Enforcement notices — Retail warehouses — Conditions restricting sales — Breach — Appeal on grounds (a) and (h) — Inspector defining main issue — Effect on existing shopping centres — Danger in creating a precedent — Appeals dismissed — Decision challenged — Whether evidence to show that precedent would encourage other proposals — Whether inspector failed to apply Circular 21/1986
The two appellants are the occupiers of retail warehouses on two industrial parks in Liverpool. Both warehouses are the subject of conditional planning permissions. The conditions restrict the range of goods that can be sold at each property; the goods prohibited included clothing, footware, books, tapes, food and drink, jewellery, cosmetics and toiletries. Enforcement notices were issued in respect of each property alleging a breach of the conditions by the sale of prohibited items; one month was given for compliance.
The appellants did not deny the breaches but appealed to the Secretary of State for the Environment under (a) and (b) of section 88(2) of the Town and Country Planning Act 1971 on the grounds that planning permission ought to be given to relax the conditions or that, in the alternative, a longer period for compliance should be allowed. In his decision letter of July 1987 the inspector identified the main issue as the effect on the vitality and viability of existing shopping centres in the vicinity. He concluded that although relaxing restrictions on the warehouses in issue would not cause harm to other shopping centres as such, their unrestricted use would set a precedent and would result in a fundamental change in the use of the parks in which they were located. He dismissed the appeals but extended the period for compliance to three months.
The appellants appealed that decision under section 246 of the 1971 Act on two grounds: (1) that the inspector had no evidence to show that a relaxation of the conditions would inevitably encourage other similar proposals; creating a precedent is a factor but is not enough if it is a generalised worry; and (2) the inspector failed to follow or apply the policy guidance in Annex A to Circular 21 of 1986 that the cumulative effects of major shopping development are relevant only in exceptional circumstances.
Held The appeal would be dismissed. Although a mere fear or generalised concern about creating a precedent was not enough, in the present case the facts speak for themselves and the inspector was entitled to rely on the precedent argument. The two parks contained 14,000 and 18,000 sq metres respectively and other unit occupiers in the industrial parks could well have the same ideas as the appellants. Any continued breach of the conditions would also breach the planning principle that underlie these parks as identified in the structure plan.
As to the supposed failure to apply or follow Circular 21 of 1986, and to ignore, other than exceptionally, the cumulative effects of shopping centres, the statement in the circular was not to be construed as a statute. It does not place any limitation on the precedent factor but only points out its limited effect. It was not significant that this point had not been raised at the inquiry, as the parties had been legally represented and they had probably not thought the point was relevant. The inspector’s decision letter was careful and well reasoned; he had considered the effects of two large shopping centres and distinguished them.
Collis Radio Ltd v Secretary of State for the Environment
(1975) 29 P & CR 390 and
Anglia Building Society v Secretary of State for the Environment
[1984] JPL 175 considered.
John Hobson (instructed by Park Nelson) appeared for the appellants; and John Howell (instructed by the Treasury Solicitor) appeared for the first respondent, the Secretary of State for the Environment. The second respondent, the local planning authority, did not appear and was not represented.
