Council’s Drafting Error Opens Way for Change of Use

December 14, 2017

Council’s Drafting Error Opens Way for Change of Use

Planning permissions mean what they say and judges are very reluctant to imply terms into them, even in order to correct flawed drafting. That point was made by the High Court as it opened the way for a former DIY store to be used for food retailing.

Planning permission for the DIY store was granted in 1985 and amendments to the consent thereafter specified a wide range of goods that could be sold, not including food. However, a further permission, granted in 2014, included the non-food goods proviso under the heading 'proposed wording'. No such restriction on the sale of food appeared in the formal conditions attached to the permission.

On that basis, the company that managed the premises on behalf of the freeholder successfully argued before a government planning inspector that the 2014 consent permitted unrestricted retail use of the premises, including food sales. The inspector issued a certificate of lawful use to that effect.

In ruling on a challenge to that decision brought by the local planning authority, the Court accepted that a drafting error had probably been made. The likelihood was that the council had intended that the existing restriction on food retailing should continue. However, that had not been included as a clearly stated condition and the inspector had been right not to imply such a restriction into the consent.

The Court noted that, in order to imply such a term, it was insufficient to establish that it would probably reflect the council's intended purpose. The effect of the consent, as drafted, was commercially and practically coherent and it failed on its face to limit retail sales from the premises to non-food goods.

Recognising the importance of the legal issues raised by the case, the Court granted the council permission to challenge its ruling in the Court of Appeal.