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Rare Planning Condition to Protect Shopping Centre’s Viability Is Valid

Planning permissions can be subject to a wide range of conditions that are designed to minimise harm and maximise public benefit. In a guideline decision, the Court of Appeal confirmed the validity of a very unusual condition that was designed to protect the vitality and viability of a shopping centre.

As part of an urban regeneration scheme, a local authority granted planning permission for a new shopping centre (centre A). The owners of an existing shopping centre in the same town (centre B) had objected to the proposal, fearing that it would be abandoned by its retail tenants, who would be tempted to move to centre A.

In response to those concerns, the council attached a condition to the consent which required that space in centre A should not be occupied by retailers who already rented premises measuring more than 250 square metres in centre B, or had done so in the 12 months prior to centre A’s completion. The condition would remain in force for five years, but would be disapplied if retailers committed to retaining their presence in centre B during the relevant period.

In challenging the permission, the owners of centre B argued that the condition was so vague as to be unlawful and ineffective to achieve its intended objective. The advice given to councillors by a planning officer in respect of the condition was also said to be neither accurate nor adequate.

Those arguments were, however, rejected by a judge and, in dismissing the owners’ appeal against that decision, the Court found that the condition had a definite meaning and provided effective protection for centre B. Relevant retailers would be required to give legally binding commitments to the council that they would not abandon centre B whilst the condition remained in force. Councillors had also not been materially misled by the officer’s advice.