Retail development — Conditional planning permission granted — Upper limit placed on permitted floor space — Mezzanine floor installed following planning permission refusal — Application for lawful development certificate refused — Enforcement notice issued for breach of conditional permission — Inspector allowing appeals and granting lawful development certificate — Whether conditions preventing use of lawfully-installed mezzanine floor as retail space — Appeals allowed
The claimants granted outline planning permission for the development of a non-food retail park. The permission was granted subject to a condition that the total non-food retail floor space, excluding open garden display areas, should not exceed 150,000 sq ft (13,955m2) to ensure that the claimants retained an effective planning control. This limit was subsequently varied to 160,000 sq ft (14,964m2) in order to comply with national and local planning policies that sought to direct new retail development into existing centres.
Planning permission for a mezzanine floor was sought and subsequently refused, but the floor was installed nonetheless. A retrospective planning application was then refused, and an appeal to the first defendant failed.
The following year, the second defendant developer applied for a lawful development certificate (LDC) in respect of the mezzanine floor, which the claimants refused. The claimants then issued an enforcement notice against the second defendant in respect of the breach of conditions created by the installation of the mezzanine floor and consequent increase in floor space to an area greater than that specified in the conditions.
An inspector appointed by the first defendant allowed appeals by the second defendant against the refusal to issue an LDC and against the enforcement notice on the basis that the mezzanine floor was lawful by virtue of section 55(2)(a) of the Town and Country Planning Act 1990, since it affected only the interior of the building and did not materially affect its external appearance.
The claimants appealed under sections 288 and 289 of the 1990 Act respectively to quash the inspector’s decision to allow the second defendant’s appeals. The first defendant did not seek to contest the appeals.
Held: The appeals were allowed.
The condition imposed upon the grant of outline planning permission had been clear and unequivocal and its language unambiguous, and it did not simply limit the amount of floor space that could be submitted for detailed approval. Its intended effect was clearly to restrict the amount of non-food retail floor space at the site in order to prohibit further retail development beyond the specified limits.
The condition did not purport to take away the right to make internal alterations under section 55(2)(a). Provided that the total area of non-food retail floor space did not exceed the maximum area specified in the planning permission, occupiers were free to make whatever internal alterations they wished, provided that those alterations affected only the interior of the buildings and did not materially affect their external appearance.
This was an example of interpreting a condition and the reasons for it in a legalistic rather than a common sense way. Although a lawyer would not describe the carrying out of internal alterations, whether by the installation of a mezzanine or otherwise, as “new development” because of section 55(2)(a), the use for retail purposes of the additional floor space thereby created would reasonably be described as “new retail development” in the context of a condition imposing an upper limit upon non-food retail floor space.
Ian Dove QC and Richard Kimblin (instructed by Sharpe Pritchard, acting for Northampton Borough Council) appeared for the claimants; Christopher Katkowski QC (instructed by Nabarro Nathanson) appeared for the second defendant; the first defendant secretary of state did not appear and was not represented.
Eileen O’Grady, barrister
