CASEBOOK: Appeal cases - Retail Development - Mezzanine floor escapes retail space condition

A lawful development certificate has been issued for a mezzanine floor in an Asda store in Staffordshire following a finding that it was not in breach of a condition limiting the retail floorspace of the building.

The development included the Asda store together with a group of ten retail units and a further large unit occupied by Big W. Since the proposed mezzanine floor would only affect the interior of the store, the parties agreed that it would not constitute development for the purposes of section 55(2)(a)(i) of the Town and Country Planning Act 1990. However, the council asserted that the mezzanine floor would breach a condition on the outline permission, as modified by a further permission, restricting the gross retail floorspace of the overall development to 28,158 sq m.

The inspector held that the obvious effect of the condition was to set the maximum floorspace that could lawfully be submitted as reserved matters.

He opined that had the intention been to limit future works once the development as permitted had been carried out, it should have been plainly worded to do so. He reasoned that the condition's reference to "the development" should be interpreted as "the development that can lawfully be submitted for approval as reserved matters under this outline planning permission".

The inspector also concluded that had the intention been to preclude any internal works, then the condition should have said so directly so that it would be clear to future occupiers that planning permission would be required for such works. Since the wording did not make this clear, he ruled, it would be unreasonable to interpret the condition in the manner sought by the council.

DCS No: 35379389; Inspector: David Baldock; Written representations.

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