England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		7th February 2005

1. MR JUSTICE SULLIVAN: Introduction
2. In this case the claimant Council applies under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") to quash a decision by an inspector appointed by the first defendant allowing the second defendant's appeal against the claimant's refusal to issue a lawful development certificate under the Act. The claimant also applies for permission to appeal under section 289 of the Act against the Inspector's decision to allow the second defendant's appeal against an enforcement notice which had been served by the claimant. Both decisions are contained in a decision letter dated 6th October 2004. Both appeals related to Units 7 and 8, Nene Valley Retail Park, 119 St James' Mill Road East, Northampton.
3. The background facts were not in dispute before the Inspector and can be stated quite shortly. On 9th November 1987 the claimant granted outline planning permission under reference 86/0994 for the development of a non-food retail park with leisure facilities, restaurant/takeaway food unit and car wash facility on what was described as the EM Gas site (west of Towcester Road) St James' End, Northampton. The planning permission was granted subject to a number of conditions. Those conditions included condition number 6, which was in these terms:

"The total non-food retail floor space excluding open garden display areas shall not exceed 150,000 square feet of gross floor space."

The reason given for the imposition of that condition was: "to ensure that an effective planning control is retained by the council". Reserved matters approvals were granted on the same day.

4. On 29th December 2000 the claimant registered an application for a proposal that was described in these terms: "Variation of condition 6 of planning permission 86/0994 to increase total gross retail floor space by 929 square metres to 14,864 square metres, and landscaping and footpath improvements". The location was given as the Nene Valley Retail Park, Towcester Road, Northampton.
5. In a decision notice dated 7th March 2001 and headed "Approval of a variation to a condition of a planning permission", the claimant granted "a variation to condition number 6 of 86/0994 subject to the following conditions: (1) the total non-retail food space shall not exceed 14,964 square metres of gross floor space. Reason: to comply with national and planning policies which seek to direct new retail development into existing centres". Certain other conditions were imposed which are not relevant for present purposes.
6. Two drawings were mentioned in the decision notice and in one of the other conditions. Those drawings show that the additional gross retail floor space was proposed in units other than Units 7 and 8. Unfortunately, the application documents, apart from these plans, are not available and so it is not possible to be sure as to precisely what was being applied for in December 2000. This matter was not raised before the Inspector and it would seem that he was not shown the plans referred to in the 7th March 2001 decision notice.
7. As mentioned above, the site is now known as the Nene Valley Retail Park. It comprises a number of units. In respect of Units 7 and 8, an application was made in 2001 for planning permission for the installation of a mezzanine floor. Permission was refused. The floor was nevertheless installed and an application for retrospective planning permission was made. That application was also refused and an appeal was made by the occupiers of Units 7 and 8 to the Secretary of State which was determined on 7th May 2003. The Inspector dismissed the appeal, and planning permission was refused. On 13th February 2004 the second defendant made an application for a lawful development certificate in respect of the mezzanine floor. The claimant refused that application on 8th April 2004 and the second defendant appealed to the Secretary of State. On 10th May 2004 the claimant issued an enforcement notice against the second defendant, alleging that there had been a failure to comply with condition 6 of the 1987 permission as varied by condition number 1 of what was described as "an approval of variation of a condition granted by the Council on 7th March 2001". The second defendant appealed against the enforcement notice and both appeals came before the inspector at an inquiry which was held on 21st September 2004.
8. The Inspector said this in paragraphs 5 to 7 of his decision letter:

"5. Some debate took place at the inquiry about the status of the Council's 'approval of a variation of a condition', made in 2001. It is not clear whether this was made as an application, and was determined, under s.73 of the 1990 Act (as amended). If so, both main parties are agreed that a new permission would have been created. However, in this case, rather than issue a new permission, the Council, seemingly, has issued a decision purporting to amend the original decision by 'varying' Condition No 6 and adding new ones.

6. Whatever the exact position in law, there is no dispute in the present cases that the gross floor space in this retail warehouse development site has not only exceeded 13,955 sq.m (being the metric equivalent of 150,000 sq.ft) referred to in Condition No 6 of the 1987 outline planning permission, but has also exceeded 14,964 sq.m as referred to in Condition No 1 of the 2001 'variation'.

7. The main parties are agreed that the installation of the mezzanine floor would be an improvement or other alteration which affects only the interior of the building the subject of these appeals, or would not materially affect the external appearance of the building. Accordingly, the Council accepts that such building operations would not be 'development' within the meaning of s.55(2)(a) of the 1990 Act (as amended), hence those buildings operations do not need planning permission. "

9. Section 55(2)(a) of the Act is in the following terms:

"The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land -

(a) the carrying out for the maintenance, improvement or other alteration of any building of works which -

(i) affect only the interior of the building, or

(ii) do not materially affect the external appearance of the building ... "

10. Having cited a considerable number of authorities to which he had been referred, the Inspector concluded in paragraph 32:

"Drawing these matters together, it is my view that the effect of the Condition No 6 of the 1987 outline planning permission would be to limit the amount of development, expressed in terms of the area of floorspace, permitted by that outline planning permission so as to govern the subsequent submission of reserved matters. It would do no more than that, yet it would enable the Council to retain effective planning control by limiting the scope of the reserved matters; in that way the reasons for the condition and, indeed, that of the 'variation' would be fulfilled. Had the Council wished to prevent the creation and use of mezzanine floors, or to rule out other internal alterations, then clear words to express those intentions should have been included in the relevant condition. In that way, the developer would be aware that planning permission would be needed from the local planning authority to carry out such building operations and use."

11. In the light of that conclusion, the Inspector allowed the appeal against the enforcement notice and directed that the enforcement notice should be quashed, and allowed the appeal against the refusal of the lawful development certificate and issued a certificate.
12. The claimant challenged these decisions in applications under sections 288 and 289 of the Act. In paragraph 17 of its grounds the claimant contended:

"The words of the condition are emphatic. The phrase 'the total ... shall not exceed' is absolutely clear and stated in mandatory terms. The condition is clear and unequivocal."

13. In a draft consent order the first defendant accepted that:

"The words of condition 6 themselves 'the total non-food retail space ... shall not exceed 150,000 sq ft ... ' are themselves totally clear. The FSS therefore accepts that they meet the test in Dunoon v Secretary of State for the Environment 1992 JPL 936.

If there were any doubt then the reason for condition 6, and even more clearly condition 1 of the 2001 variation, show the purpose and therefore the appropriate construction of the conditions. The reason in the 2001 condition is 'to comply with national and local planning policies which seek to direct new retail development into existing centres'. This establishes beyond doubt that the purpose of the condition is to prevent further expansion of out of town retailing. The Second Respondent's construction of the condition would not achieve that purpose."

Submissions

14. In his skeleton argument on behalf of the claimant, Mr Dove QC submitted that conditions in planning permissions should be construed in the way in which they would be read and understood by the reasonable reader, and should not be given an artificial or strained construction: see, for example, Carter Commercial Developments Ltd v Secretary of State for Transport. Local Government and the Regions and Mendip District Council [2003] JPL 1048, paragraph 27 per Arden LJ.
15. He submitted that, read in that way, condition 6 was clear and unequivocal. Its effect was clearly to restrict the amount of non-food retail floor space at the site for which planning permission had been granted in 1987, which was then called the EM Gas site and is now known as the Nene Valley Retail Park. If there was any room for doubt, that doubt would be removed if the condition, as varied in 2001, was construed together with the reason for its imposition (see above).
16. On behalf of the second defendant, Mr Katkowski QC submitted that the Inspector's decision was correct. His starting point was the proposition that the installation of the mezzanine floor in Units 7 and 8 was lawful, since it did not involve development by virtue of the provisions of section 55(2)(a) above. He submitted that the use of that lawfully constructed floor space for non-food retailing was also lawful, unless it was prohibited by the terms of condition 6, either as originally imposed in 1987 or as varied by condition 1 in 2001, since there had not been any material change of use within Units 7 and 8.
17. If a local planning authority wished to exclude the operation of either the Town and Country Planning (Use Classes) Order or the Town and Country Planning (General Development) Order it had to "say so by the imposition of a condition in unequivocal terms": see Carpet Decor (Guildford) Ltd v Secretary of State for the Environment and Guildford Borough Council [1981] JPL 806 per Sir Douglas Frank QC, sitting as a deputy High Court judge.
18. In Dunoon Developments Ltd v Secretary of State for the Environment and Poole Borough Council [1992] JPL 936 planning permission had been granted for the erection of a building for use as offices, showroom, car sales, service and maintenance, subject to a number of conditions. The Court of Appeal had to consider the effect of a condition:

"(1) 'that the use of the proposed premises shall be limited to the display, sale and storage of new and used cars - together with an administrative centre and the preparation of vehicles including facilities for cleaning, polishing and for such essential auxiliaries as general routine inspection of engine, brakes, steering and lighting.'"

The use of the building changed to that of an indoor market. The market operators relied upon the provisions of Schedule 2, Class A in the General Development Order 1988. Schedule 2, Class A permitted the following:

"Development consisting of a change of the use of a building to a use falling within Class Al (shops) of the Schedule to the Use Classes Order from a use falling within Class A3 (food and drink) of that schedule or [and this is the relevant phrase] from a use for the sale, or display for sale, of motor vehicles."

19. Giving the words in condition 1 their ordinary and natural meaning (see page 940), the court concluded that they did not exclude the operation of the General Development Order in that case. The Vice Chancellor said this on page 941 :

" ... of its nature, and by definition, a grant of planning permission for a stated use was a grant of permission only for that use. But that could not, per se, be sufficient to exclude the operation of a General Development Order. A grant of permission for a particular use could not per se constitute a condition inconsistent with consequential development permitted by a General Development Order. If it did, the operation of General Development Orders would be curtailed in a way which could not have been intended. Thus, to exclude the application of a General Development Order there had to be something more. In the present case, there was nothing more. Condition 1 delimited or circumscribed the ambit of the permitted use. The condition was not apt to achieve more. It was not apt to achieve more because it was not fairly apparent from the language of the condition, or the document read as a whole, that condition 1 was intended to do more than this. If the condition was fairly read, its purpose was, but was only, to define the ambit of the permission granted. There was not explicit or implicit an intention to negative development pursuant to any existing or future Use Classes Order or General Development Order."

20. Mr Katkowski submitted that this approach applied a fortiori to the present case because the right in question - to make internal alterations to a building - was conferred not by subordinate legislation but by section 55 in the Act itself. He therefore submitted that the condition restricted the amount of non-food retail floor space which could be included in a reserved matters application, but it was not sufficiently clear and unambiguous on its face to do any more than that. Specifically, it was not sufficiently clear and unambiguous to prevent the use of a lawfully constructed mezzanine floor for non-food retail purposes.
21. It was not permissible to look at the reason for the imposition of condition 1 in the 2001 decision. There was some doubt as to the status of that decision, but the better view was that it was not a new planning permission under section 73 of the Act for the whole of what is now the Nene Valley Retail Park, but simply a planning permission for the creation of additional floor space in two of the units (not Units 7 and 8) within that park. If it was regarded as a fresh planning permission for the whole park, incorporating all the earlier conditions, but with a varied condition number 6, it would make no sense since the other conditions had long since been discharged or spent. In response to this submission, Mr Dove pointed out that one of the conditions in the 1987 planning permission did impose a continuing obligation:

"(9) The loading, unloading and parking of all vehicles attending the development shall at all times take place solely within the curtilage of the development, and the service yards shall at all times be maintained free from any obstruction including the storage of materials, goods, other articles or refuse in order that all service vehicles may enter and leave the site in a forward motion. "

Conclusions

22. Like the Inspector, I do not think it necessary to resolve the status of the 2001 decision, since I agree with the claimant and the first defendant that the meaning of condition 6 in the 1987 permission is clear, and that it does not simply limit the amount of floor space that could be submitted for detailed approval. The exclusion of the open garden display area is irrelevant for present purposes. Mr Katkowski's submissions invite the court to read condition 6 as though it had said: "The total non-food retail floor space in any application for approval of reserved matters shall not exceed 150,000 square feet". I do not see why, on a common sense reading of condition 6, it should be given such a restricted meaning. Although this case has focused on the creation of a mezzanine floor within Units 7 and 8, it is important to bear in mind that this would not have been the only way in which additional non-food retail floor space might have been created on the EM Gas site following approval and implementation of details. It will be remembered that in 1987 planning permission was granted for a mixed development, which included not merely non-food retail floor space, but also leisure facilities and a restaurant/takeaway food unit. There was no limit on the floor space that could be included in reserved matters applications for buildings containing those uses. Without the limit of 150,000 square feet for non-food retail floor space, it might well have been possible to create more of such floor space at the expense of reducing the amount of floor space devoted to leisure and/or to restaurant/takeaway food uses, by carrying out internal works (such as moving partition walls et cetera) under section 55(2)(a).
23. The decisions in Carpet Decor and Dunoon are of limited assistance in the present context because condition 6 does not purport to take away the right to make internal alterations under section 55(2)(a). Provided the total amount of non-food retail floor space in (what is now) the Nene Valley Retail Park does not exceed 1,935 square metres (or 14,964 square metres if one looks at the 2001 decision), occupiers are free to make whatever internal alterations they wish, provided those alterations affect only the interior of their buildings, or do not materially affect the external appearance of their buildings.
24. Mr Katkowski submitted that, in construing condition 6, one had to ask the question: "The non-food retail floor space - of what - shall not exceed 150,000 square feet of gross floor space? His answer to that question was: "Of whatever is proposed in an application for approval of reserved matters". I accept that it is sensible that the question should be asked: "Where should the total non-food retail floor space not exceed 150,000 square feet of gross floor space?". My answer to that question would be: "The total non-food retail floor space in the non-food retail park with leisure facilities, restaurant/take away food unit and car wash facility that is proposed to be developed on the EM Gas site (now known as the Nene Valley Retail Park)". There is no doubt that, so construed, condition 6 would have the effect of preventing an applicant for approval of reserved matters approval from seeking approval for more than 150,000 square feet of non-food retail floor space, because such an application would be outwith the terms of the outline planning permission. But giving the words of condition 6 their ordinary and natural meaning, there is no need to cut down their ambit, or to treat them as having only that effect.
25. I have reached this conclusion by reference to the words of condition 6 in the 1987 permission. The "variation" in 2001 merely increased the amount of non-food retail floor space by about 1,000 square metres (see paragraph 6 of the Inspector's decision letter). If condition 6 had not been clear and it had been necessary to consider the reason for the imposition of the "varied" condition in 2001, I would have agreed with the claimant and the second defendant that the reason makes it plain that the condition was not simply concerned with restricting the amount of floor space that could be included in an application for approval of reserved matters. Mr Katkowski submitted that the use of the mezzanine for non-food retail purposes would not be "new retail development" as mentioned in the reason for the imposition of the condition as varied, because section 55(2)(a) expressly excludes such internal works from the definition of development.
26. In my judgment, this is an example of interpreting a condition and the reasons given for the imposition of a condition in a legalistic rather than in a common sense way. It is perfectly true that a lawyer would not describe the carrying out of internal alterations, whether by the installation of a mezzanine or otherwise, as "new development", because of the provisions of section 55(2)(a). However, the use for retail purposes of the additional floor space thereby created would reasonably be described as "new retail development" in the context of a condition that was seeking to impose an upper limit upon non-food retail floor space.
27. For these reasons, I grant the claimant permission to appeal under section 289, and allow both the appeal under section 289 and the application under section 288.

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28. MR DOVE: My Lord, in those circumstances can I apply for our costs.
29. MRJUSTICE SULLIVAN: Yes.
30. MR DOVE: Can I advise you that so far as the first defendant is concerned, the First Secretary of State, it is agreed that they should pay our costs up to 21st January in the agreed sum of £4,722. There is then a schedule of costs from 21st January--
31. MR JUSTICE SULLIVAN: I do not think I have seen that. I have seen what the Secretary of State has said, but if there is not any argument about it then we do not need to go into it.
32. MR DOVE: There is no dispute about it. It has been served on my friend and his clients and I apply for those costs in the sum of £11,564. Those are the costs since 21st January.
33. The only other matter while I am on my feet, can I just ask this please. My Lord, there are appeals pending in respect of all of the other units, two types of appeal, one seeking a certificate of lawfulness in respect of already erected partial mezzanine floors, the other seeking a certificate of lawfulness of proposed development in respect of the completion of those mezzanine floors. Those appeals are due to be heard on 15th March of this year, proofs due on Friday. All I would ask, if it were at all possible, is if the judgment that your Lordship has given could in some way be expedited in order to assist in relation to that appeal process.
34. MR JUSTICE SULLIVAN: Could I find out from the shorthand writer when she thinks she might be able to give me the draft, because I usually turn them round on the same day if they are not very long, and this is not. If it is turned round by Wednesday, then I shall turn it round on the Thursday.
35. MR DOVE: Obviously there is a note which has been kept, but clearly the sooner that we can get that document to the inspector, the better.
36. MR JUSTICE SULLIVAN: I think Friday for the final judgment might be a bit tight, it probably actually will arrive by close of play on Friday.
37. MR DOVE: I am grateful for that indication.
38. MR JUSTICE SULLIVAN: We have noted that and we will get it to you as soon as we possibly can.
39. MRDOVE: Thank you.
40. MR JUSTICE SULLIVAN: Mr Katkowski, so far as the principle of costs are concerned and the amount, there is no dispute.
41. MR KATKOWSKI: No dispute, my Lord. Our share, so to speak, is £11,564.
42. MR JUSTICE SULLIVAN: I will make the order at this stage. The application and the appeal are allowed. The first defendant will pay the claimant's costs up to 21st January this year, those costs to be summarily assessed in the agreed sum of £4,722. The second defendant will pay the claimant's costs thereafter, those costs to be summarily assessed in the agreed sum of £ 11,564.
43. MR DOVE: Thank you.
44. MR KA TKOWSKI: My Lord, first of all, I am grateful to my Lord for seeking to expedite the issue of the judgment. For the reasons my learned friend has explained, that will be very useful.
45. My Lord, I do have an application for permission to appeal. There are three reasons for making the application. I understand I need to make this application to my Lord in the first place. The three reasons are firstly the reason that my learned friend has given to you, that there are a number of appeals to various certificates which are in effect awaiting or will in effect be determined by the result of this litigation, so the point that my Lord has determined today is of interest not only to the occupants of the particular unit the subject of these proceedings, but to the occupants of the other units on this park. That is the first point. There is a wider interest beyond just this unit.
46. Secondly, my Lord, my client, as my Lord will understand, are the beneficiaries of a number of planning permissions nationwide that have conditions to a similar effect as this. My Lord's determination today and my Lord's judgment today has wider implications beyond this particular retail park.
47. Thirdly, the industry, if I can call it that, this sector, will be the beneficiary of a host of permissions with conditions worded in this nature. My Lord's judgment today is the first authority, so to speak, to determine the conditions of this effect, that this wording will have the effect of placing a permanent restriction on the ability to rely on statutory rights. So my Lord's judgment does have wider implications beyond this retail park, wider implications for my client, the company, and implications across the country for all parties in this field. My Lord, I do ask that this first ruling on the meaning of conditions of this nature should be allowed to be tested in the Court of Appeal. Plainly, I would submit the point is perfectly arguable and, given the significance of the issue, not just for this particular unit but nationwide, I would ask that we be given an opportunity to proceed to the Court of Appeal.
48. MR JUSTICE SULLIVAN: Thank you very much. I do not need to trouble you, thank you very much, Mr Dove. I think those are the sort of points, Mr Katkowski, that are best made to the Court of Appeal. They may be persuaded that the wider interest justifies them in having a look at it, but in my judgment the condition is clear and there is no real prospect of success.
49. MR KATKOWSKI: Thank you, my Lord.