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Retail conditions and redevelopment

Tick iStock 000013381987XSmall 146x219The Court of Appeal has rejected a legal challenge to a retail condition relating to the redevelopment of a town centre. James Maurici QC explains why.

The Court of Appeal has handed down judgment in R (Skelmersdale LP) v West Lancashire BC & Anr [2016] EWCA Civ 1260. The Court (Sales and Briggs LJ) dismissed the appeal against the judgment of Jay J. ([2016] EWHC 109 (Admin).) 

The judicial review aimed at a condition in a permission granted for a new retail-led development on land measuring approximately 5 hectares in Skelmersdale Town Centre. 

The challenge focussed on a condition (Condition 5) which provided: 

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“(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.”  

There were three grounds of appeal: 

  1. Condition 5 is unenforceable owing to the lack of an implementation clause. 
  2. Alternatively to (1), Condition 5 is unenforceable 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/or by dint of the Planning Officer’s failure to advise the Committee of them, the Council ignored material considerations. 

The Court rejected all of these grounds. Click here.

James Maurici QC is a barrister at Landmark Chambers. He appeared for West Lancashire Borough Council.

Nathalie Lieven QC, also of Landmark Chambers, appeared for the Appellant, Skelmersdale LP.

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