A court has upheld a planning inspector’s decision to allow an appeal by Mere Park Garden Centre against the refusal of Telford and Wrekin Council to issue a certificate permitting the use of the site for full retail sales.

The case turned on the interpretation of a local planning authority condition in the original 2002 planning permission for the garden centre.  The condition said that before the garden centre could open, “details of the proposed types of products to be sold should be submitted to and agreed in writing by the Local Planning Authority”.

The garden centre’s agents submitted a list of goods they intended to sell based largely on the GCA guidance about products that a Centre of Excellence would be expected to stock (plants, shrubs, flowers, for example) and those not proposed to be sold (like cars, white goods etc).

But, said Malcolm Scott Consultants, who advised Mere Park, the authority did not write back and confirm that the list of products was agreed and, more importantly, did not correctly define the planning condition to be unambiguous. The more usual form would be:

“These premises shall be used for XXXXXX and for no other purpose (including any purpose in Class YYY. of the Schedule to the Town and Country Planning (Use Classes) Order 1987, or in any provision equivalent to that Class”.

The authority’s condition was considered too vague in two key respects:

a) the use of the word “should be submitted” placed only an obligation on the application to submit the list of products and did not (had the correct word “shall” been used) place an absolute requirement upon the applicant to fulfil it.

b) the authority condition said only that the “proposed types of products to be sold” should be submitted, but does not clearly state that only these products and no others are to be sold at any time.

The court’s conclusion was that the imprecise wording of the condition permitted the garden centre to enjoy the benefits of open A1 retail use. 

“The implications of this for other garden centres are clearly very beneficial if the wording of the planning permission and the conditions attached to it are similarly imprecise,” says Malcolm Scott.  “Owners would do well to check their planning approval, and seek expert advice on the interpretation of it.”



http://www.mereparkgardencentre.co.uk/index.html