Skelmersdale Ltd Partnership, R (On the Application Of) v West Lancashire Borough Council & Anor

A planning condition must be construed objectively, by reference to its natural and ordinary meaning, the permission as a whole, its purpose, related conditions and common sense. A requirement that a retailer submits a scheme which commits it to retain its presence means a legally binding obligation. Retaining that presence means retaining the substance of the retailer’s existing activity, not merely some minimal presence. A condition may be effective where contractual obligations under section 106 of the Town and Country Planning Act 1990, supported by negative injunctive relief, can secure its purpose. A judicial review challenge to planning officers’ advice normally requires significant misleading effect on the committee about material matters left uncorrected before the decision.

West Lancashire Borough Council granted St Modwen Developments (Skelmersdale) Ltd planning permission for a retail-led town-centre development. Condition 5 restricted occupation of the new retail floorspace by significant retailers already occupying the Concourse Centre, unless they undertook to retain their existing presence there.

The owner of the Concourse Centre sought judicial review. Jay J dismissed the claim. The appeal challenged the meaning, certainty, enforceability and practical effectiveness of condition 5, and the adequacy of the advice given to the planning committee. The central issue was whether the condition was lawful and effective to protect the vitality and viability of the existing centre.

1. Appeal dismissed. Briggs LJ agreed with Sales LJ. The High Court’s dismissal of the judicial review claim was upheld on all four grounds.
2. Construction. The court applied the guidance in Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74; [2016] 1 WLR 85. The interpretation of a planning condition is objective. The court asks what a reasonable reader would understand from the wording in the context of the permission as a whole, having regard to natural and ordinary meaning, purpose, other conditions and common sense. Publicly available application and officer materials may be legitimate, although the scope for extrinsic material is limited.
3. The word commits in condition 5(ii) required the retailer’s scheme to contain a legally binding obligation to retain its presence in the Concourse Centre. Conditions 3 and 4 expressly contained implementation clauses. Their presence reinforced the conclusion that no such clause was needed in condition 5(ii), because the word commits already conveyed legal enforceability.
4. Effectiveness and certainty. A scheme could operate through direct contractual obligations entered into pursuant to section 106 of the Town and Country Planning Act 1990. The court rejected the objection based on difficulties in obtaining specific performance of a contract to carry on business, identified in Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] AC 1. Enforcement could instead use a negative covenant preventing occupation of the new site unless the retailer retained its existing presence, enforced by negative injunction.
5. “Retaining their presence” meant retaining the substance of the retailer’s presence at the level and at the time specified in condition 5(i), rather than merely retaining some presence. A refusal to approve a less stringent scheme would be lawful, and an Inspector adopting the contrary construction would be vulnerable to statutory review. The parties agreed that changed circumstances could permit waiver, variation or release of the restrictions.
6. Planning advice. Applying Oxton Farms v Selby District Council unreported 18 April 1997, the officer reports and committee discussion did not significantly mislead members about material matters. No further explanation was required.

• Court of Appeal (Civil Division): Appeal dismissed on 8 December 2016.
• High Court (Queen’s Bench): Jay J dismissed the judicial review claim challenging condition 5.