Town and country planning – Planning permission – Condition – Defendant local planning authority granting interested party permission for new retail-led development subject to condition regarding occupation – Claimant applying for judicial review of imposition of condition – Whether condition enforceable – Whether condition failing to achieve stated purpose – Whether defendants ignoring material considerations – Application dismissed
The claimant was the owner of the Concourse Shopping Centre, the Concourse, Southway, Skelmersdale, Lancashire. The defendants were the local planning authority. The interested party applied for planning permission for a new retail-led development on land to the south of Ingham, Birch Green, Skelmersdale. The defendants owned part of the site. The defendants granted planning permission subject to a condition that, except in certain specified circumstances, for a period of five years, no retail floor space should be occupied by any retailer who, at the date of the permission or 12 months prior to the occupation of the new development, occupied retail floor space exceeding 250 square metres within the claimant’s shopping centre.
The claimant applied for judicial review of that condition contending that: (i) the condition was unenforceable owing to the lack of an implementation clause; (ii) alternatively, the condition was unenforceable because the owners and occupiers of the site had no control over third-party land and tis terms were too vague to be enforced; (iii) alternatively, the condition would fail to achieve its stated purpose, namely, the long-term vitality of the shopping centre as outlined in the local plan policy and, in failing to have regard to that matter and its sub-issues, and/or by dint of the planning officer’s failure to advise the committee of them, the defendants had ignored material considerations; and (iv) the condition was manifestly unreasonable because it discriminated against named companies.
Held: The application was dismissed
(1) The condition required the giving of a legally binding commitment. The stated reason for the condition was to ensure that a desired state of affairs was achieved and anything short of a legally binding commitment would fail to do that. The absence of an express implementation clause in the condition and its presence in numerous places elsewhere was neither here nor there. There was no need for such a clause because retailers had to offer legally binding commitments: Walton-on-Thames Charities (Trustees of) v Walton and Weybridge Urban District Council [1970] 21 P & CR 411, Telford and Wrekin Council v Secretary of State for Communities and Local Government [2013] EWHC 79 (Admin); [2013] 1 EGLR 87; [2013] 17 EG 100 and Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74; [2015] PLSCS 362 considered.
(2) The interested party had no control over the activities of retailers at the Concourse Centre and its roles was neither here nor there. In practice, the defendants would probably require retailers to enter into section 106 agreements, committing them to retain a presence in the centre for the relevant period. Where there had been a substantial breach of a planning obligation under section 106, an injunction would normally be granted unless inequitable to do so. In the instant case, the injunction need not be mandatory in form or substance; it would be sufficient to uphold the section 106 obligation to prevent a recalcitrant retailer, who had abandoned the shopping centre, from trading at the new site. Moreover, the condition was not too vague to be enforced because an appropriate mechanism existed for the making of and adjudication upon reasonable planning judgments: Fawcett Properties Ltd v Buckingham County Council [1960] AC 636, Bromsgrove District Council v Secretary of State for the Environment [1988] 1 PLR 59 and Cooperative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1997] PLSCS 147; [1998] AC 1 considered.
(3) An application for judicial review based on criticisms of the planning officer’s report would not normally begin to merit consideration unless the overall effect of the report significantly misled the committee about material matters which thereafter were left uncorrected before the relevant decision was taken. That high bar was not surmounted on the facts of the instant case. The practical difficulties were not patent and challenging, and there was nothing to suggest that committee members had been misled by the report: R (on the application of Nicholson) v Allerdale Borough Council [2015] EWHC 2510 (Admin); [2015] PLSCS 295 applied. R (on the application of Helford Village Development Co Ltd) v Kerrier District Council [2009] EWHC 44 (Admin); [2009] PLSCS 88 distinguished.
(4) The impact of the condition was not discriminatory in any legally relevant way. Its purpose was to minimise the risk of retailers relocating from the Concourse Centre to the new site, and correlatively, to protect exiting businesses within the town centre. That amounted to a legitimate planning purpose, notwithstanding that its consequences would restrain competition and might be unevenly distributed. It was not unreasonable to focus on the larger retailers for that purpose. The defendants were entitled to be pragmatic and to ignore the smaller units.
Christopher Boyle QC and Andrew Parkinson (instructed by Higgs & Sons, of Brierley Hill) appeared for the claimant; James Maurici QC (instructed by West Lancashire Borough Council) appeared for the defendants; Douglas Edwards QC and Sarah Sackman (instructed by Winkworth Sherwood LLP) appeared for the interested party.
Eileen O’Grady, barrister