to my submissions, or indeed to the passages of the circular at all. I submit that it is, additionally, a matter of public importance that the contrast, as I submit that it is, between the onerous and specific terms that the circular requires to reach the exclusion of the Use Classes Order in contrast to the approach of the judgment. My Lady, on those grounds I submit that there are reasonable prospects of an appeal succeeding, but equally, a public interest in this matter, particularly in the context of 1195 being taken further.
59. MR FORSDICK: The Secretary of State does not normally make submissions on permission to appeal in these situations but we would say that there is no reasonable prospect of success. It is a matter of straight construction and your Ladyship has given a very clear explanation as to why the Secretary of State's construction is correct. My learned friend says there is a wider public interest for the retail industry to know where it stands, but the case law is clear.
60. MRS JUSTICE PATTERSON: Thank you, very much. I am going to refuse you permission to appeal, Mr Lockhart-Mummery. You will have to try elsewhere. It seems to me that there is no reasonable prospect of success and in relation to the wider public interest, the nature of this case is such that each planning permission will be interpreted in its own context, and therefore, the wider public interest does not apply. Likewise, your reference to Circular 11/95 deals with matters of policy and the issue for the court was on the interpretation.