Cocktails Ltd v Secretary of State for Communities and Local Government

In construing a planning permission, a fact-finder may consider relevant trade usage and extrinsic material where the permission uses a trade or technical expression whose meaning is not immediately obvious. An identified planning application may be incorporated into the permission where the operative grant refers to the development proposed in that application. A franchised motor dealership may constitute a mixed or composite use comprising vehicle sales and a workshop for servicing and repairs. Such workshop activities are not ordinarily ancillary to vehicle sales merely because they commonly occur at dealerships. A later retail use therefore could not rely on the Town and Country Planning General Permitted Development Order 1995 provision for changes from use for the sale or display for sale of motor vehicles.

Cocktails Ltd challenged under section 288 of the Town and Country Planning Act 1990 an Inspector’s decision upholding the refusal of a lawful development certificate for retail use at a former Suzuki dealership. Mitting J dismissed the claim on 21 February 2008. The site had been granted planning permission in 1997 for conversion of an industrial unit into a franchised motor dealership, and had included a showroom and workshop. The issue before the Court of Appeal was whether that permission authorised only the sale or display for sale of motor vehicles, or a mixed use including servicing and repairs, and whether the application documents and extrinsic evidence could be considered in construing the permission.

Appeal dismissed. All three Lord Justices agreed that the Inspector’s decision disclosed no error of law.

1. The central issue was the meaning of the planning permission granted in 1997. The Inspector, as fact-finder, was entitled to determine the meaning of the expression franchised motor dealership by considering the evidence of practice in the motor trade and the nature and scale of the activities proposed.
2. The planning application was incorporated into the permission. The operative grant gave permission for the development proposed in the identified application, so the permission had to be read as a whole. This applied the principles stated by Keene J in R v Ashford Borough Council, ex parte Shepway District Council [1999] PLCR 12.
3. Lord Justice Pill held that the expression was a trade or technical term whose meaning was not immediately obvious. Extrinsic evidence, including the application documents, was therefore legitimate to establish its meaning. Lady Justice Arden regarded the term as lacking any precise meaning in English and likewise held that the judge was entitled to consider ordinary parlance, the Mintel material and the factual matrix. Lord Justice Longmore doubted whether the term was ambiguous in the usual sense, but held that the permission was not clear and that the application could properly be considered.
4. The permission authorised a mixed or composite use comprising vehicle sales and a workshop for servicing and repairs. The workshop was not ordinarily incidental or ancillary to vehicle sales. In Arden LJ’s formulation, servicing, repair and maintenance were not generally associated with what occurred in a car salesroom, applying the approach in Harrods Ltd v Secretary of State for the Environment, Transport and the Regions [2002] JPL 1258. Longmore LJ likewise regarded both selling and repair activities as constituting the dealership use.
5. Because the authorised use was mixed, it did not fall within the relevant permitted-development category for use for the sale or display for sale of motor vehicles. The appellants could not rely on the Town and Country Planning General Permitted Development Order 1995 to establish the retail use as lawful. The appeal was dismissed.

• Court of Appeal (Civil Division) — In [2008] EWCA Civ 1523, the appeal from Mitting J was dismissed.
• High Court of Justice, Queen’s Bench Division (Administrative Court) — Mitting J dismissed the section 288 challenge on 21 February 2008. No citation for that decision is stated in the judgment.