The High Court has adopted a forgiving approach to the meaning of a “keep open” condition intended to protect an ageing shopping centre from retail competition in R (on the application of Skelmersdale Ltd Partnership) v West Lancashire Borough Council [2016] EWHC 109 (Admin); [2016] PLSCS 31).
Permission was granted for a retail-led regeneration scheme in the town centre in the context of adopted plan policies requiring that any new scheme “should not harm the viability and vitality” of an existing 1960s shopping centre. The local planning authority imposed a condition apparently intended to prevent displacement of occupiers from the old centre to the new one. The judicial review concerned the effectiveness of the condition imposed to give effect to this and the scope for implying terms into it.
The condition restricted the occupation of the new retail floorspace “by any retailer” that had occupied more than 250 square metres within the older centre (either at the date of the grant of consent or in the 12 months prior to occupation of the new development). It allowed such retailers to occupy the new centre where they “submit a scheme which commits to retaining their presence as a retailer” within the older centre for a minimum of five years after occupying the new one. The authority’s approval was required, but there was no “implementation clause” securing compliance with the scheme.
In accepting the defendant authority’s position that no condition could ever achieve “complete and absolute protection” in a market economy, the judge considered the effectiveness of the condition imposed to satisfy the “no harm” requirement of the local plan policy. The claimant challenged on various grounds, including that the condition was unenforceable and should be treated as unlawful.
Rather than finding that the condition was simply unenforceable by virtue of the apparent failure to include an implementation clause, the judge held that the condition required – because of the word “commit” – the subsequent giving of a legally binding commitment. The form of this commitment was unclear, but because it could be considered by a planning inspector on an appeal against any refusal to discharge the condition, was held to be sufficiently certain. The judge recognised that the commitment requirement would “probably be requiring retailers to enter into a section 106 agreement committing them to retain a presence at the old centre” or restricting their use of the new units.
The judgment is a striking example of a purposive approach to the interpretation of conditions. While rejecting, on the facts, the scope for implying elements into the condition as it stood, the judge nonetheless applied significant interpretative flexibility to avoid finding that the condition was ineffective and so unlawful as to infect the grant of consent.
Roy Pinnock is a partner in the planning and public law team at Dentons
