Coal Pension Properties Limited Against (first) The Scottish Ministers; (second) Stirling Council And Standard Life Investments Uk Shopping Centre Trust
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Drummond Young,Lord Menzies |
| Judgment Date | 14 July 2015 |
| Neutral Citation | [2015] CSIH 57 |
| Court | Court of Session |
| Docket Number | XA111/14 |
| Published date | 14 July 2015 |
| Date | 14 July 2015 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 57
XA111/14
Lady Paton
Lord Menzies
Lord Drummond Young
OPINION OF THE COURT
delivered by LADY PATON
in the appeal
by
COAL PENSION PROPERTIES LIMITED
Appellant;
against
(FIRST) THE SCOTTISH MINISTERS; (SECOND) STIRLING COUNCIL
Respondents:
and
STANDARD LIFE INVESTMENTS UK SHOPPING CENTRE TRUST
Interested party
under section 239 of the Town and Country Planning (Scotland) Act 1997
Appellant: Findlay; McClure Naismith LLP
First Respondents: Barne; Scottish Government Legal Directorate
Second Respondents and interested party: M G Thomson QC; CMS Cameron McKenna LLP
14 July 2015
Introduction
[1] The appellant owns Springkerse Retail Park, near Stirling. For over 20 years, the retail units in the park have been used for the sale of household goods such as car goods and accessories, carpets and floor coverings, DIY goods, fitted units and associated appliances, furniture and furnishings, garden goods, and gas and electrical goods or appliances, all as permitted by condition 3 of the detailed planning permission granted in 1993.
[2] The appellant maintains that, in terms of the planning permission, the retail units may be used for the sale of a wider range of non-food goods. Accordingly by letter dated 18 March 2013 the appellant made an application under section 151 of the Town and Country Planning (Scotland) Act 1997 (the 1997 Act) for a certificate of proposed lawful use permitting “the retail sale of any non-food goods”. On 28 November 2013 Stirling Council refused the application. The appellant appealed. On 27 June 2014 a reporter (Dan Jackson) appointed by the Scottish Ministers refused the appeal. The appellant now appeals to the Court of Session.
The issues
[3] The issues in the appeal are:
- First, the proper construction of the detailed planning permission dated 16 December 1993, and in particular condition 3.
- Secondly, the question whether condition 3 excludes the provisions of the Town and Country Planning (Use Classes) (Scotland) Order 1997/3061.
Counsel were agreed that these are questions of law. Counsel were also agreed that if the reporter had made an error in law, his decision should be quashed, and the case remitted to the Scottish Ministers who would either allocate the case to a different reporter, or make a decision without a further report.
The planning history
[4] The history of Springkerse Retail Park began in the mid-1980s. Several developers wished to construct retail parks in the vicinity of Stirling, Falkirk and Alloa. There were many planning applications (several called in by the regional council), and one appeal resulting in a public local inquiry (see Lakin Ltd v Secretary of State for Scotland 1988 SLT 780). Matters connected with the proposed retail parks were thoroughly explored. One carefully considered outcome was planning permission for a non-food retail park at Springkerse, near Stirling.
[5] Outline planning permission for that retail park was granted by letter dated 2 August 1990, subject to the conditions set out in Annex A. Paragraphs 11, 13, and 14 of the letter disclose one of the planners’ main concerns, namely the balancing of shopping facilities between the outlying retail park and nearby town centres, such that town centre shopping remained viable.
[6] The development at Springkerse Retail Park was to be in one phase, comprising two parts, one part being a superstore for the sale of “essential goods”, and the other part a household shopping centre for the sale of “household goods”. Condition 6 of the 1990 outline planning permission described the one-phase/two-part development as follows:
“6. The non-food retail park proposed shall be developed as a single phase and shall comprise a superstore for the sale of essential goods (as defined in paragraph 14 below) and a household shopping centre for the sale of household goods (as defined in paragraph 15 below) …
[7] Paragraph 15 was in the following terms:
“15. For the purposes of this Annex “household goods” shall comprise only the following:
a. car goods and accessories
b. carpets and floorcovering
c. DIY goods
d. fitted units and associated appliances
e. furniture and furnishing
f. garden goods and
g. gas and electrical goods or appliances.”
[8] Condition 8 of the 1990 outline planning permission provided:
“8. In the household shopping centre:-
a. the gross floor area shall be not more than 15,000 square metres excluding walls or other common facilities;
(b) the gross floorspace of each retail unit shall be not less than 750 square metres and not more than 4,000 square metres;
(c) the proportion of the sales area of each retail unit which is for the sale of household goods shall be not less than 95%;
(d) only one retail unit shall utilise more than 20% of its sales area for the sale of gas or electrical goods or appliances or fittings, and the gross floorspace of this single retail unit shall be not more than 1,500 square metres;
(e) the retail units shall not sell food, except that the household shopping centre may include facilities for consumption of food on or off the premises”
[9] Detailed planning permission was granted by letter dated 16 December 1993 for the “construction of non-food retail park incorporating 13 units”. By that time, the superstore for essential goods had its own detailed planning permission, and there was no reference to that superstore in the letter of 16 December 1993. Condition 3 of the detailed planning permission was in the following terms:
“3. In the Non-Food Retail Park –
a) the gross floor area shall be not more than 15,000m2 excluding walls or other common facilities;
b) the gross floor space of each retail unit shall be not less than 750 m2 and not more than 4,000 m2;
c) the proportion of the sales area of each retail unit which is for the sale of household goods shall be not less than 95%;
d) only one retail unit shall utilise more than 20% of its sales area for the sale of gas or electrical goods or appliances or fittings, and the gross floor space of the single retail unit shall not be more than 1,500 m2;
e) the retail units shall not sell food, except that the Non-Food Retail Park may include facilities for consumption of food on or off the premises.
For the purpose of this condition ‘household goods’ shall comprise only of the following-
1. car goods and accessories;
2. carpets and floor coverings;
3. D.I.Y. goods;
4. fitted units and associated appliances;
5. furniture and furnishing;
6. garden goods;
7. gas and electrical goods or appliances”.
[10] Reasons were given for imposing the conditions. In relation to condition 3, the reason given was as follows:
“In order to comply with the conditions imposed on the outline consent granted by the Secretary of State in August 1990.”
The Use Classes Order 1997 (“UCO”)
[11] As Lord Justice Beatson explained at paragraph 11 of Telford and Wrekin Council v Secretary of State for Communities and Local Government and another [2013] EWHC 79 (Admin):
“One of the exceptions to the requirement of planning permission concerns uses within the same class of use as the current use of the land.”
[12] Section 26(2)(f) of the Town and Country Planning (Scotland) Act 1997 provides:
“The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land –
…(f) in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section, the use of the buildings or other land or, subject to the provisions of the order, of any part of the buildings or the other land, for any other purpose of the same class …”
[13] The Town and Country Planning (Use Classes) (Scotland) Order 1997/3061 (“the UCO”) provides:
“3. Use Classes
(1) Subject to the provisions of this Order, where a building or other land is used for a purpose in any class specified in the Schedule to this Order, the use of that building or that other land for any other purpose in the same class shall not be taken to involve development of the land …
Schedule 1
Class 1. Shops
Use –
(a) For the retail sale of goods other than hot food; …
where the sale, display or service is principally to visiting members of the public …”
[14] The appellant’s position is that the detailed planning permission granted in 1993 for the construction of a non-food retail park, coupled with the UCO, permits the use of the retail units in the park for the sale of any non-food goods, and not solely those goods listed in condition 3. Hence the appellant’s application dated 18 March 2013 (see paragraph [2] above).
Submissions for the appellant
[15] Counsel for the appellant submitted that the appeal should be allowed, the reporter’s decision quashed, and the matter remitted to the Scottish Ministers.
[16] Background: The detailed planning permission in 1993 had been for the “construction of non-food retail park incorporating 13 units”. The definition “non-food” was wider than “household goods”. In terms of the UCO, the appellant would normally be entitled to expand the retail use of the units in the park from sales of household goods to sales of any non-food goods. In refusing to allow such an expansion, the reporter had erred in two respects, namely (i) in his construction of condition 3 of the 1993 permission; and (ii) in his conclusion that condition 3 ousted the UCO.
[17] The proper construction of condition 3: Counsel submitted that planning conditions had to be clearly expressed, precise and enforceable (Lord Justice Beatson at paragraph 33 principle (3) of Telford and Wrekin Council v Secretary of State for Communities and Local Government and another [2013] EWHC 79 (Admin); Lord Justice Sullivan at paragraph 39 of R (Sevenoaks District Council) v The First Secretary of State and another [2004] EWHC 771 (Admin)). In the present case, the reader should be able to...
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