What exactly did the Supreme Court say in Lambeth LBC v Secretary of State for Housing, Communities and Local Government?

09 Jul 2019

Planning and Environment

By Martin Edwards

Once, I believed that the role of the highest court was to provide clarity where the law was previously unclear. However, some recent Supreme Court planning cases have made me question that belief.

In most cases, a “footnote test” can be applied i.e. despite what you may think at the time, most judgments are capable of reduction to just one or two simple legal points. My test stems from a case that I was involved years ago in my earlier life as a solicitor.

It was a rating case (Clement (Valuation Officer) v Addis Ltd) that went all the way to the House of Lords who overturned the lower courts and it resulted in the government of the day “changing the law” whilst the Local Government Finance Act 1988 was wending its way through Parliament “back to the way it was before yesterday’s judgment in the Other Place” as a Minister inaccurately suggested. It made the front pages of the broadsheets and generally caused quite a stir at the time. It certainly had kept me gainfully employed for months. However, despite all of this, within just two years the case had been relegated to a mere footnote in a specialist textbook and limited to just one small point of law.

Since the decision of the Supreme Court in Lambeth LBC v Secretary of State for Housing, Communities and Local Government [2019] UKSC 33 I have been asked by a number of clients what the decision actually means. It seems that clarity has given way to confusion.

One easy way of dealing with this decision is to stress that the case is highly fact-specific – the decision notice in question had undoubtedly been drafted badly. It is also notable in that the case does not seem to overturn established case law or otherwise break new ground. True, it does overturn the lower courts but only in respect to the interpretation of the actual wording used in the decision notice in question.

Even then, the Supreme Court noted, at paragraph 34, that with regard to the second part of the notice “it is true that there are some internal inconsistencies” but then went on to determine that “reading the document as a whole, and taking the first part in the sense suggested above, the second part can be given sensible meaning without undue distortion”. Thus, there appears an acknowledgement that it can only be interpreted by resorting to a degree of distortion.

As to the footnote test, the judgment appears to be a simple restatement of the principle that when seeking to interpret a planning permission (or any other legal document) the starting point – and usually the endpoint – is to find “the natural and ordinary meaning” of the words there used, viewed in their particular context (statutory or otherwise) and in the light of common sense.

On this basis, the Supreme Court held that a reasonable reader would have read the particular section 73 permission as being a simple variation of the original permission and, implicitly, subject to the conditions attached to that permission. On its own such a finding is unsurprising.

However, some of the comments of Lord Carnwath do point to problems in the future, especially where errors in planning permissions are not so clear cut as in this case. For a start, with regard to the planning conditions on the original permission that were not re-imposed Lord Carnwath held at paragraph 38:

Although we have not heard full argument, my provisional view is that Mr Reed’s current submission is correct. It will always be a matter of construction whether a later permission on the same piece of land is compatible with the continued effect of the earlier permissions (see the principles discussed in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132, 144).

In this case, following implementation of the 2010 permission, the conditions would in principle remain binding unless and until discharged by performance or further grant. Conditions 2 and 3 were expressed to remain operative during continuation of the use so permitted. The 2014 permission did not in terms authorise non- compliance with those conditions, nor, it seems, did it contain anything inconsistent with their continued operation. Accordingly, they would remain valid and binding – not because they were incorporated by implication in the new permission, but because there was nothing in the new permission to affect their continued operation.

Note that this was a point that was not central to the issue under appeal, but the Supreme Court felt that “some comment may be desirable”.

However potential difficulties may result. On sites with a number of successive planning permissions, how is it to be determined which conditions on earlier permissions continue to apply? This comment also seems at odds with the wording of section 73 itself and the statutory scheme that underpins it and the fact that a section 73 permission is meant to be a standalone permission.

As if in recognition of this, Lord Carnwath referred to the background to the statutory scheme as set out in Sullivan J’s judgment in Pye v Secretary of State for the Environment, Transport and Regions [1998] 3 PLR 72 and he also endorsed Sullivan J’s recommendations in Reid v Secretary of State for Transport [2002] EWHC 2174 that local planning authorities should, as good practice, restate all the conditions to which the new planning permission will be subject and not left to the process of cross-referencing.

I have seen the Supreme Court’s decision described as a “fudge”. It is hard to disagree with that view. There is also a potentially telling paragraph [27] where Lord Carnwath discusses the earlier Supreme Court decision in Trump International Golf Club Ltd v Scottish Ministers [2015] UKSC 74 and states: “However, I observe in passing (in agreement with Mr Lockhart-Mummery’s submission as to the limited scope of the judgments in Trump) that it is difficult to envisage circumstances in which it would be appropriate to use implication for the purpose of supplying a wholly new condition, as opposed to interpretation of an existing condition.”

Apart from the fact that the judgment gives no indication of the substance of the submission, it is noteworthy that earlier in the judgment Lord Carnwath devoted four paragraphs to the Trump International case and it could be argued that Lord Carnwath has taken this case as an opportunity to revisit and limit the importance of that earlier decision by limiting the scope for implication when interpreting planning permissions.