England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
HHJ WAKSMAN QC (sitting as a Judge of the High Court)
CO/5815/2012

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/12/2013

Sir John Mummery:

1. This is the judgment of the court.

Overview

2. Peel Land and Property Investments PLC (Peel) entered into two agreements with Hyndburn Borough Council (the Council) under s.106 of the Town and Country Planning Act 1990 (the 1990 Act). In each agreement Peel accepted restrictions on the kinds of goods which could be sold retail from units in a large out-of-town retail shopping park developed by it at Rishton, Blackburn, Lancashire (the Peel Centre).
3. The planning purpose and practical effect of the agreed restrictions was that the units should only be used for the retail sale of bulky goods. The objective of those common restrictions on retail park use negotiated by the Council with Peel was to maintain a balance between the development of out-of-town retail parks and the conservation of town centres and local retail outlets.
4. The restrictions were qualified by standard form provisos to cover subsequent planning events. The provisos are at the heart of this case. It was agreed that the use restrictions on goods would not prohibit or limit "the right to develop" any part of the Peel Centre site in accordance with any planning permission granted after the agreements. Against the backcloth of the prior planning obligations accepted by it Peel later applied for and the Council granted a succession of individual planning permissions for building operations on 6 retail units at the Peel Centre.
5. The later permissions did not impose any use condition expressly restricting the kinds of goods that could be sold retail from the altered units. Peel relies on the subsequent permissions for building operations, the language and context of the provisos and the provisions of s.75(2) and (3) of the 1990 Act (see the text quoted below), which deal with the statutory effects of planning permissions granted for "the erection of buildings", as releasing the altered units from the agreed goods restrictions.
6. The self-evident aim of Peel's planning strategy over the last few years has been to establish that, without seeking and obtaining specific permission from the Council for a change of use, it is entitled to rely on a series of subsequent individual planning permissions granted by the Council for physical adjustments to the units in the Peel Centre in order to secure release from use restrictions, to which it agreed in order to obtain its original planning permission from the Council to build the units at the Peel Centre.
7. The outcome of this appeal is obviously of vital interest to Peel, the Council and the Interested Parties. There may be wider repercussions for other local planning authorities and other developers of out-of-town retail shopping parks, as well as for town centres, for other kinds of retail outlets and for the public generally.
8. For those innocent of the intricacies of planning law, this case might seem to involve little more than a short but significant point on the construction of the provisos. Four Leading Counsel and their supporters have skilfully used their extensive specialist expertise in the planning field to argue in depth, against the statutory background, about the language and context of the provisos and also about the detailed planning history of each of the 6 retail units in question. In the trio of legal arguments the stances of Peel, on the one side, and the Council and the Interested Parties, on the other side, could hardly be more simple and direct.
9. Peel is against the restrictions. Its case is that the Council has itself wiped out the goods restrictions negotiated by it for sales from the retail outlets in 6 of the units at the Peel Centre. It says that the Council granted the post-agreement planning permissions for operational building works on the units, but did not impose any use condition on the kinds of goods that could be sold retail. By virtue of the subsequent permissions for building operations and the carrying out of the permitted building works on the units Peel had "the right to develop" the 6 relevant units. That right triggered the provisos. The agreed exception from the agreed use restrictions kicked in. It operated to release the 6 units from the use restrictions accepted by Peel in the two agreements. Peel thus contends that "the right to develop" the respective units, which arose from the permissions granted for the carrying out of the permitted building operations, also changed the permitted use of the units. The result has been to free up the 6 altered units for unrestricted A1 retail use.
10. The absence of a goods restriction from the later planning permissions might be indicative of a slip up or oversight on the part of the Council, which would involve a mistaken departure by it from its planning policy and which would work to Peel's advantage. Even if that were the explanation for the absence of use conditions, it would not affect the construction of the provisos or the planning status of the units. Those are matters that have to be resolved on the basis of the legally admissible planning materials and in accordance with the applicable canons of construction.
11. The Council is for the restrictions. It does not admit that it made any mistake, or that it requires to be relieved from unintended planning consequences of granting the later permissions. Its case is that the use restrictions, as negotiated with Peel by it pursuant to its planning objectives, remain in place, like its policy. The restrictions bind Peel and are enforceable by the Council.
12. It was always open to the Council to implement its planning objectives either by imposing conditions on the grant of a planning permission or, as was the case here, by negotiating with the developer for agreed planning obligations under s.106 and by relying subsequently on their continuing effect. Both planning control regimes were and are available for the use of the Council.
13. The goods restrictions are binding on Peel simply because it has agreed to them. The restrictions are of indefinite duration. They have not been consensually dissolved or varied in a relevant respect, nor have they been legally undermined by the later permissions granted by the Council. That is because Peel does not have "the right to develop" the units in the relevant sense of that expression, as ascertained from the context and language of the provisos. "The right to develop", when correctly understood in all the relevant circumstances, refers to development of the units by permitted material changes to the use of them, not just because specified operational building works physically altering the units were permitted by the Council and carried out by Peel post-agreement.
14. The exception or qualification in the provisos was not triggered by the grant of any of the later permissions, as they were solely for operational building works on the units. Those operational works neither involved a material change of use of the units nor were they incompatible with the continuation of the goods restrictions on use accepted by Peel. There was no need for the Council to impose goods restrictions by planning conditions in those cases in which such restrictions of indefinite duration had already been negotiated with Peel in the form of binding agreements under s.106.
15. A striking feature of the case is that, when applying for the individual later permissions, Peel had not even asked the Council for permission to make a material change in the agreed restrictions on the retail use of the units: it had only applied for permission to carry out operational building works. Indeed, in the case of some applications, Peel had even stated that it was not making a change in the use of the unit, though the legal relevance and effect of such a statement in the application form was challenged in Peel's submissions. The absence of a change of use application by Peel is another possible explanation for the absence of a use condition from the subsequent planning permissions granted by the Council.

The appeal

16. The judge, in a reserved judgment, found for the Council. Peel's appeal is against the order dated 31 October 2012 made by HHJ Waksman QC, sitting as a Judge of the High Court. He dismissed the claim for declaratory relief challenging the lawfulness of the Council's refusal on 11 April 2012 of Certificates of Lawful Development pursuant to s.191 of the 1990 Act for unrestricted A1 retail use of 6 units (the Units) at the Peel Centre.
17. The judge granted permission to appeal. The question for this court on the appeal is whether the decision of the judge was wrong. If it was not, this court has no power to interfere with it. The question is whether the judge ought to have held that the agreed goods restrictions on retail sale vanished from the planning scene at the Peel Centre when the later permissions were granted by the Council for operational building works on the Units. The answer to that question turns on whether the judge misconstrued the meaning and effect of (a) the provisos and (b) the later individual planning permissions and so misunderstood their impact on the continuing application of the agreed goods restrictions and the future use of the Units.

The facts

18. Peel let the Units at the Peel Centre to particular retail outlets dealing in bulky goods. The 6 Units in question were numbered 1,1A, 2, 4, 6 and 8.
19. On 20 October 1995 Peel entered into a written agreement under s.106 of the 1990 Act with the Council and others (the 1995 Agreement) not to use Unit 8 for the retail sale of certain kinds of goods.
20. On 23 June 2009 Peel entered into a further written agreement with the Council (the 2009 Agreement) varying an earlier s.52 agreement made on 22 August 1984, as later amended. The s.106 obligations were in respect of the remaining Units and consisted of use restrictions on the retail sale of various kinds of goods similar to those accepted by Peel in the 1995 Agreement in the case of Unit 8.
21. Each agreement contained a similar proviso (together called the Provisos) qualifying the planning obligations in the agreements by providing that they would not apply to the Units in the specified subsequent altered circumstances:

"Nothing in this Agreement shall prohibit or limit the right to develop any part of the Site in accordance with any planning permission…granted (whether or not on appeal) after the date of the Agreement." [See clause 9 in the 1995 Agreement and clause 7.1 in the 2009 Agreement.]

22. It is common ground that the concept of "develop", as used in the expression "the right to develop" in the Provisos, bears the same meaning as is given to "development" in the 1990 Act. Section 55 of the 1990 Act ("Meaning of development and new development") provides that:-

"(1) Subject to the following provisions of this section, in this Act, except where the context otherwise requires, "development" means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any building or other land."

23. A planning permission may thus be for (a) operational development, such as building works, or (b) a material change of use, or (c) a combination of the two. The expression "the right to develop" may, depending on context, involve the right to do (a), (b) or (c).
24. "Building operations" are defined to include demolition, re-building, structural alterations or additions: s.55(1A). Under s55(2) planning permission is not required for works which affect only the interior of a building and do not materially affect the external appearance of a building. However, permission is required for retail mezzanine floor space in excess of 200 square metres, which falls within the definition of development: see Article 2A of The Town and Country Planning (General Development Procedure) Order 1995 (SI 1995/419, now Article 3 of the Development Management Procedure (England) Order 2010. In general, the status of internal works in isolation is irrelevant where they are part of an integral package with other works that do require planning permission.
25. Between September 2008 and May 2011 Peel applied for and the Council granted a succession of planning permissions (the Later Permissions) in respect of the Units covered either by the 1995 Agreement or the 2009 Agreement. The Later Permissions were for specified kinds of building works for the alteration of the Units. The building operations variously included external works, the internal sub-division and re-configuration of Units and, in the case of Units 1 and 6, the insertion of a mezzanine floor. As already mentioned, none of the Later Permissions imposed any express goods restrictions on retail sales from the altered Units.
26. Peel's primary case is quite simply that, in the case of each Unit, the Later Permissions have granted it "the right to develop" within the meaning of the Provisos without the imposition by the Council of any condition as to the retail use of the Units. It accordingly claims thereby to have obtained planning permission for unrestricted A1 retail use of the Units. It relies on the language and context of the Provisos and of the Later Permissions. It also relies on the application of s. 75(2) and (3) of the 1990 Act for having statutory effects on the scope of the permissions granted, and on the judicial doctrine that, in the planning history of a relevant planning unit, further permissions may open "a new planning chapter." If that happens, the benefits and burdens of the prior permissions are entirely replaced by the new planning permission and that would operate, not directly on the s.106 Agreements but via the Provisos, as "the right to develop" the units freed them from the previous goods restrictions.
27. Against that approach the Council points to the use restrictions on the goods sold accepted by Peel in the 1995 and 2009 Agreements and, in particular, to the fact that Peel did not apply for, and was therefore not granted, any Later Permission for a material change of use of the Units. The Council also submits that the "new planning chapter" doctrine does not, when properly understood, apply to the facts of this case nor, on their true construction, do the provisions for the statutory effects of permissions falling within s.75(2) and (3) of the 1990 Act.
28. At this point we note that, on an appeal, this court's normal function is one of reviewing the decision below for substantive and procedural error. This court does not usually hear the whole case all over again. This court must, of course, consider the points taken in Peel's grounds of appeal as to why the judge, who was sitting in a specialist jurisdiction, was wrong to decline declarations and to conclude that the Later Permissions did not grant Peel "the right to develop" the Units in the relevant sense i.e. permitting a material change in the existing use of them to a use that was hitherto prohibited or limited by the goods restrictions accepted by Peel.
29. As part of its case on the operation of the Provisos Peel challenges the correctness of the judge's findings on each of the Later Permissions relied on by Peel as granting "the right to develop." In our view, this approach requires this court to immerse itself in the detail of each of the Later Permissions, Unit by Unit. That has made this appeal seem more like a re-hearing of the entire case than a review of the judgment below. To that must be added the feature that the court has been treated to a trio of differing presentations (from Peel, the Council/ Third and Fourth Interested Parties and the First Interested Party) as developed in skeleton arguments, supplemental speaking notes and full oral submissions. The attempt to do justice to all the rival arguments and to bring maximum clarity to relevant aspects of the case mean that the elimination of overlap and repetition is difficult to achieve.
30. It may help to pull the various strands of the many-sided submissions together into the form of a composite question: ought the judge to have held that the effect of the Later Permissions and the carrying out of them by the operational works was to allow unrestricted A1 retail use of the Units by virtue of (a) the Provisos; (b) s. 75 (2) and (3) of the 1990 Act (see the legislative text set out below); (c) the absence from the Later Permissions of any use restrictions on the retail sale of goods from the Units; or (d) the opening of a new planning chapter in the planning history of the Units?

The proceedings

31. The proceedings came about in this way. Peel applied to the Council on 2 December 2011 for Certificates of Lawful Development of the Units contending that, in consequence of the Later Permissions, it had permission for unrestricted A1 retail use of the Units. When the Council refused, Peel appealed. It also issued a claim for judicial review of the Council's refusal seeking declarations that, on the true construction of the Provisos, the s.106 restrictions would not apply following completion of the developments allowed by the Later Permissions without attaching any conditions as to the kinds of goods sold retail from the Units.
32. Before the judge the Council and the Interested Parties disputed the jurisdiction of the court to grant declaratory relief to Peel. That submission was based on the availability of an alternative statutory remedy by way of appeal. Alternatively, it was contended that, as a matter of discretion, the judge should decline to deal with the claim for declarations.
33. The Interested Parties became involved because, in the case of the First Interested Party, it is a neighbouring council with rights to be consulted on planning matters affecting the Peel Centre; and because, in the case of the Third and Fourth Interested Parties, they own the Mall Shopping Centre in nearby Blackburn. They adopted the Council's arguments on jurisdiction and discretion.
34. The judge held that he had jurisdiction to determine Peel's claim and that all the various matters raised should be dealt with in the Administrative Court. The detailed reasons for his rulings on jurisdiction and discretion are set out in [113] to [125] of the judgment. They have not been challenged on this appeal. We need say no more about them in this judgment.
35. The Council's substantive response to the claim for declarations was that Peel's case failed at every step of what was conveniently labelled in the judgment below and in the skeleton arguments as the "Four Steps Analysis." This judgment follows the same structure in its discussion of the issues.

The Four Steps Analysis

36. The Four Steps are as follows.

Step 1: the Later Permissions

37. Did any of the individual Later Permissions permit external and internal works on the Units resulting in the creation of one or more new retail Units? This step turns on the construction of the Later Permissions: what did the Council permit Peel to do? Did it give Peel permission to change the use of the altered Units as well as to make physical adjustments?

Step 2: application of s.75 of the 1990 Act

38. May the new retail Units resulting from Step 1 be used for unrestricted A1 retail purposes in the light of the application of s. 75(2) or (3) of the 1990 Act? Step 2 turns on the potential application of s.75 ("Effect of a planning permission") where planning permission is granted for "the erection of a building." It provides that:-

"…(2) Where planning permission is granted for the erection of a building, the grant of permission may specify the purposes for which the building may be used.

(3) If no purpose is so specified, the permission shall be construed as including permission to use the building for the purpose for which it is designed."

39. Peel's case on s.75(2) with regard to specified purpose for use is that the Later Permissions, or some of them, were granted for "the erection of a building", having regard to extended definitions in the 1990 Act. Unrestricted retail use was the specified purpose for which the altered Units may be used.
40. Peel's case on s.75(3) with regard to deemed purpose for use, if no purpose is specified, is that the altered Unit may be used for the purpose for which the building was designed and that, in this case, that purpose is unrestricted A1 retail use.

Step 2A: the new planning chapter

41. Alternatively to Step 2, would development of the Units in accordance with any of the Later Permissions open "a new planning chapter" in the planning history of the Units resulting in "the right to develop" the Units, which would engage the Provisos and remove the use restrictions of retail sale of various kinds of goods? That Step involves an overall assessment of the planning history of the Units in order to determine the nature and extent of the departure from the Later Permissions signified by the previous planning history.

Step 3: construction and application of Provisos

42. Did Steps 1 and 2 result in "the right to develop" the Units within the meaning of the Provisos, so that the accepted restrictions on the range of goods that could be sold retail would not apply to the altered Units? Step 3 turns on (a) the true construction of the Provisos and (b) their proper application to the particular circumstances of each Unit in the light of the Later Permissions.

Judgment

43. In a careful judgment the judge cited the basic provisions of the 1990 Act and the subordinate legislation, summarised the issues by reference to the Four Steps Analysis, reviewed the authorities, with particular reference to the materials admissible when construing planning permissions, and stated his conclusions.
44. In summary, the judge decided that the Later Permissions did not grant permission for a change of use of the altered Units; that s. 75(2) and (3) of the 1990 Act did not apply so as to permit a material change of use of the Units; that there was no new planning chapter, which could be invoked to establish a change of use to unrestricted A1 retail sale; and that the Provisos were not triggered by the Later Permissions in respect of any Unit so as to permit a change of use at variance with the restrictions on retail sale accepted by Peel in the two agreements.
45. At this stage we need only refer briefly to the reasoning in the judgment at [2012] EWHC 2959 (Admin). We will consider later and in more detail, in the light of the submissions, the correctness or otherwise of the findings and conclusions on each issue.

Step 1: the Later Permissions

46. The judge concluded that (1) the Later Permissions in respect of Units 1 and 4 authorised external works only; and (2) the Later Permissions in respect of Units 1A, 2 and 6 authorised internal works and re-configuration; and in the case of unit 8 authorised external alterations and internal sub-division.
47. Apart from Unit 6, the development sought by Peel in each case was limited to particular building operations of one kind or another. There was no specific application by Peel for development of the Units in the sense of making a material change to their existing use as restricted by the 1995 and 2009 Agreements.
48. In the case of Unit 6 the judge stated that the Later Permission provided that the Unit was "to be used for A1 retailing purposes" including the creation of "a new partial cover mezzanine floors and demolition of rear parts of existing units to create servicing area". He referred to the Design and Access Statement (DAS) as describing the Peel Centre as a bulky goods retail park and the statement in it that the proposals would not alter the role or function of the Peel Centre: Units 6a and 6b would simply be reconfigured. He also referred to Informative Note 4 that there was advice to the applicant of a s.106 agreement relating to the application site restricting the goods that can be sold. The judge found that, as far as use was concerned, both parties knew and agreed that the use of the reconfigured units would be precisely as before and no wider.
49. The judge concluded that, while the purpose of the development was stated, the A1 use granted for Unit 6 was no wider than that presently permitted on the site i.e as restricted by the 2009 Agreement. Both parties proceeded on that basis. The Later Permission should be construed as so qualified.

Step 2: application of s.75 of the 1990 Act

50. The judge held that s.75 does not apply to this case. Subsection (3) was not engaged. No material change of use was proposed by Peel in respect of Units 1A, 2 and 8. The intended use of the sub-units within the existing retail Units was to continue the pre-existing retail use, not to change to unrestricted A1 retail use.
51. Although Unit 6 stated A1 "retail" as its purpose, subsection (2) did not assist Peel. The reference to A1 retail was otiose, there being no proposal for material change of use. Alternatively, the purpose stated should, in the circumstances, be regarded as qualified.

Step 2A: opening of a new planning chapter

52. The judge concluded that no new planning chapter was opened in the planning history of the Units as a result of the Later Permissions. There was no radical or substantial change in the nature or the purpose of the Units having the effect of opening a new planning chapter, which would trigger the operation of the Provisos.

Step 3: construction and application of Provisos

53. As Peel had failed at Steps 2 and 2A, the judge said that it was not necessary to rule on this Step, but went on to consider it.
54. The Provisos would only apply so as to exclude the operation of the s.106 obligations if and in so far as future planning permission has given a right to develop which would otherwise conflict or be inconsistent with them. He said that, given the confines and use of the Peel Centre, he would only expect it to be exceptional for a contrary right to develop to be granted. He concluded that the Provisos had not been triggered by the Later Permissions in respect of any Unit.

Peel's submissions

55. Peel instructed two Leading Counsel to argue its appeal. The court is grateful to both of them, as well as to their opponents, for their specialist skills and expertise in guiding the court through so much planning territory.
56. Mr Michael Barnes QC, who did not appear in the court below, made submissions on the "new planning chapter" point and on the construction and application of the Provisos.
57. Mr Christopher Katkowski QC, who appeared for Peel in the court below, made very detailed submissions on each of the Later Permissions and on the application of s.75(2) and (3).
58. Taking all of their submissions together Peel's overall case on the appeal is that the judge ought to have come down in its favour on each step of the Four Steps Analysis and should have held that, having carried out the permitted building operations on the Units, Peel is now entitled to unrestricted A1 retail use of them. The broad theme underlying many of the points was that the Later Permissions were to "develop" the Units within the meaning of the Provisos and that the permitted development of each Unit was not made subject to any condition restricting the use to the sale of certain kinds of goods, as had been provided in the two Agreements.
59. Peel accordingly asks this court to (a) allow the appeal and (b) declare that (i) the restrictions on the sale of specified goods set out in the 2009 Agreement shall not apply in respect of Units 1, 2, 4 and 6 of the Peel Centre following the completion of the development in accordance with the relevant later permissions granted by the Council; and (ii) the restriction on the sale of goods set out in the 1995 Agreement shall not apply in respect of Unit 8 following the completion of development in accordance with the relevant Later Permission.

General points on statutory scheme

60. Mr Katkowski QC set the planning scene for Peel's submissions. He highlighted key features in the statutory scheme in the light of the general legal principles laid down in the authorities. They are well known to practitioners specialising in the planning field. In view of the detail in which this appeal has been presented and for the benefit of everybody else in an area of law that affects us all, we set out the largely undisputed aspects of the relevant law, even though they may seem obvious.
61. The legal elements may be summarised as follows:-

(1) Planning control is the creature of a comprehensive statutory code.

(2) The code covers the carrying out of any "development" of land.

(3) "Development" is broadly defined to include the carrying out of building operations or the making of any material change in the use of land or buildings. It includes structural alterations or additions to any part of a building: ss 55(1) and 336(1) of the 1990 Act. It does not include works that affect only the interior of a building, or do not materially affect the external appearance of the building: s. 55(2); Prudential Assurance v. Sunderland City Council [2010] EWHC 1771 (Admin) and Sage v. Secretary of State for the Environment [2003] 1 WLR 983.

(4) Changing from one use to another within a specified "Use Class" is not development: s.55(2)(f). The relevant Use Class in this case is "Class A1 Shops": Article 3(1) and Schedule to the Use Classes Order.

(5) An application for planning permission may be granted unconditionally or subject to conditions, for example by inhibiting changes of use within a Use Class: s.70(1) and Telford & Wrekin Council v Secretary of State for Communities & Local Government [2013] EWHC 79(Admin). Peel also submits the grant of the planning application may also be for more than was sought in the application.

(6) Where planning permission is granted for the erection of a building, the grant of permission may specify the purposes for which the building may be used: s.75(2). If no purpose is specified, the permission shall be construed as including permission to use the building for the purpose for which it is designed: s.75(3). Peel relies on both sub-sections as applying to the Later Permissions for the Units.

(7) A planning permission runs with the land. The permission is contained in the operative parts of a decision notice, which is a public document. It may expressly incorporate by reference any documents within it, such as the application or plans, but extraneous materials, such as emails, notes of telephone conversations and other documents evidencing the subjective intentions of the parties or the basis on which the applications were made are irrelevant to construction. They cannot be relied on to broaden or to narrow the scope of the permission. The cases of Barnett v. Secretary of State for Communities & Local Government [2010] 1 P & CR 8; R v. Ashford BC ex parte Shepway DC [1999] PLCR 12; and Telford & Wrekin Council v. Secretary of State for Communities and Local Government [2013] EWHC 79 (Admin) were cited.

(8) An application for planning permission, which is recorded in a register, includes a form, plans, drawings and information necessary to describe the development for which permission is sought, such as is set out in a DAS.

(9) Planning conditions can be enforced by enforcement notice and injunctions may be sought to restrain breaches of planning obligations created by a s.106 agreement.

Step 1: the Later Permissions

62. Mr Katkowski QC, in dealing with the planning status of each Unit, prefaced his detailed points with general points on the approach to the construction of planning decisions.
63. In order to decide what is permitted it is necessary to interpret the language of the permission, as contained in a public document, as a whole, according to its ordinary and natural meaning and in a common sense way. The starting point for relaying the detail is the approved drawings which, together with the decision notice and the plans, must be considered and construed as a whole. The case of Sage v. Secretary of State for the Environment [2003] 1 WLR 983 was cited as authority for taking an holistic approach to the interpretation of planning permissions.

Permissions for individual units

64. Mr Katkowski QC submitted that, on the judge's own findings, the Later Permissions authorised an overall package of external and internal works resulting in the creation of new retail planning Units. We follow the order in which he dealt with the Units rather than the more usual numerical order followed in the judgment and in some of the skeleton arguments.

Unit 8

65. This Unit was subject to the agreed restrictions in the 1995 Agreement. The root planning permission, granted on 2 November 1995, contained no restriction on retail use. The retail sale of goods, other than those prohibited by the 1995 Agreement, would not involve a material change of use.
66. The Later Permission dated 15 September 2008 was for external alterations and ancillary work to create 2 equal sized retail units in accordance with the application and plans submitted. The application had described the proposal as "external alterations and ancillary works for unit 8 to create two retail units". The building works were referred to in the application. The grant contained no condition as to the use to which the 2 new units could be put.
67. Peel's complaint is that the judge was wrong on both subsections of s. 75. It is submitted that s.75(2) applied to the Later Permission, as it was for "the erection of a building" within the subsection and the explicit reference to "retail" in the Later Permission meant that the 2 Units could be used for unrestricted A1 retail.
68. Alternatively, the 2 Units were "designed" for use as retail shops and subsection (3) applied to the Later Permission to give deemed permission for unrestricted A1 use. The judge wrongly held that s.75(3) did not apply.

Unit 6

69. Peel submitted that the judge was also wrong in rejecting the application of s.75 to this Unit. The Later Permission gave Peel "the right to develop" Unit 6 by erecting 2 new Units for any kind of retail use in accordance with the 1990 Act and was permission for "the erection of a building" within s.75(2).
70. The root planning permission dated 12 July 1985 permitted unrestricted A1 retail use, though subsequently subject to the planning obligation in the terms of the goods restriction in the 2009 Agreement. The Later Permission dated 4 December 2009 (made pursuant to an application which had described the proposal as "reconfiguration and refurbishment of Units 6a and 6b . . .") contained no condition restricting the use to which the 2 Units could be put. Indeed, it referred to reconfiguration and refurbishment of units (6a and 6b) to be used "for A1 retailing purposes". It included the creation of new partial cover mezzanine floors and demolition of rear parts of the existing Units to create a servicing area. As stated above, the 4^th Informative Note to the planning permission stated in terms that a s.106 agreement restricted the goods that could be sold; but it is submitted that it was not part of the planning permission.
71. Contrary to the conclusion reached by the judge it is submitted the Later Permission was for a purpose specified by the reference to "A1 retailing purposes" with the result that the 2 new units may be used for the purpose of unrestricted retail sale. The Later Permission was both for the building works and also for the use of them for any type of retail use in accordance with the 1990 Act.
72. Alternatively, the deeming provision in s.75(3) leads to the same result, as the Later Permission was granted for 2 Units, which were "designed" to be used as retail shops.

Unit 2

73. For similar reasons Peel submits that the judge was wrong on the s.75 point regarding the use of 2 new Units.
74. The root planning permission dated 2 December 1984 was for erection of a non-food retail unit, with no condition restricting the scope of retail use, but subsequently subject to the planning obligation in the 2009 Agreement.
75. The Later Permission dated 26 May 2011 was for re-configuration of existing Unit to convert into 2 Units, including partial demolition, in accordance with the application and plans submitted. No condition was imposed restricting the use to which the 2 reconfigured Units can be put (although a restriction was separately imposed for a proposed additional new unit).
76. It is submitted that the Later Permission was for the "erection of a building" within s.75 and that, by virtue of subsection (3), it should be construed as including permission to use the 2 Units for the purpose for which they were designed, which was as retail shops. The judge wrongly held that s.75(3) did not apply. As there were no conditions in the Later Permission which restrict the use, the 2 new Units can be used for any A1 retail use. The Later Permission gave both the right to develop the two units by building works and to use them for any kind of retail use.

Unit 1A (2^nd New Permission)

77. The root permission was for a non-food retail unit, with unrestricted retail use. It is subject to the planning obligation in the 2009 Agreement. This Later Permission is dated 20 September 2010. It was for reconfiguration and refurbishment in accordance with the application (which had made reference to retail shops) and plans submitted and 2 new retail Units for A1 shops configured differently from the existing 2 Units. It included partial re-cladding and the creation of a mezzanine floor.
78. It is submitted that the overall package of external and internal works resulted in a new planning retail Unit. There was no condition restricting the use to which the 2 reconfigured Units can be put.
79. It is submitted that the Later Permission was for "the erection of a building" and the purpose was specified as "retail" by means of the approved drawings so that s.75(2) applies.
80. It is also submitted that the judge was wrong in holding that s.75(3) does not apply. The 2 units were designed to be used as retail shops and no conditions were imposed in the Later Permission which restrict the use. It accordingly gave the right to develop the Unit by the building works and the right to use them for any type of retail use.

Unit 1 (Ist New Permission)

81. The root permission was likewise for unrestricted retail use. It was subject to the planning obligation in the 2009 Agreement. The Later Permission is dated 26 July 2010 and was for alterations to elevations, including the installation of new entrance doors and alterations to service door openings. It would result in 4 new retail Units with external alterations created by 4 distinct entrances.
82. There was no condition restricting use. There was also a specific section in the application form to state whether the proposed development involved a change of use and the answer given was "No. " It is submitted that that answer was compatible with the root planning permission being for unrestricted retail use and that selling goods other than those specified in the First Schedule to the 2009 Agreement would not involve a material change of use.
83. It is submitted that the purpose was specified as "retail" by means of the approved drawings and the answer to question 18 in the application form.
84. Section s.75(2) applies, it is submitted, as the Later Permission was for "the erection of a building" with a specified purpose.
85. Alternatively, the judge wrongly held that s.75(3) did not apply. The 4 Units were designed to be used as retail shops and there were no conditions which restrict use. They could be used for any A1 retail use. The Later Permission granted the right to develop not only to carry out building works but also to use the altered Units for any type of retail use.

Unit 4

86. The root permission dated 12 July 1985 was for erection of four retail units with unrestricted retail use, though subject to the planning obligations in the 2009 Agreement restricting the kind of goods that could be sold retail.
87. The Later Permission dated 30 September 2009 was for alterations to external elevations and for the installation of doors in accordance with the application and plans submitted. 1 existing retail Unit is shown to become converted into 2 equal sized retail Units. It is submitted that the overall package of works resulted in new planning retail units. The Later Permission did not include any condition restricting use to the retail sale of particular kinds of goods. In the section of the application form asking the applicant to state whether the proposed development involved a change of use the answer given was "No." It is argued that that was compatible with the root planning permission being for unrestricted retail use and selling goods, other than those specified in the First Schedule to the 2009 Agreement, would not involve a material change of use.
88. Peel says that the Later Permission was for "the erection of a building" within the meaning of s.75 and that, by virtue of subsection (3), it should be construed as including permission to use the building for the purpose for which it was designed, which, in the case of the 2 Units, was as retail shops with any A1 retail use. The judge wrongly held that s.75(3) did not apply. It applied, as the Later Permission was to erect 2 new Units by the permitted building works and to use them for any type of A1 retail use.

Step 2: application of s.75 of the 1990 Act

89. Mr Katkowski QC makes a number of general points on the application of s.75.
90. First, the words "building" and "erection" in s.75(2) have extended meanings. They include "any part of a building" and "alteration" as well as extension and re-erection : see s. 336(1).
91. Secondly, where the Later Permissions specify a purpose for which the building may be used, s.75(2) applies. It is unnecessary to proceed with further analysis of the lawful use of Units erected pursuant to those permissions: where, as here, permission is granted for retail use, all the uses permitted under class A1 are permitted in the absence of a condition limiting use or what can be sold: see the approach in Sunderland.
92. Thirdly, the judge's conclusion that s.75(2) did not apply in the case of Unit 6 was wrong, because he wrongly speculated about why the Council granted a Later Permission specifying a purpose in the case of Unit 6 , but not otherwise. He wrongly had regard to extraneous materials relating to the claimed intentions of Peel and the Council. There was no lawful basis for construing the use as restricted. He was wrong to disregard the reference to A1 use as otiose.
93. Fourthly, the statutory rule of construction in s.75(3), which refers back to s.75(2), is subject to the same principles regarding the use of extraneous materials in interpretation, and only features in cases where no purpose is specified.
94. Fifthly, the fact that the Later Permissions were granted for operational development satisfies the requirement for the application of s. 75 that it is a case of "the erection of a building." That is sufficient for s.75 (2) or (3) to apply. It is not necessary for s.75(3) to apply that planning permission must have been granted for a change of use, rather than just for operational works. It applies to cases where the operational works permitted involve a material change of use.
95. Sixthly, the alterations permitted by the Later Permissions were designed to result in re-configured buildings or parts of buildings for occupation by unrestricted A1 retail users. The judge wrongly held that the A1 retail use was restricted. The design of the building prescribed its use in accordance with s.75(3) and that use was unrestricted A1 retail.

Step 2A: opening of new planning chapter

96. On this point it was the turn of Mr Barnes QC to make some forceful submissions. He explained that it is not necessary for the court to consider this point, or his related planning unit point, if the court is with Peel on the s.75 point as triggering the operation of the Provisos.
97. In substance the new planning chapter point, if accepted, means that all previous planning rights and restrictions end and that the burdens and the rights that enure to the benefit of the planning unit are wholly derived from the terms of the new planning permission that opens the new planning chapter. That point supports the case for the operation of s.75, but that section is not dependent on it. The new planning chapter point is itself also independent in its own right. The importance of the new planning chapter point in this case is that, if accepted, there would be "a right to develop" the Unit within the meaning of the Provisos and that would trigger the agreed exception to the goods restrictions.
98. Next Mr Barnes QC put the new planning chapter point into the context of planning principles generally by drawing a distinction between, on the one hand, a planning unit, as a geographical area of land to which planning law is applied, and, on the other hand, a new planning chapter in its planning history.
99. A new planning unit may be created without opening a new chapter and a new planning chapter may be opened without the creation of new planning units. New planning units may be created, for example, by the subdivision of existing planning units.
100. The conditions which must be fulfilled for the opening of a new planning chapter are that there was an original lawful use pursuant to a previous permission, followed by the implementation of a new planning permission which is inconsistent with the continuation of the use or physical development previously permitted. Mr Barnes QC cited a number of cases, the leading one being Newbury DC v. Secretary of State (No 9) [1981] AC 578 at 606E-607B, 617-8 and 626.
101. He submits that the conditions are satisfied as regards all the units in this case.
102. Thus, in the case of Unit 8, the division of the single Unit into 2 new units, the new entrances and the external changes to the fascia and elevation created 2 new planning units and the opening of a new planning chapter for each of the new units created.
103. In the case of Unit 6 the partial demolition and re-configuration of the 2 existing units with new dividing walls running front to back and side to side on 2 floors resulted in a new planning chapter for each of the new planning units created.
104. The works on Unit 2 involved demolition of part of the Unit resulting in a smaller footprint, which was itself sub-divided into 2 which created 2 new planning units and a new planning chapter in the history of each unit.
105. Unit 1A involved the creation of 2 new planning units. In the case of Unit 1 the sub-division of each Unit into 2 new units and the creation of new entrances and modification of the existing entrance for customers and the provision of new service entrances so as to accommodate the 4 new units produced 4 new planning units and opened a new planning chapter for each of them.
106. In the case of Unit 4 the creation of 2 new units by the division of the existing unit and associated works created 2 new planning units and the opening of a new planning chapter for each new unit.

Step 3: construction and application of Provisos

107. Mr Barnes QC submits that the 1995 Agreement and the 2009 Agreement are governed by the principles that ordinarily apply to the interpretation of contracts. They aim to give effect to the intentions of the parties and to produce a straightforward outcome by reference to the context and language of the contracts and its natural meaning.
108. The operation of the Provisos depends on "the right to develop" in accordance with subsequent planning permissions. The Provisos do not specify any particular category of development or restrict it. The development referred to may, for example, comprise a combination of change of use and operational development. The Provisos enable the use of the land or building in accordance with the lawful effect of the subsequent permissions without the need to investigate or consider separately, in a decision on its planning merits, the appropriateness of the use.
109. Mr Barnes QC points out that the Provisos were in similar terms to those considered by Wyn Williams J in Sunderland, in which it was stated that such a clause would not limit a use, if the subsequent planning permission authorised a use prohibited or limited by the clause. The judge construed the Provisos too narrowly by confining a right to develop involving a change of use of the building to a case where the permission for change of use is either expressly sought by an applicant for planning permission or where the permission granted gives rise to a new planning chapter. The question is whether the relevant use (in this case unrestricted A1 use) is lawful in accordance with the permission. The Provisos did not provide, either expressly or by necessary implication, that they require an express use permission or fulfilment of the requirements of a new planning chapter.

Submissions of the Council and the Third and Fourth Interested Parties

110. Mr Robin Purchas QC appeared for the Council and for the Third and Fourth Interested Parties (together called the Joint Parties). They support the judge's overall conclusions and submit that the appeal should be dismissed. They take issue with the judge's rulings on some points, though those errors do not affect the correctness of his overall conclusions.
111. Mr Purchas QC introduced his detailed submissions with some general points.
112. First, he put the Later Permissions in context by explaining that the sequence of individual planning applications leading to the Later Permissions followed immediately on a decision on 9 June 2008 dismissing Peel's appeal in respect of an open A1 retail use of the retail warehouse park, the first application being in respect of Unit 8 on 24 July 2008.
113. Secondly, the restrictions and the Provisos in the 1995 Agreement and the 2009 Agreement are standard clauses. Goods restrictions are included in s.106 agreements to protect nearby town centres as part of a consistent planning policy applied in the public interest. Peel's 6 planning applications were part of an orchestrated strategy for obtaining planning permission for alterations to existing buildings and then asserting that the restrictions on sales accepted in the planning obligations no longer applied and that it was accordingly entitled to lawful use certificates. The aim of the strategy was to undermine the fundamental restrictions on the basis of which the Peel Centre had been granted planning permission in the first place.
114. Thirdly, the fundamental issue in the case is whether any of the Later Permissions gave rise to "the right to develop" the Units in accordance with the permission, which the s.106 agreed restrictions on retail sales would either prohibit or limit, so that the Provisos were engaged.
115. Fourthly, that issue turns on the construction of the Later Permissions and, in the light of them, the effect of the Provisos. In that context, Mr Purchas QC first formulated and then developed 7 propositions of law. To some extent they overlap with those advanced by Mr Katkowski QC, but we set them out as central to the submissions made by the Joint Parties on the individual Units.

(1) Planning permission can only be granted for "development" which, as defined, requires permission. Development is not confined to "operations": it may consist of the making of any material change in the use of building or land, though there is no development if the use is for any other purpose within the same Use Class. Thus, if the subdivision is of an existing building used for Class A1 Use, any other use within that class will not involve development requiring planning permission: there will be no material change of use.

(2) What is comprised in development "operations" is a question of fact and degree to be determined on an holistic approach.

(3) Planning permission can only be granted for development which is the subject of an application accompanied by plans, drawings and other information necessary to describe the development.

(4) Section 75(2) and (3) only apply in the case of planning permission for "the erection of a building" capable of use, not in the case of external or similar alterations of an existing building. The broad definition of "the erection of a building" in s.336(1) to include extensions, alterations and re-erection is "except in so far as the context otherwise requires" and must be construed in a common sense way.

(5) In the case of a specified purpose within s.75(2) and a deemed purpose within s.75(3), the use included in the planning permission is not a permission for development unless it involves a permission for a material change of use. It must be for development in that sense. That will not be the case where the use is the same as, or is a continuance of, the existing use of a building.

(6) A new planning chapter only arises if the change in the nature of the building is so radical that it requires to be looked at as a fresh start in character, which is not the case with the alteration of an existing building continuing existing use.

(7) As for the Provisos, the agreed restrictions on sales of goods would not limit or preclude operational development in accordance with subsequent planning permissions. The Provisos cannot be engaged in respect of the goods restrictions on retail use unless the Later Permissions would constitute or comprise a material change of use of the building. That would not be the case where permission is granted for the alteration of an existing building continuing existing use.

116. Mr Purchas QC concluded his submissions by applying the above propositions to the individual Units and Later Permissions. He submits that, although the judge had not taken the correct approach to the scope of the permissions for the Units, other than Unit 1 and Unit 4, his overall conclusions should be upheld on the ground that the Later Permissions did not grant the right to develop in accordance with planning permission for the purpose of the Provisos.
117. In the case of Unit 8 the judge reached the right conclusion that there was no relevant right to develop the Unit in the form of a material change of use. The restrictions on retail sale in the 1995 Agreement continued to apply. Mr Purchas QC makes a number of criticisms of the judgment: the judge's use of the DAS as part of the necessary description of the development; his failure to address a submission that the internal works were a separate operation and did not involve development so that planning permission could not be granted for what was not development; and his error in treating the external alterations as "the erection of a building" for the purposes of s.75(3), on which, however, he rightly held that the purpose for which the works were designed was for a continuance of the existing permitted use not involving any material change of use. Further, Peel's submission that s.75(2) applied was misconceived, as the Later Permission was concerned with operational development and not use of the building. The judge was also correct in rejecting the new planning chapter point; the case was one of supporting an existing use by making improvements to the Unit.
118. In the case of Unit 6 the Later Permission included permission for external works and the mezzanine floor, but not any other internal work as the judge held. The judge was also criticised for reliance on the DAS and again for treating the works as "the erection of a building" for the purpose of s.75. However, the important point is that the Later Permission was entirely compatible with the continuing A1 use of the Unit subject to the restrictions in the 2009 Agreement: it was not for a material change of use.
119. In the case of Unit 2 Mr Purchas QC repeats the submissions for the other Units that applied to this Unit, including criticisms of particular points, such as the judge's reliance on the DAS and his treatment of internal works as development for which permission was applied for and granted. Otherwise he agrees with the judge's conclusions and the outcome overall.
120. In the case of Unit 1A he supports the judge's overall conclusion, but submits that the judge was not correct in his conclusion that the planning permission included the internal works, other than those forming part of the operation to form the mezzanine floor.
121. In the case of Unit 1 Mr Purchas QC agrees with the judge's findings that the Later Permission was restricted to external works only. The judge ought to have held that no relevant building was erected and for that reason s.75 did not apply. Subsection (2) did not apply for the further reason that no purpose was specified in the Later Permission.
122. In the case of Unit 4 Mr Purchas QC agrees with the judge's conclusion that the Later Permission was for external works only: it did not permit any internal works or change of use and was consistent with the continuing use of the Unit subject to the restrictions in the 2009 Agreement. He repeats his criticisms of the judge on s.75, contending that s.75 does not apply, as the external works do not constitute "the erection of a building." Further, no purpose was specified which could bring the Unit within subsection (2) of s.75.

Submissions of the First Interested Party (Blackburn with Darwen BC)

123. Mr Neil Cameron QC appeared for the First Interested Party and supported the judgment below. His submissions differ somewhat from those of the Joint Parties.
124. On the construction of the Later Permissions Mr Cameron QC does not rely on any extraneous material. His point is that, on an objective approach to the Later Permissions, and without regard to any extraneous materials or to the subjective intentions of the parties, the conclusions reached by the judge were justified.
125. In outline Mr Cameron QC submits that the references in the Later Permissions to "retail use" were otiose; that s.75(3) was not engaged because there was no material change of use; that the purpose for which the Units subject to the Later Permissions were designed was not unrestricted A1 retail use, but continuation of the existing restricted retail use; that s.75(2) did not apply, as no material change of use was proposed and the permission was only for alterations to a building with existing use rights; that the Later Permissions did not open a new planning chapter, there being no radical change in the nature of the Units or their uses; and that the Provisos were not triggered because Peel did not have "the right to develop" the Units in the relevant sense of making a material change of use of them.
126. Mr Cameron QC made the following general points.
127. First, the main issue was whether the Later Permissions granted "the right to develop" for a use that was prohibited or limited by the agreed goods restrictions in the 1995 Agreement and 2009 Agreement. The right to use the Units for A1 retail use was not by itself sufficient to trigger the Provisos: there had to be a right to develop the units for an unrestricted A1 retail use. The question was whether the carrying out of the building works on the Units in accordance with the Later Permissions was "the right to develop" them within the meaning of the Provisos, so as to trigger their operation and remove the restrictions. "Develop" can, depending on context, refer to operational development and/or material changes of use. The goods restriction relates to use of the Units. In that context "the right to develop" the Units would be for a material change of the use of them, not just for building works on them.
128. Secondly, none of the Later Permissions granted such a right to change use; the use both before and after the Later Permissions are carried into effect is unchanged. A Later Permission to use the Unit for retail purposes is not "the right to develop" the Units within the meaning of the Provisos, as it does not grant permission for a material change of use.
129. Thirdly, s.75 does not assist Peel. In particular s.75(3) does not of itself grant planning permission: it applies to the construction of a relevant planning permission that has been granted. As no permission has been granted for change of use, no relevant "right to develop" the Units has been granted and s.75(3) is not engaged.
130. Fourthly, the judicial doctrine of a new planning chapter does not fit this case. Mere inconsistency between a prior permission and a Later Permission is insufficient to bring the doctrine into play. In any case any inconsistency was not so radical or substantial as to satisfy the requirements of the doctrine. The character of the Units was not changed by the physical changes to the buildings permitted by the Later Permissions.
131. As for the individual Units and Later Permissions Mr Cameron QC submits that the judge's conclusions were correct and that the appeal should be dismissed.
132. In respect of Unit 8 the judge was justified, on the basis of an objective assessment of the relevant documents, to find that the Later Permission was for external alterations and internal sub-division. It did not grant permission for a use that was prohibited or limited by the restrictions in the 1995 Agreement: Peel made no specific request for such permission in its application; the essential character of the Unit remained the same as a retail warehouse; s.75(2) and (3) were not engaged as no material change of use was authorised and there was therefore no right to develop in the relevant sense; nor was there any new planning chapter there being no substantial or radical departure from the prior planning history. The use before and after the works were carried out was the same-A1 retail.
133. In respect of the remaining Units Mr Cameron QC repeats similar arguments as to why the Later Permissions did not grant planning permission for a use prohibited or limited by the restrictions in the 2009 Agreement; why s.75(2) and (3) did not apply; why no new planning chapter was opened by the Later Permissions; and why the Later Permissions did not trigger the Provisos so as to give Peel unrestricted A1 retail use of the Units. We will deal with those points in the following discussion and in our conclusions.

Discussion and conclusions

134. In this final section we deal with each of the 4 steps and each of the 6 Units in the order adopted in Peel's submissions, which, as mentioned earlier, was not the usual numerical order followed in the judgment below and in some of the skeleton arguments.
135. Before turning to the detailed planning position of each Unit we single out 6 key aspects of the case.

(1) The goods restrictions accepted by Peel in the 1995 Agreement and the 2009 Agreement were pursuant to the Council's planning policy of maintaining a balance between the development of out-of-town retail shopping parks and conserving town centres with retail outlets.

(2) The case advanced by Peel would, if correct, involve a departure by the Council from that policy.

(3) The changes to the Units permitted by the Council are those for which Peel asked it to grant permission i.e. the physical alterations to the Units by means of the building operations permitted by the Later Permissions pursuant to applications by Peel.

(4) In its applications for the Later Permissions Peel made no specific request to make a material change of use of the Units or to remove or relax the agreed goods restrictions. On the contrary, in some cases it specifically stated in the application that no change of use was proposed.

(5) In the absence of permission for a material change of use, the use of the Units remained unchanged as restricted A1 retail use in accordance with the agreed restrictions in the 1995 and 2009 Agreements.

(6) There is no incompatibility between the physical alterations to the Units permitted by the Later Permissions and the existing restricted use such to impede the continuation of the use restrictions.

The Four Steps Analysis

General

136. We have not been persuaded by the submissions of Mr Barnes QC and Mr Katkowski QC that the judge ought to have granted the declarations sought by Peel.
137. We are persuaded by the submissions of Mr Purchas QC and Mr Cameron QC that the judge reached the correct overall conclusions on each of the 4 steps and that he correctly applied them to each of the 6 Units. As for particular criticisms made by Mr Purchas QC of the judge's approach to the construction of the Later Permissions and his treatment of the alterations as "the erection of a building" within s.75, there is no need for us to express a concluded view on those points for the purposes of disposing of this appeal. As we explained earlier, our task is to decide whether the judge was wrong to make an order refusing the relief claimed by Peel. The court does not sit as a Board of Examiners obliged to mark every ruling in the judgment as if the judge were sitting an exam, if an error or mistake makes no difference to the overall judgment or to the outcome of the appeal. Mr Purchas QC supports the order made by the judge and he wants us to dismiss the appeal.
138. For similar reasons there is no need for us to consider in detail the current state of the law on the admissibility of extraneous materials in the construction of planning permissions or its application to the Later Permissions. We accept the submission of Mr Cameron QC that, on an uncontroversial view of the law in that area, the judge's conclusions on the construction of the Later Permissions were justified.
139. In those circumstances our conclusions are concise.

Step 1: the Later Permissions

140. The Later Permissions were granted for operational building works only. They were neither for nor did they involve a material change of use in the Units from the existing use as restricted by the terms of the 1995 Agreement or the 2009 Agreement.

Step 2: application of s.75 of 1990 Act

141. Section 75 does not apply to the Later Permissions, because they were not granted by the Council for a material change of use of the Units.
142. Subsection (2) does not apply because the Later Permissions did not specify the purposes for which the relevant Unit may be used. The Later Permissions did not relate to the use of the Units or to specified purposes. They related to building works.
143. Subsection (3) does not apply. The Later Permissions to be construed as deemed permissions, in the absence of a specified purpose, were not granted for a material change of use of the Units. They related only to physical works of alteration or adjustment to them.

Step 2A: creation of a new planning chapter

144. The Later Permissions did not, as a matter of fact and degree, open a new planning chapter in the history of the Units. They were only for physical alterations for their improvement without involving any material change from existing restricted use to unrestricted A1 retail use. That was not a substantial or radical departure from the planning history prior to the grant of the Later Permissions.

Step 3: construction and application of Provisos

145. The Later Permissions did not trigger the operation of the Provisos so as to release the Units from the goods use restrictions in the 1995 Agreement and in the 2009 Agreement. They only ceased to apply if Peel had "the right to develop" the Units in a sense relevant to a material change of use. The Later Permissions were only granted for building works, which did not involve a change of use and were compatible with the continuation of the existing restricted use, as agreed. Peel did not therefore have "the right to develop" within the meaning of the Provisos. If that is correct, the Provisos were not triggered, the agreed goods restrictions remained and they applied to the altered Units as they had applied to the unaltered Units.

The Individual Units

146. In our judgment the planning position on each of the Units is as follows.

Unit 8

147. The development for which a Later Permission was granted in the case of Unit 8 was described as "External alterations and ancillary work to create 2 No. retail units." In our view, the judge was justified in concluding, without the need to refer to extraneous material, that this permission was for external alterations and internal subdivision, but not for a use prohibited by the 1995 Agreement.
148. There was no specific request in the planning application by Peel for a change of use of Unit 8. The essential character of Unit 8 as a retail warehouse remained unchanged by the permission granted, which did not authorise a change of use.
149. We agree with the judge that s.75 is not engaged. Section 75(3) did not grant "a right to develop" Unit 8 in the sense in which that expression is used in the Provisos i.e. develop by making a change of use from the existing restricted use of the Units to an unrestricted use.
150. As for s.75(2) there was a specification of purpose if the reference to "retail units" in the description of a development is, as Peel contends, a specification of purpose so as to engage s.75(2); but that does not assist Peel, as no right to develop Unit 8 was granted for a material change of use of the Unit.
151. The judge reached the correct conclusion in his rejection of the new chapter submission. There was no break in the planning history of Unit 8 which could sensibly be described as a substantial or radical departure from the prior planning history: the use of the Unit both before and after the works were carried out would remain A1 retail, subject to the 1995 Agreement.

Unit 6

152. The Later Permission for Unit 6 was described as "Reconfiguration and refurbishment of [the units] to be used for A1 retailing purposes including the creation of a new partial cover mezzanine floor and demolition of rear parts of existing units to create servicing area." Informative note 4 stated that "The applicant is advised that there is a section 106 agreement that relates to the application which restricts the goods that can be sold."
153. The application plans showed that it was proposed that the 2 existing units be re-configured to provide 2 different sized units. No specific request was made for authorisation for a use that was prohibited by the 2009 Agreement. The essential character of Unit 6 as a retail warehouse would remain unchanged.
154. The judge was right to find that the Later Permission was for refurbishment by external works and reconfiguration. No reference to extraneous materials was necessary to support that conclusion.
155. As for s.75 we agree with the reasoning of the judge that it was not engaged. Subsection (3) did not grant permission to develop the Units in a relevant way, as the Later Permission did not authorise a material change of use of the Unit. As for subsection (2) the reference to "retailing purposes" was otiose and did not attract the application of that sub-section.
156. No new chapter in the planning history of the unit was opened, as there was no break that could be reasonably described as substantial or as a radical departure. Both before and after the works were carried out the use of the Unit was A1 retail, albeit divided up into different sized Units, which were subject to the goods use restrictions in the 2009 Agreement.

Unit 2

157. The Later Permission for this Unit was for "Reconfiguration of existing unit 2 No. units into 2 units including partial demolition. Construction of additional retail unit substation and switch room and relocation of surface water drainage ditch with provision of column mounted external lighting and CCTV cameras."
158. The planning application showed that it was proposed that internal partitions be moved and altered so as to create 2 different sized retail units in place of the existing two. In the DAS it was stated under the heading "Use" that "The Peel Centre is a bulky goods retail park with a total of 15 units." There was no indication that the intended use of Unit 2 was to be anything other than for bulky goods retail. The application did not seek permission to authorise a use prohibited or limited by the 2009 Agreement. No such statement was made in the DAS.
159. In our view, the judge was not wrong to hold that the Later Permission was for works to reconfigure Unit 2 by the demolition of part and internal subdivision. It was not necessary to refer to extraneous materials to reach that conclusion. Further, the Later Permission did not grant planning permission for a use prohibited or limited by the 2009 Agreement. No such permission was specifically requested and the character of the Unit as a retail warehouse remained unchanged.
160. We also agree with the judge's conclusions that s.75 does not assist Peel. Subsection (2) was not engaged, as no purpose was specified for which the Unit may be used. Subsection (3) did not grant the right to develop the Units, as the Later Permission did not authorise any material change of use.
161. Finally, no new chapter of planning history was opened by the Later Permission, as the use before and after the works were carried out would remain the same.

Unit 1A

162. The Later Permission for this Unit granted planning permission for re-configuration and refurbishment of Unit 1 including partial re-cladding and creation of a mezzanine floor. 2 different sized Units would be created in place of the existing 2. The DAS stated that the Peel Centre was a bulky goods retail park. There was no indication in the application that the use of Unit 1A was to be anything other than for bulky goods retail, or that there was sought an authorisation for a use prohibited or limited by the 2009 Agreement.
163. The judge's conclusion that the planning permission was for external alterations and re-configuration was justified on an objective assessment of the relevant planning documents without recourse to any extraneous material to which Peel objects. No permission was granted by the Council for a use of Unit 1A that was prohibited or limited by the 2009 Agreement. No specific request was made for a material change of use; the essential character of the Unit would, after the alterations of the building, remain unchanged as a retail warehouse; and reference in the application form to retail use was otiose, as the Unit was already in retail use and no change was proposed. As no permission was granted for a material change of use, there was no "right to develop" conferred by s. 75(3) or falling within the meaning of the Proviso. As the retail use both before and after the Later Permission and the building works was the same, there was no new planning chapter.

Unit 1

164. The Later Permission was for alterations to elevations, including installation of new entrance doors and alterations to service door openings. 4 retail units would be provided in place of the existing 2 units. Reference was made in the DAS to Peel Centre as a bulky goods park with no indication that this Unit was to be used otherwise. No specific request was made for a change of use. The answer "No" was given in the application form to the question whether the proposal involved a change of use of floorspace.
165. The judge's conclusion that the planning permission was for external works only was justified on an objective assessment of the relevant planning documents without reference to what Peel objects to as extraneous documents.
166. The references to "retail unit" do not indicate that planning permission was given for a change of use, the Unit already having an existing retail use as restricted by the 2009 Agreement. The essential character of the Unit as a retail warehouse would remain unchanged.
167. Section 75(2) did not assist, as no purpose was specified. As no permission was given for a material change of use, s.75(3) is not engaged. For similar reasons "the right to develop" within the meaning of the Proviso is not triggered and no new planning chapter is opened by the Later Permission for building operations.

Unit 4

168. The Later Permission for this Unit was for "Alterations to elevations involving installation of 1 no. entrance door to front, and installation of 1 no. goods door with ramp.2 no.double doors and 2 no.personnel doors to the rear."
169. The application plans show that it was proposed that the existing unit be subdivided into 2 Units, but no reference was made on the plans to the use of the Units. No indication was given in the application that permission to authorise a use prohibited or limited by the 2009 Agreement was sought.
170. The judge correctly concluded that the Later Permission was for external alterations only. That conclusion is justified without the need to refer to extraneous materials.
171. In our judgment, the Later Permission was not for a use prohibited or limited by the restrictions in the 2009 Agreement and there was no "right to develop" within the meaning of the Provisos. The essential character of this Unit as a retail warehouse would remain unchanged. There would be external alterations only and no application or grant of permission for a different use.
172. The position under s. 75 does not assist Peel: no purpose was specified which would engage subsection (2) and no material change of use was authorised, which could engage subsection (3) and constitute a "right to develop" within the meaning of the Provisos.
173. The attempt to run the new chapter argument also fails, as the use before and after the works remains the same: A1 retail divided up into different sized units subject to the restrictions in the 2009 Agreement.

The result

174. The appeal is dismissed. Peel has not demonstrated that the judge was wrong to dismiss its claims or to decline to make the declarations claimed by it.