Peel Land and Property Investments Plc, R (on the application of) v Blackburn With Darwen Borough Council & Ors [2012] EWHC 2959 (Admin)

[2012] EWHC 2959 (Admin)

Case No CO/5815/2012

Date 31 October 2012

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Before

HIS HONOUR JUDGE WAKSMAN QC

(sitting as a Judge of the High Court)

Between

R (on the application of PEEL LAND AND PROPERTY INVESTMENTS PLC)Claimant

HYNDBURN BOROUGH COUNCILDefendant

(1) BLACKBURN WITH DARWEN BOROUGH COUNCILInterested Parties

(2) BURNLEY BOROUGH COUNCILInterested Party

(3) CAPITAL AND REGIONAL PROPERTY MANAGEMENT LIMITEDInterested Party

(4) THE MALL LIMITED PARTNERSHIP, MALL NOMINEE ONE LIMITED AND MALLNOMINEE TWO LIMITEDInterested Party

Between

Christopher Katkowski QC and Simon Pickles (instructed by Thomas Eggar LLP, Solicitors) for theClaimant

Vincent Fraser QC (instructed by Hyndbum Borough Council Legal Department) for the DefendantInterested Party

Neil Cameron QC and Richard Moules (instructed by DAC Beachcroft Solicitors) for the FirstInterested Party

Robin Purchas QC and Saira Kabir Sheikh (instructed by Berwin Leighton Paisner Solicitors) for the

Third and Fourth Interested Parties

Hearing Hearing dates: 3, 4 and 5 October 2012

Judgment

[1]The Claimant (“Peel”) is the owner of a large retail park known as the Peel Centre in Rishton in the Borough of Hyndburn, Lancashire (“the Site”). This case concerns retail Units 1, 2, 4, 6 and 8 (“the Units”), which were let by Peel to particular retail outlets. By a written agreement made between Peel, the Defendant, Hyndburn Borough Council (“the Council”) and others on 26 October 1995, Peel entered into a s106 obligation not to use Unit 8 for the sale of certain retail goods. This was made in the context of an application for planning permission in respect of that unit (subsequently granted). By a further written agreement made between Peel and the Council on 23 June 2009, an earlier s52 agreement was varied so that s106 obligations were entered into in respect of the other units with restrictions on the sale of certain types of goods similar to those accepted for Unit 8.

[2]However, each agreement contained a proviso as follows:

“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 this Agreement.”

See clause 9 of the earlier and clause 7.1 of the later s106 agreements (“the Provisos”).

[3]Between September 2008 and May 2011 Peel obtained from the Council various further planning permissions in respect of the Units which (on any view) permitted external work to be undertaken to them and in two cases (Units 1 and 6) the insertion of a mezzanine floor and the schemes of works also involved some internal reconfiguration of the Units, sometimes splitting one into two (“the Later Permissions”).

[4]Subsequently, on 2 December 2011, Peel applied for certificates of lawful development (“CLDs”) to the effect that as a result of the Later Permissions, the Provisos were now triggered so that the s106 restrictions on the type of goods sold at the Units no longer applied. The Council refused those certificates and Peel has appealed, with a hearing before the Inspector due to take place in December 2012. But in June 2012 and following pre-claim correspondence, Peel issued a claim against the Council for judicial review of its refusal and for declaratory relief to the same effect as the CLD’s applied for.

[5]The Council denies this claim, stating that the Later Permissions did not have this effect. It also contends that as there is a statutory appeal process (now invoked by Peel) this Court does not have jurisdiction to hear the claim at all, or at any rate should refuse the claim in its discretion on the simple ground that whatever the merits, there is an alternative remedy. Permission to bring the claim was granted by Hickinbottom J on 3 July 2012. The First Interested Party, Blackburn with Darwen Borough Council (“BWD”) and the Second Interested Party, Burnley Borough Council (“Burnley”) are both neighbouring councils with rights to be consulted on planning matters affecting the retail park. The Third and Fourth Parties (“Capital”) own the Mall Shopping Centre in Blackburn. All the interested parties resist the claim and all apart from Burnley have appeared at this hearing. They also adopt the Council’s arguments on jurisdiction and discretion.

[6]I have reached the clear view that despite the forceful arguments to the contrary I have the power to, and should determine, Peel’s substantive claims to declaratory relief. My reasons for this are set out in the separate section on jurisdiction and discretion at paragraphs 113-125 below. I therefore turn immediately to the merits.

THE STATUTORY SCHEME FOR APPLYING FOR PLANNING PERMISSION

[7]Because of the issues which arise in this case it is necessary to rehearse at the outset some basic provisions of the Town and Country Planning Act 1990 Act (“the Act”) and the various Orders and Regulations made thereunder.

[8]First, by section 57 of the Act, planning permission is required for the carrying out of any development of land.

[9]Second, section 55 defines what is meant by development and the material parts for present purposes are as follows:

“Meaning of "development” and "new development" (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 buildings or other land. (1 A) For the purposes of this Act "building operations" includes - (a) demolition of buildings; (b) rebuilding; (c) structural alterations of or additions to buildings; and (d) other operations normally undertaken by a person carrying on business as a builder. (2) 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 or The maintenance, improvement or other alteration of any building works which (i) affect only the interior of the building (ii) do not materially affect the external appearance of the building... (d) the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such;.. (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;...” (a) demolition of buildings; (b) rebuilding; (c) structural alterations of or additions to buildings; and (d) other operations normally undertaken by a person carrying on business as a builder. (a) the carrying out or The maintenance, improvement or other alteration of any building works which (i) affect only the interior of the building (ii) do not materially affect the external appearance of the building... (d) the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such;.. (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;...”

[10]In the case of most of the Later Permissions at issue here, there were internal works which were part of the intended scheme of works which, if taken by themselves, would not require permission because they did not amount to development. In that context there is an issue as to the precise meaning of s55 (2) (a) (i) which is dealt with hereafter.

[11]Section 58(1) (b) provides that planning permission may be granted by a local planning authority (“LPA”) on application to it in accordance with a development order. Section 62 then states that a development order may provide as to the form and manner in which an application for planning permission must be made and it must require the application to be accompanied by statements about the design principles applied to the development and how issues of access to the development have been dealt with. The General Development Procedure Order 1995 (“the GDPO”) does just that and paragraph 4C

(2) thereof states that all applications for planning permission which are not (among other things) for a material change of use of buildings, must contain a design and access statement (“DAS”) explaining among other things the design principles applied to the amount layout, scale landscaping and appearance of the development and how issues of access to the development have been taken into account. Paragraph 4E of the GDPO then states that the application shall be made on a specified form which must include the particulars specified in the form and be accompanied by “..(i) a plan which identifies the land to which the application relates; (ii) any other plans, drawings and information necessary to describe the development which is the subject of the application...” As from 1 October 2010 the GDPO was replaced by the Town and Country Planning (Development Management Procedure) (England) Order 2010, Arts. 4C and 4E of the former are now to be found in Arts. 8 and 6 of the latter.

[12]Section 75, headed "The Effect of Planning Permission”, provides as follows:

“(1) Without prejudice to the provisions of this Part as to the duration, revocation or modification of planning permission, any grant of planning permission to develop land shall (except in so far as the permission otherwise provides) enure for the benefit of the land and of all persons for the time being interested in it. (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.”

[13]The class of use set out in the Schedule to the Town and Country Planning (Use Classes) Order 1987 (“the Use Classes Order”) which is relevant here is A1 retail use. Article 3(1) of that order provides that where a building was used for a purpose of any class specified in the Schedule, the use of that building for any other purpose of the same class shall not be taken to be development of the land. That is also reflected in s55

(2) (f) cited in paragraph 9 above.

THE BASIC ISSUES

[14]Peel’s essential argument to enable it now to claim unrestricted A1 retail use for these units on the basis of the Later Permissions runs as follows:(1) Each such permission on a true construction permitted both internal and external works which led to the creation of one or more new retail units (Step 1)

(2) By reason of the operation of s 75

(3) (and, in the case of Unit 6, s 75 (2)), those units could be used for unrestricted A1 retail purposes being the use for which they were designed or, in the case of Unit 6, specified (Step 2); (3) This meant that Peel had obtained a “right to develop” the units in accordance with the Later Permissions and since, by the Provisos, nothing in the s106 agreements was to prohibit or limit any such right (which the s106 obligations would otherwise do) those obligations would not now apply to the Units once the relevant work was done; accordingly certificates of lawful development (for unrestricted A1 use) should be granted (Step 3);

(4) If for some reason s 75 did not apply so as to entail Step 2, Peel argued that on any view the development permitted by the recent permissions amounted to a new chapter in the planning history of the units (“new chapter”) and this in and of itself would amount to a right to develop which, again, would engage the Provisos and/or in any event simply remove the s106 restrictions (Step 2A). The new chapter argument was originally at the forefront of Peel’s claim but is now put very much as a fallback position to Step 2.

[15]The response to this from the Council, BWD and Capital is essentially as follows:(1) Some or perhaps all of the Later Permissions in truth granted no more than a permission to carry out external works (a point advanced in particular by the Council and Capital). If that is right for any particular permission Peel would accept that its claim in respect of that Unit must fail since s75 could not possibly be engaged nor could there conceivably be a new chapter;

(2) Further, even if the Later Permissions encompassed works of internal sub-division as well as other works, that still would not lead to the creation of a new retail unit;

(3) But even if one or more of the Later Permissions did create a new retail unit, s75 did not apply for one or more of the following reasons: (a) S75 is only engaged at all if the permission necessarily involved a material change of use, which none of these did; the permissions at issue authorised development by reason of building operations not because of change of use; (b) Even if s75 was prima facie applicable, it did not apply to any of these developments because none involved the “erection of a building”; (c) Even if they did, and leaving Unit 6 to one side, the purposes for which the units were designed did not include unrestricted A1 retail use because (i) The building operations permitted did not meaningfully admit of any retail purpose and/or (ii) If they did it certainly could not be said that the purpose for which they were designed was unrestricted A1 use;

(4) If s75 did not apply, Peel’s case could not be saved by applying the concept of new chapter to any given unit because no new chapter arose;

(5) Further or alternatively, on a proper construction of the Provisos they could never operate so as to disengage the s106 obligations unless the permissions granted a material change of use which they did not;

(6) Accordingly, Peel’s claim fails at every Step.

[16]As one might expect a number of sub-issues arose in relation to these matters which will be considered in context below.

The Stevenage and Sunderland Cases

[17]Much argument on a variety of the issues referred to my decision in Stevenage Borough Council v Secretary of State for Communities and Local Government

[2010] EWHC 1289

and the decision of Wyn Williams J in Prudential Assurance v Sunderland City Council and Peel Investments

[2010] EWHC 1771 (Admin)

. It is helpful to set the scene at this stage by explaining in summary what the cases were about and what they decided.

Stevenage

[18]The relevant planning permission for the units on the retail park here contained conditions limiting the types of goods sold to warehousing of “comparison goods” and excluding food, clothing and footwear and they also limited the total floor space. So the restrictions there were imposed through planning conditions not through s106 obligations as here.

[19]In 2006 permission was granted which on its face was limited to external alterations but it was contended that in truth it also encompassed internal sub-division works. There was also a substantial issue as to whether the internal sub-division works could be said to be part of the same scheme or package as the external works. It was conceded by the Council there that if (which it denied) those internal works were granted by the permission, a new chapter would have occurred and the prior condition restricting the type of goods sold would be swept away. The Inspector so found. On appeal to me I upheld his decision. On the appeal it was argued before me that if I had reversed the Inspector on the principal point because the internal works did not form part of the permission, s75(3) of the Act would nonetheless apply to the external alterations with the effect of removing the original restriction. Alternatively there was a new chapter created by the external alterations alone with the same effect. Given that I upheld the Inspector on the first point a decision on the two alternative points was unnecessary but I considered them and would have rejected them had they been live issues.

Sunderland

[20]Here the restrictions on the retail goods to be sold did arise though s106 obligations which were then subject to provisos in essentially the same terms as the Provisos here. Later, planning permission was granted to convert one retail unit into two. As a result, it was contended by the landowner that because that permission referred to retail units and because it did not expressly restrict the goods sold, in effect it authorised the unrestricted sale of A1 goods. And as a consequence of that, the provisos to the s106 obligations were triggered without more so as to remove their restrictions. Wyn Williams J upheld those submissions and in so doing took some support for his conclusion from my judgment in Stevenage. His principal conclusion was reached without recourse to s75 (3) but he also accepted an alternative argument from the landowner which relied upon it, to the same effect.

Generally

[21]One of the reasons why these cases featured prominently before me, apart from the fact that the overall context was similar, was that there appear to be no other first instance cases (and none in the Court of Appeal) which deal squarely with the issues over the interpretation of ss55 and 75 which arose there, and here. Broadly speaking Peel relies on both decisions, the Council and BWD do not dissent from them but contend that they do not take Peel quite as far as it suggests, while Capital submits positively that certain parts of both decisions were wrongly decided. Hereafter, and insofar as is necessary, I will deal with those cases in the contexts in which they arise.

Materials admissible when construing the planning permissions

[22]In deciding whether Peel has made out Step 1 it is necessary to set out the principles applicable to the interpretation of full planning permissions.

[23]It follows from Articles 4C and 4E of the GDPO (see paragraph 11 and footnote 1 above) that the function of the required plans and drawings submitted is to describe (and thus particularise in layout form) the development for which planning permission has been sought in the application. Assuming that the description of the development referred to in the application is itself clear the further material is required to show its detail and shape.

[24]In R v Ashford Borough Council [1998] PLCR 12, when dealing with the question as to whether an outline planning permission could be interpreted by recourse to the underlying planning application, Keene J (as he then was) said this at paragraph 19C-20B of his judgment:

“(1) The general rule is that in construing a planning permission which is clear, unambiguous and valid on its face, regard may only be had to the planning permission itself, including the conditions (if any) on it and the express reasons for those conditions:....... (2) This rule excludes reference to the planning application as well as to other extrinsic evidence, unless the planning permission incorporates the application by reference. In that situation the application is treated as having become part of the permission. The reason for normally not having regard to the application is that the public should be able to rely on a document which is plain on its face without having to consider whether there is any discrepancy between the permission and the application:.... (3) For incorporation of the application in the permission to be achieved, more is required than a mere reference to the application on the face of the permission. While there is no magic formula, some words sufficient to inform a reasonable reader that the application forms part of the permission are needed, such as ‘ ... in accordance with the plans and application or ‘ ... on the terms of the application ..and in either case those words appearing in the operative part of the permission dealing with the development and the terms in which permission is granted. These words need to govern the description of the development permitted:..... (4) If there is an ambiguity in the wording of the permission, it is permissible to look at extrinsic material, including the application, to resolve that ambiguity: ....”

[25]These principles were considered further in the context of a full planning permission by Sullivan J (as he then was) in Barnett v Secretary of State for Communities and Local Government

[2009] 1 P & CR 24

. As Barnett has been the subject of considerable debate before me, it is necessary to refer to it in some detail. In that case, the owner of the dwelling had obtained planning permission to build it in 1995. The site plan showed the curtilage of the intended development which formed part of the planning permission. In 1998 permission was sought to make an extension to the house to include an office and garages. There was no application for a change of use. The application form referred to drawings. Drawing 01 had four features including a location and a site plan. The location plan enclosed, by a way of a red line, roughly the same area as that covered by the 1995 permission. However the site plan enclosed a larger area within a different red line (“the Site Plan”). A later plan received on 13 November 1998 (“the November Plan”) showed the land ownership in the vicinity and in particular an area edged in red which was the same as in the 1995 permission. Permission was granted which made specific reference to the November Plan. Later the owner brought the land next to the dwelling into garden use and built a swimming pool and tennis court. About half of the area which contained the pool and tennis court was within the larger red-lined area shown on the Site Plan. In opposing an enforcement notice the owner claimed that the 1998 permission had in fact extended the curtilage beyond that granted in 1995. The Inspector held, purportedly applying Ashford (supra), that the owner could not refer to the 1998 plans at all and on that basis ruled out any extended curtilage, the 1998 decision notice itself not referring to any curtilage. But if he was wrong about that, then as a matter of construction of the 1998 permission it did not grant any extended curtilage anyway.

[26]On an application to quash, Sullivan J held first that the Inspector was wrong to have excluded the plans on the essential ground that where there was a full planning application the plans and drawings submitted with it could always be referred to, whether they were expressly incorporated into the planning permission or not. In particular he said this:

“24 If it is plain on the face of a permission that it is a full permission for the construction, erection or alteration of the building, the public will know that, in addition to the plan which identifies the site, there will be plans and drawings which will describe the building works which have been permitted precisely because the permission is not, on its face, an outline planning permission. In such a case those plans and drawings describing the building works were as much a part of the description of what has been permitted as the permission notice itself. It is not a question of resolving an “ ambiguity”

. On its face, a grant of fall planning permission for building operations is incomplete without the approved plans and drawings showing the detail of what has been permitted. In the absence of any indication to the contrary, those plans and drawings will be the plans listed in the application for permission. If the local planning authority does not wish to approve the plans submitted with the application and wishes to approve amended plans, then it can include a statement to that effect in the decision notice. Absent any such statement, the reasonable inference, against the statutory background provided by Section 62 of the Act and the 1988 Regulations, is that a grant of full planning permission approves the application drawings....”

[27]In paragraph 29 he observed that the reason why proposition (2) in Ashford was not appropriate to apply where there was an application for full planning permission was because on their face such permissions do not purport to be a complete and self-contained description of the development permitted, and the plans and drawings are “a” if not “the” vital part of the permission. So it was wrong to say that the plans were inadmissible altogether as the Inspector had done.

[28]He therefore turned to the second ground for the Inspector’s decision and here he upheld it. In paragraphs 33 and 34 he drew a distinction between the (1995) application to build a new dwelling house, where it was implied that it would be surrounded by a curtilage which in the absence of anything to the contrary would be the red line on the site plan submitted. It was reasonable to infer that such permission approved that curtilage. But with the (1998) application to extend or alter an existing house there was no such necessary inference. The form did not seek to extend the curtilage as well as extending the house. The extension itself would be within the existing curtilage. And apart from the expanded area shown by the red line in the Site Plan no other drawing showed an expanded curtilage. And the Site Plan itself did not have anything to suggest that its red line should be taken to be extending the curtilage already granted. So the 1998 permission had not extended it. In reaching this decision Sullivan J thus had recourse to the application as well as the plans.

[29]The decision of Sullivan J on the first point was not challenged in the Court of Appeal but nonetheless Keene LJ (with whom Clarke LJ and Toulson LJ agreed) approved it saying that what he had said in Ashford (supra) was not intended to apply to full planning permissions for the reasons given by Sullivan J. He also upheld Sullivan J on the second ground. In paragraph 29 he agreed with the distinction drawn between an application for permission for a new dwelling and one to alter an existing one, saying this:

“Pennission to construct a new dwelling on non-residential land will carry with it permission to use the new building for residential purposes: see section 75(3) of the 1990 Act. Thus there is in a sense a built-in application for a change of use of land in such cases, and the extent of the land covered by the implicit permission for a change of use will normally be ascertained by reference to the site as defined on the site plan. Thus that part of the site not built on can be used for purposes ancillary to the dwelling unless there is some obvious restriction shown on the permission itself The site boundary shown on the plans defines the area of the new use.”

[30]And then in paragraph 30, “But that is not the situation where there is an existing dwelling and the proposal is merely to alter or to extend it. The curtilage already exists. There is not necessarily any new use of land involved nor any extension to the existing curtilage...Whether there is an extension to the existing curtilage in any given case will depend upon the documents in question. Whether any resulting planning permission grants consent for a larger area than before to be used for purposes ancillary to the dwelling house depends on looking at the application form and the drawings.... Sometimes it will be obvious that the extension to an existing house involves a change of use of land beyond the original residential site. This will be the case where an extension itself involves building on land beyond that original site or where permission is expressly sought and granted for a change of use of additional land.”

[31]In the instant case, as explained by Keene LJ in paragraph 31, while the red line on the Site Plan showed an extended curtilage, the proposed extension to the dwelling was within the existing curtilage anyway (and in any event the location plan within the same drawing 01 showed the 1995 boundary). But what resolved the matter was the application form and permission itself which made no reference to any change of use. Accordingly he concluded in paragraph 32 that no permission for any use beyond the established residential use had been granted.

[32]In Stevenage, I suggested that as Sullivan J and Keene LJ had both considered the application form in Barnett, it appeared that they considered it to be a case of ambiguity. However that suggestion may have gone too far because the principle about resort to the application in a case of ambiguity was said by Keene J in Ashford to apply in an outline permission case whereas Barnett (and the case before me) concerned a full permission; and while Keene LJ pointed in that case to an ambiguity between two plans within the same drawing, his analysis in paragraphs 29-31 really centred on the application and permission in any event, without any suggestion that such recourse to the application was only appropriate where there was ambiguity.

[33]Indeed, in respect of the permissions before me, apart from the planning permission itself I was invited to read and draw inferences from(a) the application form and

(b) the plans and other documents (including Design and Access Statements (“DAS”) and Planning and Traffic Statements). That was not surprising given that in each case the decision notice stated that permission was given “in accordance with the application and plans submitted....” and that every application form expressly referred to the enclosed plans and DAS. For that reason all parties made submissions on the effect of these documents.

[34]The only real dispute between the parties as to what materials I should consider when determining what each planning permission was actually for, concerned those which have been described as “extraneous”. I shall deal with such materials below, in context, but in principle, where there were communications between Peel and the Council which clarified the basis on which the application was made I could not see why they were not admissible where they were agreed or accepted. They cannot be dismissed as “subjective” because they were not simply the expression of what one party thought but, read objectively, what both sides agreed was the case. That will allow for the admission of some but not all of such materials. In particular I consider that the Planning Officer’s reports or internal notes fell on the wrong side of the line for these purposes so I have not relied upon them below to interpret the permission.

[35]There is also something of a dispute between Peel on the one hand and the Council and Capital on the other as to the relative importance of the application form as against the plans. It is of limited significance given that it only affects the question whether any given permission was only for external works, which is not necessarily determinative because of all the other issues. But essentially, the Council and Capital say that where the plans clearly go beyond the subject of the application it does not follow that the permission properly interpreted must include all the works shown on the plans and that Barnett does not entail otherwise. The role of plans as being descriptive of the development actually applied for is the key factor. Peel does not accept this and would give greater prominence to the plans regardless of how the development is described in the application or permission.

[36]Having considered these arguments, and to the extent that it matters, I would accept the proposition that under Barnett, the essential function of the plans is to show the detail of what is sought in the application. If other works are shown in the plans than those described in the application and permission, it does not necessarily follow that they formed part of the application or permission even if they are not inconsistent with the works expressly granted. They may be there simply to show the context of the whole scheme of works albeit that only one part thereof (for example the external elements) are the subject of the application. Thus whether the internal works shown on the plans form part of the scheme of works as a whole does not necessarily answer the question as to what works the permission covered or what permission was sought. To that extent the issue as framed in paragraph 37 of my judgment in Stevenage (“....look at [the plans] with some care to see whether they really are part of proposed works.”) was expressed too narrowly and would be better expressed as being whether any additional works revealed in the plans (eg sub-division) really are part of the works for which permission is sought ie the subject of the application.

[37]Peel makes an allied point here. This is that for any given Later Permission, whatever the application might say, if in truth permission is needed for other works as well, shown on the plan but not the subject of the application, the application must in effect give way to the plans. That raises an issue as to the interpretation of s55 (2) (a) to which I now turn.

The Scope and Effect of s55 (2) (a)

[38]In the context of the interpretation of the Later Permissions there is a further dispute between Peel on the one hand and Capital on the other as to the scope and effect of s55 (2) (a) (set out paragraph 9 above).

[39]Peel contends that where there is a scheme of works which includes external works which themselves would constitute development (and thus require planning permission) the entire scheme of works needs such permission including any internal works which, if standing alone would not have constituted development, because of s 55 (2) (a) (i). This is said to follow from the use of the word “only” in the provision. So if the proposed scheme includes or relates to building operations which do not “only” affect the interior, s55 (2) (a) (i) does not apply at all.

[40]On the other hand Capital contends that even where there is a clear package of works which consists of both internal and external elements, since the internal elements do not themselves require planning permission, they remain outwith any application and permission granted.

[41]Each side uses its interpretation as a driver towards saying either (in favour of Peel) that the Later Permissions should be interpreted as being permissions for the entire package of works or (in favour of Capital) they should be read as permitting only those elements which require permission ie essentially the external works and (where appropriate) the mezzanine floors which need permission because of the increased floor space thereby resulting.

[42]While this dispute is by no means determinative in this case (and indeed neither the Council nor BWD rely expressly on Capital’s submissions) and while the issue does not arise in its purest form since this is not a case of enforcement proceedings where for example the LPA is contending that some particular building operation needed planning permission while the subject of the enforcement notice claims not, I ought to deal with the point briefly as it has been argued out and was the subject of an express view of Wyn Williams J in Sunderland.

[43]The point is not an easy one. It is not answered in favour of Peel simply because of the use of the word “only” in the sub-section for this reason: if “only” was not there, it would be strongly arguable that a particular building operation which affected both the interior and exterior like a roof or some lesser structure which ran from the inside to the outside fell outside of the term “development”, since it “affected” (among other things) the interior. Such an outcome would be absurd. So a qualifying word like “only” is used. Thus the simple erection of a partition itself “only” affects the interior and so does not constitute development. So. the question is not why the word “only” is there but its true ambit in governing the operation of the sub-section as a whole.

[44]Mr Purchas QC for Capital says that there are no good planning reasons to limit the ambit of the exclusion as Peel contend, because, after all, internal works are themselves not matters which attract planning considerations. Indeed the consequences which might flow where the internal works are part of the application are illustrated by the exchange of e-mails surrounding the application in relation to Unit 4. This concerned a scheme to convert the existing single unit into two units and the application form dated 1 September 2009 sought permission in those terms. However, Ms Caroline Bussey the Planning Officer emailed Gareth Finch, Peel’s planning consultant, to say that the description of the development for which permission was sought had been amended to “alterations to elevations involving the installation of 1 no. entrance door to front, installation of 1 no. goods door with ramp and 2 no. personnel doors top rear, and widening of 2 no. existing doors to rear.” Mr Finch then suggested a revision to that description to say that the alterations were “as part of conversion to 2 no retail units” or as “ancillary” to that, but Ms Bussey refused. In an email dated 23 September she said that the conversion to two retail units did not require permission and to include this in the description of the development would mislead members of the public and other interested parties who may then feel they could comment on the conversion. That situation had already arisen with one interested party who had to be told that any comments on the conversion could not be taken into account. If the reference to conversion was left it could generate additional notification comments which could lead to the application being referred to the full planning committee. Any subsequent query as to the lawfulness of the conversion could be dealt with by an application for a CLD. The description of the development in the eventual permission was as stated by Ms Bussey but with some revision to the doors no doubt because the door provision had changed in the meantime.

[45]On the other hand the basic starting point of s55 is that all building operations are development, subject only to the listed exceptions. S55 (2) deals among other things, with works of alteration to a building. The question is then whether such works fall within the exclusions in (a) (i) or. (ii) I take the view that the correct approach is to ask what alteration works are contemplated which might require permission and then see whether they do. So if there are alteration works which include internal and external elements, then it cannot be said that those works affect only the interior. Of course as far as planning merits are concerned it could then be submitted that not much if any attention needs to be paid to the internal parts because standing alone they would not have required permission but that is a different matter.

[46]. (ii) I take the view that the correct approach is to ask what alteration works are contemplated which might require permission and then see whether they do. So if there are alteration works which include internal and external elements, then it cannot be said that those works affect only the interior. Of course as far as planning merits are concerned it could then be submitted that not much if any attention needs to be paid to the internal parts because standing alone they would not have required permission but that is a different matter.hether in any given case the internal works are to be treated as forming part of a larger scheme of works which includes external works is a question of fact and degree and judgment.

[47]However, what is important in the context before me is what planning permission is actually sought and granted. Section 3 of the application forms for the Later Permissions here refers to “the proposed development” that is to say the operations or change of use which are said to require the permission. The applicant may take a view about which aspect of any proposed scheme of works requires permission and the LPA may agree, so that both parties proceed on the basis that no other aspect requires permission. If that basis is clear from the application and permission, then I certainly do not see that such a permission should be “read up” or “read down” on the basis that on a different view it could be said that the permission sought was either too narrow or too wide. Accordingly, where it is plain that the internal works forming part of a scheme would not themselves constitute development I cannot see that without more s55 (2) (a) (i) entails that any application made or permission granted for (only) those external works must now be read as seeking or granting permission for the internal works also. But conversely where it is plain that the application and permission both refer to external and internal works, so that, objectively a decision has been taken or judgment made that both require permission, one should be slow to “read down” the permission simply because the application might have been made on a narrower basis. It may be a matter of chance in any given case how the applicant and LPA have decided to proceed, and indeed that seems to have been so with the Units here.

[48]In Sunderland the two permissions in issue were for(a) “conversion of one retail unit into two units, construction of new free-standing entrance canopies...” and for

(b) “conversion into two units and external alterations..” and Wyn Williams J held that they did not incorporate the application forms. On that basis and because the plans showed the conversions, he construed the words of the permission at face value, as it were, so that they could not be limited to external alterations, with which I would respectfully agree. In this context he had been presented with an argument (like Capital’s here) that because the internal part of the works did not require permission (even where part of a larger scheme) the permission granted must be “read down” so as to be a permission for external works only, despite its wider wording (see his paragraphs 23-25) . In rejecting that argument he said this:

“There can be no doubt that the carrying out of an alteration which affects only the interior of the building does not constitute development. The statute says so in terms. In my judgment, however, whether or not a proposal constitutes development within section 55 of the 1990 Act cannot be determined by looking at the individual component parts of the proposal in order to decide whether each, looked at in isolation, fells within or without section 55(1) and 55(1A) or whether they fall within the exceptions specified in section 55(2). It seems to me to be wholly artificial to consider whether individual aspects of a development scheme, if standing alone, would or would not constitute development. I take the view that the issue of whether or not a proposal constitutes development must be considered by reference to the proposal looked as a whole and then answered either yes or no.”

[49]That reflects the view I have expressed above except that I would respectfully feel unable to agree with that formulation if and to the extent that it suggests that if the vast majority of the works in a scheme were internal but there were external features (eg windows or doors) permission would not be required for any part of the scheme since taken as a whole it is all about internal reconfiguration. For my part, I would have thought that if a scheme involved material external elements, then whatever else it contained, those elements would be development in any event.

[50]Accordingly I would reject Peel’s argument that whatever the wording of the application it should be treated as being an application for permission for all the works that required, or might require, permission. Here Mr Katkowski QC for Peel relies on the decision in I’m Your Man Ltd v Secretary of State

(1999) 77 P & CR 251

for the proposition that a permission which limits what is in fact applied for is unlawful and of no effect. So if the permission is on its face for external works only when really the associated internal works needed permission as well it must be construed as a permission for the latter. But this does not flow from I’m Your Man which simply established that although an applicant for permission wanted it for 7 years, the LPA could not validly qualify the permission itself that way - instead it should have made a condition with the result that the permission was permanent. That decision does not assist here.

[51]In Stevenage it was not seriously in issue that if the internal sub-division works were properly to be viewed as part of the same package of works as all the items of work and in particular the external works then permission was needed for the internal works too (see the Inspector’s finding on this point recited in paragraph 35 of my judgment). But I accept in the light of the arguments made here that this is not the whole picture because even if they were,(a) it may be plain from the application and permission that permission was simply not sought for them, irrespective of whether it should have been and

(b) the fact that they are shown on the plans are not determinative. THE INDIVIDUAL PERMISSIONS - STEP 1

INTRODUCTION

[52]I am asked to construe the true nature and effect of the six different planning permissions before me. The first question is what works they authorised. Peel’s overarching submission is that in truth what they authorised were the “creation of new retail units” and not simply particular external works. The latter is what the other parties contend for. Peel accepts that if the other parties are right on this issue in respect of any or all of the Units the claim must fail in limine in respect of such Units. If Peel is right however, then the further Steps in its argument engender further and different issues. So I turn first to what works were actually authorised by the planning permissions.

Unit 1

[53]The planning permission dated 26 July 2010 reads as follows:

“Full: Alterations to elevations including installation of new entrance doors and alterations to service door openings.”

[54]On its face, therefore the permission is for external works only. The proposed development in the application form is in identical terms. The form expressly states that no change of use is sought. As the DAS is referred to in the application it can be considered as well. It states that this is a minor planning application for elevational alterations with very limited design and access issues. The Peel Centre as a whole is described as a “bulky goods retail park” thereby reflecting the existing s106 restrictions. Unit 1 was already divided into two. The new scheme involved a further subdivision so that there would now be 4 units and the external works were required as part of that. Under “Scale” the DAS said that the proposal sought to refurbish and reconfigure the existing building and each new unit would have its own customer entrance point. The plans show the new and modified entrances and also the new internal sub-divisions demarcating the new units. In my judgment it is clear from the documents that while the scheme of which the external alterations are a part is described and shown on the plans, this does not mean that the development which is the subject of the application is anything more than that which appears on the face of the permission which is itself clear and limited. And for the reasons already given, s55 (2) (a) (i) does not entail a different conclusion.

[55]In my judgment there is no need to have recourse to any other documents but in fact the letter accompanying the application form is consistent with it. It says that the application is for permission for elevational alterations and that such works are to be carried out at the same time as the internal alterations. Those two statements are entirely consistent with each other.

[56]Accordingly the first planning permission for Unit 1 is for external works only.

Unit 1 as amended (“1A”)

[57]However, almost immediately after the grant for Unit 1 an amended application was made. This resulted in a permission granted on 20 Sept. 2010 in these terms:

“Full Major: Reconfiguration and refurbishment of unit 1 including partial re-cladding and creation of mezzanine floor.”

[58]The application form described the proposed development in the same terms other than the words “Full Major”. The form said that there was a change of use of non-residential floorspace which there was due to the insertion of the mezzanine floor which itself required permission because it was development as it increased the floor space even if it constituted internal work. The DAS said that the changes were to an existing retail warehouse building and raised very limited design and access issues. There would be new doors for the internal units which were being re-arranged and there was reference as before to the “bulky goods retail park”. Under “Scale” the DAS said that the proposal sought to refurbish an existing building to create a differently configured pair of units with separate entrances and existing external cladding would be stripped away and replaced. The plans showed all of this. The new mezzanine floor was justified on the basis that Peel would no longer seek to implement its rights (granted by earlier CLDs) to put mezzanine floors in other units on site. The letter accompanying the application form refers to an alternative scheme for the alteration and reconfiguration of Unit 1 and then focuses on the mezzanine with the point that because of the giving up of other mezzanine rights the overall floorspace will not be increased. Subsequently, rather than offer a s106 obligation to relinquish the other mezzanine rights, Peel agreed to an imposition of a condition of any permission, to the same effect which is ultimately what happened.

[59]In addition by an e-mail dated 27 August 2010, Mr Finch confirmed to Mr Hartley the Council’s Development Control Officer dealing with this application that:

“as requested, I can confirm that (again as per application 11/09/0447 [ie the application in respect of Units 6a and 6b - see paragraphs 66-71 below]) this application is for building works only. Updating of user restrictions was dealt with by the s 106 agreement entered into in June 2009. This effectively replaced the original s52 Agreement all in accordance with the planning committee’s resolution in March 2009.”

[60]In the case of this permission I would accept that because of the reshaping of the units and the addition of the mezzanine, and the wording of the permission and application, it is appropriate to say that it granted permission for the reconfiguration of the units. It is also appropriate to say that it granted permission to refurbish them by the recladding works. Apart from those works and the new doors and related works it is not clear what other refurbishment there was.

Unit 2

[61]The permission here granted on 26 May 2011 was for:

“Major Ml: Reconfiguration of existing unit 2 to convert 2 No. units into 2 No units including partial demolition. Construction with additional retail unit substation and switch room and relocation of surface water drainage ditch with provision of column mounted external lighting and CCTV cameras.”

[62]The application had changed somewhat since it was first made and in particular because originally the scheme involved converting the two existing units into 3. The current use was described as A1 retail park. The DAS referred to reconfiguration and refurbishment. There would be a reduction of floor space in Unit 2 itself because part of it would be demolished but there would be a new different sub-unit as well. In order to deal with increase of floor space considerations Condition 3 required a “trade-off” involving the removal of mezzanine floors permitted at Units 6A and 6B. So. far as the new unit was concerned, which needed planning permission in any event, Condition 6 provided that notwithstanding the provisions of the Use Classes Order the new unit shall not be used for the retail sale of items other than bulky goods. The plans showed the entirety of the scheme.

[63]The only question about the permission here is to what the reconfiguration refers. It would obviously include the reshaping of Unit 2 as a result of the demolition of the rear part of Unit 2 which itself was one of the 2 existing sub-units at Unit 2, because that required consent on any view. And although the internal sub-division did not require permission if standing on its own the reference to converting into 2 units would seem to me to include the sub-division. The remainder of the permission was accurate as it referred to works all of which required permission.

Unit 4

[64]The permission here granted on 30 Sept. 2009 stated as follows:

“Full: 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 rear.”

[65]As noted above, the application here was put in wider terms but it was amended so as to be limited to the external alterations with the agreement of Peel See paragraph 44 above. See also the changed description in the details of the application at B/G/497. While therefore the external works formed part of a scheme to sub-divide Unit 4 which is shown on the plans, and although the DAS had put the proposal in terms of conversion into 2 units, the only proper interpretation of the permission here is that it was for the external works as stated.

Unit 6

[66]This permission granted on 4 December 2009 was as follows:

“Major: Reconfiguration and refurbishment of units 6a and 6b to be used for A1 retailing purposes including the creation of new partial cover mezzanine floors and demolition of rear parts of existing units to create servicing area.”

[67]The application form described the development as simply the reconfiguration and refurbishment of units 6a and 6b. The DAS referred to the Peel Centre as a bulky goods retail park and then stated that “The proposals will not alter the role or function of the Peel Centre Units 6a and 6b will simply be reconfigured.” In addition Informative 4 stated that the applicant is advised that there is a section 106 agreement which relates to the application site which restricts the goods that can be sold. Paragraph 1.3 of the Planning and Traffic Statement recites that s106 agreement. Paragraph 2.2 says that the proposal is solely to reconfigure 6a and 6b.

[68]The plans show the existing and the proposed reconfigured units. At least a part of the reconfiguration required planning permission on any view namely the demolition and the new mezzanine floor. But in my judgment the reference to reconfiguration included the sub-division also.

[69]The refurbishment elements all appear to be the external works including doors and recladding. See the DAS at C/613.

[70]In addition, by an e-mail sent to Mr Hartley on 30 October 2009, Peel’s planning consultant, Mr Lee said as follows: “With regard to the description if you feel that there is a need to refer to the use, can I suggest we simply use the word “retail”? The retail uses on the site are already regulated in the original Section 52 Agreement (which was of course recently amended (as a Section 106 Agreement).

[71]Thus, 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.

Unit 8

[72]The permission granted here on 15 September 2008 was for:

“External alterations and ancillary work to create 2 No retail units.”

[73]The application was in the same terms. The DAS’s Introduction referred to planning permission being sought to “subdivide an existing retail unit” and the proposal was said to entail minor changes to an existing retail unit. However the letter accompanying the application stated that while the proposed floor plan showed the subdivided units this did not itself require planning permission and so the application was confined to the external alterations. These consisted of new doors and re-cladding. While this letter has been referred to by Peel as “extraneous” I see no reason not to have regard to it when construing the permission. However, the difficulty is that the letter conflicts with the first part of the DAS which on any view is part of the application. In my judgment, therefore, on balance, this permission was for both the external alterations and the internal sub-division.

Conclusions on the individual planning permissions

[74]My conclusions are as follows:(1) First, apart from Unit 6, the development sought in each case was limited to. building operations of one kind or another; there was no application for development in the sense of material change of use and none was granted;

(2) Second, in the case of Unit 6, while the purpose of the development was stated, the A1 use granted was no wider than that presently permitted on the site ie as restricted by the existing s106. Both parties proceeded on the basis that the application was on that basis and it would be absurd to suggest that the use granted by the permission was wider than either intended. Of course, a planning permission seeking to restrict the A1 use would not normally seek to achieve this by using qualified language in the permission itself. This is because of the ability of the landowner to move uses within Class A1 without that constituting development. Hence the use of a planning condition or s106 to achieve the same end. But in this case, construing the permission as qualified is important because that may then have an impact on the engagement or otherwise of s75 and/or the Provisos (see below);

(3) Third, the Later Permissions were for particular building works as follows: (a) Unit 1: the works consisted exclusively of external alterations. (b) Unit 1A: the works were refurbishment by external alterations and reconfiguration. (c) Unit 2: works to reconfigure Unit 2 by the demolition of part and internal subdivision; (d) Unit 4: external alterations only; (e) Unit 6: refurbishment by external works and reconfiguration. (f) Unit 8: external works and sub-division.

(4) On that basis the planning permissions for Units 1 and 4 cannot on any view provide support for Peel’s claim to engage the Provisos whether by means of s75 or new chapter. In the case of Unit 1 of course this is of less significance given the subsequent permission for 1A.

(5) As for Units 1A, 2, 6 and 8 (“the Remaining Units”), the extent to which the nature of the permissions granted assists Peel is examined in context below. I would only add this. The phrase “creation of new retail units” is not a term of art nor does it really describe what any of these permissions was for - that can only be seen in the plans which show the detail and nature of the permitted works. Whether for the purposes of s75 or new chapter it is apposite to characterise the permissions as being for new retail units will be examined below. THE APPLICATION OF SECTION 75- STEP 2 The ambit and effect of s75 (3)

THE APPLICATION OF SECTION 75- STEP 2

[75]Peel contends that at least for the Remaining Units (and indeed for the others if I am wrong in my characterisation of the planning permissions for them) s75 (3) then applies (save in respect of Unit 6) so as to give them a particular purpose. The other parties contend that s75 (3) has no application at all(a) because it is only engaged where the permission applied for either expressly or impliedly seeks a material change of use and/or

(b) because on any view none of the permissions are for the “erection of a building”. As will be seen points (a) and (b) are to some extent inter-related.

[76]Unit 6 is something of a special case since if s75 applies at all it is via s75 (2) and so it requires separate consideration.

[77]It is not possible to interpret s75 (3) without understanding why it needs to be there. Section 75 as a whole deals with sundry effects of planning permissions. Thus s75(1) provides that any permission enures for the benefit of the land concerned and its owner for the time being. Section 75

(2) and

(3) are more confined. They deal only with permissions granted for the erection of a building. However widely that phrase is construed, it is dealing with the building operations form of development and not the change of material use form However the fact that the application and permission are for building operations does not prevent the LPA from specifying the purpose for which the building erected may be used.

[78]One then turns to s75 (3). In Wilson v West Sussex County Council

[1963] 2 QB 764

the permission in question was for the erection of an “agricultural cottage” and the issue was what that meant. At pp781-782 Diplock LJ referred to what he described as the “dichotomy” involved in the statutory scheme of the Town and Country Planning Act 1947, between “use” of land and erection of buildings thereon being different kinds of development with different consequences. So if a dwelling house is erected on land previously used for something other than human habitation both types of development are involved ie building operations and change of use, and both require permission. Thus, if permission is simply sought for the erection of the house and permission was granted only for that and not for the change of use, subsequent use of the house as house would be unlawful development. According to Diplock LJ this possibility was recognised by the precursor to s75 (2) and (3) namely s18 (3) of the 1947 Act which is in the same terms. Accordingly the use of the house (to use that example) is “saved” because the permission (on its face limited to building operations) is to be “construed” as including a separate permission “to use the building for the purposes for which it is designed”.

[79]But where any given application for permission does not involve any material change of use (and assuming that the LPA chooses not to specify a particular purpose under s75 (2)) it is hard to see why s75 (3) has any application at all - because it is simply not necessary. If the new building does not entail any such change of use it may be used for the existing use permitted on the land. In my judgment this view of s75 (3) is borne out by what Keene LI said at paragraphs 29 and 3 0 of his judgment in Barnett quoted in paragraphs 29 and 30 above.

[80]Whether in any given case a material change of use is necessarily entailed by the application for the building operations concerned must be a matter of analysis and fact in each case. But one can see why the erection of a new house on non-residential land is a paradigm example of where it is, and why a simple alteration to an existing house (without any complicating features such as curtilage issues) is a good example of where it is not.

[81]Allied to this point is the question of whether the expression “erection of a building” is to be confined to those particular words or whether it is to be given the extended meaning set out in s336 of the Act, so that “erection” includes “alteration” or “extension” and “building” includes any structure and any part of a building. Those extended meanings apply “unless the context otherwise requires”. In paragraph 68 of my judgment in Stevenage I said that the context there referred to was not the factual context of any particular case where the issue arises but rather the statutory context in which the primary expressions are used ie here s75. Although, for obvious reasons, the paradigm case for the operation of s75 (3) would indeed be the erection of a building, there could be other cases where a material change of use was necessarily involved in the building operations for which permission was sought. For example there may be a substantial extension to an existing building but where a materially different use was clearly envisaged. Or the building operations with such an implied different use may only affect part of an existing building, or may involve the erection or creation not of a building commonly so- called but a structure. For that reason I accept that the wider meanings provided for in s336 do apply to s75.

[82]But they would only operate in respect of a building or structure where the permission sought did involve a material change of use as stated above. The importance of that limiting factor will be appreciated when one considers what sort of cases might fell within s75 (3). They could include permissions for minor alterations such as external windows or doors or re-cladding for aesthetic purposes. Since they would technically fall within the wider definition of “erection of a building” one would then need to apply s75 (3). But at this point the task of attributing the relevant purpose becomes difficult if not impossible for the reasons I gave in paragraph 69 of my judgment in Stevenage or at least any applicable purpose would have no sensible use. The only other alternative would be to give to whatever alteration was involved (and however minor) the use for which the unit of which it forms part was designed or intended. But for the reasons given in paragraph 70 of my judgment, that would yield bizarre results (the removal of prior restrictions on use as a result of the “sidewind” of new windows or doors). As in Stevenage it was submitted before me in the instant case that such a scenario was unrealistic and in any event an LPA could have imposed use conditions for the planning permission in question to avoid that problem or at any rate the Council could and should have done so here. But that in truth is not an answer for the reasons given, again, in paragraph 70 of Stevenage. Even if it might have been an easier option to impose conditions in this case than where, for example, it was “pure” windows or doors, that is no answer to the difficulty in principle which has been identified.

[83]What all of this means is that in practice s75 (3) is likely only to be engaged in practice where there is something as substantial as the erection of a building or such like, because only there is it likely that an implicit material change of use is involved.

[84]I should add that in Sunderland Wyn Williams J accepted an alternative argument to the effect that s 75 (3) applied without more once it was found that the planning permission authorised conversion into two units, so as to confer unrestricted A1 use. See his paragraphs 44 and 45. But I have had more detailed and particular submissions on this issue hence the conclusions above. I add further that I agree that it is conceivable (for reasons given in paragraph 109 below) that a LPA may expressly state a purpose under s75 (2) even where no material change of use is involved (indeed the Council did so here for Unit 6). But I do not consider that this militates against a requirement for an implicit or explicit request for a change of use when it comes to s75 (3).

Application of s75 (3)

[85]Against that background I consider whether s75 (3) applies in this case at all.

No material change of purpose

[86]In my judgment it does not. None of the applications for planning permission either explicitly or implicitly involve any material change of use. Indeed the applications generally make the point that what is involved is simply the alteration to or subdivision of existing retail units in an existing bulky goods retail park. In some cases Peel went further in explicitly recognising the ongoing restriction on certain A1 retail uses imposed by the s106 agreement.

[87]Peel submits that the Later Permissions authorised the creation of “new retail units”. In my judgment that is a mischaracterisation because in truth all that was being done in the Remaining Units (albeit in some cases with substantial work) was altering or reconfiguring and/or increasing the floor space of certain existing units. What those permissions were not authorising was the erection of retail units on a site which was not in use for retail purposes.

No relevant s75(3) purpose

[88]However, if I was wrong about that, the next question is how to apply the “purpose” provision within s75 (3). Here it is necessary to refer to Wilson once more. At p783 Diplock LJ said that the word “designed” in that provision does not mean architectural design for a particular use but rather “intended to be used”. That must follow in the case of an outline permission but it could not bear a different meaning in the context of a full permission (there were both in Wilson itself) and thus “designed” means “set apart for”, “destined” or “intended”.

[89]Self-evidently the purpose of external alterations is not retail (or any other) use but the function of creating the changed exterior and (for example) improving or facilitating access. None of that purpose will assist Peel here. Equally, even where the sub-division is part of the grant of permission, the purpose of the sub-division is to split or reconfigure the existing retail unit. That is not a retail (selling) purpose. See, again, paragraph 69 of Stevenage.

[90]Even if the permissions could be seen more broadly, as authorising the creation of new, or different, sub-units within existing retail units, the intended purpose of those sub-units on any objective basis was to continue the pre-existing retail use. No further A1 use was suggested and in some cases express reference was made to the pre-existing limitations by way of acknowledgment or reassurance. Even if (which I do not accept) such materials were not admissible in the question of the scope of the permissions, I see no reason not to have regard to them in the context of what was intended for the purpose of s75(3). Of course it can be argued (and Peel submits) that the purpose for which the “building” was designed, in an architectural sense, could include unrestricted A1 use in the sense that the sub-divided units are not inconsistent with such use. But it seems to me that this ignores the meaning given to “designed” in Wilson (see above) and the context of what was intended in these particular cases and it would be very odd if s75(3) was to ascribe a purpose wider than that which either party, objectively, intended.

[91]Peel makes the further point that in any event intention has to be ascertained by reference to the building and not the subjective intention of the applicant for planning permission, but where both the applicant and the LPA both proceed on the basis of a restricted use for the building or alteration thereto, it would be absurd if the s75 (3) purpose was any wider.

Application of s75 (2)

[92]In the case of Unit 6 a purpose (A1 retail use) was expressly stated within the permission. I confess that I do not fully understand why, since no attempt was made to state a use in the other cases (and I have not seen the e-mail from the Council preceding that referred to in paragraph 70 above). But in any event, for the reasons given in paragraphs 71 and 74(2) above, the permission there must be construed so that the A1 retail use granted is qualified by the extant sl06 obligation.

[93]Under normal circumstances of course, there is no power to qualify the planning permission itself for example by limitation of time - see for example I’m Your Man - as opposed to making a condition, but given the somewhat special circumstances here I do not see why the purpose stated here should not be regarded as qualified - its only significance after all is whether it can then trigger the Provisos. Alternatively, since there was no change of use sought at all, the reference to A1 retail use could be regarded (again at least for present purposes) as entirely otiose.

[94]The final way of expressing perhaps the same point is to say that for the purpose of the Provisos, I cannot see how Peel can argue that there was a right to develop by virtue of the planning permission given on Unit 6 which was inconsistent with the s106 when that planning permission was sought (and given) on the basis that the s106 still applied. The Proviso could not possibly be held, objectively, to apply in such a case.

[95]Accordingly s75 (2) does not assist Peel in the case of Unit 6.

Conclusion

[96]Accordingly, s75 does not apply in this case. Peel accepts that in this event, it can only secure the operation of the Provisos if in respect of any particular planning permission the result has been the creation of a new chapter. I therefore turn to that issue. A NEW CHAPTER? - STEP 2A The Law

A NEW CHAPTER? - STEP 2A

[97]In Prossor v Ministry of Housing

(1968) 67 LGR 109

, where planning permission had been given for the rebuilding of a petrol station with a condition that the only retail sales permitted were motor accessories the landowner claimed that he had a pre-existing right to sell used cars which was unaffected by the new permission The Court of Appeal disagreed, holding that any prior rights were given up by the landowner by adopting the new permission by which the planning history of the site began afresh. In Newbury District Council v Secretary of State for the Environment

[1981] AC 578

, the issue was whether permissions for a change of use for what had previously been aircraft hangars had the effect of removing earlier use rights. In deciding that the new permissions did not have that effect because there was no “new planning unit” the House of Lords opined on the ambit of the new planning unit (or new chapter) principle (any claimed differences between the two concepts are not material for present purposes). Lord Fraser at p606E-607A said that the physical alteration permitted which would result in a new chapter would normally occur only on the erection of a new building but it might in some circumstances arise on a change of use for example in a house from single to multiple occupation. Lord Scarman (at pp617H-618D) agreed that such a change of use could have that effect because there was there “..a wholly new departure, a new chapter of planning history.”

[98]In Jennings v Secretary of State for the Environment

[1982] 1 QB 541

, Lord Denning MR stated at p5551F-G that a new chapter may open “when there is a radical change in the nature of the buildings on the site or the uses to which they are put - so radical that it can be looked on as a fresh start altogether in the character of the site.” I see no reason not to employ that terminology. And in South Staffs. District Council v Secretary of State for the Environment

(1988) 55 P & CR 258

, Glidewell LJ giving the judgment of the Court added this at p73. “In our opinion if land forming part of a larger area in one occupation has an established use, and if planning permission for the erection or enlargement of a building on another part of the same area is granted and the development takes place, this does not necessarily terminate or remove the established use. It only does so if in some way the development which takes place is inconsistent with the established use.”

[99]Reference was also made to certain dicta of Lord Mance at paragraphs 24-26 of his judgment in Welwyn Hatfield BC v Secretary of State for Communities and Local Government

[2011] 2 AC 304

where he refers to the new chapter cases but went on to say that they dealt with a very different problem from the one then before the Supreme Court and I do not consider that his observations here are of any real assistance.

[100]It is common ground between Peel and the First, Third and Fourth Interested Parties that this judge-made concept of a new chapter in the planning history, if applicable, would not only operate to remove any prior rights but also prior burdens imposed, for example by conditions attached to earlier permissions. The Council did not expressly address the Court on the new chapter arguments raised here but reserved its position generally.

Application of the principle to the planning permissions in this case

[101]The detail of the works authorised by the Later Permissions have been set out in paragraphs 53- 73 above. I do not intend to repeat them here. In my judgment, it cannot be said in respect of any of the Units that there was written a new chapter in their planning history. And that is so whether on their true construction the relevant planning permissions were confined to works other than internal works of sub-division or whether they included them. The units continued and were intended to continue precisely as before save in some cases with a sub-division and/or the addition of a mezzanine floor. Their essential nature and purpose remained as before and it cannot possibly be said that there was a radical change in their nature. The same goes for where demolition was authorised. Nor was there any change (material or otherwise) in their use. The only possible exception to this might be the creation of an entirely new unit for which permission was granted as part of the Unit 2 permission - but that new unit does not feature here and anyway it had its own restrictive condition relating to the goods which could be sold. Insofar as Peel invokes in this context the appellation for the Later Permissions of the creation of new retail units, to assist it on its new chapter submission, I reject that characterisation for the reasons given above.

[102]Nor, finally, can it be said that the existence or use of the altered units was necessarily inconsistent with their previous incarnations. That could only be said if I had found that by operation of s75 they had acquired unrestricted A1 use. But I have not, and indeed Peel rely on the alternative new chapter argument precisely in that scenario.

[103]I have of course been referred, once more, to Stevenage on this point. Here it was expressly conceded by the Council there that if the relevant permission did encompass the internal subdivision works, then the resultant building was a new chapter and/or s75 (3) applied. See paragraph 23. As a result it was not necessary for me to consider the new chapter (or indeed the s75 (3)) issue in any more detail in that context. And because I found that such works were encompassed it followed that there was a new chapter or s75 (3) applied. But there is no such concession in this case. What I did say was that had the permission only encompassed the external works there would be no new chapter, accepting as I did that a new chapter could be created by something less than an entirely new building. Consequently, Stevenage is not directly in point. Certainly, leaving aside the concession, there is nothing in that decision which would suggest or entail a conclusion different from that which I have reached in paragraph 102 above.

[104]For those reasons, Peel’s claim is not saved by the invocation of a new chapter in the planning history for there was none created by any of the Later Permissions.

THE PROPER CONSTRUCTION OF THE PROVISOS - STEP 3

[105]Had there been a new chapter, then BWD and Capital for their part would have accepted that this was sufficient to generate the relevant “right to develop” for the purpose of the Provisos so that they would operate. But as I understand it the Council’s position is that even with a new chapter, the Provisos would still not apply. In the light of that and because I have had argument on the point, I turn finally (on matters of substance) to the true construction of the Provisos, although strictly unnecessary since Peel has failed on the two prior hurdles (Steps 2 and 2A) of s75 and new chapter.

[106]The fact that the terms of the Provisos are materially the same in each case rather suggests that they are in standard term form so that they were not tailored specifically to the s106 obligations in issue here. Nonetheless if at all possible they must be construed so as to give them a meaning which is commercially sensible in the context. The obvious underlying aim, in my view, was that the s106 obligations given in respect of the permissions then granted were not to be read as tying the hands of an LPA dealing with any future planning application affecting the site where, on the planning merits it might conclude that retail use within A1 which was wider than bulky goods (to use a shorthand expression) should be allowed.

[107]But the Provisos will only apply so as to exclude the operation of the sl06 obligations if and insofar as a future planning permission has given a right to develop which would otherwise conflict with them. All parties agree that the word “develop” here must be given the meaning set out in s55 (1) ie either building operations or a material change of use.

[108]That said, both BWD and Capital expressly accept that if there was a new chapter this would in effect amount to a relevant “right to develop” because it would be starting the planning history afresh as if there were no prior permissions. So one could meaningfully say that there was now permission for new building operations and a new use. Obviously this will be so only where the new building/use radically departs from what was there before - see above.

[109]But a relevant right to develop could in theory arise in a different way. Even if the application for the new permission essentially concerned building operations, it could be that the applicant would ask expressly for permission for unrestricted A1 use as opposed to the use presently restricted by the s106 obligation. It could argue that this widening of the use was now justified for good planning reasons. In the light of that, the Council might then advisedly and expressly state the widened purpose in the permission. What one would then have would be a “right to develop” (by building operations) but which right included unrestricted A1 use, even though there was no separate right to make a material change of use. I see no reason why that “right to develop”, which would be inconsistent with the s106 obligations, should not be able to trigger the Provisos. And to that extent I would disagree with the submission made by the Council (and perhaps the other parties) that the Provisos would not be triggered. My conclusion here would then allow the Provisos to have some meaning and to operate albeit in very limited and perhaps exceptional circumstances. But then given the confines and use of this retail park, I would only expect it to be exceptional for a contrary right to develop to be granted.

[110]One justification given by the Interested Parties for having the operation of the Provisos confined exclusively to a new chapter case is that it would be open to Peel in any event simply to apply under s106A to the Council to discharge the obligation on the basis that it no longer serves a useful purpose or to modify it on the basis that as modified it will serve the purpose equally well. Peel argues that any such right is illusory here or at best extremely limited given that it can only be exercised after 5 years (or such other period as is expressly stated at the time) and then on narrow grounds. I do not consider that the grounds are as limiting as Peel suggests. After all the context here is the rationale for the s106 obligations which is concerned with preserving local (for example high street) trade in the goods which Peel is prevented from selling from the Units. If the Council thought that on the planning merits that protection was no longer necessary because of changed facts on the ground or a change in policy it would be likely to remove the restriction. It is suggested that the Council might be more likely to do that by means of an express unrestricted A1 purpose in the relevant new permission as opposed to removing the sl06 on the basis that even if there is now no substantial purpose served by the s106 for protecting local trade, there would be some purpose so the s106 would remain. I regard that argument as unrealistic.

[111]So Peel does have some useful recourse under s106 if the Provisos were to be construed as being triggered if (and only if) the new permission created a new chapter. But I have found the Provisos to be rather wider than that, so the question of further protection under s106A is somewhat academic.

CONCLUSION ON MATTERS OF SUBSTANCE

[112]Accordingly for all the reasons given above I conclude that the Provisos have not been triggered by the Later Permissions in respect of any Unit. Accordingly, Peel is not entitled to either of the declarations sought in the Claim Form ie that the s106 restrictions will not apply following completion of the developments the subject of the Later Permissions.

JURISDICTION AND DISCRETION

[113]The applications for certificates of lawful proposed use or development were made in respect of all Units on 2 December 2011. The draft reasons for the requested CLDs stated that each of the Later Permissions gave rise to a new chapter in which the lawful use would be A1 unrestricted use. Representations from the interested parties followed as did correspondence between Peel and the Council which was invited to state its position as to the enforceability or otherwise of the sl06 obligations in the light of the Later Permissions. On 11 April 2012 the Council refused the certificates inter alia for the following two reasons: first the application was legally flawed because the applicability or effect of the s106 agreement was not an appropriate determination to make under the s192 procedure and second because the Later Permissions did not in fact grant unrestricted A1 use. On 2 May 2012 Peel wrote to the Council stating that if the Council’s position was that the s106 obligations remained then Peel would need to take JR proceedings. On 18 May the Council said that the enforceability of the obligations did not fall to be answered by the CLDs but that the former issue was “inextricably linked” to the CLD applications and cannot be answered until those applications were finally determined, and thus any JR proceedings now would be premature and inappropriate. Matters were not thereafter resolved and this claim was issued on 2 June. As has been seen above, the Council’s position on the s106 obligations albeit said to be outside the CLD process, is that they remain in force despite the Later Permissions.

[114]The Council and the interested parties to varying degrees contend that I do not have jurisdiction to grant the declarations sought by Peel or even if I did, as matter of discretion I should not do so because the correct course is(a) to allow the s192 process to be completed by the statutory appeal now fixed for December which will decide the nature and scope of the Later Permissions and then,

(b) if necessary come to Court to deal with the applicability or otherwise of the sl06 obligations. It is said that this means that there is an “alternative remedy” at least as far as point (a) is concerned.

[115]This particular problem did not arise either in Stevenage or Sunderland. In the former, there was no prior s106 obligation but rather a planning condition and the Inspector dealt with the entire issue under the CLD procedure. In the latter a s106 obligation (and proviso) was involved but there (unlike here), the LPA took that on board and dealt with the whole matter when granting the CLD later challenged before Wyn Williams J.

[116]On any view, as the Council itself put the matter, these issues are inextricably linked and at first blush it would seem undesirable that they should be dealt with by two different tribunals. I can see that it might have been an outcome on an appeal, if that came first, that the Later Permissions would not have the effect contended for (as indeed I have found) and thus any later hearing by way of JR on the s106 would not be necessary, but that is very much with hindsight now and of course one reason for refusing the CLD given by the Council was that the issue was linked to the s106 obligation which was outwith the CLD process. Moreover, I am told by Mr Katkowski QC for Peel that if I were against it on substance (as I am) it would not pursue the s195 appeal or at least would need to consider very carefully before so doing because obviously I would have given a reasoned decision on the same points.

[117]I now turn to the various cases which were cited before me in this context.

[118]In Reprotech v East Sussex CC

[2003] 1 WLR 348

, the House of Lords held that an exclusive jurisdiction had now been established by way of an appeal to the Secretary of State where an applicant wished to claim that an enforcement notice was challenged on the basis that no underlying planning permission was needed in the first place. See paragraphs 36-38 of the judgment of Lord Hoffman. But I do not see how this means that I have no jurisdiction to decide the issues before me, in this “mixed” case or that I should decline to do so.

[119]In Henry Boot Homes v Bassetlaw

[2002] EWHC 546

the Claimant claimed a declaration that a particular permitted development had begun before a particular date or that there was a legitimate expectation that it should so be regarded by the LPA, for the purposes of any enforcement action. Sullivan I refused the declarations sought and made counter-declarations in favour of the LPA and his decision was affirmed on appeal. At paragraphs 166-167 he said this: '‘166. Mr Lowe, however, felt obliged to raise the issue of jurisdiction, in view of the observations of Lord Hoffman in paragraphs 37 and 38 of Reprotech. Many of the cases where the courts have been prepared to consider applications for declarations as to the status of planning permissions date from a time when the statutory code was much less developed and did not afford adequate procedures for resolving such questions. 167. In the context of the present case, it is sufficient to indicate that, in my view, the courts should be slow to consider applications for declaratory relief, bearing in mind the comprehensive coverage that is now afforded by sections 191 and 192 of the Act. The statutory code is not fully comprehensive, some cases may still "fall between the gaps” in the code, but they should be few in number. Very often there are disputes of fact in proceedings for declaratory relief (the parties were able to agree the relevant facts in the present case thus obviating the need for extensive oral evidence). It is much better that such disputes should be resolved through the statutory appeal machinery which enables all parties, including interested parties, to have their say. That said, I am satisfied that on the facts of this case, the court does have jurisdiction to consider the claimant's contention that it had a legitimate expectation as set out above.”

[120]Again I do not see that this means that I do not have jurisdiction in the case before me. It may not be a “gap” case, and one recognises that the public law claim of legitimate expectation had been raised before Sullivan J, but on the other hand the claim before me is a “mixed” one. Moreover it does not involve disputed issues of primary fact. There are questions of analysis against the factual background but that is somewhat different. In this context I should also mention a further submission against my deciding questions of substance which is that this case involves matters of planning judgment. If that is meant to connote assessments of planning merits I would disagree. I have not been concerned with such matters.

[121]While I agree with Sullivan J that the Courts should now be slow to consider applications for declaratory relief in the context of the CLD regime that does not mean they should never do so.

[122]I was also referred to Saxby v secretary of State for the Environment 29 April 1998. Here it was held that it would no longer be consistent with the statutory scheme for CLDs for an applicant for planning permission to require within that application the LPA to say whether planning permission was needed at all. I follow that and see how it is said that this would side-step the comprehensive regime, but that is far removed from this case.

[123]For its part Peel relies upon the decision of the Court of Appeal in Milebush v Tameside MBC

[2011] EWCA Civ 270

. Here the Court of Appeal upheld a decision of Arnold J who declined to make declarations about the enforceability of a s106 obligation when they were sought in a private law claim brought by the beneficiary against the obligor but without joining the only party who had the power to enforce it namely the granting LPA. At paragraphs 47 and 48 Mummery LJ said that such issues if to be decided by a Court at all should be within JR proceedings to which the LPA was a party. This certainly shows that a Court has jurisdiction to decide such matters, and indeed the Council and interested parties do not dissent from that. But yet again, the case is not directly on point since it was not a case involving CLDs as well.

[124]In my judgment this is a somewhat unusual case and there are strong reasons for me to exercise my discretion in favour of dealing with the declarations sought as a matter of substance. First the Council itself says it cannot deal with the s106 obligations while this Court can, as well as at least having jurisdiction to consider the effect of the Later Permissions, s75, new chapter and so on. That being so there is a powerful case for having them dealt with by one tribunal. SecondI have had detailed oral and written submissions on all matters but mainly on substance in a hearing lasting three days where all parties were represented by Leading Counsel. Hence it would be disproportionate in the extreme, as well as very costly to all parties, for me simply to decline to deal with the matter. Despite Mr Purchas QC in particular urging me not to be tempted by that argument I consider it to be persuasive. Indeed some of the parties have had difficulty saying what I should do, if (as they recognise) some use at least should be made of the time spent before me. So Mr Purchas QC suggests I deal with the s106 questions in general terms but not by reference to the facts of this case, but so that there are some obiter remarks which may be useful once the appeal has taken place. Mr Cameron QC for BWD on the other hand says that I should now deal fully with the s106 questions but that would be difficult outside of the context of the issues concerning the Later Permissions. The most appropriate course in the interests of all concerned (including any prospective tenants of the intended new sub-units) is that I decide all the issues. Third, no party has suggested that it would be unfair for me so to do now.

[125]Accordingly I find that I have jurisdiction to make (or as it turns out) to decline to make the declarations sought by Peel and that in my discretion I should decide the substantive claim

CONCLUSION

[126]For the reasons given above, I find against Peel on this claim I am deeply indebted to all Counsel for their comprehensive and helpful submissions and I will hear them after this judgment has been handed down to deal with all post-judgment matters.

Cited in 1 later judgment

Peel Land and Property Investments Plc v Hyndburn Borough Council & Anor 2013