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Retail planning conditions and Trump

Project iStock 000000224397XSmall 146x219A High Court judge has upheld a retail planning condition and examined the application of the Trump case in the Supreme Court. Douglas Edwards QC and Sarah Sackman look at the key issues.

In Skelmersdale Ltd Partnership, R (on the application of) v West Lancashire Borough Council & Anor [2016] EWHC 109 (Admin) Mr. Justice Jay dismissed an application for judicial review of a planning permission for a retail-led regeneration scheme of Skelmersdale Town Centre.

The central issue in the case was whether a planning condition imposed by the local planning authority was lawful and capable of being enforced. The aim of the condition was to protect the viability of an existing shopping centre by preventing retailers currently operating from that centre from occupying retail space within the new development without first submitting a scheme for the authority’s approval committing themselves to retaining a retail presence in the old shopping centre for at least five years.

The condition attached to the planning permission required the retailers who wished to take up floorspace in the new development to submit to the LPA a scheme to “commit” to remaining in the existing shopping centre and for that scheme to be approved by the LPA. The condition did not however contain a specific implementation clause requiring the commitment to be complied with following its approval.

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The judge held, nothwithstanding the absence of such a clause, the word “commits” in this context, read in light of the planning authority’s reasons for imposing the condition, must mean that the retailer was required to enter into a “legally binding mechanism” with the council against which compliance could be enforced (para. 45).

He also expressed a view (obiter) on whether an implementation clause could, in any event, have been implied into the condition to give it efficacy in light of the Supreme Court’s recent decision in Trump International Golf Club Scotland Ltd v The Scottish Ministers [2016] 1 WLR 85.

In Trump both Lord Hodge JSC and Lord Carnwath JSC set out guidance (also obiter) on the approach to the interpretation of planning conditions and the extent to which implication may be used as an interpretative technique where a condition is “incomplete”. In Trump the court moved away from the principle of an absolute bar on implying terms into planning permissions expressed in cases such as Sevenoaks.

Although the Trump case concerned a consent under the Electricity Act 1989, Jay J treated their Lordships' pronouncements as having a wider application to the construction of planning permissions granted under the TCPA 1990. He found at para. 59 that the fundamental issue was whether the inference or implication arises inexorably from a proper appreciation of the planning permission read as a whole.

Douglas Edwards QC and Sarah Sackman are barristers at Francis Taylor Building. They appeared in the High Court for the successful Interested Party, St Modwen Developments, instructed by Joanne Hannah, of Winkworth Sherwood.

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