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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Skelmersdale Ltd Partnership, R (on the application of) v West Lancashire Borough Council & Anor [2016] EWHC 109 (Admin) (27 January 2016) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2016/109.html Cite as: [2016] EWHC 109 (Admin) |
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QUEEN'S BENCH DIVISION
PLANNING COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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R (oao SKELMERSDALE LIMITED PARTNERSHIP) |
Claimant |
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- and – |
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WEST LANCASHIRE BOROUGH COUNCIL -and- ST MODWEN DEVELOPMENTS (SKELMERSDALE) LTD |
Defendant Interested Party |
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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
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Crown Copyright ©
MR JUSTICE JAY:
Introduction
"(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."
Essential Factual Background
"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]
"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].
"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] "
"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."
"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."
Legal Framework
General
A1P1
"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 [1986] 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 [2004] 41 EHRR 592 , paras 65–69 and Broniowski v Poland [2004] 40 EHRR 495 , para 134)."
The Claimant's Grounds
(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
(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).
(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.
"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."
The Second Ground
The Third Ground
"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."
The Fourth Ground
Ground 5
Conclusion