Peel Land and Property Investments Plc v Hyndburn Borough Council & Anor

A planning permission for operational building works does not, without more, release a developer from continuing goods restrictions contained in a planning obligation. A proviso permitting development is engaged only where the later permission confers a right involving a material change of use inconsistent with the restriction.

Sections 75(2) and (3) of the Town and Country Planning Act 1990 do not convert permissions for physical alterations into permission for unrestricted retail use. Physical reconfiguration also does not create a new planning chapter unless it represents a substantial or radical departure from the prior planning history. The appeal was dismissed.

Peel had entered into planning agreements under section 106 of the Town and Country Planning Act 1990, accepting restrictions on the goods that could be sold from units at an out-of-town retail park. It later obtained permissions for physical alterations and reconfiguration of six units. Those permissions contained no express goods restrictions.

After the Council refused certificates of lawful development for unrestricted A1 retail use, Peel sought declaratory relief. The High Court dismissed the claim in [2012] EWHC 2959 (Admin). The appeal concerned whether the later permissions, section 75, the absence of use conditions, or the creation of a new planning chapter had released the agreed restrictions.

1. Disposition. The appeal was dismissed. Peel had not shown that the judge was wrong to dismiss its claims or refuse the declarations sought.
2. Appellate approach. The Court of Appeal’s function was to review the specialist judge’s decision for substantive or procedural error. It was not required to rehear the entire planning case or resolve every criticism of an individual ruling where the overall conclusion was correct.
3. Later Permissions. The permissions were for operational building works only. They neither authorised nor involved a material change of use from the existing restricted A1 retail use. No specific application was made for removal or relaxation of the goods restrictions. The objective planning materials showed that the essential character of the units as retail warehouses remained unchanged.
4. Section 75. Section 75 did not apply because the permissions were not granted for a material change of use. Section 75(2) did not assist because the permissions related to building works and did not specify purposes for use. References to retail units or retailing purposes were, in the relevant circumstances, otiose. Section 75(3) did not create a deemed permission for unrestricted A1 use where the underlying permissions authorised only physical alterations.
5. New planning chapter. Whether a new planning chapter was opened was a matter of fact and degree. The alterations were improvements and reconfiguration, not a substantial or radical departure from the previous planning history. The use before and after the works remained restricted A1 retail use.
6. Provisos. The provisos were engaged only by a right to develop relevant to a material change of use that conflicted with the agreed restrictions. Physical works compatible with continuing the restricted use did not trigger them. The goods restrictions therefore continued to apply to all six altered units.

The Court did not need to express a concluded view on every criticism concerning the extended statutory meaning of building or the admissibility of extraneous planning materials.

1. Court of Appeal (Civil Division). In [2013] EWCA Civ 1680, the court dismissed Peel’s appeal and upheld the refusal of declaratory relief.
2. High Court of Justice, Queen’s Bench Division, Administrative Court. HHJ Waksman QC dismissed the claim for declarations concerning the Council’s refusal of certificates of lawful development, in [2012] EWHC 2959 (Admin).