Cautionary Supreme Court judgment on interpretation of planning permission

4 July, 2019

Yesterday (3 July 2019) the Supreme Court ruled in favour of the London Borough of Lambeth’s appeal in relation to the use of a DIY retail store in Streatham.

Planning permission for the store was originally granted in 1985, but the use was limited by condition to sale of DIY goods and other specified categories, excluding food sales.

The permitted use categories were subsequently extended by later consents, with the most recent being in 2014 – which failed to include an exclusion on food sales.

Following the 2014 permission, Aberdeen Asset Management, which managed the property, applied for a certificate of lawfulness from the Council to confirm the permitted use of the store extended to sales of unlimited categories of goods including food. The certificate was refused by the Council, however, later granted by a Planning Inspector who ruled that the requirement had not been included in the 2014 permission, and as such should not be implied in the document.

The Council appealed to the High Court and subsequently the Court of Appeal, where it was acknowledged that there had likely been a drafting error – the Council had intended to extend the range of goods permitted to be sold at the store, but not to lift the resection on food retailing. Both Courts, however, followed the ruling of the Planning Inspector.

In the Supreme Court judgment, however, it was found that earlier conditions excluding food sales remained valid and binding because there was nothing in the 2014 permissions to affect their continued operation. The Court held that that specific conditions in the 2014 permission were intended to be in addition to others remaining in effect under the earlier consents.

The Supreme Court judgment highlighted that while it was good practice for all the conditions which apply to a new planning permission to be restated in that new permission, it is not always possible to avoid the need for cross referencing earlier consents to establish the true meaning of a planning permission.  

Like many other documents in the planning system, it is necessary to ensure a planning permission is interpreted carefully – not only by looking at the words on its face, but where there might be ambiguity, going behind this to establish a true meaning from other associated documentation.