27 September 2019

Supreme Court ruling restricts DIY store from selling food goods

The Supreme Court (SC) judgment relating to a former Homebase in Streatham, which WSP | Indigo advised Aberdeen Standard Investments on, has now been handed down. The SC overruled the judgments of the High Court and the Court of Appeal that the premises benefitted from an open A1 consent and was unrestricted in terms of the goods that can be sold. 

This is an important and somewhat surprising decision as it overturns a long-established assumption relating to Section 73 permissions that unless these include any restrictive conditions carried over from an original permission, then the development is free from all previous conditions.  It therefore confirms that a decision under any subsequent S73 consent, leaves the original planning permission intact and un-amended including any restrictive conditions not imposed on any later S73 decision.

As such it makes it necessary to look beyond (and before) what is otherwise assumed to be the relevant free-standing planning permission.

The former Homebase was originally allowed in 1985, subject to conditions restricting the types of goods that could be sold.  A subsequent S73 application was granted in 2010 to allow a wider range of goods (excluding food) to be sold, and a further S73 permission was permitted in 2014 but didn’t include any conditions preventing the sale of food.

In June 2015, WSP | Indigo submitted an application for a Certificate of Lawfulness to confirm the premises were unrestricted on the basis that the 2014 S73 permission contained no condition restricting the goods which could be sold.  The application was, however, refused by Lambeth Council on the grounds that “the unrestricted sale of retail goods would not be permitted under the terms of the existing planning permission(s) for the site; the lawful use of the premises….is for the sale and display of non-food goods only”.

This was successfully appealed, and the Council applied to the High Court and subsequently the Court of Appeal to quash the decision.  Both applications failed.

However, the Supreme Court has now come down on the side of the Council, finding that despite the more recent 2014 S73 consent having no conditions controlling the range of goods that could be sold, the conditions on the original 2010 permission remain valid and binding “because there was nothing in the new permissions to affect their continued operation”.  The judgment added that the “specific conditions in the 2014 permission were intended to be additional both to the varied condition, and to the others remaining in effect under the 2010 permission.”

This decision causes ambiguity and uncertainty. The clarity we had previously was that if a condition on an original permission wasn’t carried across onto a new S73 permission, then it no longer applied.  This new ruling has caused a great deal of confusion as it is now necessary to review all conditions on previous permissions to fully understand what is and isn’t allowed, since conditions on historic consents can still be relied upon by local planning authorities.

Please contact Simon Neate, Andrew Astin or Nicola Sewell at WSP Indigo if you would like to discuss this judgment further and if it has any implications of any of your assets.