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Certificates of Proposed Lawful Use or Development
Coal Pension Properties v Scottish Ministers [2015] CSIH 57
This case is unusual in that it did not concern an appeal against an application for planning permission. Rather, it was against a refusal by a local authority to grant a Certificate of Proposed Lawful Use or Development in terms of section 151 of the Town and Country Planning (Scotland) Act 1997. The crucial difference between the two is that underlying a section 151 application is the implicit assertion that a proposed use is not development requiring planning permission. What is sought therefore is not planning permission, but rather a formal statement by the planning authority that the proposed future use is lawful in any event.
The benefit of such a Certificate is that it is based upon the present circumstances of the applicant and must be granted if the necessary grounds are demonstrated to the planning authority, whatever the planning merits might be. An applicant does not require to go through the lengthy and expensive procedures associated with a planning application, such as community consultation or providing planning policy and other supporting statements. Nor is it required to be at the mercy of what a planning officer or committee might assess to be the planning merits of the application. Moreover, such a Certificate once obtained provides an irrefutable presumption that the proposed future use or operations described in the Certificate are lawful, irrespective of what is contained within the relevant development plan.
In this instance, CPP, the appellants, are the owners of the Springkerse Retail Park near Stirling. The origins of the development go back to the mid-1980s when several developers wished to construct retail parks in the vicinity of Stirling, Falkirk and Alloa. There were many applications, some of which were called in by the regional council (as was possible at that time) and one of which resulted in a planning inquiry being held. One outcome of all of that consideration was the grant of planning permission for a non-food retail park at Springkerse. Outline planning permission for the sale of household goods was granted on 2 August 1990 subject to conditions. One of the main concerns set out in that permission was the need to balance shopping facilities between the outlying retail parks and nearby town centres, such that town centre shopping remained viable.
Detailed planning permission followed in 1993, subject to conditions. Condition 3 of that permission (which mirrored a list contained in a condition attached to the 1990 permission) provided that the use was for the sale of household goods such as car goods and accessories, carpet and floor coverings, DIY goods, fitted units and associated appliances, furniture and furnishings, garden goods and gas and electrical appliances. For over 20 years, Springkerse Retail Park was operated on those terms. However, on 18 March 2013, CPP applied for a Certificate from Stirling Council permitting "the retail sale of any non-food goods". That application was refused so CPP appealed to the Scottish Government. The Reporter appointed to hear the appeal also refused to grant the Certificate, so CPP appealed to the Court of Session.
The inter-linked questions for determination by the Court was the proper construction of Condition 3 and whether it ousted the terms of the Use Classes Order ("UCO"). One of the exceptions to the requirement to obtain planning permission concerns uses within the same class of use as the current use of land (if you will excuse the convoluted wording). CPP argued that the planning permission granted, when read together with the UCO, meant they had consent for any non-food use and not just those listed in Condition 3. The Scottish Ministers pointed out that Condition 3 did not merely define the ambit of uses within it but excluded others and thereby the terms of the UCO, even without specifically saying so.
The Court agreed with the interpretation put forward by the Ministers. A planning permission must be interpreted in its own terms, without considering extrinsic factors such as the intention of the drafter. However, in this instance, the 1993 permission made express reference to the 1990 outline planning permission and it was therefore permissible to have regard to that permission when construing Condition 3. The restrictive list in Condition 3 was identical to that contained within a condition within the 1990 permission. The letter accompanying the 1990 permission contained recommendations and identifiable reasons. It expressed the concern of the planning authority that the unrestricted use of a large retail park such as Springkerse for the sale of all types of non-food goods might have a detrimental effect on shopping facilities in nearby town shopping centres. Accordingly, an important planning purpose was ascertainable from the 1990 permission and not from any extrinsic sources. The restrictions listed in Condition 3 when viewed against those concerns precluded the operation of the UCO. The decision of the Reporter was therefore upheld.
Despite being unsuccessful in this instance, Certificates of Lawful Proposed Use and Certificates of Lawful Existing Use (a broadly similar application) can potentially afford very useful rights and protections to developers, especially where uses or operations have evolved over time.
Maurice O’Carroll
Advocate
LARTPI
