Flawed Drafting: Interpreting Planning Permissions

“What are words worth? Words

Words of nuance, words of skill”

Some of the most difficult cases in every area of law arise from flawed drafting and drafting which does not adequately anticipate future eventualities. 
I will leave for another blog post the issues that arise in relation to the drafting and interpretation of section 106 agreements and undertakings, although the Secretary of State’s 12 September 2017 decision letter dismissing an appeal for planning permission for 705 dwellings at King George’s Gate, Surbiton was a salutary lesson, and essential reading, for every planning lawyer.
In the light of Lang J’s judgment this month in London Borough of Lambeth v Secretary of State, this blog post limits itself to the question as how literally should planning permissions be interpreted? Is the planning permission in fact wider in its scope than the local authority intended when granting it? Have restrictions that were initially imposed fallen away by virtue of not being reapplied to subsequent permissions for the permitted buildings or to a permission for amendments to that initial permission? 

There have been many examples where the courts have determined that the legal effect of a permission was not what the authority may have intended, applying what might be regarded as a classically pure planning law approach:

– where a planning permission is clear, unambiguous and valid on its face, regard may only be had to the planning permission itself, including the conditions imposed upon it and the reasons given for the imposition of those conditions 
– an extreme reluctance to imply extra wording into conditions (Widgery LJ’s statement in Trustees of Walton Charities v. Walton & Weybridge DC (1970): “I have never heard of an implied condition in a planning permission and I believe no such creature exists. Planning permission… is not simply a matter of contract between the parties. There is no place…within the law relating to planning permission for an implied condition. Conditions should be expressed, they should be clear, they should be in the document containing the permission.”)

– applying the judge-made principle of a “new chapter in the planning history” of a site, effectively wiping the slate clean of previous planning condition restrictions where a significant change of use or other development has occurred.

This has led over the years to many outcomes which, whilst logical on a dispassionate reading of the relevant document by a lawyer, were certainly not anticipated by the unfortunate planning officer. For instance:
– in Carpet Décor (Guilford) Limited v Secretary of State (Sir Douglas Frank QC, 17 July 1981) 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 be sufficiently unequivocal as to exclude the operation of the Use Classes Order. 
– in Dunoon Developments Limited v Secretary of State (Court of Appeal, 18 February 1992) a condition on a planning permission for a car showroom that stated that the use of the premises would be limited to the display, sale and storage of cars was not sufficient to exclude the operation of the General Permitted Development Order.
– in I’m Your Man Limited v Secretary of State (Robin Purchas QC, 4 September 1998) it was held that for a planning permission to be construed as limited to a temporary period, it was not sufficient for the restriction to be set out in the description of development rather than in a condition. 
– in Stevenage Borough Council v Secretary of State (HHJ Waksman QC, 3 June 2010) the owner of a retail park was held to be free of various restrictions on the types of goods which could be sold, by virtue of planning permissions having been granted for subdivision of units and other alterations, which did not reimpose restrictions from the original permission. As with a number of similar cases and CLOPUD appeal decision letters, the ruling partly relied on a liberal application of section 75(3) of the Town and Country Planning Act 1990, which provides that where the proposed use of a building (or part of) a building is not specified in a permission for its erection (or alterations), “the permission shall be construed as including permission to use the building for the purpose for which it is designed“.
– in Prudential Assurance v Sunderland City Council (Wyn Williams J, 15 July 2010) the High Court held that, through the windfall of a local planning authority’s mistake faced with successive planning applications, Peel Holdings had become free of section 106 restrictions on the types of goods that could be sold from its retail park in Washington, Sunderland. 
The tide then started to turn with the Court of Appeal in Peel Land and Property Investments Plc v Hyndburn Borough Council (19 December 2013). Peel, no doubt hoping for an equivalent outcome as achieved in Sunderland, argued that the failure of the local authority, in drafting a permission for works of alteration to retail park units, to reimpose a condition restricting the goods that could be sold, meant that the restriction had been removed. However the court rejected the submissions. The works did not create a new chapter in the planning history of the units and on the facts (with no indication in the application documents that unrestricted retail use was intended) section 75(3) could not be relied upon in the way that was sought. 

The Supreme Court in Trump International Golf Club Scotland Limited v The Scottish Ministers (16 December 2015) then indicated a more nuanced approach to interpretation:

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 … or there is an ambiguity in the consent, which can be resolved, for example, by considering the application for consent.

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” (Lord Hodge)

Against this background it is therefore interesting to see this month another case in which the owner of a retail investment, in this case a Homebase DIY store, has achieved an outcome which was not intended by the local planning authority, and which could have been avoided by competent drafting of the decision notice. In London Borough of Lambeth v Secretary of State (Lang J, 3 October 2017), a planning permission had been granted varying conditions attached to an earlier permission. The purported effect of the widened conditions was set out in the description of development on the face of the permission:

” 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.”

However, for some reason, whoever drafted the permission did not bother to go on and include the proposed wording as a condition. Lang J applied I’m Your Man and held that the purported restriction was of no effect. Lambeth Council’s “intended purpose was not given legal effect by the wording of the 2014 permission, because of flawed drafting.
As set out in Landmark Chambers’ helpful summary , Lang J has granted permission for the case now to go to the Court of Appeal:
I do not accept the Claimant’s critique of my judgment, and the application of the current law to the facts of this case. However, I am left with some unease about the result.  The principle established in I’m Your Man Limited v Secretary of State for the Environment 77 P & CR 251, and its application, merits consideration in a higher court which is not bound by precedent in the same way as the High Court. The interpretation and application of 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 is still evolving, and merit consideration by the Court of Appeal in this case.”

It is worth noting two post-Trump cases where the Court of Appeal has rejected submissions that a narrow interpretation should be given to specific conditions.
First, R (XPL Limited) v Harlow Council (Court of Appeal, 13 April 2016), where a condition preventing “repairs or maintenance of vehicles or other industrial or commercial activities (other than the parking of coaches and other vehicles …” outside specified hours at a coach depot was held to extend to a prohibition on the running of engines. 

Secondly, Dunnett Investments Limited v Secretary of State (Court of Appeal, 29 March 2017) where the court had to determine whether the following condition is to be interpreted as excluding the operation of the General Permitted Development Order so as to allow change of use from offices to residential by way of the prior approval process:

“This use of this building shall be for purposes falling within Class B1 (Business) as defined in the Town and Country Planning (Use Classes) Order 1987, and for no other purpose whatsoever, without express planning consent from the Local Planning Authority first being obtained“.

Did prior approval from the local planning authority pursuant to the GPDO amount to “express planning consent” for the purposes of the condition?
The Court of Appeal reviewed the case law on interpretation of conditions:
In relation to the interpretation of, specifically, a planning condition which is said to exclude the operation of the GPDO, other authorities are of some assistance. From them, the following themes can be discerned.


i) It is rightly common ground that a planning condition on a planning consent can exclude the application of the GPDO (see Dunoon Developments v Secretary of State for the Environment and Poole Borough Council (1993) 65 P&CR 101 (“Dunoon Developments”)).


ii) Exclusion may be express or implied. However, because a grant of planning permission for a stated use is a grant of permission for only that use, a grant for a particular use cannot in itself exclude the application of the GPDO. To do that, something more is required (see, e.g., Dunoon Developments at [107] per Sir Donald Nicholls VC). 


iii) In Carpet Décor (Guilford) Limited v Secretary of State for the Environment (1981) 261 EG 56, Sir Douglas Frank QC sitting as a Deputy High Court Judge said that, because in the absence of such a condition the GPDO has effect by operation of law, the condition should be in “unequivocal terms”. Although “unequivocal” was used by Mr Katkowski in his written argument, during the course of debate he accepted that that term was now less appropriate, given the modern trend away from myopic focus upon the words without proper reference to their full context. However, he submitted (and I accept) that, to exclude the application of the GPDO, the words used in the relevant condition, taken in their full context, must clearly evince an intention on the part of the local planning authority to make such an exclusion.”

The court did not accept the claimant’s arguments:
The first part of the condition sets out the scope of the permission. I respectfully agree with Patterson J (at [60]), the second part (“…and for no other purpose whatsoever…”) is not, as Mr Katkowski would have it, merely emphatic of the scope of the planning permission, but is rather a clear and specific exclusion of GPDO rights. Whilst, as I have described, each case depends upon its own facts, it is noteworthy that, in Dunoon Developments (at pages 105-6), in finding that the words “limited to” a particular purpose did not exclude GPDO rights, Farquharson LJ compared that phrase with “… and for no other purpose…” as considered in the earlier case of The City of London Corporation v Secretary of State for the Environment (1971) 23 P&CR 169, which he considered was far more emphatic and (he suggested) possibly sufficient to exclude the operation of the GPDO. In this case, we have a more emphatic phrase still, namely “… and for no other purpose whatsoever…”. Further, although we are concerned with rights under the GPDO and not the UCO, the interpretation of that phrase to exclude the operation of the GPDO is at least consistent with R (Royal London Mutual Insurance Society) v Secretary of State for Communities and Local Government[2013] EWHC 3597 (Admin); [2014] JPL 458, in which Patterson J held that a condition which restricted use to “only” particular uses within Use Class A1 excluded the right to use the land for other Class A1 uses, because it effectively evinced an intention to identify acceptable uses within the class whilst prohibiting other unacceptable uses within that class unless and until the merits of such use had been tested by the planning authority upon an application for planning permission (see also The Rugby Football Union v The Secretary of state for Local Government, Transport and the Regions [2001] EWHC Admin 927; [2002] JPL 740, in which Ouseley J, at [56], found that the words “for no other use” had similar effect, on the basis that such words “have no other sensibly discernible purpose than to prevent some other use which might otherwise be permissible without planning permission”). The third part of the condition before this court makes it the more abundantly clear that automatic or direct GPDO rights are excluded, by requiring a planning application if such uses are to be pursued.”
Furthermore, “”express planning consent from the Local Planning Authority” cannot sensibly include planning permission granted by the Secretary of State through the GPDO. It means what it says, i.e. planning permission granted by the local planning authority.”
What are the odds on Lang J’s judgment in Lambeth surviving the Court of Appeal?
In the meantime, and possibly whatever the outcome of that case, there is unpredictability. This is particularly unhelpful given the pressures on local planning authorities to issue permissions without unnecessary delay, and without the resources for a lawyer to check what may often on their face appear to be approvals of minor revisions and alterations. Mistakes happen. The extreme reluctance of authorities to issue revocation or modification orders to put mistakes right, a reluctance born of the liability to pay compensation that thereby arises, is another story – and in my view a large part of the problem. 
Simon Ricketts, 14.10.17
Personal views, et cetera

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