Section 73 TCPA: a guide

Richard Kimblin QC provides a short practical guide to section 73 of the Town and Country Planning Act in the light of a recent Supreme Court ruling involving Lambeth Council.

In July 2019, the UK Supreme Court handed down judgment in London Borough of Lambeth (Appellant) v Secretary of State for Housing, Communities  and  Local Government. The case addressed the difficulty of interpreting planning permissions which are ambiguous or poorly drafted.

Do you:

a) read the document literally, or;

b) read it with reference to what the local authority intended?

In this case, the Planning Court and Court of Appeal interpreted a 2014 decision notice with regard to what it actually did, as opposed to what it intended to do.  In the Supreme Court, Lord Carnwath overturned their decisions and elevated intent over actuality.

Where does this leave authorities, land owners, consultants and lawyers? The short answer: no closer to legal clarity. The case was judged on its facts and decided no new principles of law.

The longer answer is that it provided a range of points as to best practice when dealing with permissions granted under section 73 of the TCPA 1990, but also raised some unanswered questions. Here’s a short guide both to section 73 and the Lambeth case.

Purpose of s.73, and the Lambeth case

S.73 assists applicants who wish to change specific conditions of a planning permission, or carry on development without compliance with one or more conditions. Prior to its introduction, an applicant who objected to given conditions entered a process which reassessed the entire application as if it had been made in the first instance. This risked losing the permission altogether.

S.73 applications are commonly referred to as applications to ‘amend’ the conditions attached to a planning permission but, as Lord Carnwath noted, “this usage… is legally inaccurate”. A successful s.73 application takes effect as a new and independent permission to carry out the same development as previously permitted, but subject to the new or amended condition(s), or without compliance with a condition(s). They do not ‘amend’ pre-existing permissions. Rather, they establish new ones and leave the original planning permission intact and unamended. In part, a failure to understand this distinction produced the Lambeth case.

The facts were these:

1. In 1985, planning permission for a DIY retail unit was granted, subject to conditions limiting the range of goods which could be sold.
2. Two subsequent permissions, in 2010 and 2014, then varied those conditions under section 73.
3. The 2010 permission permitted the sale of a wider range of goods but explicitly excluded food sales.
4. The 2014 permission described itself as a “variation of the relevant conditions”. Its preamble used the 2010 wording, stating the retail unit could be used for the “sale and display of non-food goods only”. However, the three new conditions in the 2014 document made no mention of restricting the sale of food, or earlier conditions.

When a further application for a certificate of unrestricted A1 retail purposes was made, the local authority refused.

This decision was overturned on appeal by an inspector, who pointed out that the 2014 document did not rule out the sale of food. Lambeth then took the Secretary of State all the way to Supreme Court, in order to overturn the inspector’s decision.

Interpreting s.73 

There were three approaches to the interpretation of s.73. All three provide useful points for practitioners.

1. Intent and the statutory framework

The 2014 decision notice, based on a mistaken belief that s.73 permissions function to ‘amend’ conditions, described its purpose as a ‘variation of the relevant conditions’. It was submitted that this phrasing was inconsistent with the statutory power under which the grant was made: the grant did not do what the statute empowered it to do, which was to establish a separate, independent permission. Lord Carnwath dismissed this argument, noting that the wording of the operative part of the grant was clear and unambiguous and a reasonable reader would not have struggled to understand its function. This point is problematic, because it elevates a ‘commonly understood’ understanding above the statutory framework. This does not assist certainty. It does not place the onus on local authorities to ensure that future grants are correctly framed.

2. Implying conditions

In cases where public documents are ambiguous, how far can one imply words? Following Trump International Golf Club Scotland v Scottish Ministers, the Supreme Court judged that ‘the starting point for interpretation was to find the natural and ordinary meaning of the words used, viewed in their particular context and in light of common sense’. Documents therefore had to be understood through the eyes of a ‘reasonable reader’. The problem with this approach is its inherent subjectivity: if we rely on intention (express or inferred), then disagreement over what was meant and how we interpret it is inevitable. This was displayed in the differing judgments of the Court of Appeal and Supreme Court.

In the Court of the Appeal, Lewison LJ’s judgment offered a detailed account of how a reasonable reader might have approached the notice, focussing largely on the legal operation of the conditions. He noted: “[the LPA] failed to repeat any of the conditions imposed on the previous planning permissions and, more importantly, failed to express the new description of the use as a condition, rather than as a limited description of the permitted use”. As such, although the reasonable reader might wonder whether the local authority had made a mistake in not restating the conditions attached to the previous permissions, that was not so obvious that it went without saying: “a corrective interpretation could not be used to supply a whole clause which the parties had mistakenly forgotten to include.”

In the Supreme Court, Lord Carnwath also set out a ‘reasonable reader’ account, but criticised Lewison’s ‘somewhat elaborate process of legal and contextual analysis’. He focussed on the notice’s stated operative purpose and accepted Lambeth’s argument that, “in order to give effect to its intention, the limited description of the use must therefore be read as if it were itself a condition” – again elevating intent over actuality.

This point has four consequences:

1. In future, it will be harder for developers to argue that they are suddenly free from specific conditions courtesy of a s.73 permission, simply because they have not been restated. Local authorities will have a ready-made defence for asserting intention over actual drafting.
2. This will apply to future cases in which the nature of changed condition is set out precisely in the description of development. In other words, LPAs may use s.73 permissions as ‘amendments’, as long as they are clear and precise about the amendment in the description. If they are not precise, then there will be further argument.
3. All s.73 permissions will have to be read carefully alongside pre-existing planning permissions, because past permissions continue to operate.
4. The scope and application of the ‘reasonable reader’ process has yet to be defined by further legal principles, save Lord Carnwath’s essential incitement to simplicity. The subjectivity inherent in this process will be of little comfort to applicants.

3. What if new conditions contradict old conditions?

It is foreseeable that future cases concerning s.73 permissions will grapple with how older and newer sets of conditions interact. Unfortunately, s.73 does not provide any direct assistance on this point. It envisages two situations either: (a) the grant of a new permission unconditionally or subject to revised conditions, or; (b) refusal of permission, leaving the existing permission in place with its conditions unchanged. It does not say what is to happen if the authority wishes to change some conditions but leave others in place. This point was tangentially raised in the UKSC submissions: namely, were the 2010 conditions still in effect after the 2014 notice? Lord Carnwath spotted this question and offered the following:

“the court's provisional view was that [the 2010 conditions] had not been incorporated into the new [2014] permission, but continued to have effect under the 2010 permission insofar as they were not inconsistent with anything in the new grant. There was nothing in the new permission to affect their continued operation.”

This leaves unanswered the critical question of what happens when there are conflicts or ambiguities in one or more sets of overlapping conditions.

Good Drafting

In this case, the local authority got away with poor drafting – after five years of litigation. As Sullivan J noted years ago, and Lord Carnwath repeated, the Planning Policy Guidance note attached to s.73 explicitly stated that it was best practice to repeat ‘relevant conditions’ in any new decision notice:

“It should be noted that the original planning permission will continue to exist whatever the outcome of the application under section 73. To assist with clarity, decision notices for the grant of planning permission under section 73 should also repeat the relevant conditions from the original planning permission, unless they have already been discharged.”

Lord Carnwath read this passage “as advice, rather than as a statement about the legal position.” Ideally, to avoid the recurrence of this issue, the statute should be amended either: a) to ensure that all conditions are repeated, or; b) to make it a presumption, in law, that pre-existing conditions remain in effect.

Richard Kimblin QC is a barrister at No.5 Chambers.