The Court of Appeal gave judgment in R (Skelmersdale LP) v West Lancashire BC & Anr [2016] EWCA Civ 1260 a case concerning the interpretation of a retail planning condition. Sales LJ gave the leading the judgment dismissing the appeal against the judgment of Jay J. ([2016] EWHC 109 (Admin).) 

The claim for judicial review challenged a planning condition attached to a consent granted for a large scale retail-led development aimed at regenerating Skelmersdale Town Centre. The planning authority stated that the reason for imposing the impugned condition was to ensure the protection of the vitality and viability of the existing Concourse shopping centre which had declined in recent years.

The challenge focussed on a condition which provided: 

“(i) Otherwise than in the circumstances set out at (ii) below, for a period of five years from the date on which the development is first occupied, no retail floorspace hereby approved shall be occupied by any retailer who at the date of the grant of this permission, or within a period of 12 months immediately prior to the occupation of the development hereby approved, occupies retail floorspace which exceeds 250 sqm [Gross External Area] within The Concourse Shopping Centre Skelmersdale. 

(ii) Such Occupation shall only be permitted where such retailer as identified in (i) above submits a scheme which commits to retaining their presence as a retailer within The Concourse Shopping Centre Skelmersdale for a minimum period of 5 years following the date of their proposed occupation of any retail floorspace hereby approved, and such scheme has been approved in writing by the Local Planning Authority.”  (emphasis added)

The Claimant’s grounds of appeal were that: 

(1)  The absence of an implementation clause made the condition unenforceable. 

(2)  The condition was unenforceable since its terms are too vague to be enforced.

(3)  Alternatively to (1) and (2), the condition failed to achieve its stated purpose, namely the vitality of the Concourse as outlined in Local Plan policy SP2. Further, planning officers had failed to advise the committee of the problems with enforcing the condition.

The Court rejected all of these grounds

(1)Applying the interpretive principles set down by the Supreme Court in Trump International [2015] UKSC , the Court held that “commits” in this context meant a legally binding commitment. Such an interpretation was reinforced by reference to extrinsic materials J15-17, 19.

(2) The condition was capable of being enforced, for example, by way of a s.106 obligation entered between the retailers and the council. What was meant by “their retail presence” was clear from the ordinary meaning of the words and having regard to the reasons for the condition. It meant retaining the substance of their presence as retailers at the level and at the time specified in the condition at (i) within the Concourse J22.

(3) In light of (1)and (2), the condition could achieve its purpose and it was unarguable that the committee had been misled.

Douglas Edwards QC and Sarah Sackman appeared for the successful interested party St Modwen Developments Limited.