The recent case of R (Skelmersdale Limited Partnership) v West Lancashire Borough Council and another [2016] EWHC 109 (Admin) has made it crystal clear that conditions imposed by a local planning authority are a powerful tool in helping to ensure potential tenants of new retail space cannot abandon the old in favour of the new.

The case concerned a planning permission granted for the construction of a new shopping centre intended to revitalise the retail offering in Skelmersdale. One of the conditions attached to the permission provides that occupiers of larger units (those in excess of 250sqm GEA) in the existing shopping centre, the Concourse Shopping Centre, are not able to occupy space in the proposed development unless a commitment to retaining a presence in the Concourse for at least five years is approved by the LPA. Retailers who have occupied a larger unit in the Concourse in the previous twelve months are also prevented from occupying the new development.

The owner of the Concourse applied to the Court for judicial review in respect of the condition on the following five grounds:

  1. Due to a lack of implementation clause, the condition would be unenforceable.
  2. As the owners and occupiers of the new development have no control over the Concourse, the condition would be unenforceable.
  3. The condition would fail to achieve its stated purpose of maintaining the viability of the Concourse and that these difficulties were not properly addressed by the LPA.
  4. The condition was manifestly unreasonable as it would discriminate against named companies.
  5. The condition was unenforceable as it would be in breach of Article 1 Protocol 1 of the ECHR (the right to peaceful enjoyment of possessions in accordance with the law).

The challenge failed on all grounds.

On ground 1, the Court held that the condition would be enforceable as it required that a retailer would be required to enter into a legally binding commitment to stay at the Concourse, most probably in the form of a Section 106 obligation. As a result, an express implementation clause would not be required to make the condition enforceable.

On ground 2, the Court held that any breach of a legally binding commitment could be enforced by way of injunction, preventing a trader operating at the new development in breach of the condition and that this means of enforcement was sufficient.

On ground 3, the Court held that the claimed practical difficulties in achieving the stated aim were in fact illusory or surmountable. That shoppers might take their business elsewhere is a commercial reality and the LPA could do no more to prevent this.

The outcome of this case is important for two reasons. First, it clarifies that the level of apparent vagueness required for a condition to be unenforceable is a high one, and second it makes it clear that there is no scope for retailers to attempt clever tricks to avoid such restrictions.