Peel Land and Property Investments Plc, R (on the application of) v Blackburn With Darwen Borough Council & Ors

A clear planning permission must be construed by reference to the permission and, for a full permission, the application plans and related material incorporated or objectively forming part of its description. Plans showing wider works do not necessarily enlarge the development for which permission was sought.

Section 75(3) of the Town and Country Planning Act 1990 generally operates where building operations necessarily involve an express or implied material change of use. It does not convert alterations, subdivision or additional floorspace in existing restricted retail units into permission for unrestricted retail use. Nor did those works create a new chapter in the planning history. A contractual proviso preserving later rights to develop was therefore not engaged.

The claimant owned a restricted bulky-goods retail park. Section 106 agreements limited the goods that could be sold from specified units, subject to provisos preserving the right to develop in accordance with later planning permissions.

The claimant obtained later permissions for external alterations, refurbishment, reconfiguration, subdivision, mezzanine floors and, in one case, demolition. It applied for certificates of lawful development on the basis that those permissions triggered the provisos and released the restrictions. The local planning authority refused the certificates, and the claimant sought judicial review and declarations while a statutory appeal was pending.

The central issues were the true scope of the later permissions, the application of sections 55 and 75, whether a new chapter in the planning history had arisen, the construction of the provisos, and whether the court should determine the mixed claim.

1. Jurisdiction and discretion. The court had jurisdiction to determine the mixed claim concerning both the certificates and the effect of the section 106 obligations. Although courts should be slow to grant declaratory relief where the certificate regime under sections 191 and 192 of the Town and Country Planning Act 1990 provides a comprehensive procedure, this was an unusual case. The issues were inextricably linked, no primary facts were materially disputed, all parties had fully argued the merits, and it was proportionate for one tribunal to decide them.
2. Construction of the permissions. Under the General Development Procedure Order 1995 and the Town and Country Planning (Development Management Procedure) (England) Order 2010, plans and associated documents describe the development sought. For a full permission, approved plans may be part of the permission, but plans showing additional internal works do not necessarily mean that those works were the subject of the application. The application and permission must be construed objectively. The permissions for Units 1 and 4 were confined to external works; those for Units 1A, 2, 6 and 8 included specified reconfiguration, subdivision, refurbishment or demolition works.
3. Section 55. Whether internal works form part of a larger scheme including external works is a question of fact, degree and judgment. Section 55(2)(a)(i) does not automatically enlarge a permission which, on the application and permission, was sought and granted only for external works. Conversely, a permission expressly covering both internal and external works should not readily be read down merely because some internal works would not independently constitute development.
4. Section 75. Section 75(3) is directed to the implied use of a building where the permitted building operations necessarily involve a material change of use. The statutory expressions “erection” and “building” may have the extended meanings in section 336, but that does not remove the material-change-of-use limitation. The later permissions involved alterations or reconfiguration of existing retail units, not the creation of retail buildings on land without that use. Their purposes were the physical works or continuation of the existing restricted retail use, not unrestricted A1 retailing. Unit 6 was similarly subject to the existing section 106 restriction under section 75(2).
5. New chapter. A new chapter requires a radical change in the nature of the buildings or their use, or development inconsistent with the established use. The works here left the essential nature and purpose of the units unchanged. No new chapter arose.
6. Provisos and outcome. The provisos could in principle be triggered by a later permission expressly granting unrestricted A1 use, even without a separate material-change-of-use permission, if that right to develop conflicted with the section 106 obligations. That exceptional situation did not arise. The later permissions did not trigger the provisos. The claim for declarations was dismissed.