The owner of a Lancashire shopping centre failed in a Court of Appeal bid to block a rival nearby development.
Skelmersdale Limited Partnership (SLP), the owner of the Concourse Centre in Skelmersdale, near Wigan, is fearful that a new mall planned for the town centre will cause it to lose some of its major tenants.
Developer St Mowden wants to build a 100,000 sq ft mixed-use scheme in the town centre, including shops, restaurants and a cinema. The council gave the project planning consent early last year, but SLP claim that the project violates the local development plan.
SLP lost the case in the High Court when Mr Justice Jay ruled against them, and an in a ruling today Court of Appeal judges Lord Justices Briggs and Sales backed Jay J’s ruling.
“The council has been concerned for some years that the town centre of Skelmersdale is rather run down and lacklustre and requires revitalisation as a strategic development site,” Sales LJ said in the ruling.
In the hearing, which took place last week, SLP’s barrister, Nathalie Lieven QC, said that part of the the council’s development plan stipulated that development must not do further harm to the Concourse Centre. The new development was likely, she said, to cause major tenants at the centre to switch location to the new mall, which would not benefit the town.
“The whole point was to get more trade back into Skelmersdale”, she said. “If all you are doing is moving the chess pieces around, you aren’t doing this”.
To deal with this issue the council imposed one important planing condition: major stores should not be allowed to move to the new development within 12 months, unless they agree to operate in both centres.
In both courts Lieven argued that the condition was unenforceable.
However, Jay J ruled that it was “crystal clear” that the council’s intention was to safeguard the Concourse by placing formal constraints on the ability of larger retailers to relocate.
He found that the condition intended to meet this aim requires 18 named retailers to give a “legally binding commitment”, and rejected a claim that this could be challenged as discriminatory against those retailers because it plainly amounted to a legitimate planning purpose.
Briggs LJ and Sales LJ said that the ruling was correct and Lieven’s argument relating to the clause was “unsustainable because its premise is flawed”.
R (on the application of Skelmersdale Limited Partnership) v West Lancashire Borough Council. Court of Appeal, (Sales LJ, Briggs LJ) 8 December 2016
