Planning condition could require retailers to enter planning agreements to protect neighbouring centre

Skelmersdale Ltd Partnership, R (on the application of) v West Lancashire Borough Council & Anor [2016] concerned a new retail-led development on land measuring approximately 5 hectares in Skelmersdale (“the Site”).

Condition 5 of a planning consent for the Site, required retailers of retail floorspace exceeding 250 sqm (Gross External Area) at the nearby Skelmersdale Concourse Shopping Centre to submit schemes which clearly set out their proposals to continue, or (if they had left within the previous 12 months) return to, at least 5 years’ more occupation of the Concourse Shopping Centre which had suffered from a lack of modernisation and a turnover of retailers.

The writer attended the formal opening of the Skelmersdale Concourse Shopping Centre, by Ken Dodd, one Saturday afternoon in the 1970’s.

The purpose of condition 5 was to minimise the risk of retailers relocating from the Concourse Centre to the Site.

The High Court said the issue was: did condition 5 require (no more) than a non-binding promise or statement of intent on behalf of the retailer, or did it require a legally binding obligation? If the latter, the obligation in question would arise under some form of contractual commitment, probably one underpinned by section 106 of the Town and Country Planning Act 1990.

The court concluded that, since condition 5 contained the transitive form of the verb “commit”, it required the retailer to give a legally binding commitment. The stated reason for condition 5 was “to ensure” that a desired state of affairs was achieved, and nothing short of a legally binding commitment would do that. This was required to uphold the policy in SP2 of the Local Plan which underpinned the future attractiveness of Skelmersdale Town Centre.

If there was a dispute as to the reasonableness of the scheme submitted, then there would have to be an appeal and a Planning Inspector would have to exercise a planning judgment based on considerations such as the nature of the retailer’s business, the nature and extent of current occupation, and likely economic and business trends.

Condition 5 was not too vague to be enforced because an appropriate mechanism existed for reasonable planning judgments to be made and adjudicated on. As retailers’ businesses differ, it would not have been possible to be more prescriptive about these matters in advance.

There was no need for an express implementation clause in condition 5 because retailers must offer the local planning authority legally binding commitments.

There was the possibility of retailers setting up subsidiary companies to circumvent condition 5 but the language of condition 5 was wide enough to cover any companies set up with the sole or main purpose of evading the condition because the term “retailer” in the condition was not linked to any particular corporate incarnation.

In Skelmersdale Ltd Partnership, R (On the Application Of) v West Lancashire Borough Council & Anor [2016] condition 5 was challenged before the Court of Appeal but it was upheld.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.