Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 57

XA111/14

 

Lady Paton

Lord Menzies

Lord Drummond Young

OPINION OF THE COURT

delivered by LADY PATON

in the appeal

by

COAL PENSION PROPERTIES LIMITED

Appellant;

against

(FIRST) THE SCOTTISH MINISTERS;  (SECOND) STIRLING COUNCIL

Respondents:

and

 

STANDARD LIFE INVESTMENTS UK SHOPPING CENTRE TRUST

 

Interested party

 

under section 239 of the Town and Country Planning (Scotland) Act 1997

 

Appellant:  Findlay;  McClure Naismith LLP

First Respondents:  Barne;  Scottish Government Legal Directorate

Second Respondents and interested party:  M G Thomson QC;  CMS Cameron McKenna LLP

 

14 July 2015

Introduction
[1]        The appellant owns Springkerse Retail Park, near Stirling.  For over 20 years, the retail units in the park have been used for the sale of household goods such as car goods and accessories, carpets and floor coverings, DIY goods, fitted units and associated appliances, furniture and furnishings, garden goods, and gas and electrical goods or appliances, all as permitted by condition 3 of the detailed planning permission granted in 1993. 

[2]        The appellant maintains that, in terms of the planning permission, the retail units may be used for the sale of a wider range of non-food goods.  Accordingly by letter dated 18 March 2013 the appellant made an application under section 151 of the Town and Country Planning (Scotland) Act 1997 (the 1997 Act) for a certificate of proposed lawful use permitting “the retail sale of any non-food goods”.  On 28 November 2013 Stirling Council refused the application.  The appellant appealed.  On 27 June 2014 a reporter (Dan Jackson) appointed by the Scottish Ministers refused the appeal.  The appellant now appeals to the Court of Session. 

 

The issues
[3]        The issues in the appeal are:

1. First, the proper construction of the detailed planning permission dated 16 December 1993, and in particular condition 3.
2. Secondly, the question whether condition 3 excludes the provisions of the Town and Country Planning (Use Classes) (Scotland) Order 1997/3061.

Counsel were agreed that these are questions of law.  Counsel were also agreed that if the reporter had made an error in law, his decision should be quashed, and the case remitted to the Scottish Ministers who would either allocate the case to a different reporter, or make a decision without a further report.

 

The planning history
[4]        The history of Springkerse Retail Park began in the mid-1980s.  Several developers wished to construct retail parks in the vicinity of Stirling, Falkirk and Alloa.  There were many planning applications (several called in by the regional council), and one appeal resulting in a public local inquiry (see Lakin Ltd v Secretary of State for Scotland 1988 SLT 780).  Matters connected with the proposed retail parks were thoroughly explored.  One carefully considered outcome was planning permission for a non-food retail park at Springkerse, near Stirling.

[5]        Outline planning permission for that retail park was granted by letter dated 2 August 1990, subject to the conditions set out in Annex A.  Paragraphs 11, 13, and 14 of the letter disclose one of the planners’ main concerns, namely the balancing of shopping facilities between the outlying retail park and nearby town centres, such that town centre shopping remained viable. 

[6]        The development at Springkerse Retail Park was to be in one phase, comprising two parts, one part being a superstore for the sale of “essential goods”, and the other part a household shopping centre for the sale of “household goods”.  Condition 6 of the 1990 outline planning permission described the one-phase/two-part development as follows:

“6.  The non-food retail park proposed shall be developed as a single phase and shall comprise a superstore for the sale of essential goods (as defined in paragraph 14 below) and a household shopping centre for the sale of household goods (as defined in paragraph 15 below) …

 

[7]        Paragraph 15 was in the following terms:

“15.  For the purposes of this Annex “household goods” shall comprise only the following:

a.  car goods and accessories

b.  carpets and floorcovering

c.  DIY goods

d.  fitted units and associated appliances

e.  furniture and furnishing

f.   garden goods and

g.  gas and electrical goods or appliances.”

 

[8]        Condition 8 of the 1990 outline planning permission provided:

“8.  In the household shopping centre:-

a.         the gross floor area shall be not more than 15,000 square metres excluding walls or other common facilities;

(b)        the gross floorspace of each retail unit shall be not less than 750 square metres and not more than 4,000 square metres;

(c)        the proportion of the sales area of each retail unit which is for the sale of household goods shall be not less than 95%;

(d)        only one retail unit shall utilise more than 20% of its sales area for the sale of gas or electrical goods or appliances or fittings, and the gross floorspace of this single retail unit shall be not more than 1,500 square metres;

(e)        the retail units shall not sell food, except that the household shopping centre may include facilities for consumption of food on or off the premises”

 

[9]        Detailed planning permission was granted by letter dated 16 December 1993 for the “construction of non-food retail park incorporating 13 units”.  By that time, the superstore for essential goods had its own detailed planning permission, and there was no reference to that superstore in the letter of 16 December 1993.  Condition 3 of the detailed planning permission was in the following terms:

“3.  In the Non-Food Retail Park –

a)         the gross floor area shall be not more than 15,000m² excluding walls or other common facilities;

b)         the gross floor space of each retail unit shall be not less than 750 m² and not more than 4,000 m²;

c)         the proportion of the sales area of each retail unit which is for the sale of household goods shall be not less than 95%;

d)         only one retail unit shall utilise more than 20% of its sales area for the sale of gas or electrical goods or appliances or fittings, and the gross floor space of the single retail unit shall not be more than 1,500 m²;

e)         the retail units shall not sell food, except that the Non-Food Retail Park may include facilities for consumption of food on or off the premises.

For the purpose of this condition ‘household goods’ shall comprise only of the following-

 

1.         car goods and accessories;

2.         carpets and floor coverings;

3.         D.I.Y. goods;

4.         fitted units and associated appliances;

5.         furniture and furnishing;

6.         garden goods;

7.         gas and electrical goods or appliances”.

 

[10]      Reasons were given for imposing the conditions.  In relation to condition 3, the reason given was as follows:

“In order to comply with the conditions imposed on the outline consent granted by the Secretary of State in August 1990.”

 

The Use Classes Order 1997 (“UCO”)
[11]      As Lord Justice Beatson explained at paragraph 11 of Telford and Wrekin Council v Secretary of State for Communities and Local Government and another [2013] EWHC 79 (Admin):

“One of the exceptions to the requirement of planning permission concerns uses within the same class of use as the current use of the land.”

 

[12]      Section 26(2)(f) of the Town and Country Planning (Scotland) Act 1997 provides:

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

…(f) in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section, the use of the buildings or other land or, subject to the provisions of the order, of any part of the buildings or the other land, for any other purpose of the same class …”

 

[13]      The Town and Country Planning (Use Classes) (Scotland) Order 1997/3061 (“the UCO”) provides:

“3.  Use Classes

(1) Subject to the provisions of this Order, where a building or other land is used for a purpose in any class specified in the Schedule to this Order, the use of that building or that other land for any other purpose in the same class shall not be taken to involve development of the land …

 

Schedule 1

Class 1.  Shops

Use –

(a) For the retail sale of goods other than hot food; …

where the sale, display or service is principally to visiting members of the public …”

 

[14]      The appellant’s position is that the detailed planning permission granted in 1993 for the construction of a non-food retail park, coupled with the UCO, permits the use of the retail units in the park for the sale of any non-food goods, and not solely those goods listed in condition 3.  Hence the appellant’s application dated 18 March 2013 (see paragraph [2] above).

 

Submissions for the appellant
[15]      Counsel for the appellant submitted that the appeal should be allowed, the reporter’s decision quashed, and the matter remitted to the Scottish Ministers. 

[16]      Background:  The detailed planning permission in 1993 had been for the “construction of non-food retail park incorporating 13 units”.  The definition “non-food” was wider than “household goods”.  In terms of the UCO, the appellant would normally be entitled to expand the retail use of the units in the park from sales of household goods to sales of any non-food goods.  In refusing to allow such an expansion, the reporter had erred in two respects, namely (i) in his construction of condition 3 of the 1993 permission;  and (ii) in his conclusion that condition 3 ousted the UCO. 

[17]      The proper construction of condition 3:  Counsel submitted that planning conditions had to be clearly expressed, precise and enforceable (Lord Justice Beatson at paragraph 33 principle (3) of Telford and Wrekin Council v Secretary of State for Communities and Local Government and another [2013] EWHC 79 (Admin);  Lord Justice Sullivan at paragraph 39 of R (Sevenoaks District Council) v The First Secretary of State and another [2004] EWHC 771 (Admin)).  In the present case, the reader should be able to look at the condition and see that it did not simply define the uses of the land, but went further and imposed a restriction on the uses of the land.  As there was a presumption against restrictions, a landowner’s right to change operations within a use should be taken away only for a specific reason, and then clearly taken away:  paragraphs 73 and 74 of the Scottish Planning Circular 11/1995. The approach in Dunoon Developments Ltd v Secretary of State for the Environment and another [1992] JPL 936 (permitting extension to other activities despite the words “shall be limited to”) was to be preferred to that in R (Royal London Mutual Insurance Society Ltd) v Secretary of State for Communities and Local Government [2013] EWHC 3597 (Admin) (where a more restrictive approach was adopted).  The intention or purpose of the drafter was irrelevant, if the wording of the permission failed to achieve that intention.

[18]      Against that background, counsel submitted that the clear meaning of condition 3(c) was that, in respect of those units which were engaged in selling household goods, at least 95% of the area of such units had to be used for that purpose.  That was the plain meaning of the words, as the phrase “which is for the sale of household goods” identified the retail units being referred to.  Secondly, the 1993 permission contained no restriction similar to that imposed by conditions 6 and 15 in the 1990 permission:  condition 3(c) did not contain words such as “which is to be used only”, but simply the word “is” (a word of description, rather than restriction).  Thirdly, if planners had wished to restrict the sale of certain items, they could have used clear and express language to do so, as they had in conditions 3(d) (relating to gas and electrical goods) and (e) (a prohibition on the sale of food, with one exception), and condition 20 (which excluded outdoor garden centres).  Fourthly, while reference to the 1990 permission was appropriate, any such reference did not include a reference to the appeal decision which lay behind the conditions.

[19]      Whether condition 3 excludes the operation of the UCO:  Condition 3 contained no express wording removing the application of the UCO.  The wording in the condition was not similar to the wording in those authorities in which the court held that the UCO had been excluded.  The relevant planning circulars (Circular 4/1998 paragraph 85 and model condition C1, and the preceding circular 18/1986 paragraphs 72-74 and model condition 32) consistently advised that express words should be used in order to remove the advantage of the UCO.  In the present case, the effect of the UCO had not been excluded.  There was nothing in condition 3 which took it out of the territory of Dunoon Developments Ltd into that of R (Royal London Mutual Insurance Society Ltd).  As Lord Justice Beatson stated in principle (9)b in Telford and Wrekin Council, “to exclude the operation of the UCO, it is necessary for the local planning authority to do so by the imposition of a condition in unequivocal terms:  Carpet Décor (Guildford) Ltd v Secretary of State for the Environment …”.  Condition 3 contained no such unequivocal terms.

 

Submissions for the Scottish ministers (the first respondents)
[20]      Counsel for the first respondents invited the court to refuse the appeal.  The conditions should be construed in the context of the decision letter as a whole (Hulme v Secretary of State for Communities and Local Government [2011] EWCA Civ 638 paragraphs 13 and 40), and should be construed benevolently (not narrowly or strictly) and in a common sense manner (Carter Commercial Developments Limited v Secretary of State for Transport, Local Government and the Regions [2002] EWCA Civ 1994 paragraph 49, R (Sevenoaks District Council) v The First Secretary of State [2004] EWHC 771 (Admin) paragraph 38.  It was accepted that there could be no implied conditions (Trustees of the Walton-on-Thames Charities v Walton and Weybridge Urban District Council [1970] 21 PMCR 411). 

[21]      The proper construction of condition 3:  Counsel submitted that there was no ambiguity in condition 3.  The word “which” referred to “proportion of the sales area of each retail unit”.  Thus each retail unit (not merely some of the retail units) was obliged to allocate not less than 95% of its sales area to the sale of household goods.  The construction contended for by the appellant contained no “whole” of which the sales area was to be part (i.e. at least 95%).  Moreover the appellant’s construction meant that the condition applied only to those retail units which happened to be selling household goods:  if no retail unit was selling such goods, the condition would not apply (and as a result the condition would serve no planning purpose). 

[22]      Further, it was also appropriate to consider the stated reason for the imposition of condition 3(c).  That reason was “in order to comply with the conditions imposed on the outline consent granted by the Secretary of State in August 1990”.  One could therefore look at condition 8 in the 1990 outline planning permission, and there was no basis for suggesting that condition 8 was intended to achieve, or did achieve, a different planning purpose from that achieved by condition 3 in the closely-related 1993 detailed planning permission.  It could be seen from the terms of the 1990 permission that the reporter was concerned about the scale and content of the retail park, and its effect upon Alloa town centre (paragraphs 13 and 14). 

[23]      Whether condition 3 excludes the operation of the UCO:  Condition 3, properly construed, excluded the operation of the UCO.  No particular form of words was required (R (Royal Mutual Insurance Society Ltd) v Secretary of State for Communities and Local Government [2013] EWHC 3597 (Admin) paragraph 13), nor was it necessary to refer specifically to the UCO.  Condition 3 contained the words “shall”, “only”, and a “clear iteration of the permitted bulky trades on the retail park” (cf the circumstances in R (Royal Mutual Insurance Society Ltd) paragraphs 3, 28-31).  Counsel adopted the reasoning set out in paragraphs 33 to 36 of that case.  In contrast to Dunoon Developments Ltd, the condition did not merely define the ambit of the permission granted, but (properly construed) excluded any other use, and thereby the UCO.  Furthermore, while in law it was not strictly relevant to have regard to the actual usage continuously for over twenty years (a usage restricted to the items listed in the definition of household goods), such usage nevertheless supported the first respondents’ contention that condition 3 was clear and clearly drafted.

 

Submissions for the second respondents and for the interested party
[24]      Background:  Senior counsel adopted the submissions made on behalf of the first respondents.  The outline planning decision letter dated 2 August 1990 restricted retail warehousing at Springkerse in the manner envisaged in order to provide a high quality development without adverse impact on local town centres.  Following upon the construction of the retail units, the park had always operated as a typical household goods retail park.  As at April 2014, units were occupied by B&Q, Archer Beds, Wren Kitchens, Curtains, Halfords, DFS, Currys, Carpet Right, Bensons, Harveys and Pet Home.

[25]      The proper construction of condition 3:  Condition 3 had to be given a sensible and reasonable interpretation in its proper context (Hulme v Secretary of State for Communities and Local Government [2011] EWCA Civ 638, Elias LJ at paragraph 13).  The context of condition 3 included the reason given for imposing the condition;  the outline planning decision letter dated 2 August 1990;  and the letter’s explanation for the restriction of retail warehousing at Springkerse.  The reasonable reader would understand the condition as restricting goods that could be sold from the Springkerse units to the household goods listed in condition 3 (cf R (Royal London Mutual Insurance Society Limited) v Secretary of State for Communities and Local Government [2014] JPL 458, Patterson J at paragraph 28).  There was no need to examine any extraneous material, and the reporter had not examined any.  The reporter had not erred.

[26]      Whether condition 3 excludes the operation of the UCO:  Condition 3 applied to all the units at the retail park, it specified that the sales area for household goods could not be less than 95%, and defined household goods by reference to a closed list.  The wording made it clear what could be sold and what could not.  There was no need for the condition to refer expressly to the UCO, or to adopt a particular form of words (R (Royal London Mutual Insurance Society Limited), cit sup at paragraph 33).  The reporter had reached the correct conclusion.

 

Discussion
[27]      As Lord Justice Beatson explained in paragraph 33 of Telford and Wrekin Council v Secretary of State for Communities and Local Government and another [2013] EWHC 79 (Admin), a planning permission, being a public document relied upon by members of the public and subsequent landowners, must be construed within the four corners of the consent itself, including any conditions and express reasons for those conditions, unless another document is incorporated by reference or unless it is necessary to resolve an ambiguity in the permission or condition.  Thus when construing a planning permission, the question is not what the parties intended, but what a reasonable reader would understand was permitted by the local planning authority.  Conditions must be clearly and expressly imposed so that they are plain for all to read, and should be interpreted benevolently (not narrowly or strictly) and given a common sense meaning.

[28]      The proper construction of condition 3:  In our opinion, this appeal concerns the proper construction of condition 3 as a whole (and not solely sub-paragraph (c) of the condition).  That said, we agree with the construction contended for by counsel for the respondents and the interested party, for the following reasons.

[29]      First, the words “which is for the sale of household goods” qualify, in our opinion, the phrase “the proportion of the sales area of each retail unit”.  Thus the mandatory provision, expressed by the words “shall” and “shall comprise only” (sub-paragraph (c) of condition 3, together with the definition of household goods in condition 3), applies to each of the 13 retail units, stating that their sales areas (as distinct from, say, their administration offices, or packaging or collection areas) must be devoted, to the extent of at least 95 per cent of the sales area, to the sale of household goods as defined in the closed list in condition 3.  In our opinion, the meaning of condition 3 is clear.  Any reasonable reader would understand that the 13 units were to be restricted to the sale of household goods as defined in the closed list. 

[30]      Secondly, we agree with counsel for the first respondents that the construction contended for by the appellant would have the effect that condition 3 would apply only to those retail units which happened to be selling household goods.  Thus if no retail unit was selling such goods, the condition would not apply, and as a result, the condition would serve no planning purpose.

[31]      Thirdly, as the 1993 detailed planning permission refers expressly to the 1990 outline planning permission (see paragraph [10] above), it is permissible to have regard to the 1990 decision letter as a whole, with its recommendations and any identifiable reasons (Hulme v Secretary of State for Communities and Legal Government [2011] ECWA 638 paragraph 13a;  Carter Commercial Developments Limited (in administration) v Secretary of State for Transport, Local Government and the Regions [2002] EWCA Civ 1994 paragraphs 27 and 28).  Thus the 1990 decision letter is very much part of the relevant background to be taken into account when construing the 1993 detailed planning permission.  We note that the 1990 outline planning permission related to a development in two parts, namely a superstore for the sale of essential goods as defined in paragraph 14, and a household shopping centre for the sale of household goods as defined in paragraph 15 – the same list of items as that in condition 3(c).  But while condition 6 of the 1990 permission was necessary to introduce the 2-part development, the same introduction and classification was unnecessary in the 1993 permission, as the latter did not concern a development in two parts.  Thus no repetition or replication of condition 6 was, in our view, necessary in the 1993 permission.

[32]      Finally, we consider that the 1990 decision letter (particularly paragraphs 11, 13 and 14) reveals a concern on the part of the planning authority that the unrestricted use of a large retail park at Springkerse for the sale of all types of non-food goods might have a detrimental effect on the viability of shopping facilities in nearby town centres.  Accordingly an important planning purpose – ascertainable from the 1990 decision letter itself and not from any extrinsic material – was the need to balance shopping provision between the outlying retail park and nearby town centres, and to restrict the non-food goods which could be sold in the retail park to certain household goods, such that shopping for other types of non-food goods would remain viable in the town centres.  The construction of condition 3 contended for by the respondents and the interested party is a sensible and reasonable interpretation (cf Hulme paragraph 14) which clearly accords with that purpose.  A restriction on sales in the retail park to household goods as defined in condition 3 constitutes a justifiable selection of often bulky items generally requiring a certain amount of space for storage, display, collection, and delivery, ideally suited to an outlying retail park such as Springkerse, while leaving many other types of non-food items to be sold in retail facilities in town centres.  By contrast, on the appellant’s argument, any or all of the units in the retail park could be used for the sale of any non-food items.  Thus all non-food shopping could migrate out of town centres to the retail park, with a possible damaging and deadening effect on those town centres.

[33]      In the result, therefore, we agree with the reporter’s conclusion relating to the proper construction of condition 3, and are not persuaded that he erred to any extent.

[34]      Whether condition 3 excludes the operation of the UCO:  The detailed planning permission must be construed as a whole.  That involves considering the purpose and context of the permission, including the 1990 outline planning permission.  As already noted above, one concern was the balancing of shopping facilities between the retail park and nearby town centres, and the continuing viability of town centre shopping facilities.  Against that background, we consider that the combination of the words “each retail unit”, “shall”, “only”, and a specific closed list of permitted household goods (focusing upon bulky items requiring space for storage, display, collection and delivery) has the effect of excluding the operation of the UCO.  As in R (Royal London Mutual Insurance Society) v Secretary of State for Communities and Local Government [2013] EWHC 3597 (Admin) at paragraph 36, “[t]hat is what the reasonable reader would understand was permitted by the condition”.  No particular form of words is required (R (Royal London Mutual Insurance Society), paragraph 33), nor is there any requirement that express reference must be made to the UCO.  We are not therefore persuaded that the reporter erred in his conclusion.

 

Decision

[35]      For the reasons given above, we answer the questions of law posed in the appeal as follows.

 

1. Whether, in terms of section 239(1) of the Act, the decision was within the powers of the Act:  Yes.

 

2. Whether, in dismissing the appeal, all relevant requirements of the Act and any rules made thereunder were complied with:  Yes.

 

3. Whether the Reporter misinterpreted Condition 3:  No.

 

4. Whether the Reporter misinterpreted Condition 3 by failing to appreciate the requirements necessary to exclude the operation of the Use Classes Order:  No.

 

[36]      Accordingly we refuse the appeal.  We continue the question of expenses.