Skelmersdale Ltd Partnership, R (on the application of) v West Lancashire Borough Council & Anor

A planning condition requiring a retailer to submit a scheme committing it to retain a presence at an existing centre requires a legally binding commitment, not merely a statement of intention. A condition may be interpreted in the light of the planning permission as a whole, and there is no absolute rule against implying terms, although judicial restraint is required.

A condition is not unlawful merely because enforcement may be difficult, or because its practical effect cannot guarantee its planning objective. A condition directed at retaining larger retailers may legitimately restrain competition and affect businesses unevenly where it serves a proper planning purpose. Under A1P1, town-planning decisions attract a broad margin of appreciation and intervention requires manifest disproportionality.

The claimant, owner of the Concourse Shopping Centre, sought judicial review of a planning condition attached to permission granted by West Lancashire Borough Council for a competing retail-led development. Condition 5 restricted occupation of the new retail floorspace by larger retailers already occupying the Concourse unless they submitted a scheme committing them to retain a presence there for five years.

Permission was granted on grounds 1 to 3 but refused on grounds 4 and 5 by Holgate J. The claimant renewed its application for permission on the refused grounds, which were heard on a rolled-up basis. The issues were whether the condition was legally enforceable and sufficiently certain, whether the Council had adequately addressed practical difficulties and material considerations, and whether the condition was manifestly unreasonable or disproportionate under A1P1.

1. Outcome. The renewed application was refused on grounds 4 and 5. Grounds 1 to 3 failed, and the claim for judicial review was dismissed.
2. Construction and enforceability. Under section 70 of the Town and Country Planning Act 1990 and paragraph 206 of the NPPF, a condition must be necessary, relevant, enforceable, precise and reasonable. Condition 5 was construed for a reasonable reader with the relevant background knowledge. In context, “commits” required a legally binding obligation, probably secured by a section 106 agreement. A non-binding promise would not ensure the state of affairs identified in the condition’s reason.
3. Implied terms. The absence of an express implementation clause did not invalidate the condition because the legal commitment was already comprehended by the word “commits”. If that word had meant something less than a legal obligation, an implementation clause could not be implied on the facts. Following the approach explained in Trump International Golf Club Scotland Ltd v The Scottish Ministers, there is no absolute bar to implication in planning permissions, but any implication must arise inexorably from the permission read as a whole.
4. Enforcement and certainty. The condition was not defeated by the retailers’ lack of control over the Concourse or by the possible need for injunctive relief. A substantial breach of a section 106 obligation would normally attract an injunction unless inequitable. Nor were “retains” and “presence” too vague. The Council or an inspector could make a planning judgment having regard to the retailer’s business, its existing occupation and economic and business trends.
5. Planning judgment. The condition was capable of mitigating, although not eliminating, the risk of relocation. The term “retailer” was broad enough to include subsidiary companies established mainly to evade the condition. The alleged practical difficulties were either illusory or irrelevant, and the high threshold for showing that a planning officer’s report significantly misled the committee was not met.
6. Equality and A1P1. Focusing on larger retailers was not legally arbitrary. Their departure would have a greater effect on the existing centre, so the condition served a legitimate planning purpose even though it restrained competition and operated unevenly. The condition was a control on use attracting a broad margin of appreciation. It was not manifestly disproportionate merely because less intrusive measures might have been available or compensation was unavailable.

High Court (Administrative Court): Holgate J granted permission on grounds 1–3 and refused it on grounds 4–5. The renewed application on grounds 4–5 was heard on a rolled-up basis. Mr Justice Jay refused permission on grounds 4–5, rejected grounds 1–3, and dismissed the judicial review claim.