Only connect

The High Court has for the first time upheld a non-food retail condition preventing open A1 use. Saira Kabir Sheikh explains an important planning judgment.

Mrs Justice Patterson this week agreed with the London Borough of Lewisham that its planning condition was clear and unambiguous so as to prevent the Bromley Retail Park in Catford from being used for food retail such as a supermarket.

The London Borough of Lewisham had imposed a condition in 1999 on the grant of planning permission for retail use which stated that it should be for “non food sales only in bulky good normally found on Retail Parks which are furniture, carpets, DIY, electrical goods, car accessories, garden items and such other trades as the Council may permit in writing”.

Royal London Mutual Insurance Society Ltd applied to Lewisham Council for a Certificate of Lawful Proposed Use contending that in accordance with the principles in Dunoon Developments Ltd v Secretary of State for the Environment and Another [1992] 2 PLR 128 the retail use could not be restricted to non food as it did not exclude the application of the Use Classes Order. They claimed an open A1 retail use.

The council refused the application and the matter was appealed to the Secretary of State whose inspector held that on the proper construction of the words of the condition it did prevent the exercise of rights under the Use Classes Order. The Inspector agreed with the council that the use of the word “only” which meant “nothing more besides, solely, exclusively” was apt to exclude the rights under the Use Classes Order together with the remainder of the condition, the reason for its imposition and when considered in the context of the permission as a whole.

The Royal London Mutual Insurance Society Ltd challenged this decision on the grounds, amongst others, that the word “only” was not sufficient to exclude the Use Classes Order and furthermore that on the same day a similar condition was interpreted by another inspector in Hillingdon such the word “only” did not exclude the Use Classes Order.

The Court held that the construction of the condition was a matter of law and applying the principles derived from judicial authority that the inspector’s approach to the meaning of the condition was correct and the condition did exclude the use of the permission for food retail.

This case is likely to have repercussions for the food retail industry which has regularly contended successfully on appeal to the Secretary of State that conditions imposed on planning permissions similar to the Lewisham condition do not exclude food retail on their proper construction. Indeed, the inspector in the Hillingdon case awarded costs against that council for not having accepted at the outset that the condition fell foul of the Dunoon case.

The Lewisham decision demonstrates that the matter cannot be approached so simplistically. It is necessary to consider the condition in the context of the permission as a whole and to consider the wording in a structured and purposive manner. In certain cases, the use of the word “only” will be capable of excluding the Use Classes Order. However, each case will need to be approached on its individual merits and the condition carefully construed in its context.

Saira Kabir Sheikh is a barrister at Francis Taylor Building. She advised and represented the London Borough of Lewisham at the appeal before the inspector appointed by the Secretary of State and in the High Court.