Originally published May 2004
Recent controversy has surrounded the use of mezzanine floors in order to circumvent a loophole in current planning law. Following a planning appeal decision involving the retailer, Asda, it seems that, even when there is a condition in an outline planning permission restricting retail floorspace, the construction of a mezzanine floor does not contravene that permission unless there is a specific condition prohibiting mezzanine floors. This loophole has enabled a number of major retailers to double, in some cases, their retail floorspace without obtaining further planning permission. Campaigners, most notably Friends of the Earth, are calling for this loophole to be closed as it contradicts current national planning policy (PPG6) which advocates supporting town centres and local retailers by restricting the size of out of town retail developments.
Therefore, how does increasing retail floorspace in this way escape the need for planning permission, particularly if this goes against the grain of planning policy? Additional considerations also arise, depending on whether you are a landlord or a tenant. If you are a tenant, can your landlord prevent or limit your proposed works of expansion under the alterations clause in your lease? If you are a landlord, following the construction of a mezzanine floor by your tenant, can you enjoy the advantage of an increase in rent on review?
Why do mezzanine floors not need planning permission?
The answer lies in the definition of "development" under Section 55 (1) of the Town and Country Planning Act 1990. If proposed works are classed as "development" and do not fall within one of the exemptions set out in Section 55 (2) then they will require planning permission. "Development" is broadly defined as works in, on or over land that involve building, engineering, mining or the carrying on of "other operations". "Development" also comes about if the works result in a material change of use.
Where a retailer expands its area of retail use, even if for different goods to those sold on the ground floor, generally there is no change of use for which planning permission is required.
So far as building works are concerned, Section 55(2) provides the loophole. If the works carried out only affect the interior of the building or do not materially affect the external appearance of the building, then they are not "development" under the Act and so no planning permission is needed...