London Borough of Lambeth v Secretary of State for Housing, Communities and Local Government and others [2019] UKSC 33
The point in plain English: A section 73 decision must be read as a planning permission in its own right, but it is still interpreted objectively and sensibly. The court will not ignore the obvious effect of wording which, read in context, clearly approves a proposed variation of a condition simply because the drafting is untidy.
What happened
A retail permission had long restricted the types of goods that could be sold. In 2014 Lambeth approved an application under section 73 to vary that restriction so that the store could sell non-food goods only.
The decision notice was badly structured. The revised wording appeared in the description of what was being approved rather than being repeated neatly in the later list of conditions. An Inspector and the lower courts treated the omission as leaving the store unrestricted within the relevant retail use class.
What the Supreme Court decided
Lord Carnwath held that an ordinary reading of the notice led to the opposite conclusion. It expressly approved the application to vary the condition and set out both the old wording and the proposed new wording. A reasonable reader would understand that the revised non-food restriction had been approved as the varied condition.
The Supreme Court allowed Lambeth’s appeal.
What Lambeth says about section 73 drafting
The case confirms that a permission under section 73 is a new, independent permission for the same development, subject to the new or amended conditions. It also warns against over-complicating the interpretation of a public planning document where its natural meaning is clear.
The Court gave a provisional view that conditions attached to an earlier implemented permission may continue to bind under that earlier permission where the later section 73 consent does not authorise non-compliance with them and is not inconsistent with them. That is different from saying missing conditions are automatically implied into the new permission.
Good drafting remains much safer: a section 73 decision should restate the relevant conditions clearly. See our section 73 guide and the later cases Finney, Armstrong and Test Valley.
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