Legal Report

- Retail parks take steps to escape goods restrictions

Invariably, these permissions were issued subject to conditions imposing sale of goods restrictions, usually confining sales to non-food bulky items.

Even before the advent of the current difficult trading conditions, retail park owners had long sought to widen these terms by way of applications and appeals under section 73 of the Town and Country Planning Act 1990. In the light of the constraints of PPS6, this has usually proved a fruitless course, at least insofar as the ability to sell food or high street fashion goods is concerned.

- Consent review tracks change

Accordingly, many park owners have turned to a review of the planning regime governing their property, particularly in the light of the normal circumstances in which the site has been the subject of a number of subsequent permissions. In many cases this has proved to be a worthwhile exercise, given the legal principles governing the effect of implementation of a later permission on an earlier consent.

These principles are found in cases such as Newbury District Council v Secretary of State for the Environment [1981] in the House of Lords and Jennings Motors Ltd v Secretary of State for the Environment [1982] in the Court of Appeal.

In short, the creation of a new planning unit or the beginning of a new chapter in the site's planning history is likely to mean that if no sale of goods condition is imposed on subsequent permissions, as often happens, the previous sales restrictions are of no further effect. Where the permission relates to alteration of a building and no goods restriction is imposed, section 75(3) may well lead to the same result.

A recent appeal decision on a retail park in Peterborough (DCS Number 100-064-451) offers a striking example of the successful deployment of these arguments. The original permissions dated from the 1980s. In 2007, consent was granted for major alterations to the park. These included demolition and replacement of some units, significant elevational changes to retained units and reconfiguration of access, parking and servicing arrangements.

Surprisingly, no sale of goods restriction was attached to the later permission. An application for a lawful development certificate confirming that the retail park would now be free of any sales restrictions was refused by the local authority, resulting in an appeal by public inquiry. The appeal succeeded and the certificate was granted.

- Changes opened new chapter

The inspector concluded: "I have found that the existing retail units equate to separate planning units. Nevertheless, I do not consider that this undermines the appellant's claim that the implementation of the 2007 permission would result in a fundamental change in the character and appearance of the retail park and the opening of a new chapter in the planning history. I do not accept that it is possible to have a part implementation of this consent which enables other parts to remain based on earlier planning permissions."

He added: "All the units are affected to differing degrees, as are the wider communal parts of the park. I have also found that the implementation of the permission would lead to marked inconsistencies between the old and new conditions and this leads me to conclude that the old conditions would not survive. The implications of section 75(3) also support the conclusion that the new development would be unfettered by the previous use restrictions."

His more detailed conclusions on the first ground for appeal are worthy of note. "I accept that I am not dealing with a situation where there would be a total change in the physical nature of the premises. Nevertheless, I agree with the arguments for the appellant that the combined effect of all the changes that would occur is radical and would lead to a fundamental change in the site's character," he opined.

On that basis, he was satisfied that as a matter of fact and degree the extent of works encompassed by the 2007 permission would open a new chapter in the planning history of the retail park as a whole. Of course, conclusions of this nature are fact-sensitive. But this decision, and in particular its application of section 75(3), may give some retail park owners hope that there is life in the old dog yet.

Christopher Lockhart-Mummery QC of Landmark Chambers appeared for the appellant in the Peterborough retail park case.

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