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||Neutral Citation Number:  EWHC 109 (Admin)
||Case No: CO/3372/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE JAY
|| R (oao SKELMERSDALE LIMITED PARTNERSHIP)
||- and –
||WEST LANCASHIRE BOROUGH COUNCIL
ST MODWEN DEVELOPMENTS (SKELMERSDALE) LTD
Christopher Boyle QC and Andrew Parkinson (instructed by Higgs & Sons) for the Claimant
James Maurici QC (instructed by Matthew Jones, Legal and Members Services Manager) for the Defendant
Douglas Edwards QC and Sarah Sackman (instructed by Winkworth Sherwood LLP) for the Interested Party
Hearing dates: 19th and 20th January 2016
HTML VERSION OF JUDGMENT
Crown Copyright ©
MR JUSTICE JAY:
- The target of this application for judicial review is a condition attached to a planning permission granted by the relevant Local Planning Authority on 5th June 2015.
- The parties to this application are: (i) the Claimant, being the owner of the Concourse Shopping Centre, the Concourse, Southway, Skelmersdale, Lancashire ("the Concourse Centre"); (ii) the Defendant, being the relevant Local Planning Authority ("the Council"); and, (iii) the Interested Party, being the applicant for planning permission for a new retail-led development on land measuring approximately 5 hectares in Skelmersdale Town Centre, namely land to the South of Ingham, Birch Green, Skelmersdale ("the Site"). The Council is also owner of part of the site.
- The condition at issue is Condition 5, providing as follows:
"(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."
- Holgate J granted permission on the Claimant's grounds 1-3 but refused it on grounds 4-5. Given that the Claimant has renewed its application for permission on the refused grounds to this court, it is appropriate that these should addressed on a "rolled-up" basis.
- The application turns on matters of law which do not require a lengthy judicial prologue. I need to set out the necessary context, and I may do this by drawing quite heavily on the parties' helpful skeleton arguments, interpolating where appropriate specific points on which emphasis was placed during oral argument. The witness statements of Joanne Salmon (for the Claimant) and John Harrison (for the Council) assist to the extent that they exhibit relevant documentary materials, but do not avail me to the extent that they purport to contain opinion evidence as to the meaning and purpose of these documents.
Essential Factual Background
- For many years now, the town centre of Skelmersdale has been somewhat run-down and tired, and planners have been searching for ways to revitalise the area and to provide a focus for the retail and recreational activities of some 40,000 inhabitants.
- The Concourse Centre was constructed in the 1960s. I was shown photographs, and Mr Christopher Boyle QC for the Claimant aptly described it as "mall-based and outdated, of its time and of its type". Plainly, and as Ms Salmon observes at paragraph 7 of her first witness statement, it is particularly vulnerable to a new shopping centre with better parking arrangements.
- Policy SP2 in the Local Plan adopted in October 2013 sets out the Council's policies in relation to Skelmersdale Town Centre. Insofar as is material, it provided as follows:
"Proposals for the enhancement, regeneration and redevelopment of Skelmersdale Town Centre within the Strategic Development Site defined on the Proposals Map will be supported. A revitalised Skelmersdale Town Centre is vital to the wider regeneration of the town.
The following should form the key principles for any development proposals:
Make Skelmersdale a leisure, recreational and retail centre of excellence within the North West…
The following are the key development aims of the strategic site:
To enhance the Town Centre offer and to ensure the long-term vitality and viability of the Town Centre, including the Concourse Centre, new development is required to link the Concourse and Asda/West Lancashire College and must include a range and mix of uses including retailing (food and non-food), leisure, entertainment (including a cinema), office space, residential and green space. Any scheme should not harm the viability and vitality of the Concourse Centre and must provide sufficient linkage to the Concourse." [emphasis supplied]
- On 3rd November 2014 the Interested Party applied for planning permission for the "erection of a mixed use development including a foodstore, A1 retail units, D2 cinema, A3 restaurants, A4 public house, mixed commercial uses (to include small scale retail uses, financial services with food and drink uses (Use Classes A1/A2/A3/A5), car parking along with new public realm, children's play area and associated landscaping, earthworks, infrastructure, access, ancillary works and utilities" ("the St. Modwen Development").
- The application for planning permission was accompanied by a Planning & Retail Statement, commissioned by the Interested Party, and prepared by Aylward Town Planning Ltd. This, together with an addendum report, concluded that there would be planning benefits attendant on the St. Modwen Development, and that the town centre could not be revitalised and market share enhanced without new building, but that it would inevitably have an adverse impact on trade in existing stores in Skelmersdale Town Centre assessed at approximately £12m in the design year, "prior to any account being had for positive multipliers that could be accrued through the enhanced trading profile of the centre". The Addendum also noted that Aldi and Home Bargains, both current tenants of the Concourse Centre, intended in addition to trade at the Site as part of a "two-store strategy". This intention was evidenced by letters from these retailers.
- On 25th November 2014 the Council commissioned Peter Brett Associates LLP ("PBA") to advise on the application. PBA provided two reports. By its first report dated 2nd December 2014 PBA concluded that there was a realistic prospect that existing retailers might desert the Concourse Centre for the Site, and that this "would represent a blow to the Concourse Centre". A number of substantial players, currently operating from the Concourse Centre, were minded to operate stores at the Site. PBA noted that Aylward's figures were based on the premise that all retailers currently based at the Concourse Centre would remain in situ; the position would be worse otherwise. The departure of two anchor stores, Home Bargains and Wilko, would "represent a significant loss", and PBA recommended that some form of controls should be emplaced to secure the long-term presence of these entities at the Concourse Centre.
- In this latter regard Ms Salmon asserts that retention of a "presence" would not, without more, avail the vitality and viability of the Concourse Centre. She contends that retailers would be likely to open a new store at the Site and retain only a shadow presence at the Concourse for the duration. At paragraph 19 of her first witness statement, she refers to this as a "defensive strategy" which would be commercially attractive to the larger retailers.
- On 9th February 2015 PBA's second report noted that "we believe that the Council could justifiably impose appropriate restrictions to the permission to protect the Concourse Centre", and that for PBA to endorse the scheme as acceptable "there would need to be a proper mechanism in place capable of ensuring that key retailers will [not] simply relocate from the Concourse Centre to the application scheme" [emphasis supplied]. PBA's overall conclusion was as follows:
"Given the material changes outlined above, we consider that, if the Council was minded to approve the current application, it would be justifiable for the Council to impose appropriate restrictions to the permission to protect the Concourse Centre. Without such controls, it is conceivable that anchor retailers such as Home Bargains could assign their existing leases at the Concourse Centre to enable them to trade from newer purpose-built premises at the St Modwen scheme, and we would regard that as seriously harmful.
Accordingly, our overall summary is that whilst there is no retail planning policy basis to resist the current St Modwen application, we firmly recommend that the Council should discuss potential controls with the applicant in order to ensure the long-term vitality and viability of the Concourse Centre, using criterion 2 (i) of Local Plan Policy SP2 as the basis for those discussions. If the applicant was unwilling to accept restrictions along these lines then we would have serious reservations given the current, fragile state of the Concourse Centre." [emphasis supplied].
- PBA also noted, as was fairly self-evident, that the existing letters from Home Bargains and Aldi stating their intention to trade from both locations were not legally binding.
- The recommendation of the Planning Officer was to grant planning permission, subject to conditions and a section 106 agreement. Paragraphs 6.15, 6.20, 6.21 and 6.23 of his first report are material:
"6.15 It is criteria 2(i) [sic] of Policy SP2 that it critical in this instance and the requirement that any scheme should not harm the vitality and viability of the Concourse Centre. It would certainly not be the intention of the Council to allow development that would be harmful to the Concourse, rather, it is critical that any new development acts as a catalyst in improving the town centre as a whole to the overall benefit of the Concourse.
6.20 …The loss of any of the main retailers would represent a serious blow to the Concourse. PBA advise that if the Council are minded to approve the proposed development, it should seek to put in place some form of controls designed to secure the long term presence of the larger and key retailers in the Concourse. Normally such controls alluded to could be secured under the terms of Paragraph 26 of the NPPF, but the NPPF impact test specifically applies to applications for retail, leisure and office developments "outside of town centres", whereas the proposed site is within the town centre. However, given that Part 2(i) of Policy SP2 in the Local Plan states "Any scheme should not harm the vitality and viability of the Concourse Centre …" I believe that it would be justifiable for the Council to impose occupancy conditions.
6.21 PBA also consider that the key to protecting the long-term vitality of the Concourse is to ensure that existing anchor stores are prevented from relocating to the St. Modwen site. I agree with this assessment…
6.23 In the light of the above advice, I am satisfied that the proposed development complies with both the aims of Policy SP2 and IF1 of the Local Plan and references to town centre development within the NPPF provided that a mechanism is put in place by way of condition, which seeks to minimise the risk of key anchor stores relocating from the Concourse into the new scheme, thereby offering some form of protection to the viability and viability [sic] of the Concourse. See condition 5 below. Subject to this condition, it is considered that this proposal is acceptable in principle. [emphasis in original] "
- In his first report, the Planning Officer recommended the imposition of a condition which would provide as follows:
"Otherwise than in the circumstances set out at (i) below, no retail floorspace hereby approved shall be occupied by any retailer who, at the date of such occupation, or within a period of 12 months immediately prior to occupation, occupies retail floorspace which exceeds (250sqm) (Gross External Area) in The Concourse.
(i) such occupation will only be permitted where a mechanism to ensure the retailer retains their presence as a retailer in The Concourse for a minimum period of 5 years following the date of their occupation of retail floorspace within the development, has been submitted to and approved in writing by the Local Planning Authority."
- The Planning Officer's updated report contained revised wording which in due course found its way into the planning permission which was granted on 5th June 2015. The report also opined that the proposed development would comply with the Local Plan "provided that a mechanism is put in place by way of condition which protects the long-term vitality and viability of the Concourse" (there is a typographical error in the report itself, which I have notionally corrected). Before the grant of permission, the Claimant had written to the Council complaining about the merits and lawfulness of Condition 5. Mr Harrison has given evidence to the effect that at the Planning Committee meeting on 19th March 2015 there was a debate amongst Members as to the enforceability of Condition 5, and Officers expressed satisfaction with its "efficacy".
- Finally, I should add that the Council's proposed reason for Condition 5 was as follows:
"To ensure that those retailers which presently occupy the key units in The Concourse retain a presence in The Concourse for a reasonable period of time in order to protect the vitality and viability of The Concourse in accordance with Policy IF1 and SP2 of the West Lancashire Local Plan 2012-2027 Development Plan Document and the NPPF."
- In my judgment, it is crystal-clear from all these materials that it was the Council's intention to safeguard the Concourse Centre to the extent possible by placing formal constraints on the ability of the larger retailers from relocating to the Site. However, the identification of the Council's intention in this straightforward manner does not, without more, demonstrate that Condition 5 is an effective means of achieving it, and is therefore lawful. I mention "to the extent possible" because I accept the submission of Mr James Maurici QC for the Council that complete and absolute protection could not reasonably be achieved in a market economy.
- Save in one important respect, the legal framework and principles governing this application are not in dispute.
- Pursuant to section 70(1) of the Town and Country Planning Act 1990, a local planning authority may grant permission "either unconditionally or subject to such conditions as they see fit". By section 70(2), a local planning authority must have regard to provisions of the development plan so far as is material, and to "any other material considerations".
- Paragraph 206 of the National Planning Policy Framework states that "planning conditions should only be imposed where they are: (i) necessary (ii) relevant to planning and (iii) to the development to be permitted (iv) enforceable (v) precise and (vi) reasonable in all other respects".
- The principles governing judicial applications generally in the planning sphere have been helpfully collected by Lindblom J in Bloor Homes East Midlands v Secretary of State for Communities and Local Government  EWHC 754 (Admin), at paragraph 19. More saliently to the present context, the House of Lords has held that conditions imposed "must be for a planning purpose and not for any ulterior one, and … must fairly and reasonably relate to the development permitted", and further "they must not be so unreasonable that no reasonable planning authority could have imposed them" (see Newbury DC v SSE  AC 578 at 599 (Viscount Dilhorne)). To my mind, this is a straightforward and uncontroversial application of Wednesbury and Padfield principles to the planning context.
- A permission will be quashed if a fundamental condition is ultra vires (see R v Hillingdon BC  QB 720), and severance or "blue-lining" is not in principle permissible (see Pedgrift v Oxfordshire CC  63 P & CR 246).
- Conditions which are not enforceable in practical terms are unlawful (see R v Rochdale MBC, ex parte Milne (No 1)  Env LR 1 (Sullivan J), but those which are merely difficult to enforce are not (see Bromsgrove DC v SSE  JPL 257). In this regard the existence of contractual arrangements which enable or permit enforcement in practice will be taken into account (see R(oao Gosbee) v FSS  EWHC 770 (Admin)).
- Thus far, I have said nothing which is other than axiomatic in this jurisdiction. Where the parties part company is in relation to the interpretation and application of the very recent decision of the Supreme Court in Trump International Golf Club Scotland Ltd v The Scottish Ministers  1 WLR 85 ("Trump"), and its bearing on earlier jurisprudence. Trump was promulgated the day following service of the Claimant's skeleton argument, and has therefore promoted a supplemental document. I will be returning to this case (and to the antecedent case law) when I address and analyse the parties' submissions on the first ground in particular.
- Given the Claimant's proposed fifth ground, I need to touch on this.
- The text of A1P1 is familiar. Insofar as case law needs to be cited, the leading modern Strasbourg decision is that of the Grand Chamber in Depalle v France  EHHR 539, where the following passage appears at 559:
"The court reiterates that, according to its case law, article 1 of Protocol No 1, which guarantees in substance the right of property, comprises three distinct rules (see, inter alia, James v United Kingdom  8 EHRR 123, para 37): the first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and subjects it to certain conditions. The third, contained in the second paragraph, recognises that the contracting states are entitled, amongst other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, are to be construed in the light of the general principle laid down in the first rule (see Bruncrona v Finland  41 EHRR 592 , paras 65–69 and Broniowski v Poland  40 EHRR 495 , para 134)."
- In a deprivation of possessions case, of which the instant case is not an example, the infringement of the A1P1 right will only be justified in exceptional circumstances in the absence of payment of compensation: see James, and Trailer & Marina (Leven) Ltd v SSEFRA  1 WLR 1267.
- In a control of use case, of which the instant case is an example, the broad question is whether a fair balance has been struck between the private interests of the proprietor and the general public interest. In the event that a fair balance has not been struck without reference to it, the presence or absence of compensation is a relevant factor (see Thomas v Bridgend CBC  QB 512, paragraphs 49 and 59).
- In Cussack v Harrow LBC  1 WLR 2022, the Supreme Court held that the state is allowed a "wide margin of appreciation" in the field of land development and town planning, and that "the issue of proportionality is not hard-edged, but requires a broad judgment as to where the "fair balance" lies".
- Mr Boyle was disposed to accept that this court will only intervene if, in its estimation, the interference is deemed to be "manifestly disproportionate" (see paragraph 67 of his main skeleton argument, and footnote 3). In making this concession, Mr Boyle refers to "the tests set out in Thomas". In that case, Carnwath LJ did not explicitly utter such a test. He recorded the submission of the Appellant's counsel as being that the decision under challenge was "manifestly anomalous and unreasonable" (see paragraph 50), and concluded that the result was "so absurd that it undermines the fairness of the "balance" intended by Parliament" (see paragraph 56). To my mind, this endorses the "manifestly disproportionate" approach, which in any event reflects the circumstance that the margin of appreciation in this domain is broad.
- Finally, when assessing proportionality under A1P1, a measure is not rendered disproportionate merely by reason of there being a less intrusive way of achieving the same objective: see, for example, R(oao Clays Lane Housing Co-Operative ltd v The Housing Corporation  1 WLR 2229 (at paragraph 25) and Pascoe v First Secretary of State  1 WLR 885 (at paragraphs 74-75).
The Claimant's Grounds
- These may be summarised as follows:
(1) Condition 5 is unenforceable owing to the lack of an implementation clause.
(2) Alternatively to (1), Condition 5 is unenforceable because the owners and occupiers of the Site have no control over third party land, and its terms are too vague to be enforced.
(3) Alternatively to (1) and (2), Condition 5 would fail to achieve its stated purpose, namely the long-term vitality of the Concourse as outlined in Local Plan policy SP2. Further, in failing to have regard to this matter (and to the sub-issues which arose under this rubric), and/or by dint of the Planning Officer's failure to advise the Committee of them, the Council ignored material considerations.
(4) Condition 5 is manifestly unreasonable because it discriminates against named companies.
(5) Condition 5 is unenforceable because it amounts to a disproportionate interference with possessions, contrary to A1P1.
The First Ground
- It is common ground that a condition which cannot be reasonably enforced is not a reasonable condition for the purposes of the Newbury test, and that a condition which requires the submission of a scheme, or the approval of details, but which lacks an implementation clause requiring the development to be carried out in accordance with the scheme, or those approved details, cannot be enforced.
- Mr Boyle's submission under this first ground started from the premise that Condition 5 does not contain an implementation clause. Retailers' sole obligation under it is to submit a scheme which commits in some way to the retention of a presence at the Concourse Centre. There is no scope for the Council to refuse to approve the scheme on the grounds that it is not legally binding. If, for example, the Council were to invite a retailer to enter into some form of contractual obligation, including a section 106 agreement, that retailer could properly refuse to do so; and, on appeal, the Inspector would be bound to hold that the retailer has discharged Condition 5.
- On my understanding of his submissions, there were really two strings to Mr Boyle's forensic bow, one string being much shorter than the other.
- First of all, Mr Boyle submitted that the verb "commits" in Condition 5 does not import any legally binding commitment or mechanism. To interpret this verb as tantamount to meaning "enter into a contract which provides for" would amount to judicial creativity, not interpretation properly so called. "Commits" is a flexible, wide-ranging term which is apt to accommodate promises and statements of intent which fall short of constituting legally binding obligations. There is nothing in Condition 5, or the wider overall context, which mandates that "commits" should be understood in any prescriptive manner. Indeed, the absence of an implementation clause in Condition 5, and its presence in many other conditions, coupled with the stated reason for the condition, would lead any reasonable reader to conclude that the Council considered that, owing to all the extant practical difficulties, a condition which required a promise or statement of intent was all that could properly be sought in these circumstances.
- Secondly, Mr Boyle submitted that it is impossible to imply into Condition 5 wording which would amount to the (otherwise absent) implementation clause. The principles governing the process of implication of terms are conveniently collected at paragraphs 16-24 of the judgment of Lord Hoffmann in Attorney General of Belize v Belize Telecom Ltd  1 WLR 1988 ("Belize"), passages which have been recently approved in a planning context by the Supreme Court in Trump (see paragraph 35). Although there is no absolute, fixed rule that terms cannot be implied into a planning condition, it a step too far to seek to import into Condition 5 an implementation clause in the manner sought by the Council and the Interested Party, particularly in circumstances where such clauses are to be found elsewhere in this planning permission. In short, Mr Boyle submitted that, subject to attenuating the judicial absolutism evident in the first of these decisions, the law remains as stated by Sullivan J in Sevenoaks DC v FSS  1 P & CR 186 and Beatson LJ (sitting at first instance) in Telford and Wrekin Council v SSCLG  1 EGLR 87.
- Mr Boyle developed these submissions with reference to additional authority, to which I will refer to the extent necessary below.
- Although there were two metaphorical strings to Mr Boyle's bow, it seems to me that he has to succeed in relation to both of them in order to prevail on his first ground. Mr Boyle understandably devoted the majority of his forensic firepower to his second string – here, the merits are stronger, and the law is more complex.
- Mr Maurici's short answers to Mr Boyle's submissions as to the meaning of "commits" were that, in context, the verb means "legally binding commitment", that the reason given for Condition 5 was that it was necessary "to ensure" a certain state of affairs (which would not be ensured if something less than a legally binding commitment were given), and that if there were any ambiguity in the meaning of this term then recourse may be had to the extrinsic material set out in the Planning Officer's report.
- In my judgment, Condition 5 falls to be construed as a matter of law in line with the principles set out in decisions of the highest authority. I was expressly referred to Belize, Arnold v Britton  AC 1619 and Trump, and there are of course many others (see, for example, paragraph 33 of the judgment of Lord Hodge JSC in Trump). Putting to one side at this juncture the connected issues which arise in relation to the implication of terms – which, on Lord Hoffmann's lapidary analysis, is no more than an exercise in discerning what the document means – the basic endeavour is to ascertain the meaning which Condition 5 would convey to a reasonable person having all the background knowledge which would reasonably be available to the relevant audience or reader. This endeavour applies to all species of implied term, save those implied by operation of statute, and no differentiation falls to be made between implications which amount to the spelling out of the obvious, and those which are made to attain business category. In truth, these species have collapsed into one.
- Adopting that approach, the question it seems to me may be formulated as follows: does Condition 5 require (no more) than a non-binding promise or statement of intent on behalf of the retailer, or does it require a legally binding obligation? If the latter, the obligation in question will arise under some form of contractual commitment, probably one underpinned by section 106 of the Town and Country Planning Act 1990.
- Notwithstanding the attractive and forceful way in which Mr Boyle advanced his submissions under this umbrella, I have little hesitation in concluding that Condition 5 requires the giving of a legally binding commitment. Such a commitment is linguistically comprehended within the OED definition of the transitive form of the verb "commit", and is justified by the formal context within which the word at issue is seen to be located. In my judgment, we are not talking about the sort of informal context in which non-binding promises (or, as I suggested in oral argument, matters of "Scout's Honour") would have any sensible place. The stated reason for Condition 5 is "to ensure" that a desired state of affairs is achieved, and to my mind anything short of a legally binding commitment would fail to do that. Indeed, in practical terms Mr Boyle's construction of the condition secures next to nothing, because there is no point in having a bare promise from a retailer which it knows it is free to dishonour. The policy expressed in SP2 of the Local Plan would not be upheld. In short, the world has moved on from the gentlemanly codes which regulated commercial life in the City of London for generations.
- On this approach, the absence of an express implementation clause in Condition 5, and its presence in numerous places elsewhere, is neither here nor there. There is no need for such a clause because retailers must offer legally binding commitments. I should add that the authorities dealing with deficient conditions and implementation clauses do not bear on the issue I am currently addressing, because in none of these does one see the verb "commit".
- Given my conclusion on this textual issue, it is strictly speaking unnecessary for me to express a view on the Council's and the Interested Party's alternative argument, namely that an implementation clause may be implied into Condition 5. If "commits" connotes a legal obligation, the implementation clause is already there. As will become apparent, it is artificial to analyse the issue on the alternative hypothesis that "commits" means something less than a legal obligation. On my reckoning, this argument occupied about 50% of the hearing time. I make absolutely no complaint in this regard, because at no stage until after the conclusion of the oral argument was I in a position to state my conclusion on the first limb of this ground.
- However, it would be wrong in the circumstances for me to say nothing about the implication argument. That would not be doing deference to the skilful submissions that were deployed. In my view, the correct and proportionate approach is for me to set out my conclusions without articulating each and every step in my reasoning.
- Before Trump, there was a robust line of authority which holds that stipulations may rarely, if ever, be implied into planning conditions, and that in this particular context of "incomplete conditions" implementation clauses may not be read into the ex hypothesi deficient wording of the express condition. In Walton-on-Thames Charities (Trustees of the) v Walton & Weybridge UDC  21 P & CR 411 Widgery LJ (for the Court of Appeal) expressed this reticence in terms of an absolute principle. In Sevenoaks DC v FSS  1 P & CR 186 it is arguable that Sullivan J did so, and clear that he was not prepared to imply into a condition an implementation clause of the type required in the instant case, in circumstances where such clauses were evident elsewhere in the relevant planning permission. In Telford and Wrekin DC v SSCLG  EWHC 79 (Admin) Beatson LJ followed Sullivan J's approach and declined to imply into the condition at issue, which was unambiguous, an implementation, enforcement or prohibition clause (see paragraph 34 of his judgment).
- As against that, there was a narrower seam of authority which indicated that implications were possible in certain circumstances. In Crisp from the Fens Ltd v Rutland CC  1 P &CR 48, the Court of Appeal interpolated the adjective "other" into a planning condition in order to reflect the common sense of the transaction and the "real intention and meaning of the parties" (per Bucknill LJ). This was a relatively modest addition, sought to be justified with reference to the language used in the planning permission as a whole. In Hulme v SSCLG  EWCA Civ 638 the Court of Appeal was examining two conditions (Conditions 20 and 21), one of which clearly set out the standards which should be followed in relation to any submitted scheme, whereas the other did not. Elias LJ held, in his view by a process of construing the relevant condition in the light of the planning permission as a whole, including other conditions, that words could safely be inserted into the potentially deficient stipulation. Part of the court's reasoning, but not necessarily integral to it, was that the meaning of the offending condition was "opaque". Elias LJ did discern there to be a tension between Trustees of Walton and Sevenoaks.
- In Trump, the Supreme Court was construing section 36 of the Electricity Act 1989, and not any part of the regime specifically germane to Town and Country planning. The focus of attention was Condition 14, which did not contain any implementation clause. Lord Hodge JSC, giving the judgment of the Supreme Court with which all his colleagues agreed, held that it was unnecessary to imply any term into Condition 14 because there were other legal options which could be utilised to achieve the desired result. However, at paragraphs 33-37 of his judgment, Lord Hodge examined the issue and came to the following obiter conclusions:
(i) the implication of terms is achieved by interpreting the words used in the document in order to ascertain whether it must have been intended that the document would have a certain effect.
(ii) thus, the same methods which the courts deploy for implication of terms into private contractual documents apply to planning permissions and conditions, although the context of the latter means that courts should exercise "great restraint".
(iii) there is no principled reason for excluding implication altogether.
(iv) it follows that Widgery LJ and Sullivan J went too far in holding that there was.
(v) had it been necessary to proceed along this route (because other routes were blocked), he would have held that the inference that Condition 14 required the developer to build in conformity with the design statement would readily have been drawn, because the consent read as a whole pointed inexorably to that conclusion (paragraph 37).
- Having carefully reflected on the matter following the conclusion of the oral argument in this case, it has become clear to me that Lord Hodge's reasoning in paragraph 37 does not depend on any special features of the regime under the 1989 Act, but is based more broadly on general interpretative principles. However, Lord Hodge does not touch on the Telford case, nor does he say in terms that Sullivan J's decision, as opposed to his reasoning, was wrong. Indeed, at paragraph 36 of his judgment, Lord Hodge uses quite cautious language when commenting on one critical aspect of Sullivan J's reasoning.
- Lord Carnwath gave a concurring judgment. Lord Hodge agreed with it in one specific respect (see that referred to under paragraph 51(iii) above, as per paragraph 32 of his judgment), but not more generally. To the extent, therefore, that Lord Carnwath was saying anything different from or in addition to that articulated by Lord Hodge, he should be regarded as expressing obiter opinions in the minority. That said, any judgment from a Justice of the Supreme Court deserves the greatest possible judicial deference at this level of the hierarchy.
- Lord Carnwath's conclusions were as follows:
(i) the decision in Telford was correct, but Beatson LJ should not have attempted to set out principles of general application.
(ii) there is no absolute bar to the implication of terms into planning permissions. Instead, "there is no reason in my view to exclude implication as a technique of interpretation, where justified in accordance with the familiar, albeit restrictive, principles applied to other legal documents" (see paragraph 60). In this regard, the process of interpreting a planning permission does not differ materially from that appropriate to other legal documents, although a relatively cautious approach is required.
(iii) Sullivan J was wrong in Sevenoaks to hold that there was an exclusionary rule, and that a term could not be implied to give a condition efficacy and/or to ensure that it achieved its purpose. That was the approach which the Court of Appeal had correctly applied in Crisp from the Fens.
- Lord Carnwath did not state that Sevenoaks was wrongly decided. Furthermore, he expressly upheld the decision in Telford, which as we have seen was substantially based on the reasoning in Sevenoaks. This creates a potential internal tension within his judgment which others may have to resolve. Moreover, paragraph 70 of his judgment was subject to lively discussion at the Bar, with Mr Boyle firmly submitting that it was tethered to the particular statutory regime under the 1989 Act, and his opponents submitting with equal force that Lord Carnwath must have been intending to express statements of wider application. In the final sentence of paragraph 70, we may see the following:
"Although [Condition 14] does not in terms provide that development must be constructed in accordance with the design statement, such a requirement must as a matter of common sense be implicit, since otherwise the statement would have no practical purpose."
- Given that Lord Carnwath was intending to set out guidance of general application which he appreciated would have to be obiter, it is apparent that it was unnecessary, and probably undesirable, to be overly prescriptive about it, particularly in terms of addressing the correctness or otherwise of earlier authority. No doubt he also recognised that it would be open to first instance judges to place little weight on his guidance, because it could be no more than persuasive.
- Although the language deployed is rather different, I see no real points of distinction between paragraph 37 of Lord Hodge's judgment and paragraph 70 of Lord Carnwath's. Interesting and difficult textual points may arise as to whether Lord Carnwath may have been binding himself to the specific context of the Electricity Act 1989, but ultimately I cannot accept that he was intending to do so, and agree with the forceful submissions of Mr Douglas Edwards QC on this theme. If, as I believe it does, Lord Carnwath's judgment effectively says the same as Lord Hodge's, and the latter was expressing a general view about planning conditions in the wider domain, it seems clear that the former must have been expressing opinions of equivalent generality. It is simply not arguable that Lord Carnwath was propounding a more restrictive approach than Lord Hodge.
- Sullivan J's parsimonious approach has much personal attraction, because it achieves practical certainty in the realm of the interpretation of a public document with stringent consequences, but in my judgment it should be revisited in the light of Trump. Two difficulties remain. First, how should I deal with the point that other conditions in the instant case contain implementation clauses, whereas Condition 5 does not (on this hypothesis, I am proceeding on the footing that my judgment on the meaning of "commits" is incorrect)? Secondly, how do I grapple with the point that Telford has emerged unscathed?
- In my judgment, I should follow Lord Hodge's approach, which leads to the following conclusions. Lord Hodge felt it unnecessary to resolve the tensions in earlier authority or to come to firm conclusions as to whether specific decisions were rightly decided. Like him, therefore, I circumvent these difficulties. Sullivan J's decision in Sevenoaks is, in any event, not binding at this level. Paragraph 34 of Telford is not binding on me either, the decision in that case was founded on different facts, and the principle articulated by Beatson LJ – "the condition is to be construed within the four corners of the consent" – is unimpeachable. The fundamental issue for me is whether the inference or implication arises inexorably from a proper appreciation of the planning permission read as a whole.
- There are two considerations which militate strongly against the suggested implication: first, the presence of implementation clauses elsewhere; and, secondly, the fact that if "commits" means something less than a legal obligation (because ex hypothesi the Claimant has succeeded on the first limb of the first ground), there is considerable force in the argument that it cannot be said that the Council must have intended there to be an implementation clause in a different, implied guise. My mind has wavered on this point. I see the force and common sense of the contention that without the proposed implication Condition 5 would have no efficacy and no practical purpose. However, the key point for me is that if "commits" does not mean "legally enforceable promise", and means something less than that, then Condition 5 as a whole cannot bear the addition of words such as "thereafter, any occupation shall be in accordance with the scheme as approved" – creating in practice a legally enforceable promise. On this approach, had the verb "commits" not been in Condition 5 at all, and the condition under scrutiny been akin to that in Sevenoaks, I would have favoured the implication.
- Accordingly, I conclude, not without some hesitation, that the Council's and the Interested Party's submissions should be rejected on the second limb of ground 1. I must stress, however, the artificiality of this conclusion, inasmuch as it directly flows from their submissions being correct on the first limb.
The Second Ground
- By this ground Mr Boyle submits that Condition 5 is unlawful, being unenforceable on its own terms, because, first, the owners and occupiers of the Site (being the Interested Party and the retailers respectively) have no control over any activities on third party land, being the Concourse Centre. Accordingly, so the submission runs, this is a classic case of a condition which necessarily fails to attain its stated objectives. Secondly, Mr Boyle submits that terminology in Condition 5 such as "retains" and "presence" is simply too vague to be capable of enforcement, because there are no objective, determinative yardsticks to be found anywhere within the four corners of the condition itself. In the absence of proper criteria, an Inspector on appeal would be bereft of algorithms for objective decision making.
- In elaboration of the first limb of this ground, Mr Boyle emphasised the difficulties inherent in the court granting mandatory injunctive relief, and the self-denying judicial ordinances which have been applied since the decision of the House of Lords in Cooperative Insurance Society Ltd v Argyll Stores (Holdings) Ltd  AC 1.
- In my judgment, this ground has little merit and Mr Maurici was able to supply brief and convincing answers to it.
- This second ground only arises if the Claimant fails on its first ground, and the court concludes that the retailers are required to submit schemes which contain legally enforceable obligations to secure compliance. Although the formulation of the second ground mentions "owners and occupiers", the Interested Party has no control over the activities of retailers at the Concourse Centre, and its role is neither here nor there. In practice, the Council would probably be requiring retailers to enter into section 106 agreements committing them to retain a presence at the Concourse Centre for the relevant period. In London Borough of Newham v Ali  EWCA Civ 67, Lord Dyson MR for the Court of Appeal held that where there has been a substantial breach of a planning obligation under section 106 (and, one might add, a contract not under section 106 but to like effect), an injunction will normally be granted unless inequitable to do so. In the instant case, as it happens, the injunction need not be mandatory in form or substance; it would be sufficient to uphold the section 106 obligation to prevent a recalcitrant retailer (who has abandoned the Concourse Centre) from trading at the Site.
- As for the second limb of the second ground, Mr Maurici reminds me of the famous dictum of Lord Denning in Fawcett Properties Ltd v Buckingham CC  AC 636 (at 678) that "a planning condition is only void for uncertainty if it can be given no meaning or no sensible or ascertainable meaning". Further, in Bromsgrove v SSE  JPL 257, Mann J held that the potentiality of difficulties in enforcement did not mean that a condition was void for uncertainty.
- Here, retailers will be required to submit schemes which clearly set out their proposals in relation to continued, or – if they had left within the previous 12 months – subsequent occupation of the Concourse Centre. In the event of dispute about the reasonableness of the scheme submitted, the Inspector on appeal would have to exercise a planning judgment based on considerations such as the nature of the retailer's business, the nature and extent of current occupation, and likely economic and business trends. Given that retailers' businesses differ, it is impossible to be prescriptive about these matters ex ante. In my judgment, Condition 5 is not too vague to be enforced because an appropriate mechanism exists for the making of and adjudication upon reasonable planning judgments.
The Third Ground
- By his third ground Mr Boyle submits that the practical difficulties are such that Condition 5 will not and cannot achieve its intended objectives, and that in any event there is no evidence that these difficulties were properly addressed as material considerations within the ambit of members' planning judgment.
- As before, this ground possesses two limbs. Mr Boyle accepts that this ground only arises if he fails to persuade me on his first and second grounds, which is indeed the position.
- Mr Boyle cites three practical difficulties. First, he contends that there is nothing to prevent a retailer trading through a subsidiary or connected company at the Site, thereby circumventing the need to submit a scheme under Condition 5: occupation of the Concourse Centre could simply cease. Secondly, the point is made that the obligation to retain a presence carries no obligation of retail effectiveness. Thirdly, it is argued that the condition could in no practical sense or manner control shopping behaviour, and the probability that consumers will choose to shop at the site rather than the Concourse Centre.
- In relation to his second limb, Mr Boyle relies on the decision of the Administrative Court in R(oao Helford Village Development Company Ltd) v Kerrier DC  EWHC 44 (Admin), where at paragraphs 30-40 of his judgment HHJ Michael Kay QC examined section 70(2) of the 1990 Act and explained that the ability to enforce a condition is a material consideration which falls to be taken into account as a matter of planning judgment. There is no evidence, so the submission runs, that the Council did so.
- As with the previous ground, I consider that Mr Boyle's submissions were not persuasive, and I agree with the submissions of Mr Maurici for rejecting them.
- My point of departure is that the Council's judgment that Condition 5 is capable of being effective is challengeable only on Wednesbury grounds. I am unaware that the possibility of retailers setting up subsidiary companies to circumvent Condition 5 was ever raised by objectors before planning permission was granted in June 2015. In any event, I agree with Mr Maurici that the language of Condition 5 is wide enough to cover such companies set up with the sole or main purpose of evading the condition. The term "retailer" in the condition is not tethered to any particular corporate incarnation. Mr Boyle's second submission under this rubric is a reformulation of his second ground, and his third submission leads nowhere: that the market might prefer the new Site to the Concourse Centre is inevitable, and Condition 5 does the best it reasonably can to alleviate the consequences of this.
- This leaves Mr Boyle's second-string submission that these practical difficulties should, at the very least, have been addressed at the planning committee meeting so that a proper planning judgment could be made on all material considerations. Here, regard must be had to the way in which this facet of ground 3 was formulated in the Claimant's Statement of Facts and Grounds. The point being made was that the planning committee was significantly misled by the Planning Officer's report, which failed to contain any proper analysis of the difficulties; it merely asserted that the imposition of Condition 5 would achieve adherence to the aims and objects of Local Plan Policy SP2. In Helford, the planning permission was quashed on this very basis.
- In the more recent case of R(oao Nicholson) v Allerdale BC  EWHC 2510 (Admin), Holgate J relied in this regard on the dictum of Judge LJ in Samuel Smith Old Brewery (Tadcaster) v Selby DC [18/4/97] where he said this:
"An application for judicial review based on criticisms of the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken."
- I agree with Mr Maurici that this high bar is not surmounted on the facts of the instant case. Unlike Helford, the practical difficulties were not patent and challenging; indeed, I have found in terms that those put forward by this Claimant are either illusory or irrelevant. There is nothing to suggest that members were misled by the report. In any event, Mr Harrison informs me that there was discussion at the meeting about the enforceability of Condition 5. The extent of those discussions is unclear, but in my judgment no judicial review point arises, particularly in view of the manner in which the Claimant's case was pleaded.
The Fourth Ground
- In refusing permission on this ground (as on the fifth ground), Holgate J observed that it was "completely unarguable". Mr Boyle may be entitled to submit that Holgate J did not supply any reasons for this conclusion, but the fact remains that the Claimant faces the uphill task of persuading me that the trenchantly expressed views of an extremely experienced planning judge are erroneous. In line with my judicial obligation to approach the issue with an open mind, I naturally do so; but, having done so, I may say that I have come to the same conclusion. I did not require help from Messrs Maurici and Edwards on these grounds. Frankly, they should really have been abandoned once Holgate J's decision became available. As befits an oral application for renewal in the Planning Court, a brief statement of reasons is required, and will be given. However, as I am refusing permission on this ground (and on ground 5), I am capable of being succinct.
- Mr Boyle's submission, in a nutshell, is that Condition 5 is manifestly unreasonable because it discriminates against 18 named retailers who occupy retail floorspace greater than 250 m² (assessed in terms of gross external area). Smaller competitors are subject to no such restriction. Condition 5 – so the submission runs – therefore interferes with the running of these 18 particular businesses as it places restrictions on how, and from where, these particular businesses may trade.
- In my judgment, the impact of Condition 5 is not discriminatory in any legally relevant way. By this I mean a respect which the law regards as objectionable, because it is arbitrary.
- My starting point is that in principle there is a distinction between (i) a condition which, without more, obliges a company to trade from a particular site, and (ii) a condition which ties the ability to trade on one site to the continuance of trading at another. The purpose of Condition 5 (which is clearly an example of the second genus of condition) is to minimise the risk of retailers relocating from the Concourse Centre to the Site, and correlatively, to protect existing businesses within the town centre. Plainly, this amounts to a legitimate planning purpose, notwithstanding that its consequences will restrain competition and might be unevenly distributed. In my judgment, it is not unreasonable to focus on the larger retailers for this purpose. They are not being singled out because they happen to be Boots, Iceland and Superdrug etc., but because the consequences of their abandoning the Concourse would clearly be greater than if smaller retailers were to do so. The Defendant would not have been acting unlawfully if it applied Condition 5 across the board, but in my view it was entitled to be pragmatic and to ignore for these purposes the smaller units. Paragraph 6.20 of the Planning Officer's first report stated that the "loss of any of the main retailers would represent a serious blow", and recommended the imposition of controls designed to secure the long-term presence of the "larger and key retailers". This line of thinking is reflected in the reason for Condition 5 set out in the planning permission itself (see paragraph 18 above). Finally, although I agree with Mr Maurici that it is somewhat rich that the Claimant is taking this point, rather than any of the affected retailers (who, as it happens, are not), I am not persuaded that this ground could not be properly advanced in these proceedings if it were otherwise sustainable.
- It became clear during oral argument that, save to the extent that the court determines the issue for itself rather than defers to the decision-maker, ground 5 cannot succeed if ground 4 fails.
- The Claimant's core submission under this rubric is that Condition 5 interferes with the running of the businesses caught by it, contrary to A1P1, because it impinges on "the disposal of possessions where they have become a liability to [them]". A "control on use" is an interference for these purposes (see Sporrong and Lönnroth v Sweden  5 EHHR 35), and is manifestly disproportionate, being unfair, discriminatory against the named retailers who cannot relocate, far from being the least intrusive impingement on the human right in question, and cannot be compensated. Put in these terms it is clear that the focus of this ground is the contention that the Defendant is discriminating against named retailers.
- I accept Mr Boyle's submission that it is not fatal to this ground that the Claimant is not a "victim" as defined in the Human Rights Act 1998. The manner in which the ground is advanced is that Condition 5 could not be enforced against the retailers because they, qua victims, would take the point at the enforcement stage that the Defendant is acting in breach of A1P1 by taking such steps.
- However, the linchpin of the Claimant's case under this ground is that Condition 5 operates in a discriminatory manner which cannot be justified. For the reasons given under paragraph 79 above, in my judgment it can be. Further, the fact that less intrusive measures might be taken is not the point (see paragraph 33 above), neither is it critical that compensation is not payable in these circumstances (see paragraph 29 above).
- It is notable, in my judgment, that the final sentence of paragraph 67(3) of the Claimant's skeleton argument makes explicit the true nature of its agenda, namely that the Defendant should be supporting measures to improve the retail offer at the Concourse Site.
- I am grateful to all counsel for the clarity and economy of their submissions.
- For the reasons I have given, I must refuse permission on grounds 4 and 5. I have found against the Claimant on grounds 1-3, and this application for judicial review must therefore be dismissed.
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