R (oao Skelmersdale Ltd Partnership) v West Lancashire Borough Council St Modwen Developments (Skelmersdale) Ltd (Interested Party)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Jay
Judgment Date27 Jan 2016
Neutral Citation[2016] EWHC 109 (Admin)
Docket NumberCase No: CO/3372/2015

[2016] EWHC 109 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Jay

Case No: CO/3372/2015

Between:
R (oao Skelmersdale Limited Partnership)
Claimant
and
West Lancashire Borough Council
Defendant

and

St Modwen Developments (Skelmersdale) Ltd
Interested Party

Christopher Boyle QC and Andrew Parkinson (instructed by Higgs & Sons) for the Claimant

James Maurici QC (instructed by Matthew Jones, Legal and Members Services Manager) for the Defendant

Douglas Edwards QC and Sarah Sackman (instructed by Winkworth Sherwood LLP) for the Interested Party

Hearing dates: 19 th and 20 th January 2016

Mr Justice Jay

Introduction

1

The target of this application for judicial review is a condition attached to a planning permission granted by the relevant Local Planning Authority on 5 th June 2015.

2

The parties to this application are: (i) the Claimant, being the owner of the Concourse Shopping Centre, the Concourse, Southway, Skelmersdale, Lancashire ("the Concourse Centre"); (ii) the Defendant, being the relevant Local Planning Authority ("the Council"); and, (iii) the Interested Party, being the applicant for planning permission for a new retail-led development on land measuring approximately 5 hectares in Skelmersdale Town Centre, namely land to the South of Ingham, Birch Green, Skelmersdale ("the Site"). The Council is also owner of part of the site.

3

The condition at issue is Condition 5, providing as follows:

"(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."

4

Holgate J granted permission on the Claimant's grounds 1–3 but refused it on grounds 4–5. Given that the Claimant has renewed its application for permission on the refused grounds to this court, it is appropriate that these should addressed on a "rolled-up" basis.

5

The application turns on matters of law which do not require a lengthy judicial prologue. I need to set out the necessary context, and I may do this by drawing quite heavily on the parties' helpful skeleton arguments, interpolating where appropriate specific points on which emphasis was placed during oral argument. The witness statements of Joanne Salmon (for the Claimant) and John Harrison (for the Council) assist to the extent that they exhibit relevant documentary materials, but do not avail me to the extent that they purport to contain opinion evidence as to the meaning and purpose of these documents.

Essential Factual Background

6

For many years now, the town centre of Skelmersdale has been somewhat run-down and tired, and planners have been searching for ways to revitalise the area and to provide a focus for the retail and recreational activities of some 40,000 inhabitants.

7

The Concourse Centre was constructed in the 1960s. I was shown photographs, and Mr Christopher Boyle QC for the Claimant aptly described it as "mall-based and outdated, of its time and of its type". Plainly, and as Ms Salmon observes at paragraph 7 of her first witness statement, it is particularly vulnerable to a new shopping centre with better parking arrangements.

8

Policy SP2 in the Local Plan adopted in October 2013 sets out the Council's policies in relation to Skelmersdale Town Centre. Insofar as is material, it provided as follows:

"Proposals for the enhancement, regeneration and redevelopment of Skelmersdale Town Centre within the Strategic Development Site defined on the Proposals Map will be supported. A revitalised Skelmersdale Town Centre is vital to the wider regeneration of the town.

The following should form the key principles for any development proposals:

Make Skelmersdale a leisure, recreational and retail centre of excellence within the North West…

The following are the key development aims of the strategic site:

To enhance the Town Centre offer and to ensure the long-term vitality and viability of the Town Centre, including the Concourse Centre, new development is required to link the Concourse and Asda/West Lancashire College and must include a range and mix of uses including retailing (food and non-food), leisure, entertainment (including a cinema), office space, residential and green space. Any scheme should not harm the viability and vitality of the Concourse Centre and must provide sufficient linkage to the Concourse." [emphasis supplied]

9

On 3 rd November 2014 the Interested Party applied for planning permission for the "erection of a mixed use development including a foodstore, A1 retail units, D2 cinema, A3 restaurants, A4 public house, mixed commercial uses (to include small scale retail uses, financial services with food and drink uses (Use Classes A1/A2/A3/A5), car parking along with new public realm, children's play area and associated landscaping, earthworks, infrastructure, access, ancillary works and utilities" ("the St. Modwen Development").

10

The application for planning permission was accompanied by a Planning & Retail Statement, commissioned by the Interested Party, and prepared by Aylward Town Planning Ltd. This, together with an addendum report, concluded that there would be planning benefits attendant on the St. Modwen Development, and that the town centre could not be revitalised and market share enhanced without new building, but that it would inevitably have an adverse impact on trade in existing stores in Skelmersdale Town Centre assessed at approximately £12m in the design year, "prior to any account being had for positive multipliers that could be accrued through the enhanced trading profile of the centre". The Addendum also noted that Aldi and Home Bargains, both current tenants of the Concourse Centre, intended in addition to trade at the Site as part of a "two-store strategy". This intention was evidenced by letters from these retailers.

11

On 25 th November 2014 the Council commissioned Peter Brett Associates LLP ("PBA") to advise on the application. PBA provided two reports. By its first report dated 2 nd December 2014 PBA concluded that there was a realistic prospect that existing retailers might desert the Concourse Centre for the Site, and that this "would represent a blow to the Concourse Centre". A number of substantial players, currently operating from the Concourse Centre, were minded to operate stores at the Site. PBA noted that Aylward's figures were based on the premise that all retailers currently based at the Concourse Centre would remain in situ; the position would be worse otherwise. The departure of two anchor stores, Home Bargains and Wilko, would "represent a significant loss", and PBA recommended that some form of controls should be emplaced to secure the long-term presence of these entities at the Concourse Centre.

12

In this latter regard Ms Salmon asserts that retention of a "presence" would not, without more, avail the vitality and viability of the Concourse Centre. She contends that retailers would be likely to open a new store at the Site and retain only a shadow presence at the Concourse for the duration. At paragraph 19 of her first witness statement, she refers to this as a "defensive strategy" which would be commercially attractive to the larger retailers.

13

On 9 th February 2015 PBA's second report noted that "we believe that the Council could justifiably impose appropriate restrictions to the permission to protect the Concourse Centre", and that for PBA to endorse the scheme as acceptable " there would need to be a proper mechanism in place capable of ensuring that key retailers will [not] simply relocate from the Concourse Centre to the application scheme" [emphasis supplied]. PBA's overall conclusion was as follows:

"Given the material changes outlined above, we consider that, if the Council was minded to approve the current application, it would be justifiable for the Council to impose appropriate restrictions to the permission to protect the Concourse Centre. Without such controls, it is conceivable that anchor retailers such as Home Bargains could assign their existing leases at the Concourse Centre to enable them to trade from newer purpose-built premises at the St Modwen scheme, and we would regard that as seriously harmful.

Accordingly, our overall summary is that whilst there is no retail planning policy basis to resist the current St Modwen application, we firmly recommend that the Council should discuss potential controls with the applicant in order to ensure the long-term vitality and viability of the Concourse Centre, using criterion 2 (i) of Local Plan Policy SP2 as the basis for those discussions. If the applicant was unwilling to accept restrictions along these lines then we would have serious reservations given the current, fragile state of the Concourse Centre." [emphasis supplied].

14

PBA also noted, as was fairly self-evident, that the existing letters from Home...

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