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Enforceability of planning conditions

R (Skelmersdale Limited Partnership) v West Lancashire Borough Council and another [2016]

This case was a judicial review of planning conditions and will be of interest to developers, planning authorities and anyone else needing to interpret planning. The case centred around the planning application for new retail development (the St Modwen development). The planned St Modwen development was to be close to an existing shopping centre (the Concourse Shopping Centre) which had been built in the 1960s. The existing centre was described as being “outdated, of its time and of its type.” Planning was granted for the new development subject to conditions.  The condition under review restricted the occupation of the new developments retail space; excluding those who either already had a presence in the existing centre or who had had a presence within the last 12 months. The exception to this restriction was where retailers “submit to a scheme which commits to retaining their presence in the [existing] shopping centre for a minimum of 5 years following the date of their proposed occupation of the [the new development].” The aim of the condition being to protect the viability of the existing shopping centre and prevent a sudden outflow of retailers to the new development.

The owners of the concourse brought the judicial review of the condition citing the following reasons that the condition was unenforceable:

  1. the lack of an implementation clause made the condition unenforceable and the meaning of the words “commits” was too vague to be enforceable;
  2. the owners of the new development had no control over activities at the exiting shopping centre and would have to rely on positive injunctive relief, which courts are reluctant to grant, to comply; and
  3. the condition would fail to achieve its stated purpose.

The court held that:-

  1. the condition required a legally binding commitment and therefore the absence of an express implementation clause was irrelevant. The word ‘commits’ would in practice require retailers to enter into a legally binding agreement such as a planning obligation.
  2. this would then be enforceable and there would be no need to rely on specific performance injunctions.
  3. the court did not agree that the condition would not achieve its stated purpose, whilst it acknowledged that it could not prevent people shopping at the new centre, the planning authority had done all it could to alleviate the consequences of this.

Those needing to interpret planning conditions should bear this judgement in mind. It has supported the comments made in Trump International Golf Club Scotland Limited and another (Appellants) v The Scottish Ministers (Respondents) (Scotland) which rejected the idea that there is an outright ban on implying terms into planning conditions. It seems that courts may now be more willing to imply wording into planning conditions where the condition appears incomplete.

For further advice please contact Tom Warrender.