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What Condition Are Your Conditions In? Court of Appeal Rules on When a Defective Planning Permission Can Be Rescued

on Friday, 11 May 2018.

Planning officers and in-house lawyers know only too well that attention to detail is key.

The Court of Appeal case of London Borough of Lambeth v Secretary of State for Communities and Local Government and others ('Lambeth v SoS') is a reminder of the importance of carrying planning conditions through between decision notices. The re-imposing of conditions should also be sensitive to evolving permitted development and prior approval rights to avoid consents allowing unintended changes of us by omission.

Implied Conditions

Local authority planning officers and lawyers may well be familiar with the Trump International case which went before the Supreme Court in 2015 and in which guidance was set out on the approach for interpreting planning conditions. One conclusion (though obiter) has taken on a wider significance - that the courts will not generally take positive steps to imply a condition into a planning permission, or indeed any public document which may impose criminal sanctions, but there is no absolute bar on implication. Whether the court would imply a condition was the subject of Lambeth v SoS.

The 'Reasonable Reader' Test, But Not Always With Conditions…

Lambeth v SoS concerned a 1985 planning permission which expressly restricted retail use of the property to bulky items, and a 2010 permission expanding the range of items permitted for sale. Both protected this restriction by way of condition, with the 2010 permission expressly prohibiting food sales.

A further permission in 2014 purported to expand the consent to sale of all non-food goods. The description of the development was "for the sale and display of non-food goods only". However, no planning condition was included to impose this restriction.

The Court of Appeal found in favour of the Secretary of State (upholding the planning inspector's decision). The court considered that the reasonable reader would see that the permission was intended to restrict sales to non-food goods. However, as both food and non-food sales fall within class A1 planning use, no further permission would be needed for food sales. A condition was required to prevent this change of use within use class, and no such condition existed. Following the guidance in Trump and subsequent application by the lower courts, the Court of Appeal was not willing to imply a condition into the 2014 permission.

If you require advice in relation to planning matters, please contact Thomas Ewings in our Planning Law team on 0117 314 5387.

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