Planning etc. (Scotland) Act 2006

Mezzanine Floorspace

The Planning etc. (Scotland) Act 2006 ("the Act") received royal assent on 20 December 2006. It will be brought into force by regulations, which are anticipated to be introduced by the Scottish Ministers over the next eighteen months.

This article examines the principle changes the Act will have on the treatment and consideration of mezzanine flooring. It highlights issues which both property owners and property developers may have to consider.

  • Under current legislation, interior mezzanine floorspace installations do not constitute "development" and do not require planning permission.
  • The Act creates a provision which may bring mezzanine flooring within the ambit of "development".
  • The Scottish Ministers have the power to specify in a development order those operations which have the effect of increasing the gross floorspace of a building and therefore which will require planning permission.

What is a mezzanine floor?

A mezzanine floor is a partial floor inserted at an intermediate level between the floor and the ceiling. They are typically used in a retail unit. The purpose of the installation of mezzanine floorspace is generally commercial: to create extra floorspace either for retail sales or ancillary storage. The effect of mezzanine flooring is a potential increase of up to double the original floorspace. It achieves an extension to the existing unit, confined to that unit's interior.

Current legislation

If mezzanine floorspace installations affect only the interior of an existing unit then it does not presently constitute development. Section 26 (2) of the Town and Country Planning (Scotland) Act 1997 ("the 1997 Act") excludes any operations which (a) affect only the interior of the building, or (b) do not materially affect the external appearance of the building from development control. There has been a good deal of debate in recent years as to whether certain mezzanines might however still require planning permission. This could be the case where there was such an intensification of use as to amount to a material change of use or where there was an appropriately worded condition restricting the overall floorspace within the development. Many developers and property owners have obtained Certificates of Lawful Proposed Use of Development (CLOPUD) confirming that they would not need permission to install mezzanines.

New provisions

The Act has redefined the term "development". As part of this process it has restricted Section 26 (2) of the 1997 Act. The new provisions grant the Scottish Ministers the power to specify in a Development Order the circumstances in which Section 26 (2) of the 1997 Act will not apply to operations which have the effect of increasing the gross floorspace of a building. The Scottish Ministers have yet to determine these circumstances although it may be worth noting that similar provisions in England require planning permission for any increase in floorspace over 200 square metres.

In practice this means that mezzanines of greater than a certain percentage of the whole building will need planning permission. The Act will not however effect mezzanines which have been "begun" before the Development Order comes into force. This is the position for mezzanines which benefit from a CLOPUD as well but it is important to note that if the mezzanine has not begun before the Development Order comes into force the CLOPUD will lapse.

As the law currently stands, the installation of mezzanine floorspace does not always require planning permission. Once the relevant section of the Act comes into force it is likely that the vast majority of commercial mezzanines will require planning permission. Property owners and developers should act quickly to implement existing Certificates allowing mezzanines to be built before the Scottish Ministers change the rules.