‘Calculated Deceit’ doesn’t add up for Retail Developer
The Supreme Court has recently thrown out a legal challenge by the owner of a Lancashire retail park hoping to expand the site.
Peel Holdings wanted to open food and clothing stores alongside the electrical and furniture shops at the Whitebirk Retail Park near Blackburn and applied for certificates of lawfulness to enable it to carry out a £16million reconfiguration of the site. However, the Council refused to grant the certificates arguing that town centre shops could lose trade. Peel’s application for a judicial review of the Council’s decision was refused and Peel subsequently attempted to appeal the Court of Appeal’s decision not to grant the judicial review but this application was also refused by the Supreme Court.
The key argument centred on restrictions in the s.106 agreements linked to the original planning permission for the retail park. Peel had entered into two s106 agreements with the Council which restricted the goods that could be sold by the retail units, limiting the retail park to bulky goods trading. In an attempt to introduce fashion and food retailers, Peel argued that these restrictions had been ‘wiped out’ by subsequent planning permissions and that the units could therefore be redeveloped for A1 use.
In what the Blackburn MP Jack Straw called a ‘calculated deceit’, Peel made subsequent planning applications in relation to works to the individual retail units (which were all granted by the Council) with the intention of ‘getting around’ the s.106 restrictions. These later planning permissions did not include any conditions or restrictions on the kinds of goods that could be sold from the units. Peel therefore argued that these subsequent permissions released it from the obligations in the s106 agreements.
The Court took the view that the Peel’s planning strategy had been to ‘establish that, without seeking and obtaining specific permission from the Council for a change of use, it is entitled to rely on a series of subsequent individual planning permissions granted by the Council for physical adjustments to the units in the Peel Centre in order to secure release from use restrictions, to which it agreed in order to obtain its original planning permission from the Council to build the units at the Peel Centre.’
This strategy was not however a lawful one according to the Court and therefore this case suggests that retailers cannot rely on subsequent permissions unrelated to use to provide a wider planning consent than was originally granted, and that this type of later application(s) cannot be used to circumvent original use restrictions.