Stirling retail park owners fail in bid to sell wider range of non-food items

Coal Pension Properties, owners of Springkerse Retail Park in Stirling, had attempted to argue that they were entitled to sell a wider range of goods either by virtue of their original planning consent or by operation of the Use Classes Order (UCO). The UCO allows a development to be used for a slightly different purpose without a grant of planning permission, as long as that purpose falls within the same broad 'class'.

Commercial litigation expert Craig Connal QC of Pinsent Masons, the law firm behind Out-Law.com, said that the court was required to base its interpretation of the planning consent on "what the reasonable reader would understand was permitted".

"While the protection of town centres remains a front line planning policy, it is inevitable that those with substantial sums invested in retail parks will continue efforts to improve their attractiveness," he said. "They will be confident that if they do, the buying public will be keen to take advantage of facilities such as ease of access and parking to spend money in the parks."

"While the present case failed on its particular facts, it is an open question what the result would have been had reference to the previous outline consent and its decision letter not allowed in a more purposive than literal approval. In any event, further such challenges can be expected in the future," he said.

Springkerse Retail Park is one of a number of such parks planned in the mid-1980s for the area surrounding Stirling, Falkirk and Alloa. It was granted outline planning permission in 1990 subject to a number of conditions, intended to address "the balancing of shopping facilities between the outlying retail park and nearby town centres, such that town centre shopping remained viable". Over the past 20 years, the retail units in the park have been used for the sale of car accessories, carpets, DIY, fitted units, furniture, garden goods and other categories of household goods set out in the detailed planning permission granted in 1993.

In 2013, Coal Pension Properties applied to Stirling Council for a certificate of proposed lawful use permitting "the retail sale of any non-food goods", stating that this was permitted by its original planning permission. Stirling Council refused the application. In 2014, a reporter appointed by the Scottish ministers refused the owner's appeal.

The owners argued that that detailed planning permission granted in 1993 had been for the "construction of non-food retail park incorporating 13 units". They said that this definition was wider than 'household goods', and that expanding the purpose of the units from household goods to any non-food goods was covered by the UCO. The council and the Scottish ministers argued that the conditions were "clearly expressed, precise and enforceable" and that the restrictions were in place for a specific reason.

In her judgment on behalf of the court, Lady Paton agreed. She said that the meaning of the conditions was clear, and that "any reasonable reader would understand that the 13 units were to be restricted to the sale of household goods as defined in the closed list [contained in the planning conditions]". In addition, the 1990 outline planning permission which raised concerns about the possible detrimental effects of unrestricted non-food sales in the retail park on the viability of nearby town centres was "very much part of the relevant background to be taken into account when construing the 1993 detailed planning permission", she said.

Considering the purpose and context of the permission, as well as the words used, Lady Paton was also satisfied that it had "the effect of excluding the operation of the UCO".