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Are you trying to escape bulky goods restrictions?

29 January 2014

Out-of-town retail parks are often subject to planning conditions or planning obligations, allowing only the sale of so-called 'bulky goods'.

A new planning chapter?

The purpose of bulky goods restrictions is to limit the extent to which out-of-town retail parks compete with and divert trade from town centres. Over recent years retail park owners have established ways of illustrating that bulky goods restrictions should no longer apply. They have achieved this by obtaining consent to carry out works - sparking claims that they are beginning to write a new chapter in planning history.

If the local planning authority accepts this view, then any original bulky goods restriction imposed will no longer be enforceable against the building, unless the new planning permission is subject to a similar restriction. To see if a similar restriction does exist, you will need to carefully consider the section 106 obligation.   

Can development works create a new planning chapter?

The Court of Appeal recently considered a challenge by Peel, owners of the Whitebirk Retail Park in Rishton. The retail park is subject to a bulky goods restriction contained in a section 106 agreement. The agreement also contains the usual proviso that it does not prohibit or limit the right to develop the site in accordance with a future planning permission.

Peel later obtained planning consent for external and internal alterations to a number of retail units on the site. They claimed that these permissions effectively created new retail units that could be used for the purpose they were designed for, ie unrestricted retail.

Peel argued that the permissions triggered the proviso contained in the section 106 agreement, so that the restrictions contained in the section 106 agreement would not be enforceable against the units once the work was carried out. They also claimed that development authorised by the later permissions created a new chapter in the units' planning histories freeing them from the bulky goods restriction. 

No new chapter opened

The High Court dismissed Peel's claim, deciding that no new planning chapter was created by the later planning permissions With no change in use, the bulky goods retail use remained in place. 

Peel challenged the High Court's decision. However the Court of Appeal agreed with the High Court that no new chapter in the units' planning history was created because there was no 'substantial' or 'radical' departure from the previous planning history of the units. The Court also found that the proviso to the section 106 agreement was not triggered because the later planning permissions did not involve a change of use and were compatible with the existing restricted use. 

Could there be a final twist?

We understand that Peel has requested permission to appeal to the Supreme Court and no decision has yet been taken. In the meantime, the existing decision will make it more difficult to avoid restrictions contained in a planning condition or obligation. The Court has made it clear that subdividing or amalgamating units will not necessarily be regarded as a radical departure from its planning history. It is also clear that where any later development is consistent with restrictions contained in a section 106 agreement, these restrictions will apply no matter what.

For more information please contact Simon Ewing, Partner

T: +44 (0)20 7203 5330