Legal Viewpoint - Closing the door on unrestricted retail

Retail asset managers will be very familiar with the uncertain state of case law as to the effectiveness of conditions on planning permissions.

One area of particular uncertainty is the interpretation of permissions granted under section 73 of the Town and Country Planning Act 1990 for amended forms of development that do not repeat conditions imposed on the initial permission, or are not accompanied by deeds of variation reapplying obligations in a section 106 agreement entered into in connection with the initial permission.

The property industry and local authorities alike are currently waiting for the Court of Appeal's ruling in R (Peel Land and Property Investments) v Hyndburn Borough Council and Others, which concerns the construction and effect of planning permissions for a retail park in Lancashire. Last month, however, the Administrative Court delivered judgement in a case from south-east London which centred on the position where a planning condition purports to restrict uses but does not expressly exclude the operation of the Use Classes Order (UCO) 1987 in allowing changes within a particular use class.

A retail park consent for five units was subject to a condition allowing "non-food sales only in bulky trades normally found on retail parks, which are furniture, carpets, DIY, electrical goods, car accessories, garden items and other such trades as the council may permit in writing". The reason given for imposing the condition was to ensure that the scheme would not detract from the vitality and viability of a nearby town centre.

When one unit fell vacant, developer Royal London submitted an application for a certificate of lawful proposed use for all the units allowing the sale of any goods, including food, within class A1 of the UCO. The local authority refused the application, relying on the condition, and a planning inspector dismissed Royal London's appeal. Previously, case law has suggested that the UCO would still apply unless a condition specifically excludes it. This has led to a number of certificates being issued for unrestricted class A1 use, often on appeal.

After reviewing previous case law, Mrs Justice Patterson held that it is not in fact necessary for a condition to refer to the UCO, if it is clear and unequivocal from its wording that changes within a particular use class are not to be permitted. She stressed that each condition should be interpreted according to its specific wording. In this case, however, she concluded that the condition's wording was sufficiently clear to close the door on an interpretation that would allow unrestricted class A1 use.

Royal London Mutual Insurance Society v Secretary of State for Communities and Local Government and London Borough of Lewisham; Date: 16 October 2013; Ref: CO/319/2013.

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