On 14 July 2015, the Inner House of the Court of Session dismissed a statutory appeal under the Town and Country Planning Act 1997 (“the 1997 Act”) by Coal Pension Properties Limited (“the Appellant”), the owners of Springkerse Retail Park (“Springkerse”) in Stirling.  The case concerned a challenge to a decision by a Scottish Government appointed reporter to refuse to grant a certificate of proposed lawful use under section 151 of the 1997 Act on appeal.

Background

In 1990 the Secretary of State granted outline planning permission following a public inquiry for Springkerse, which was to comprise a superstore for “essential goods” and a shopping centre for “household goods” (“the 1990 Permission”). 

  • Condition 6 of the 1990 Permission provided that “[t]he non-food retail park proposed shall be developed as a single phase and shall comprise a superstore for the sale of essential goods…and a household shopping centre for the sale of household goods”. 
  • Condition 8 of the 1990 Permission provided, among other things, that “[i]n the household shopping centre…the proportion of the sales area of each retail unit which is for the sale of household goods shall be not less than 95%”.

Essential goods and household goods were each defined.  It is only the definition of household goods which was relevant for the court. For the purposes of the 1990 Permission, it was stated that “household goods shall comprise only” a prescribed list of goods including carpets and floorcovering, DIY goods and furniture and furnishing.

The superstore and household shopping centre were then pursued under separate detailed planning permissions.  On 16 December 1993, Stirling Council (“the Council”) granted detailed planning permission for a non-food retail park incorporating 13 units at Springkerse (“the 1993 Permission”).  Condition 3 of the 1993 Permission provided, among other things, that “[i]n the non-food retail park…the proportion of the sales area of each retail unit which is for the sale of household goods shall be not less than 95%”, with the reason stated as “in order to comply with the conditions imposed on [the 1990 Permission]”.  The same definition of household goods was also used.

For over 20 years, Springkerse has been used for the sale of the defined list of household goods.  However, in March 2013 the Appellant applied for a certificate of proposed lawful use permitting the sale of any non-food retail goods.  The Council refused the application.  The Appellant appealed the Council’s decision but, as noted above, the appeal was refused by a reporter.

Arguments for the Appellant in the Inner House

All parties were in agreement that the interpretation of planning conditions was a matter of law for the courts to ultimately determine.  The Appellant’s argument was essentially in two parts:

  1. The Appellant argued that the meaning of condition 3 of the 1993 Permission was clear.  It was argued that condition 3 means that, where retail units were being used for the sale of household goods, at least 95% of the area of those units had to be used for the sale of such goods.  However, it did not restrict the use of those units to the sale of such goods and the sale of other non-food retail goods was permitted.  The Appellant also argued that, when interpreting condition 3 of the 1993 Permission, it was appropriate to make reference to the 1990 Permission due to the reason for condition 3, but not the underlying appeal decision.
  2. Even if the argument on the meaning of condition 3 is not successful, the wording of the condition is not sufficient to exclude the operation of the Town and Country Planning (Use Classes) (Scotland) Order 1997 (“the Order”) which states that changes of use within the same use class will not involve development of land.  The condition would need to do so in unequivocal terms and condition 3 does not meet this standard.  Changes from the sale of household goods to other retail uses within Class 1 of the Order would not therefore require planning permission.

Arguments for the Respondents and Interested Party in the Inner House

The Scottish Ministers, the Council and Standard Life Investments UK Shopping Centre Trust (“Standard Life”), the owners of the Thistle Shopping Centre in Stirling, argued that condition 3 of the 1993 Permission means that each retail unit is obliged to allocate at least 95% of its sales area to the sale of household goods.  It was argued that this was clear when looking at condition 8 of the 1990 Permission and the appeal decision which showed that the reporter was concerned about impacts on town centres.

On the question of the Order, they argued that it was not necessary to use any particular form of words to exclude the operation of the Order nor was it necessary to make explicit reference to the Order.  The combination of “shall”, “only” and the prescribed list of goods is sufficient to exclude the operation of the Order.

Inner House Decision

The Appellant’s arguments in court (on the same grounds as put to the Reporter) were unsuccessful and the Court dismissed the appeal.

On the first argument, the courts said that the question was not what the parties intended, but what a reasonable reader would understand was permitted by the local planning authority.  Conditions must be clearly imposed so that they are plain for all to read, should not be interpreted narrowly and should be given a common sense meaning.  The Court held that a planning permission must be construed within the four corners of the consent itself, unless another document is incorporated by reference (e.g. the 1990 Permission in this case).

In this instance, the court was satisfied that the meaning of condition 3 is clear and any reasonable reader would understand that the 13 units at Springkerse would be restricted to the sale of household goods and must allocate at least 95% of its sales area to the sale of household goods.  The court also said that, if the Appellant’s interpretation was favoured, the condition would only apply to retail units which happened to be selling household goods.  The condition would therefore not apply if no units were selling household goods, and would serve no planning purpose.

Further, as the 1993 Permission expressly referred to the 1990 Permission, account could be taken of the 1990 decision letter as a whole.   It was clear from the decision letter that an important planning purpose was the need to balance shopping provision between the retail park and the town centres, and restricting the non-food goods in retail parks to certain household goods.  The court stated that the interpretation proposed by the Scottish Ministers, the Council and Standard Life “clearly accords with that purpose”.

In relation to the second argument, the Court found that the 1993 Permission must be construed as a whole.  There is no requirement for a particular form of words or an express reference to the Order to exclude the Order.  The court was satisfied that the combination of “each retail unit”, “shall” “only” and a specific closed list has the effect of excluding the operation of the Order.

Comment

The court has reaffirmed that the meaning of a condition is not determined by the intention of the party imposing the condition.  What is important is what the reasonable reader would understand to be the meaning.  It was clear from the 1990 Permission, which the 1993 Permission relied upon, that the intent was to restrict the types of goods that could be sold at Springkerse.  However, the case ultimately turned on the specific wording of the condition.

The court confirmed that there is no specific wording that needs to be used to exclude the operation of the Order but it was important in this case that a combination of limiting words and phrases were used.  It is good practice for planning authorities to refer specifically to the Order when seeking to exclude its operation.  Where there is no specific reference to the Order in an existing permission, the precise wording of the condition will be crucial and parties may wish to check permissions to see whether they include limiting words and phrases in a similar way to the 1993 Permission