England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		3 October 2017

Mrs Justice Lang:

1. The Claimant applies under section 288 of the Town and Country Planning Act 1990 ("TCPA 1990") to quash the decision of the Defendant, made on his behalf by an Inspector on 6 December 2016, allowing the First Interested Party's appeal against the Claimant's refusal to grant a certificate of lawfulness of proposed use or development under section 192(1)(a) TCPA 1990, in respect of 100 Woodgate Drive, Streatham, London SW16 5YP ("the premises").
2. The Claimant is the local planning authority for the area within which the premises are situated. The Second Interested Party is the owner of the premises. The premises are managed on its behalf by the First Interested Party, who applied for the certificate of lawful use, and appealed against its refusal. The Third Interested Party is the leaseholder of the premises.
3. The premises comprise a site approximately 0.74 hectare in size, with a frontage onto Streatham Vale, to the north-west. The streets to the south are residential. A DIY store has been constructed on site, with a customer car park. It is currently occupied by Homebase. It retails home and garden improvement, car maintenance, building materials and builders' merchants goods. There is a garden centre to the rear of the store.
4. The issue is whether the current planning permission, as varied on 7 November 2014, permits unrestricted retail use for the sale of all goods (including food), or whether it restricts retail use to the sale of non-food goods. It is common ground that the retail use was restricted prior to the variation of planning permission in 2014. The dispute centres on how the 7 November 2014 variation of permission ought lawfully to be read and applied.
5. Permission to apply for statutory review was granted by Holgate J. on 23 February 2017.

Planning history

6. On 17 September 1985, planning permission was granted on appeal ("the 1985 permission") by the Secretary of State for "the erection of a DIY retail unit for Texas Homecare and an industrial building for Cow Industrial Polymers on land at Streatham Vale, Streatham", subject to a number of conditions.
7. Condition 6, as set out in the Secretary of State's decision letter, provided:

"6. The retail unit hereby permitted shall be used for the retailing of goods for DIY home and garden improvements and car maintenance, building materials and builders' merchants goods and for no other purpose (including any other purpose in Class I of the Schedule to the Town and Country Planning (Use Classes) Order 1972 or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order)."

8. In the Decision Letter, the Secretary of State explained the reason for the condition:

"16. …..Because the traffic generation and car parking requirements of certain types of large retail stores are substantially greater than those of the DIY unit proposed and could be excessive at this site, it is necessary to restrict the right to change to other types of retail unit…..".

9. The permission was implemented by construction of a DIY retail store but not the proposed industrial building.
10. On 30 June 2010, the Claimant granted planning permission ("the 2010 permission") for:

"Variation of Condition 6 (Permitted retail goods) of planning permission Ref. No 83/01916 (Erection of a DIY retail unit for Texas homecare and an industrial building for cow industrial polymers) granted on 17.09.85 to allow for the sale of a wider range of goods to include DIY home and garden improvements, car maintenance, building materials and builders merchants goods, carpets and floor coverings, furniture, furnishings, electrical goods, automobile products, camping equipment, cycles, pet and pet products, office supplies and for no other purpose in Class A1 of the Schedule to the Town and Country Planning (Use Classes) Order 1987 (as amended)."

11. Thus, the condition in the 1985 permission was varied so as to permit the sale of a wider range of goods, not extending to food goods. The varied condition was set out in the 2010 permission as Condition 1:

"1. The retail use hereby permitted shall be used for the retailing of DIY home and garden improvements and car maintenance, building materials and builders merchants goods, carpets and floor coverings, furniture, furnishings, electrical goods, automobile products, camping equipment, cycles, pet and pet products, office supplies and for no other purpose (including the retail sale of food and drink or any other purpose in Class A1 of the Schedule to the Town and Country Planning (Use Classes) Order 1987 (as amended) or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order.

2. Details of refuse and recycling storage …. shall be submitted to and approved in writing by the Local Planning Authority prior to first commencement of any of the additional retail uses hereby permitted. The refuse and recycling storage facilities shall be provided in accordance with the approved details prior to commencement of the development and shall thereafter be retained as such for the duration of the permitted use. ….

3. A strategy for the Management of Deliveries and Servicing shall be submitted to and approved in writing by the Local Planning Authority prior to first commencement of any of the additional retail uses hereby permitted. Deliveries and servicing shall thereafter be carried out solely in accordance with the approved details….."

12. On 20 November 2013, the Claimant refused an application for variation of Condition 1 of the 2010 permission, to permit the retail sale of food, because of the adverse impact on traffic flow and highway safety in the surrounding area, generated by increased customer visits and parking.
13. On 7 November 2014, the Claimant granted the disputed planning permission (see below).
14. On 25 May 2015 the Claimant granted a variation of condition 6 of the 1985 planning permission (as varied by the 2010 permission) to allow the use of 185 square metres of the existing Homebase sales area for the sale of A1 non-food goods by a Catalogue Showroom Retailer.

The disputed planning permission

15. On 7 November 2014, the Claimant granted planning permission ("the 2014 permission") in the following terms:

"DECISION NOTICE

DETERMINATION OF APPLICATION UNDER SECTION 73. TOWN AND COUNTRY PLANNING ACT 1990

The London Borough of Lambeth hereby approves the following application for the variation of condition as set out below under the above mentioned Act.

In accordance with the statutory provisions your attention is drawn to the statement of Applicant's Rights and General Information attached.

Application Number: 14/02553/VOC. Date of Application 19.05.2014. Date of Decision: 06.11.2014.

Development At: Homebase Ltd 100 Woodgate Drive, London SW16 5YP

For: Variation of condition 1 (Retail Use) of Planning Permission Ref: 10/01143/FUL (Variation of Condition 6 (Permitted retail goods) of planning permission Ref. 83/01916 (Erection of a DIY retail unit for Texas homecare and an industrial building for cow industrial polymers) granted on 17.09.85 to allow for the sale of a wider range of goods to include DIY home and garden improvements, car maintenance, building materials and builders merchants goods, carpets and floor coverings, furniture, furnishings, electrical goods, automobile products, camping equipment, cycles, pet and pet products, office supplies and for no other purpose in Class A1 of the Schedule to the Town and Country Planning (Use Classes) Order 1987 (as amended) Granted on 30.06.2010.

Original Wording:

The retail use hereby permitted shall be used for the retailing of DIY home and garden improvements and car maintenance, building materials and builders merchants goods, carpets and floor coverings, furniture, furnishings, electrical goods, automobile products, camping equipment, cycles, pet and pet products, office supplies and for no other purpose (including the retail sale of food and drink or any other purpose in Class A1 of the Schedule to the Town and Country Planning (Use Classes) Order 1987 (as amended) or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order.

Proposed Wording:

The retail unit hereby permitted shall be used for the sale and display of non-food goods only and, notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 1995 (or any Order revoking or re-enacting that Order with or without modification), for no other goods.

Approved Plans

April 2008, drafted by WYG Transport Open Space Map (110034/1), Transport Assessment Report Dated 08

Summary of the Reasons for Granting Planning Permission:

In deciding to grant planning permission, the Council has had regard to the relevant policies of the development plan and all other relevant material considerations. … Having weighed the merits of the proposals in the context of these issues, it is considered that planning permission should be granted subject to the conditions listed below.

Conditions

1. The development to which this permission relates must be begun not later than the expiration of three years beginning from the date of this decision notice.

Reason: To comply with Section 91(1)(a) of the Town and Country Planning Act …

2. Prior to the variation her[e]by approved being implemented a parking layout plan at scale of 1:50 indicating the location of the reserved staff car parking shall be submitted to and approved in writing by the Local Planning Authority. The use shall thereafter be carried out solely in accordance with the approved staff car parking details.

Reason: To ensure that the approved variation does not have a detrimental impact on the continuous safe and smooth operation of the adjacent highway …..

3. Within 12 months of the development hereby approved details of a traffic survey on the site and surrounding highway network shall be undertaken within 1 month of implementation of the approved development date and the results submitted to the local planning authority. If the traffic generation of the site, as measured by the survey, is higher than that predicted in the Transport Assessment submitted with the original planning application the applicant shall, within 3 months, submit revised traffic modelling of the Woodgate Drive/Streatham Vale/Greyhound Lane junction for analysis. If the junction modelling shows that junction capacity is worse than originally predicted within the Transport Assessment, appropriate mitigation measures shall be agreed with the council, if required, and implemented within 3 months of the date of agreement.

Reason: to ensure that the proposed development does not lead to an unacceptable traffic impact on the adjoining highway network (Policy 9 of the London Borough of Lambeth Unitary Development Plan (UDP) 2007: Policies saved beyond 5 August 2010 and not superseded by the LDF Core Strategy January 2011) Policies S4 of the Core Strategy 2011."

16. The approval required under Condition 2 of the 2014 permission in relation to a parking layout plan was granted on 7 May 2015.

Application for a certificate of lawfulness of proposed use or development

17. On 10 June 2015, the First Interested Party made an application for a certificate of lawfulness of proposed use or development for a proposed use of the premises "for open/unrestricted A1 retail purposes". The basis of the application was that the 2014 permission contained no condition restricting the goods which could be sold from the premises.
18. The application was refused by the Claimant in a notice dated 12 August 2015 on the ground that "the unrestricted sale of retail goods would not be permitted under the terms of the existing planning permission(s) for the site; the lawful use of the premises under planning permission 14/02553/VOC is for the sale and display of non-food goods only". The First Interested Party appealed to the Defendant against this decision.

The Inspector's decision

19. The Inspector (Melissa Hall BA (Hons), BTP, BSc, MRTPI) conducted a hearing and site visit on 26 July 2016.
20. In her Appeal Decision (AD) dated 6 December 2016, the Inspector allowed the appeal. She granted the First Interested Party a "Lawful Development Certificate" under section 192 TCPA 1990, certifying that "[t]he use of the premises at 100 Woodgate Drive, London for purposes within Use Class A1 of the Town and Country Planning (Use Classes) Order 1987 (as amended) without restriction on the goods that may be sold" would have been lawful as at 10 June 2015 (the date of application).
21. The reason given was that no condition was imposed on the 2014 permission to restrict the nature of the retail use to specific uses falling within Use Class A1 of the Town and Country Planning (Use Classes) order 1987 (as amended).
22. The Inspector rejected the Claimant's submissions that the 2014 permission could be interpreted as including a condition which restricted the nature of the retail use, or that such a condition could be implied into the 2014 permission.
23. The Inspector also held that Condition 1, which set a three year time limit for commencement of development, had no effect because the relevant development had commenced many years previously, pursuant to the 1985 permission.

Grounds of challenge

24. Interpretation of the permission. The Claimant submitted that the Inspector erred in her interpretation of the 2014 permission. The 2014 permission should be properly interpreted in a manner which restricted the permission to use for the sale of non-food goods only, which was consistent with the objective meaning of the words used. The 1985 and 2010 permissions could, and should, be used to construe the 2014 permission, and were incorporated into it by reference.
25. In response, the Defendant submitted that it was well-established that a local planning authority could only restrict the scope of a use for which it grants permission by a clearly stated condition. Such a restriction of use could not be construed from the description of the use specified in the consent. The three conditions imposed on the 2014 permission did not restrict the goods which could be sold, and so the effect of the 2014 permission was to grant permission for an unrestricted use. There was no ambiguity on the face of the permission. The 1985 and 2010 permissions neither could nor should be referred to, and they were not incorporated by reference. Giving effect to the intention of the parties was not the correct basis for the interpretation of the permission. This was not a private law contract; the issue was what the planning authority had decided, not what was agreed. In any event, it was not clear what the parties had intended. The 2014 permission had "business efficacy" as an unrestricted grant of permission for retail use. The Second Interested Party broadly agreed with the Defendant's submissions, save that it considered that the 1985 and 2010 permissions could be referred to and they were incorporated by reference.
26. Implication of a condition into the permission. Alternatively, the Claimant submitted that the Inspector erred in refusing to imply into the 2014 permission a condition restricting the use of the premises to the sale of non-food goods, to achieve which was obviously intended by the parties and to give "business efficacy" to the grant of planning permission.
27. In response, whilst the Defendant accepted that, following the judgments given by the Supreme Court in Trump International Golf Club Scotland Ltd & Anor. v The Scottish Ministers [2015] UKSC 74, [2016] 1 WLR 85, conditions could in principle be implied into a planning permission, such a course would rarely be appropriate. The criteria for the implication of a condition were not met in this case. The Second Interested Party took a narrower view of the effect of Trump and subsequent cases, submitting that they only envisaged implying terms into an existing condition, not adding a new condition.
28. Condition 1 (time limit). The Claimant also submitted that Condition 1 was valid, as the development in issue was not the implementation of the initial 1985 permission but the implementation of the 2014 permission, permitting a variation of use. Such a condition could be imposed under the general power in section 72 TCPA 1990, even if it was not required pursuant to section 91(1) TCPA 1990. The three year time limit expired in November 2017.
29. In response, the Defendant observed that the 2014 permission stated that Condition 1 was imposed pursuant to 91(1) TCPA 1990, not section 73 TCPA 1990. Section 91(4) TCPA 1990, which excluded the application of the section "to any planning permission granted for development carried out before the grant of that permission", applied here. On an application for a variation of a condition under section 73 TCPA 1990, the only "development" was the principal development to which the condition was attached. In this case, the principal development was the construction and use of the DIY store pursuant to the 1985 permission.

Statutory framework

30. By section 70(1)(a) TCPA 1990, a local planning authority "…may grant planning permission, either unconditionally or subject to…such conditions as they think fit".
31. Section 72 confers power to impose conditions upon the grant of planning permission. It provides, so far as is material:

"Conditional grant of planning permission

72 (1) Without prejudice to the generality of section 70(1), conditions may be imposed on the grant of planning permission under that section –

(a) for regulating the…use of any land under the control of the applicant…so far as appears to the local planning authority to be expedient for the purposes of or in connection with the development authorised by the permission…"

32. Section 58 contains provisions for the granting of planning permission. It provides, so far as is material:

"(1) Planning permission may be granted –

(b) by the local planning authority…..in accordance with a development order…"

33. At the time of the 2014 permission, the "development order" was the Town and Country Planning (Development Management Procedure) (England) Order 2010. Article 31(1)(a) provided:

"Where planning permission is granted subject to conditions, the notice shall state clearly and precisely their full reasons for each condition imposed"

34. Section 73 of the 1990 Act provides, so far as is material:

"Determination of applications to develop land without compliance with conditions previously attached.

73(1) This section applies, subject to subsection (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted.

(2) On such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted, and—

(a) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly, and

(b) if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application.

…

(4) This section does not apply if the previous planning permission was granted subject to a condition as to the time within which the development to which it related was to be begun and that time has expired without the development having been begun."

35. Section 91 TCPA 1990 provides, so far as is material:

"General condition limiting duration of planning permission

91(1) Subject to the provisions of this section, every planning permission granted or deemed to be granted shall be granted or, as the case may be, be deemed to be granted, subject to the condition that the development to which it relates must be begun not later than the expiration of—

(a) five years beginning with the date on which the permission is granted or, as the case may be, deemed to be granted; or

(b) such other period (whether longer or shorter) beginning with that date as the authority concerned with the terms of planning permission may direct.

(2) The period mentioned in subsection (1)(b) shall be a period which the authority consider appropriate having regard to the provisions of the development plan and to any other material considerations.

(3) If planning permission is granted without the condition required by subsection (1), it shall be deemed to have been granted subject to the condition that the development to which it relates must be begun not later than the expiration of five years beginning with the date of the grant.

…..

(4) Nothing in this section applies –

…..

(b) to any planning permission granted for development carried out before the grant of that permission."

36. Section 192 of the 1990 Act provides, so far as is material:

"Certificate of lawfulness or proposed use or development

192(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."

Policy

37. Well-established policy on the imposition of conditions was re-stated in the National Planning Policy Framework ("NPPF"). Paragraph 206 states that planning conditions should only be imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects.

Case law on the interpretation of planning permissions

38. The judgments of the Supreme Court in Trump International Golf Club Scotland Ltd & Anor. v The Scottish Ministers [2015] UKSC 74, [2016] 1 WLR 85, have provided extensive guidance on the interpretation of planning permissions. Whilst some observations were obiter, they command respect and have been cited with approval in subsequent cases (see Dunnett Investments Limited v Secretary of State for Communities and Local Government [2017] EWCA Civ 192).
39. Lord Hodge said:

"32 Mr Campbell submits that the court should follow the approach which Sullivan J adopted to planning conditions in Sevenoaks District Council v First Secretary of State [2005] 1 P & CR 13 and hold that there is no room for implying into condition 14 a further obligation that the developer must construct the development in accordance with the design statement. In agreement with Lord Carnwath, I am not persuaded that there is a complete bar on implying terms into the conditions in planning permissions, and I do not see the case law on planning conditions under planning legislation as directly applicable to conditions under the 1989 Act because of the different wording of the 1989 Act.

33 Whether words are to be implied into a document depends on the interpretation of the words which the author or authors have used. The first question therefore is how to interpret the express words, in this case the section 36 consent. There is a modern tendency in the law to break down divisions in the rules on the interpretation of different kinds of document, both private and public, and to look for more general rules on how to ascertain the meaning of words. In particular, there has been a harmonisation of the interpretation of contracts, unilateral notices, patents and also testamentary documents. This can be seen, for example, in Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900 per Lord Clarke at paras 14 to 23 (contracts), Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 per Lord Steyn at pp 770C-771D and Lord Hoffmann at pp 779H-780F (unilateral notices), Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2005] 1 All ER 667, per Lord Hoffmann at paras 27 to 35 (patents), and Marley v Rawlings [2015] AC 129, per Lord Neuberger at paras 18-23 (testamentary documents). Differences in the nature of documents will influence the extent to which the court may look at the factual background to assist interpretation. Thus third parties may have an interest in a public document, such as a planning permission or a consent under section 36 of the 1989 Act, in contrast with many contracts. As a result, the shared knowledge of the applicant for permission and the drafter of the condition does not have the relevance to the process of interpretation that the shared knowledge of parties to a contract, in which there may be no third party interest, has. There is only limited scope for the use of extrinsic material in the interpretation of a public document, such as a planning permission or a section 36 consent: R v Ashford Borough Council, Ex p Shepway District Council [1999] PLCR 12, per Keene J at pp 19C-20B; Carter Commercial Developments Ltd v Secretary of State for Transport, Local Government and the Regions [2002] EWCA Civ 1994, [2003] JPL 1048, per Buxton LJ at para 13, at para 27 per Arden LJ. It is also relevant to the process of interpretation that a failure to comply with a condition in a public law consent may give rise to criminal liability. In section 36(6) of the 1989 Act the construction of a generating station otherwise than in accordance with the consent is a criminal offence. This calls for clarity and precision in the drafting of conditions.

34 When the court is concerned with the interpretation of words in a condition in a public document such as a section 36 consent, it asks itself what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole. This is an objective exercise in which the court will have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense. Whether the court may also look at other documents that are connected with the application for the consent or are referred to in the consent will depend on the circumstances of the case, in particular the wording of the document that it is interpreting. Other documents may be relevant if they are incorporated into the consent by reference (as in condition 7 set out in para 38 below) or there is an ambiguity in the consent, which can be resolved, for example, by considering the application for consent.

35 Interpretation is not the same as the implication of terms. Interpretation of the words of a document is the precursor of implication. It forms the context in which the law may have to imply terms into a document, where the court concludes from its interpretation of the words used in the document that it must have been intended that the document would have a certain effect, although the words to give it that effect are absent. See the decision of the Privy Council in Attorney General of Belize v Belize Telecom Ltd [2009] 1 WLR 1988 per Lord Hoffmann at paras 16 to 24 as explained by this court in Marks & Spencer plc v BNP Paribas Securities Trust Company (Jersey) Ltd [2015] UKSC 71, per Lord Neuberger at paras 22 to 30. While the court will, understandably, exercise great restraint in implying terms into public documents which have criminal sanctions, I see no principled reason for excluding implication altogether."

40. Lord Mance said:

"41 I agree with the judgment prepared by Lord Hodge and agree therefore that the appeal should be dismissed. But I add some words with regard to the process of implication on which Lord Hodge touches in para 35 of his judgment by reference to the Privy Council's advice in Attorney General of Belize v Belize Telecom Ltd [2009] 1 WLR 1988 per Lord Hoffmann at paras 16 to 24 as explained by this court in Marks & Spencer plc v BNP Paribas Securities Trust Company (Jersey) Ltd [2015] UKSC 72 per Lord Neuberger at paras 22 to 30.

42 As Lord Neuberger indicates in para 23 in Marks & Spencer, whether an implication is necessary to give business efficacy must be judged objectively, in the light of the provisions of the contract as a whole and the surrounding circumstances at the time when the contract is made. But I would not encourage advocates or courts to adopt too rigid or sequential an approach to the processes of consideration of the express terms and of consideration of the possibility of an implication. Without derogating from the requirement to construe any contract as a whole, particular provisions of a contract may I think give rise to a necessary implication, which, once recognised, will itself throw light on the scope and meaning of other express provisions of the contract.

43 This applies whether one is concerned, as in this case, with a public document in the interpretation of which there is, as Lord Hodge notes in para 33, limited scope for the use of extrinsic material or with, for example, a commercial contract, where the overall aim is to give effect to the parties' assumed intentions, objectively assessed by reference to the contractual language they used understood against the background of their wider relationship and the circumstances of which both must be taken to have been aware when contracting.

44 In the light of the above at least, it appears to me helpful to recognise that, in a broad sense as Lord Neuberger and Lord Clarke recognise in Marks & Spencer at paras 26 and 76, the processes of consideration of express terms and of the possibility that an implication exists are all part of an overall, and potentially iterative, process of objective construction of the contract as a whole."

41. Lord Carnwath agreed with Lord Hodge, concluding that there was no reason to exclude implication as a technique of interpretation where justified, in accordance with the restrictive principles applied to other legal documents (at [60]). He added, at [66]:

"… As will have become apparent, however, and in agreement also with Lord Hodge, I do not think it is right to regard the process of interpreting a planning permission as differing materially from that appropriate to other legal documents. As has been seen, that was not how it was regarded by Lord Denning in Fawcett. Any such document of course must be interpreted in its particular legal and factual context. One aspect of that context is that a planning permission is a public document which may be relied on by parties unrelated to those originally involved. (Similar considerations may apply to other forms of legal document, for example leases which may need to be interpreted many years, or decades, after the original parties have disappeared or ceased to have any interest.) It must also be borne in mind that planning conditions may be used to support criminal proceedings. Those are good reasons for a relatively cautious approach, for example in the well-established rules limiting the categories of documents which may be used in interpreting a planning permission (helpfully summarised in the judgment of Keene J in the Shepway case at pp 19–20). But such considerations arise from the legal framework within which planning permissions are granted. They do not require the adoption of a completely different approach to their interpretation."

42. Although Lord Carnwath observed, at [47], that the Trump case, together with the cases cited, concerned "incomplete conditions", I do not consider that his guidance on implication was limited to "incomplete conditions" cases, though in practice such cases will more readily fulfil the legal tests for the implication of terms.

Conclusions

43. In my judgment, the 2014 permission has to be read and interpreted in its statutory context, namely, as permission to vary a condition under section 73 TCPA 1990. The Planning Practice Guidance (PPG) contains a helpful and pithy summary of law and guidance on the scope of section 73, as follows:

"What options are available to an owner who does not wish to comply with a condition?

Following the decision of a local planning authority to grant planning permission subject to conditions, a developer may consider taking the following actions if they do not wish to be subject to a condition:

Some or all of the conditions could be removed or changed by making an application to the local planning authority under section 73 of the Town and Country Planning Act 1990. In deciding an application under section 73, the local planning authority must only consider the disputed condition/s that are the subject of the application – it is not a complete re-consideration of the application. A local planning authority decision to refuse an application under section 73 can be appealed to the Secretary of State, who will also only consider the condition/s in question.

It should be noted that the original planning permission will continue to exist whatever the outcome of the application under section 73. To assist with clarity, decision notices for the grant of planning permission under section 73 should also repeat the relevant conditions from the original planning permission, unless they have already been discharged. In granting permission under section 73 the local planning authority may also impose new conditions – provided the conditions do not materially alter the development that was subject to the original permission and are conditions which could have been imposed on the earlier planning permission. Further guidance on section 73."

("Why and how are conditions imposed" at paragraph 31)

44. The PPG provides further guidance on section 73 TCPA 1990 as follows:

"Where an application under section 73 is granted, the effect is the issue of a new planning permission, sitting alongside the original permission, which remains intact and unamended.

A decision notice describing the new permission should be issued, setting out all of the conditions related to it. To assist with clarity decision notices for the grant of planning permission under section 73 should also repeat the relevant conditions from the original planning permission, unless they have already been discharged….

As a section 73 application cannot be used to vary the time limit for implementation, this condition must remain unchanged from the original permission….."

("Flexible options for planning permissions", at paragraph 15)

45. On behalf of the Claimant, Mr Reed QC accepted that the drafting of the 2014 permission was flawed because the decision notice did not set out all the conditions which related to it, contrary to the well-established principles set out in PPG, which are drawn from the authorities. The "Proposed Wording", varying Condition 1 in the 2010 permission, ought to have been set out under the heading "Conditions", as was done in the 2010 permission.
46. In consequence, I consider that the 2014 permission was ambiguous on its face. Despite the stated approval of the variation of the condition as to use, which restricted sale to non-food goods, the "Conditions" in the permission did not include any condition restricting use to the sale of non-food goods. Because of the ambiguity I conclude that it is permissible to consider the 1985 and 2010 permissions, and application for the variation in 2014. The 2014 application document was not available, but the Claimant stated that the application had been for a variation in the terms of the "Proposed Wording" and not for an unconditional grant of permission, and the other parties did not dispute this. Furthermore, all these documents were referred to in the 2014 permission, and extracts quoted from those documents were incorporated into the 2014 permission, which is a further reason why it is permissible to consider them when interpreting the 2014 permission.
47. On my reading of the 2014 permission, it seems probable that the Claimant's intended purpose was to vary the condition so as to widen the range of goods which could be sold from the premises (not limiting it to the specific list of goods in the 2010 permission), whilst retaining the restriction on the sale of food items. The Decision Notice stated that it "hereby approves the following application for the variation of condition set out below". It then set out the existing condition and the proposed variation in wording. The terms of the "Proposed Wording" were sufficiently clear and precise to form the basis of a condition.
48. However, the Claimant's intended purpose was not given legal effect by the wording of the 2014 permission, because of flawed drafting. I agree with the Inspector's conclusion in AD 28 where she said:

"Whilst I accept that it may have been the intention of the Council that the overall purpose of the consent was to restrict the sale of goods at the time, it did not result in an objectively constructed condition on the 2014 permission."

49. In I'm Your Man Limited v Secretary of State for the Environment 77 P & CR 251, Robin Purchas QC, sitting as a Deputy High Court Judge, held that a grant of planning permission for use of a warehouse/factory for a temporary period of seven years had granted permanent, not temporary permission, because the limit on the period of the permission should have been expressed by way of condition, not merely in the description of the permission. He concluded (at 257) that the 1990 Act did not expressly provide a power for the imposition of limitations on the grant of planning permission. Under the statutory scheme, such limitations could only be imposed by conditions, which could then be enforced.
50. The reasoning in I'm Your Man was upheld by the Divisional Court in R (Altunkaynak) v Northamptonshire Magistrates Court [2012] EWHC 174 (Admin) and by the Planning Court in Cotswold Grange Country Park LLP v Secretary of State for the Environment & Anor [2014] EWHC 1138 (Admin). Both these cases concerned substantive limitations on the permission granted, not merely temporal ones. In Altunkaynak, Richards LJ said:

"The relevant principle, drawn from the wording of the statute is a general one: if a limitation is to be imposed on a permission granted pursuant to an application, it has to be done by condition."

In Cotswold Grange, Hickinbottom LJ cited this passage and said, at [21], that it "succinctly and perfectly encapsulates the principle derived from I'm Your Man".

51. Mr Reed QC did not seek to distinguish this line of authorities, or invite me to depart from the principle expressed therein. Applying the principle to this case, the 2014 permission failed to limit retail sale to non-food goods, because it did not include a condition to that effect. As a matter of interpretation, a reasonable reader of the 2014 permission, aware of the principle established in I'm Your Man, would conclude that there were no restrictions on retail sale.
52. Mr Reed QC relied upon the case of R (Reid) v Secretary of State for the Environment Transport and the Regions [2002] EWHC 2174 in which permission was granted under section 73 TCPA 1990 to retain the land without compliance with Condition 2 (relating to improvements to the public highway). The permission notice stated "Conditions: None". The issue in the case was whether the permission was now unconditional. Sullivan J. held that, because the earlier 1992 permission had been incorporated by reference into the section 73 permission, "the words "Conditions: None" mean, in that context, no additional conditions beyond those which had been imposed upon the 1992 permission".
53. I accept Mr Lockhart-Mummery QC's submission that Reid is readily distinguishable from this case. The issue in that case did not relate to the discharge or variation of the condition which was the subject of the application under the section 73, but the continuation of the previous conditions which were not subject to any application to vary. The 2014 permission did not state "Conditions: None". Instead it expressly stated that "planning permission should be granted subject to the conditions below" and then set them out, under the heading "Conditions". In my view, it was impossible to interpret the conditions in the 2014 permission as including the "Proposed Wording" set out earlier in the notice.
54. I am also unable to accept Mr Reed QC's submission that the "Proposed Wording" could be implied into the 2014 permission, as one of the conditions.
55. First, Mr Reed QC sought to add it as a "tail piece" to Condition 2 which provided for staff parking in accordance with an approved plan. However, there was no rational basis for adding it to Condition 2, as a condition specifying the classes of goods which could be sold had no connection to a condition in relation to staff parking.
56. Alternatively, Mr Reed QC sought to imply the "Proposed Wording" as an additional freestanding condition into the 2014 permission. However, I accept the Defendant's submission that, in order to imply a term, it is not sufficient that it probably reflected the local planning authority's intended purpose, or that it would be fair as between the parties to do so. In Phillips Electronique Grand Public SA v British Sky Broadcasting Ltd [1985] EMLR 472, Lord Bingham said (at 481) it was "tempting but wrong" for the Court, acting with the benefit of hindsight, to fashion a term which reflected the merits of the situation as they appeared at the date of the hearing. Lord Neuberger said in Marks and Spencer plc v BNP Paribas Securities Trust Co (Jersey) Ltd [2015] 3 WLR 1843, at [21]:

"…A term should not be implied into a detailed commercial contract merely because it appears fair or merely because one considers that the parties would have agreed it if it had been suggested to them. Those are necessary but not sufficient grounds for including a term."

57. In Marks and Spencer, Lord Neuberger analysed the requirement that, for a term to be implied, "it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it" (per Lord Simon of Glaisdale in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, at 283). Lord Neuberger said, at [21]:

"…necessity for business efficacy involves a value judgment. It is rightly common ground on this appeal that the test is not one of "absolute necessity", not least because the necessity is judged by reference to business efficacy. It may well be that a more helpful way of putting Lord Simon's second requirement is, as suggested by Lord Sumption JSC in argument, that a term can only be implied if, without the term, the contract would lack commercial or practical coherence."

58. In Impact Funding Solutions Ltd v Barrington Services Ltd [2017] AC 85, Lord Hodge applied Lord Neuberger's re-formulated test, saying:

"31. I see no basis for implying additional words into the exclusion in order to limit its scope. In Marks and Spencer plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd [2016] AC 742 this court confirmed that a term would be implied into a detailed contract only if, on an objective assessment of the terms of the contract, the term to be implied was necessary to give the contract business efficacy or was so obvious that it went without saying: paras 15–31, per Lord Neuberger PSC. This court also held that the express terms of the contract must be interpreted before one can consider any question of implication: para 28."

32, In my view, it cannot be said that the policy would lack commercial or practical coherence if a term restricting the scope of the exclusion were not implied…."

59. I accept the Defendant's submission that implication of the "Proposed Wording" is not necessary to give the 2014 permission business efficacy. Without a condition limiting the use, the permitted use is a retail use, subject to appropriate conditions. This outcome does not lack "commercial or practical coherence" even though it is probably not that which the Claimant intended.
60. I bear in mind Lord Hodge's guidance in Trump at [35] that the court "will exercise great restraint in implying terms into public documents which have criminal sanctions". Such restraint was demonstrated in Government of the Republic of France v Royal Borough of Kensington and Chelsea [2017] EWCA Civ 429, where there had been a listed building consent granted in 2008 (LB/08), with 13 conditions. There was a subsequent listed building consent granted in 2010 (LB/10). As appears from paragraphs 15-16 of the judgment of the High Court (2015 EWHC 3437 (Admin)) the later consent was in these terms:

"The Borough Council, hereby consents to the works to the Listed Buildings referred to in the under-mentioned Schedule, subject to the conditions set out therein…"

At the foot of the Schedule the Council stated "Full conditions, reasons for their imposition and informatives attached overleaf". The Schedule contained only two conditions, and did not replicate conditions contained in the 2008 listed building consent. It was in these circumstances that the Court of Appeal stated [118]:

"In this case, there is no basis for the contention that the conditions from Consent LB/08 were necessarily implied into Consent LB/10; especially as such implication would be inconsistent with the face of the latter, which indicated that the two conditions there set out were "full"."

61. I agree with Mr Lockhart-Mummery QC's submission that the present case is on all fours with the position in France. The 2014 permission was explicit as to the three conditions it imposed.
62. For these reasons, I reject the Claimant's submission that a condition can properly be implied into the 2014 permission to limit retail sales to non-food goods.
63. The Inspector held that Condition 1 in the 2014 permission, which imposed a time limit of 3 years for the commencement of the development, was unlawful and had no effect because the development had begun when the initial 1985 permission was implemented. The Claimant challenged the Inspector's decision, arguing that the development in issue was not the implementation of the initial 1985 permission but the implementation of the 2014 permission, permitting a variation of use. Such a condition could be imposed under the general power in section 72 TCPA 1990, even if it was not required pursuant to section 91(1) TCPA 1990.
64. In my judgment, the Claimant's submission was based upon a misreading of section 73 TCPA 1990. On an application under section 73(1), the only "development" is the principal development to which the condition is attached. In this case, the principal development was the construction and use of the DIY store pursuant to the 1985 permission.
65. In this case, it is clear from the face of the 2014 permission that Condition 1 was imposed pursuant to 91(1) TCPA 1990, not section 73 TCPA 1990. Section 91(4) TCPA 1990 excluded the application of the section "to any planning permission granted for development carried out before the grant of that permission".
66. Therefore in my view the Inspector correctly decided that Condition 1 was invalid and of no effect.
67. For the reasons set out above, the Claimant's application to quash the Defendant's decision is refused.