England and Wales High Court (Administrative Court) Decisions

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

		Birmingham Civil Justice Centre 33 Bull Street, Birmingham, B4 6DS
		29/01/2013

Lord Justice Beatson :

1. This application under section 288 of the Town and Country Planning Act 1990 ("the Act") concerns Mere Park Garden Centre, part of a complex on land at the junction to the east of the A41 and the A518, south of Stafford Road, Newport, Shropshire. Planning permission for the garden centre was granted by Telford and Wrekin Council ("the Council") to Growing Enterprises Ltd, the Interested Party in these proceedings, on 28 August 2002.
2. The Council applies for an order quashing a decision of the Secretary of State's Inspector, Mr David Murray, dated 5 April 2012. The Inspector allowed an appeal by Growing Enterprises against a decision of the Council refusing an application by the company under section 192 of the 1990 Act for a certificate that the proposed use of the land and buildings for any purpose within Class A1 of the Town and Country Planning (Use Classes) Order 1987 SI 1987 No 764, as amended ("the UCO"), is lawful. The aim of that application was to obtain a certificate that the site benefits from an unrestricted Class A1 use, i.e. the use as shops, including those for the retail sale of goods. The outcome of the appeal was that the Inspector issued a certificate stating that use to be lawful.
3. The appeal, under section 195 of the Act and this application concern condition 19, one of 32 conditions of the 28 August 2002 planning permission for the garden centre. Condition 19 stated:

"prior to the garden centre hereby approved opening, details of the proposed types of products to be sold should be submitted to and agreed in writing by the local planning authority".

Although Growing Enterprises supplied a list of products to the Council, the Council did not provide its written agreement. In another planning permission, however, it referred to the products as "previously approved".

4. In the appeal in this case, the issue before the Inspector was whether condition 19 restricted the products which could be sold to those specified in the list supplied. The Inspector held that it did not.
5. The grounds upon which the Council seeks an order quashing the Inspector's decision are that the Inspector erred in his application of the law. It principally relies on the statements in the Court of Appeal in Hulme v Secretary of State for Communities and Local Government [2011] EWCA Civ 638 and other cases that conditions in planning permissions should be read in context and be given a sensible and reasonable interpretation. It submitted (see statement of facts and grounds, especially paragraph 24) that the Inspector failed to apply Hulme's case correctly, and indeed (ibid, paragraph 27) that his approach to it was in part irrational. Mr Dove QC, on behalf of the Council, submitted that a reasonable reader of the grant of planning permission and the reason for condition 19, and in knowledge of the type of development permitted, would know that the condition restricted the products which could be sold to those specified in the list supplied. The grounds also maintain that the Inspector adopted an irrational interpretation of the word "should" in condition 19 and the implications of its use in this context.
6. In his skeleton argument (see paragraphs 18 – 22) and oral submissions, Mr Dove additionally submitted that the Inspector, in paragraphs 13 and 15 of his decision letter ("DL") either did not regard condition 19 as discharged, or was muddled in relation to whether it had been discharged. He submitted that the Inspector fell into public law error by having regard to an immaterial consideration, perverse reasoning, or by failing to have regard to a material consideration, "namely the correct legal consequences of condition 19 not being discharged".
7. The evidence on behalf of the Council is in the statement of Jonathan Eatough, the Council's Assistant Director for Law, Democracy and Public Protection, dated 9 May 2012. That on behalf of Growing Enterprises Ltd is in the statement of Clive Roberts, the Principal of Kembertons, a town planning consultancy.

The legal framework:

8. Background: As is well known, permission is generally required for any development of land or buildings. Subject to specified exceptions, "development" is defined by section 55(1) of the Act as meaning, inter alia "the making of any material change of use of any buildings or … land". When permission is granted the local planning authority has wide power to impose conditions. Unauthorised development and failure to comply with any condition in a grant of permission may result in enforcement action being taken by the local planning authority: section 171A of the Act.
9. Certificate of Lawful Use: A person contemplating a proposed use of land or buildings, who wishes to ascertain whether it would be lawful may, as Growing Enterprises did in this case, apply to the local planning authority: section 192(1). If the planning authority is satisfied that the use would be lawful it is required to issue a certificate to that effect: section 192(2). By section 191 of the Act:

"(2) For the purposes of this Act uses and operations are lawful at any time if:

(a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and

(b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force."

10. By section 193(5):

"A certificate under section 191 or 192 shall not affect any matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted unless that matter is described in the certificate."

11. The Use Classes Order: One of the exceptions to the requirement of planning permission for development concerns uses within the same class of use as the current use of the land. Section 55(2)(f) of the Act deems the following not to involve development:

"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."

12. The Secretary of State has so specified in the Town and Country Planning (Use Classes) Order 1987 SI 1987 No 764, "the UCO", to which I have referred. Article 3 of the UCO provides inter alia:

"(1) 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."

13. One of the classes specified in the Schedule is Class A1, "Shops". Class A1 includes use for all or any of eleven purposes, including:

" (a) for the retail sale of goods other than hot food,

…

where the sale, display or service is to visiting members of the public."

14. Government guidance: The current guidance is in Circular 11/95, The Use of Conditions in Planning Permissions. This deals with the requirements of necessity, relevance to planning and the development, reasonableness, enforceability, and the need for precision. In this case it is the last of these which is relevant. The guidance on precision is contained in a single paragraph which states:

"Test of Precision

30. The framing of conditions requires care, not least to ensure that a condition is enforceable. A condition, for example, requiring only that "a landscape scheme shall be submitted for the approval of the local planning authority" is incomplete, since if the applicant were to submit the scheme, even if it is approved, the local planning authority is unlikely to be able to require the scheme to be implemented. In such a case the requirement that needs to be imposed is that landscape work shall be carried out in accordance with a scheme to be approved in writing by the local planning authority; and the wording of the condition must clearly require this…"

15. Two appendices to the guidance contain suggested models of acceptable conditions for use in appropriate circumstances, and conditions which are unacceptable. The guidance refers to the utility of model conditions in improving consistency and efficiency in processing applications, but also to the danger that their existence may encourage the use of conditions as a matter of routine. There are two model conditions on restricting use. Model Condition 48, which was referred to by the Inspector, is:

"This premises shall be used for … and for no other purpose (including any purpose in Class … of the Schedule to the Town and Country Planning (Use Classes) Order 1987, or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order with or without modification."

Model Condition 49 states:

"The premises shall not be used for the sale of food for consumption off the premises other than confectionary".

16. The role of the High Court: Section 288 of the Act provides a right to make an application to the High Court to challenge an Inspector's determination of a planning appeal on the familiar public law grounds that the determination was not within his powers or that any of the relevant requirements have not been complied with: the classic statement is in the judgment of Forbes J in Seddon Properties Ltd v Secretary of State (1978) 42 P & C R 26 at 26-28.
17. As to the approach to be taken, I deal with the position of conditions at [33]. Otherwise, in the context of this application, it is possible to be brief. Decision letters must be read in a straightforward way recognising they are addressed to parties well aware of the issues involved and with references understood in the context of the general thrust of their reasoning: South Bucks DC v Porter (No.2) [2004] 1 WLR 1953, UKHL 33 at [36] (Lord Brown of Eaton-under-Heywood) and South Somerset DC v Secretary of State for the Environment [1993] 1 PLR 80 at 83 (Hoffmann LJ). Where an error is identified in a decision, the error must materially affect the decision taken: Bolton MBC v Secretary of State for Environment (1990) 61 P&CR 343, at 352, principles 2 and 3. Secondly, even where it is possible to hold that a decision is invalid, in exceptional circumstances the Court has discretion whether or not to grant relief: Bolton's case op cit., at 353 principle 7. Thirdly, where the relevant requirements have not been complied with the court only has power to quash it where the interests of the applicant have been substantially prejudiced: section 288(5)(b) of the Act.

Background and the Inspector's decision:

18. The decision on 28 August 2002 granting planning permission for the garden centre described the proposal as "erection of a garden centre and ancillary outbuildings with adjacent car parking". I have set out condition 19. Condition 2, which is mentioned in the Inspector's decision letter, required the development to be carried out strictly in accordance with the deposited plans and drawings. Conditions 3, 6, 7, 9 and 10 stated that "no development is to take place until…" what is specified has occurred, and condition 9 also stated that "the agreed details shall be fully implemented before the buildings hereby approved are brought into use". Conditions 22 and 29 stated that "no development approved by this permission shall be commenced until …" what is specified has occurred. Condition 30 stated that a scheme for the noise alleviation of the development "shall be submitted to the local planning authority for approval in writing. The approved scheme shall then be implemented fully prior to the opening of the development hereby approved".
19. As to condition 19, the reason for that condition was "to ensure that the garden centre's main business remains seasonal, specialist and leisure-orientated as required by policy S4 of the Wrekin Local Plan". The explanatory text to Policy S4 in the Wrekin Local Plan stated:

"Garden centres are not normal retailers. Although their products are often comparison [sic] in type and so similar to those offered by other comparison retailers, the main business remains seasonal, specialist, and leisure orientated. Locations within existing retail centres may not always be appropriate." (§5.3.9)

20. In a letter dated 24 September 2002, Growing Enterprises Ltd wrote to the Council's planning officer stating:

"[A]s a condition of planning, we have to agree what Mere Park Garden Centre will stock and sell. We have endeavoured to follow the Garden Centre Association's guidance on products that a centre of excellence would be expected to stock. Additionally, we have provided details of some categories that we would most definitely not stock."

The letter listed 24 categories of goods that would or could be sold (e.g. plants, shrubs, flowers and trees) or not sold (e.g. cars and white goods).

21. It was common ground before the inspector (DL § 5), as it still is, that the Council has not replied to the letter. The letter was, however, referred to by the Council in the conditions imposed on a subsequent planning permission granted to Growing Enterprises Ltd on a different part of the site. The permission for the erection of a new retail unit dated 7 March 2008 (planning permission 2005/1497) stated that "the premises shall only be used to retail those products previously approved by the Council and which are set out in the two letters from Growing Enterprises Ltd dated 24 September 2002 and 12 March 2003" (emphasis added). The garden centre opened on 20 March 2003.
22. At this point I break into the chronological account of the planning permission before me to note two matters. The first is that paragraph 2.14 of Growing Enterprises Ltd's "appellant's case statement" for the appeal to the Inspector, prepared by Mr Roberts in November 2011, stated:

"Whilst the Appellant did not receive a response from Telford and Wrekin Council, it is accepted that [condition 19] was discharged (as referred to in condition 3 of planning permission 2005/1497)."

In his evidence for this application, Mr Roberts stated that what he in fact meant by that was that Growing Enterprises had discharged its obligation but that, as a matter of fact, the list had not been approved.

23. The second matter concerns a number of other planning permissions granted by the Council between 2003 and 2009 on land on the wider site but outside the garden centre with which this case is concerned. The conditions in the permissions granted on 13 May 2003 and 11 August 2004 for a farm shop and a retail unit expressly prohibited use for "any other purpose in Class A1". That granted on 7 March 2008 stated "the premises shall only be used to retail those products previously approved by the Council which are set out in the two letters from Growing Enterprises Ltd dated 24 September 2002 and 12 March 2003 …. Those products specifically excluded in those letters cannot be sold at any time". There was a similar provision in the permission granted on 17 August 2009.
24. Returning to the position of the application site, on 24 March 2010 Growing Enterprises made its application for a certificate of lawful use or development. It sought confirmation that the proposed use of the land and buildings for any retail purpose within Class A1 of the UCO is lawful. The Council refused the application in a decision dated 14 July 2010. It did so principally on the ground that use as a garden centre was not a retail use that fell within Class A1 of the UCO but a sui generis use. The reasons stated:

"When the planning permission is read as a whole, including in particular the description of the development granting planning permission as well as the planning conditions and the reasons for the conditions in particular 2 and 19 and the reasons therefore (sic), it is clear that the grant of planning permission was for the erection of a garden centre.

The use of the land and the buildings was thereby defined and restricted."

…

The garden centre i[n] this instance is required by condition 2 to have both internal and external sales area and by condition 19 to have a restriction on goods to be sold. It is a sui generis use."

25. A second reason is contained in the last three paragraphs of the decision. It is stated that if, contrary to the Council's contention "the lawful permitted use is able to be argued to be a Class A1 shop", the use was "not authorised for any purpose falling within Class A1 …. but authorised for use as a garden centre only and further restricted by conditions" and that the grant did not include lawful use other than as a garden centre.
26. At the appeal before the Inspector, in the light of the decision in Wiggins v Arun DC (1997) 74 P & CR 64, the Council abandoned the contention that use as a garden centre was not within Class A1 of the UCO but a sui generis use. The consequence of the use as a garden centre falling within Class A1 is that section 55(2)(f) of the 1990 Act applies so that the "default position" is that, absent an adequate restriction in a condition, a permission within Class A1 can be used for any other purpose in the same class. Accordingly, in this case, the question, described by the Inspector (DL §6) as the critical question, was whether "the garden centre premises [we]re restricted in the products that can be sold by condition 19, or whether the premises can operate as a general shop within Class A1 with no restriction on the goods sold".
27. On this question, the Council's case before the Inspector was:-

(1) Carter Commercial Development Ltd v Secretary of State for the Environment [2002] EWHC 1200 (Admin) at [49] and Hulme's case [2011] EWCA Civ 638 at [13(c)] showed a condition in a planning permission should be interpreted benevolently and not narrowly or strictly.

(2) A common sense reading of Condition 19 was that items not on the list of the "products to be sold" provided by Growing Enterprises could not be sold, so that its effect was to restrict the products which could be sold in the Garden Centre, and to control the proposed new use within Class A1.

(3) Sevenoaks DC v First Secretary of State [2004] EWHC 771 (Admin) in which Sullivan J, as he then was, referred to the need for restrictions in conditions to be clearly and expressly imposed was distinguishable from the present case on the ground that it concerned enforcement rather than an application for a lawful development certificate.

28. The Inspector considered: (a) the Council's intentions in imposing the condition and, (b) "the nature of restriction on the face of the permission". As to (a), he stated (DL §7) that it was "reasonably clear that the Council considered the proposed garden centre to be a different planning entity to that of a general retail use", and that it "intended the imposition of condition 19 to ensure that in practice there would be a distinction between the seasonal, specialist, and leisure orientated products sold in the garden centre and a general Class A1 retailing use". He also stated that Growing Enterprises appeared to have understood that was the planning restriction in force in view of the terms of its letter to the Council dated 24 September 2002 (see [20] above).
29. Despite this intent and understanding, the Inspector concluded that condition 19 was not a restriction which was effective to remove this permission from the "default position" established by 55(2)(f) of the 1990 Act. His starting point (DL §11) was to refer to the advice in Circular 11/95. The Circular he stated, made it "exceptionally … possible to restrict development … which would not be regarded as development, for example under the [UCO] where there is a clear planning purpose for such a restriction". He set out Model Condition 48 (which is set out at [15] above), which, after identifying the permitted use within a Class expressly precludes the operation of the UCO by stating that the use shall be for no other purpose including any other purpose in that Class.
30. Turning to condition 19, the Inspector accepted (DL §12) that although it "does not refer to the UCO nor explicitly remove from the permission any of the benefits of the [UCO] as applying to the development", the failure to refer to the UCO does not in itself make the condition ineffective. He then turned to the words used and concluded that the condition did not limit the retail use to only that of a garden centre or require the operator to sell only the products on the list Growing Enterprises supplied. The material paragraphs of his decision letter are:

"13. … [T]he wording of the condition does not say that the garden centre development and use permitted is limited by the imposition of the condition. The condition merely requires that before the store opens, the appellant should provide details of the proposed type of products to be sold for the Council's agreement. The appellant did this and a common sense view is that the requirements of the condition were discharged, especially as the Council did not respond and "agree" the details to give the condition affect [sic].

14. Further, the wording of the condition requires only that the "proposed types of products to be sold" should be submitted and agreed in writing by the local planning authority before the store can open, but it does not clearly state that only these products and no others are to be sold at any time. There is therefore no clear performance of compliance limitation imposed. This is a material omission when compared with the guidance set out in Circular 11/95 ( in particular paragraph 30).

15. Finally, the requirements of the condition are only that details of the proposed types of products should be submitted for the Council's approval, that is, there is a degree of discretion involved regarding compliance. Notwithstanding the fact that a list was submitted, the use of the word "should" ( which is defined by the Concise Oxford Dictionary as " to express a duty, obligation or likelihood") is not the same as a requirement specified as "shall" which leaves no room for discretion.

16. The Council says that the failure to attach an explicit compliance requirement does not render the condition to be ineffective and unenforceable, as it was held in the case of Sevenoaks^[1] and the Council now refer me to the more recent decision of the Court of Appeal in Hulme. In this, the Court applied a benevolent doctrine of the construction of the condition and said that a condition could be interpreted in the context of the whole decision and against the background of the decision-maker's objectives and intentions.

17. However, I see the latter case as materially different in that while the Court held that the specific condition did not have a performance limitation that could be enforced, it was reasonable that the conditions should be read in the context of the decision notice as a whole and in conjunction with other related conditions which gave affect [sic] to the same purpose. Such circumstances do not exist in the current appeal as no other condition deals with a limitation on the use or prohibits the sale of other goods and which can be enforced.

18. I conclude that the wording of the condition is seriously flawed in terms of the Council's intentions for the planning purpose it was supposed to achieve and with regard to national guidance on the drafting of planning conditions. Using the ordinary meaning of the words involved, the actual but limited requirements of the condition were satisfied by the submission of the details. These requirements were not so ambiguous or absurd to be void because of uncertainty. Nevertheless, these requirements even if the details had been approved by the Council, did not limit the nature of the use of the goods that may be sold and explicitly restrict the ones that could not.

19. I therefore conclude that, giving the words within the condition their ordinary and natural meaning and reading the overall requirements in a common sense and benevolent way, I find that the condition does not limit the retail use to that only of a garden centre nor require the operator to sell only the products on the submitted list and nothing else. In short, the use approved is a general Class A1 retail use."


Analysis

31. I have summarised Mr Dove's submissions at [5] and [6]. At their core is the argument that the common sense approach to the construction of condition 19 required by the authorities and exemplified by the decision of the Court of Appeal in Hulme v Secretary of State for Communities and Local Government [2011] EWCA Civ 638 results in the conclusion that it restricted the products to be sold to those on the list provided by Growing Enterprises to the Council and that the Inspector's decision erred in law because he misunderstood and failed to apply that decision correctly. At the core of the submissions of Mr Strachan and Mr Lockhart-Mummery is the argument that well-established principles as to the construction of conditions in planning permissions mean that for a condition to impose a restriction it must clearly, unequivocally and unambiguously impose an obligation restricting the use that can be made of premises and prohibiting what goods may be sold from them, that condition 19 does not do this, and that the Inspector did not fall into error. They relied in particular on the decision of Sullivan J as he then was in Sevenoaks DC v First Secretary of State [2004] EWHC 771 (Admin).
32. Ultimately what has to be resolved is a degree of tension between the approach and analysis of Sullivan J in the Sevenoaks case and that of the Court of Appeal in Hulme's case. The Sevenoaks case involved a condition that was considered clear and without ambiguity. Sullivan J emphasised the need for clarity and certainty on the face of the condition, in particular because a planning permission is a public document which is likely to affect third party rights and the wider public and on which they are entitled to rely, and because breach of a condition may ultimately have criminal consequences. Hulme's case appears to take a less strict approach in the context of words in a condition Elias LJ (at [31]) described as "particularly opaque" imposed by an Inspector when allowing an appeal against the refusal of planning permission by the local planning authority. It was held that the opacity could be resolved by looking at the decision letter as well as the other provisions and conditions in the planning permission.
33. Although the submissions focussed 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)^[2]:-

(1) As a general rule a planning permission is to be construed within the four corners of the consent itself, i.e. 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); Barnett 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's 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 [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 Ltd 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).

34. In the light of these nine propositions, and in particular in view of propositions (3) and (9), I have concluded that the Inspector did not fall into error in his conclusion as to the effect of condition 19. Condition 19, like the condition in the Sevenoaks case, was unambiguous. Accordingly (see [33(1)]) the condition is to be construed within the four corners of the consent, including the other conditions and the reasons for those conditions. What it expressly required was that details of the proposed types of product to be sold should be submitted to the Council before the garden centre opened. The condition itself did not contain a prohibition on selling goods other than those in the list submitted by Growing Enterprises. Its wording does not require it to be construed as including an implementation, an enforcement, or a prohibition clause.
35. The Council appears to have been aware of the policy guidance as to what wording was needed if it wished to restrict the use to be made to that of a garden centre. Conditions 3, 6, 7, 9, 10, 22, 29 and 30 (see [18]) contained implementation clauses. They provided that, until the condition in question was satisfied, no development was "to take place" or to "be commenced". Condition 30 expressly provided that a noise attenuation scheme approved by the local planning authority was to be "implemented fully prior to the opening of the development". The contrast between the wording used in those conditions and that used in condition 19 shows that the context of condition 19 provides no basis upon which it could be justified to include an implementation or prohibition obligation.
36. I also accept Mr Strachan's submission that the Inspector was entitled to recognise the difference in meaning between "shall" and "should", a commonly recognised distinction in our language, even in these days where looser usage is more tolerated. In any event, the Council's submissions on this point can only have traction if it is open to the Council, and it can effectively argue, that condition 19 had not been discharged, or that the Inspector did not regard it as having been discharged. That is because this question of interpretation concerns only whether the submission and agreement of the details of the proposed products before the garden centre was opened was strictly required.
37. As to the approach and the decision in Hulme's case, I do not consider that it in fact assists the Council or puts into question the correctness of the Inspector's approach and conclusion. In Hulme's case the court was dealing with an ambiguous condition relating to blade swish noise in a permission for a wind farm. In the present case the condition is not ambiguous.
38. Secondly, the condition in Hulme's case was imposed by an Inspector when allowing an appeal (albeit it was originally drafted by the Den Brook Judicial Review Group, which had rule 6 status at the inquiry). The Court of Appeal held that the condition was to be construed in the context of the Inspector's decision letter as a whole. The court must have meant that recourse to the decision letter was permitted in addition to construing the condition in question in the context of the planning permission itself and the other conditions in it. In effect, in those circumstances, the court regarded the decision letter as an integral part of the planning permission rather than an extrinsic document: see [33(8)] above. In paragraph 117 of the decision letter in that case, the Inspector stated that he was "in no doubt that in the event of the appeal succeeding, a condition to regulate the phenomena [of AM noise] is both necessary and reasonable". For the reasons I have given, in the present case the remainder of the planning permission and the conditions do not assist the Council because they show that, where it desired to have an implementation condition, it made express provision for it.
39. Elias LJ (at [37]) recognised that if, contrary to his view that having regard to the decision letter was a matter of construction, it was in fact a matter of implication, the analysis of the Court of Appeal was not easy to reconcile with the Sevenoaks case. He did not, however, cast doubt on that case. He distinguished it as one concerning conditions in a planning permission which were not to be read against the background of a decision letter. That is also the position in the present case.
40. Finally, Hulme's case was not concerned with whether a condition excluded the operation of the UCO. The cases to which I have referred as supporting the propositions at [33(9)(a) and (b)] show the strictness of the approach where it is contended that words in a condition exclude the operation of the UCO.
41. So, in Dunoon Developments Ltd a condition that the use of the premises "shall be limited to the display, sale and storage of new and used cars" was held not to exclude the operation of the General Development Order. In Carpet Décor (Guildford), a condition that "no variations from the deposited plans and particulars will be permitted unless previously authorised" by the Local planning authority was held not to exclude the operation of the UCO. Rugby Football Union v Secretary of State [2001] EWHC 927 (Admin) at [56] provides an example of what will suffice. Ouseley J held that a condition that stands were only to be used "ancillary to the main use of the premises as a sports stadium, and for no other use…" sufficed to exclude the UCO because it had no other sensibly discernible purpose. This case, where the condition does not contain a prohibition on selling goods other than those in the list, let alone expressly disapply the operation of the UCO, falls on the Dunoon Developments Ltd/Carpet Décor (Guildford) side of the line.
42. To the extent that there is a potential conflict of approach between Hulme's case and the Sevenoaks case, I make one observation. While the Court of Appeal was aware of the rule precluding the implication of conditions in planning permissions, there is no reference in the principles summarised by Elias LJ or elsewhere in the judgments to what earlier cases, including earlier decisions of the Court of Appeal, have said about the proper approach to extrinsic evidence in such cases. There is no reference to this aspect of the Court of Appeal's decision in Carter Commercial Developments v Secretary of State, or to the other cases referred to in [33(1)].
43. There is also no reference in Hulme's case to the cases I relied on for my summary in [33(2)(a)], that the question is not what the parties intended but what a reasonable reader would understand was permitted by the local planning authority. In that case, the Court of Appeal was considering the prospect of quashing a decision letter very recently issued by the Inspector so as to enable the conditions to articulate less ambiguously a restriction which all parties agreed should exist. In that context, it is understandable that there was no need for the court to discuss the reason for the strict approach to extrinsic material which I have summarised at [33(2)].
44. In the present case, the condition has been in existence since 2002 and the rationale summarised at [33(2)] was fully applicable. In these circumstances, the proposition at [33(2)(a)] that the question is not what the parties intended but what a reasonable reader would understand was permitted is of importance. It may be putting the matter too strongly to say, as Mr Lockhart-Mummery's skeleton argument did (paragraph 30(7)), that the Court of Appeal relied heavily on the intention of the decision-maker. But the judgments do refer to the intention of the decision-maker. See, for example, Elias LJ at [28], [30], [32] (in part summarising submissions made to the court), and Patten LJ's reliance, albeit recognising the dangers and describing the analogy as "limited", to Attorney General of Belize v Belize Telecom Ltd [2009] UKPC 10, a case on the construction of contracts.
45. I finally turn to the contention that the Inspector either did not regard condition 19 as discharged, and thus fell into error, or was muddled in relation to whether it had been discharged. The Inspector made it clear in the decision letter (DL § 13) that the requirements of the condition were discharged. The Council and Growing Enterprises accepted that condition 19 had been discharged. If the Inspector's interpretation of the requirements of condition 19 was, as I have held, correct, the condition has no ongoing effect. In view of my conclusion on this, it is not necessary for me to consider Mr Strachan's submission that this point is a new ground of challenge which does not form part of the identified claim, and cannot properly be pursued.
46. For the reasons I have given, this application is dismissed.

Note 1    Sevenoaks DC v First Secretary of State [2004] EWHC 771 (Admin).     [Back]

Note 2    The summary incorporates the principles set out by Elias LJ in Hulme’s case at [13].     [Back]