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01 Oct 2019

The mystery of the missing conditions… Beware - an amended planning permission may not show all the conditions that apply

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The development

You’re about to buy a site with the benefit of planning permission.  You can see that the site originally had permission for retail use, but with a long list of conditions.  You can also see that that permission was amended to allow for some additional uses, but, notably, the conditions attached to the original permission were not repeated.  That means you take free of those old conditions, right?

LPA lifeline...

Wrong.

A similar situation arose in the recent case of Lambeth LBC v Secretary of State for Communities and Local Government.   In that case, the Supreme Court gave the Local Planning Authority (“LPA”) a surprising amount of leeway on what it meant to include in the new “amended” permission.  In that case, the limitation on goods that could be sold was referred to in the description of development, but not included as a condition on the planning permission.

There were two key findings.  First a limitation which should have been specified as a condition but which was not could essentially be implied into the permission.  Second, some conditions associated with the original permission, which were not specifically carried over to the new permission, were still operative.

Background

Under section 73 of the Town and Country Planning Act 1990, the holder of a planning permission may seek to carry out the same development as already permitted, subject to new conditions.

Although applications under section 73 are commonly referred to as applications to ‘amend’ or ‘modify’ existing conditions, in fact a new planning permission is granted, leaving both the old and new permissions intact.

Whilst this has the benefit of allowing either the original planning permission or the new planning permission to be implemented, it can also leave developers in a confusing situation.  Once a section 73 permission has been granted and implemented, it is tempting to assume that the new permission and its conditions must wholly replace the old one.  Unfortunately, in some circumstances, that is a false assumption.

Implied condition?

The LPA argued that, as its intention was clearly to retain some limitation of the type of goods that could be sold, the limiting conditions should be implied into the new permission.  The lower courts had rejected that argument, but the Supreme Court took a more pragmatic approach.  It said that the document (both the description of development and the conditions) must be read as a whole and, in order to give effect to the LPA’s obvious intention, a condition could be implied.

What about the old permission?

The secondary issue in this case was what happened to the other conditions that were set out in the original permission, which had been implemented, but were not expressly repeated in the section 73 permission?

Surprisingly, the Court found that those conditions from the earlier permission did continue to apply, as there was nothing contained in the new permission that was inconsistent with the operation of those earlier conditions.

What is not clear from the judgement, is what would happen if the original permission was not implemented.  Could the conditions still be held to apply to the S73 permission even if the original expired?  The Court did not expressly deal with this point and it is no doubt something which will be the subject of future cases.

Morals

The key morals that can be drawn from this case for developers are:

Don’t fall into the trap of assuming that the most recently granted planning permission is the only operative document for a development and that conditions attached to earlier planning permissions will not apply.

Read planning permissions as a whole and be alive to the possibility that conditions can be implied.

In order for developers and buyers to have certainty about what planning permissions cover, developers should liaise with LPAs and seek to agree the form of planning permission before it is granted.

Confusing situations can arise, for example where a section 73 permission has been granted there may be two or more sets of conditions that must be complied with.

Where confusing situations arise, we’d be delighted help you determine the correct approach, to make sure that you know exactly what to expect.

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