Planning permission granted for foodstore – Tesco building supermarket and operating pharmacy within store – Whether operating of pharmacy breaching planning permission – Whether pharmacy amounting to development without permission – Council refusing to take action – Appeal dismissed
In 1988 Maldon District Council, the first respondents, granted planning permission on the site of the former Maldon Ironworks Industrial Estate, Essex, subject to conditions, and in 1989 entered into agreement under section 52 of the Town and Country Planning Act 1971. In the agreement the developer and owner of the site, inter alia, covenanted in clause 12(h) “Not to sell any goods from the foodstore other than food and associated household consumables”. In 1990 Tesco Stores Ltd (Tesco), the second respondent, acquired the site and planning permission was granted for a “supermarket with petrol filling station and ancillary car parking”. In 1991 a second planning agreement was entered into under section 106 of the Town and Country Planning Act 1990 containing clause 6.4 “not . . . to use the site or any part thereof for any uses other than a supermarket”. A Tesco Store (the store) was built and operated as a supermarket on the site.
From September 1996 Tesco operated a pharmacy kiosk within the store. The applicant, a registered pharmacist practising in Maldon, objected. The council decided that they were not able to take enforcement action alleging a breach of planning agreement or breach of planning control. The applicant applied for an order to quash the council’s decision and for a declaration that the provision of pharmaceutical services at the store constituted both a breach of clause 12(h) of the planning agreement and also breaches of planning control. The judge held, first, that the items supplied by the pharmacy could be said to be “associated household consumables”, because they were commonly and normally found in supermarkets and so could properly be described as being “associated” with food in terms of shopping and, accordingly, there was no breach of clause 12 (h) of the planning agreement. Second, it was held that the pharmacy was making a supply in circumstances corresponding to a retail sale, and therefore there had not been any material change of use from class A1, namely “the retail sale of goods . . .”, and, accordingly, there had not been any development without permission.
Held The appeal was dismissed.
1. Per Pill LJ. The key word in clause 12(h) was “associated”, which was to be interpreted in its context of planning use. The parties had intended its association to be in supermarket shopping terms and, since consumables were associated with food in large stores, it could be concluded that the sale of drugs, medicines and perfumes in a pharmacy within a store selling mainly food, came within clause 12(h).
2. The control of pharmaceutical services under the National Health Service Regulations had not been intended to determine the meaning of the word “sale” for the purposes of planning control. There was to be no distinction between the supply of medicines on prescription and their supply otherwise than on prescription, and therefore the supply of medicines on prescription was to be treated as a sale. Accordingly, the supply of prescribed medicines did not amount to a material change of use.
3. Per Brooke and Henry LJJ. The words in clause 12(h) were not wide enough to permit the sale or supply of the pharmaceutical products that was being conducted from the store. However, the sale or supply of the pharmaceutical products was permitted by clause 6.4, and it could be implied that the parties had intended the 1991 planning agreement to replace the 1989 agreement, since there was no reason why the parties would have wanted to carry forward the old user covenant. Therefore, there was no breach of the planning agreement.
Clive Lewis (instructed by Wollastons, of Chelmsford) appeared for the appellant; Tim Corner (instructed by the solicitor to Maldon District Council) appeared for the first respondents; Duncan Ouseley QC and Jane Oldham (instructed by Berwin Leighton) appeared for the second respondent.
Thomas Elliott, barrister
