Planning & Environment

One of the planning permissions for Springkerse Retail Park, Stirling contains the following planning condition:

“3. In the Non-Food Retail Park –

a) the gross floor area shall be not more than 15,000m2 excluding walls or other common facilities;

b) the gross floor space of each retail unit shall be not less than 750 m2 and not more than 4,000 m2;

c) the proportion of the sales area of each retail unit which is for the sale of household goods shall be not less than 95%;

d) only one retail unit shall utilise more than 20% of its sales area for the sale of gas or electrical goods or appliances or fittings, and the gross floor space of the single retail unit shall not be more than 1,500 m2;

e) the retail units shall not sell food, except that the Non-Food Retail Park may include facilities for consumption of food on or off the premises.”

The owner argued this permits sale of any non-food goods. The clear meaning of c) is that, for units selling household goods, at least 95% of the area of such units had to be used for that purpose. Also c) does not contain words such as “which is to be used only”.

The Court of Session disagreed – 95% of the sales areas of each of the 13 retail units must be devoted to the sale of household goods. The approach advocated by the owner would mean that the condition would serve no planning purpose, because it would only apply to units selling household goods.

Interestingly, the Court was able to have regard to an earlier decision letter, because it was referred to expressly in the planning permission containing the condition. That disclosed the important planning purpose of balancing shopping provision between the outlying retail park and nearby town centres, and to restrict the non-food goods which could be sold in the retail park.

Construing the permission as a whole, the Court held that the operation of the Use Classes Order was excluded, ie. changes of use within class 1 were not authorised.

This is an interesting illustration of the difficulties of interpreting planning conditions.

Neil Collar

Partner at Brodies LLP
Neil is a partner at Brodies LLP and consistently rated as one of Scotland’s leading planning lawyers. He is well known for both his planning inquiry advocacy and his advisory work. Neil has a particular interest in renewable energy developments.
Neil Collar