Planning permissions for retail schemes often contain conditions controlling the amount of floor space that can be used for food and non-food sales. A recent High Court case considered the application of such conditions to mezzanine floors.
In Northampton Borough Council v First Secretary of State [2005] EWHC 168 (Admin); [2005] 07 EG 142 (CS), planning permission for a retail park had contained a condition that non-food retail floor space could not exceed a specified limit. Although planning permission for a mezzanine floor in two of the units was subsequently refused, the floor was constructed. Retrospective planning permission was then sought, but was also refused.
A lawful development certificate was eventually granted on the ground that the construction of the mezzanine floor was lawful since it did not constitute a development for the purposes of section 55 of the Town and Country Planning Act 1990.
During the subsequent High Court dispute, an issue arose as to whether the inspector had been wrong to find that the condition did not prevent the use of the mezzanine floor for use in non-food retail. The court stated that the wording of the condition clearly placed an upper limit on the floor space that could be devoted to non-food retail.
The condition had not deprived the owner of the right to carry out an internal reorganisation of the building, provided that the non-food retail floor space did not exceed the amount stated in the condition. But although the construction of the mezzanine floor did not, in itself, require planning permission, it constituted a new retail development that had to be considered in the context of the original planning condition.
The judgment in this case emphasises the fact that a condition on the original planning permission for a development can apply to later alterations or extensions, except where a condition imposed on the later development indicates to the contrary.
For many years, large supermarket operators in particular have taken advantage of a perceived planning legislation loophole, which provides that alterations that do not materially affect a building’s external appearance do not require planning permission. This has resulted in the construction of often substantial mezzanine floors.
The Planning and Compulsory Purchase Act 2004 contains a provision enabling the secretary of state to make regulations that, in practice, will mean that mezzanine floors beyond a specified limit will require planning permission. It is worth remembering that when these provisions come into force, and where a certificate of lawfulness of proposed development has already been obtained in respect of the proposed installation of a mezzanine floor, that certificate will be ineffective unless the floor has already been installed.
Gill Castorina is an associate at Paul, Hastings, Janofsky & Walker (Europe) LLP
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Planning permissions for retail schemes often contain conditions controlling the amount of floor space that can be used for food and non-food sales. A recent High Court case considered the application of such conditions to mezzanine floors.
In Northampton Borough Council v First Secretary of State [2005] EWHC 168 (Admin); [2005] 07 EG 142 (CS), planning permission for a retail park had contained a condition that non-food retail floor space could not exceed a specified limit. Although planning permission for a mezzanine floor in two of the units was subsequently refused, the floor was constructed. Retrospective planning permission was then sought, but was also refused.
A lawful development certificate was eventually granted on the ground that the construction of the mezzanine floor was lawful since it did not constitute a development for the purposes of section 55 of the Town and Country Planning Act 1990.
During the subsequent High Court dispute, an issue arose as to whether the inspector had been wrong to find that the condition did not prevent the use of the mezzanine floor for use in non-food retail. The court stated that the wording of the condition clearly placed an upper limit on the floor space that could be devoted to non-food retail.
The condition had not deprived the owner of the right to carry out an internal reorganisation of the building, provided that the non-food retail floor space did not exceed the amount stated in the condition. But although the construction of the mezzanine floor did not, in itself, require planning permission, it constituted a new retail development that had to be considered in the context of the original planning condition.
The judgment in this case emphasises the fact that a condition on the original planning permission for a development can apply to later alterations or extensions, except where a condition imposed on the later development indicates to the contrary.
For many years, large supermarket operators in particular have taken advantage of a perceived planning legislation loophole, which provides that alterations that do not materially affect a building’s external appearance do not require planning permission. This has resulted in the construction of often substantial mezzanine floors.
The Planning and Compulsory Purchase Act 2004 contains a provision enabling the secretary of state to make regulations that, in practice, will mean that mezzanine floors beyond a specified limit will require planning permission. It is worth remembering that when these provisions come into force, and where a certificate of lawfulness of proposed development has already been obtained in respect of the proposed installation of a mezzanine floor, that certificate will be ineffective unless the floor has already been installed.
Gill Castorina is an associate at Paul, Hastings, Janofsky & Walker (Europe) LLP
Related item: High Court ruling leaves mezzanines up in the air
