Town and country planning – Planning permission – Conditions – Respondent local planning authority granting permission for new retail-led development – Permission subject to conditions aimed at preventing retailers in existing shopping centre from moving from existing shopping centre to new development for first five years – Whether condition enforceable – Whether achieving stated purpose – Appeal dismissed
The claimant owned the Concourse shopping centre in Skelmersdale, Lancashire. It applied for judicial review proceedings to challenge the decision of the first respondent council to grant planning permission to the second respondent for a new retail-led development in Skelmersdale town centre. The main ground of challenge was that a condition imposed on the grant of permission was incapable of achieving its intended purpose.
The planning permission was subject to a condition that was intended to ensure that the viability and vitality of the existing Concourse centre was maintained, by minimising the risk that key anchor stores in the Concourse centre would relocate to the new development.
The condition provided that, for a period of five years from when the new development was first occupied, no retail floor space should be occupied by any retailer who, at the date of the grant of permission, or within the 12 months prior to the occupation of the development, occupied retail floor space of more than 250m² within the Concourse. That requirement was subject to an exception where a retailer submitted, and the first respondents approved in writing, a scheme committing to retaining the retailer’s presence as a retailer within the Concourse for the first five years following their proposed occupation of the new development.
The claimant contended that the condition was inadequate because: (i) the condition did not require a retailer to enter into any legally binding commitment to retain its presence as a retailer in the Concourse Centre and it was not possible to imply any implementation clause; (ii) the condition was so vague as to be unlawful and unenforceable and so could not achieve its intended purpose; and (iv); and the members of the first respondents’ planning committee were not given accurate or adequate advice by planning officers regarding possible difficulties regarding the enforceability of the condition.
All of those grounds were rejected in the court below. In relation to the first issue, the judge held that the word “commits” as used in the condition meant “commit by way of a legally binding undertaking to, or direct contractual relationship with, the first respondents, so that no further implementation clause was required: see [2016] EWHC 109 (Admin); [2016] PLSCS 31. The appellant appealed.
Held: The appeal was dismissed.
(1) The judge was correct in his interpretation of the word “commits” in the condition. That interpretation could be reached by reference to the natural and ordinary meaning of the words used, read in the context of the planning permission as a whole and its overall purpose, without any need to refer to extrinsic materials such as the planning officer’s report: Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74; [2016] 1 WLR 85; [2015] PLSCS 362 applied.
The purpose of the condition was to maintain the viability and vitality of the Concourse centre by ensuring that retailers with significant units in the Concourse should not be able to move from there to the new development, but should instead be required to maintain their units at the Concourse even if they decided that they want a unit in the new development as well. That objective could only be fulfilled if the retailers in question were made subject to a legally binding commitment holding them to that position. In that context, the reference to retailers submitting a scheme that committed them to retaining their presence as a retailer in the Concourse could only be construed as requiring a scheme that included a legally binding obligation to that effect. The first respondents were seeking to achieve practical enforceability of schemes which required their approval. The obvious reason why the condition did not include an implementation clause was that none was required, because the word “commits” already connoted a legally binding commitment.
(2) The condition was not too vague and was capable of being enforced to achieve its intended purpose. It was common ground that a significant retailer at the Concourse centre who fell within the condition, and who wished to open a retail unit in the new development, could present a scheme under which it undertook direct contractual obligations to the first respondents, pursuant to an agreement to be entered into pursuant to section 106 of the Town and Country Planning Act 1990 at the time of approval of the scheme and the grant to the retailer of a leasehold interest in the new development. That was sufficient to show that the condition was capable of being operated in a manner that accorded with its natural meaning. It was unnecessary to explore further whether there might be other ways in which a contractual regime could be introduced in reliance on section 106 or, possibly, based on other powers to contract which the first respondents might have.
The relevant contractual obligation would not have to take the form of a positive obligation to carry on a business in the Concourse, which might give rise to problems in seeking specific performance. It could for example, be framed as a negative covenant not to occupy retail floor space in the new development unless that retailer continued to retain its presence as a retailer at the Concourse; all that would be required to enforce such a contract in a manner effective to protect the Concourse would be negative injunctive relief to enforce that negative covenant: Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] AC 1 considered.
Further, the condition was properly to be construed as requiring a commitment by the retailer to retain the substance of its presence as a retailer in the Concourse at the level, and at the time, specified in the condition. Accordingly, a retailer could not get around the condition by substantially reducing its presence in the Concourse and, in effect, transferring the bulk of its activities to the new development.
(3) It followed that the condition was effective to give protection to the Concourse centre of the contemplated nature. The advice in the planning officer’s report sufficiently conveyed that matter and the planning committee had specifically examined the question of the efficacy of the condition. It could not be said that the advice of the planning officer significantly misled the committee about material matters in any way.
Nathalie Lieven QC (instructed by Mishcon de Reya) appeared for the appellant; James Maurici QC (instructed by the legal department of West Lancashire Borough Council) appeared for the first respondents; Douglas Edwards QC and Sarah Sackman (instructed by Winckworth Sherwood LLP) appeared for the second respondent.
Sally Dobson, barrister
