Commitment issues in the high court
In the recent case of R (Skelmersdale Limited Partnership) v West Lancashire Borough Council and Another (2016) the High Court was asked to consider a planning condition which required certain retailers obtaining space in a new shopping centre (the "St Modwen Development") to commit to their current retail presence in an existing shopping centre (the Concourse Shopping Centre ("Concourse").
Concourse, owned by Skelmersdale Limited Partnership ("SLP") in Skelmersdale, was constructed in the 1960s. Included within plans of Skelmersdale's initiative to "revitalise Skelmersdale Town Centre" was an assurance that this would not affect the "viability and vitality" of the Concourse.
In light of the above, when a developer ("St Modwen") applied to build the St Mowden Development (a new, mixed use, retail development on a site close by Skelmersdale Town Centre) the Lancashire Borough granted the planning permission subject to the condition that certain retailers were only allowed to occupy space in the St Modwen Development if they also committed to retaining their presence in the Concourse for a minimum period of 5 years.
SLP applied for judicial review of the above condition arguing that it was unenforceable due to it being too vague, not having the requisite implementation clause and was a disproportionate interference of property (contrary to Article 1 of the First Protocol of the European Convention on Human Rights ("Article 1")). SLP further argued that the condition would fail to accomplish its intended purpose and that it was unreasonable as it discriminated against named companies.
The High Court held that the condition was not too vague to be enforced. The Court recognised that despite the fact that individuals would predictably choose to shop at the St Mowden Development once it was opened, the condition went some way to ensure that the Concourse maintained its vitality and viability. Furthermore, the Court also concluded that the condition was neither discriminatory nor in breach of Article 1. Tying the retailers into both shopping centres constituted a legitimate planning purpose regardless of whether it would have the affect of restricting competition and may be disproportionately distributed. It was also decided that there was no need for an implementation clause because the condition required the retailers to offer legally binding commitments and therefore the condition achieved its intended purpose of safeguarding the long-term vitality and viability of the Concourse.
Understandably, this case will be of key interest to local planning authorities as well as developers, owners and occupiers who are, or will be, not only negotiating but also determining the interpretation of similar planning conditions at some point.
For more information, contact Charles Clay.