Town Centres Win Protection in Court of Appeal Judgment

Article

Posted by , on

Summary: The long-awaited Court of Appeal decision regarding an appeal brought by Peel in relation to its out-of-town retail park in Blackburn has been released today. This is a significant case for retailers involving the enforcement of bulky goods restrictions in existing planning agreements. Christian Drage and Sarah Fitzpatrick, who advised one of the interested parties, explain the background of this decision and discuss its implications for retailers.

You should read this if you are involved in retail planning and in particular if you have been following the Court of Appeal case brought by Peel in relation to its out-of-town retail park in Blackburn. 

The 20-second summary

Peel argued that it had been released from a bulky goods restriction in a planning agreement because it had triggered a ‘release clause’ in the agreement following  the grant of subsequent planning permissions to allow modifications to existing retail units.  They argued that this was because the subsequent permissions either did not specify the use or a ‘blanket’ retail use was specified which meant that the new permissions granted open A1 retail use.

The Court of Appeal decided in favour of counter arguments put forward by  Hynburn Borough Council and other interested parties and enforced the bulky goods restriction.  All sides explored in great detail the law and facts around what ‘development’ meant for the purposes of triggering the ‘release clause’ in the planning agreement.  Separate points were made on the nature and extent of the planning doctrine – ‘a new chapter in the planning history’ – and its ability to release developments from previous planning restrictions.

Background

The Court of Appeal today released its long-awaited judgment in a case brought by Peel relating to its Blackburn out-of-town retail park.  As we set out in our previous blog, we have been advising the owners of The Mall shopping centre in Blackburn town centre, one of the interested parties in this case.  Today, the Court of Appeal dismissed all of Peel’s arguments in its appeal of the High Court’s order.

Peel argued that it had been released from a bulky goods restriction in a planning agreement. The argument centred on the proposition that subsequent planning permissions to allow modifications to existing retail units, which either did not specify the use or where a ‘blanket’ retail use was specified, meant that the new permissions granted open A1 retail use. The planning agreement contained a common proviso limiting the restrictions to the development at that time, and not binding future development.  Peel argued that when subsequent permissions for the modifications were granted, those new permissions engaged the proviso, and the bulky goods restriction was released.

All sides explored in great detail the law and facts around what “development” means for the purposes of triggering the proviso in the planning agreement.  Separate points were made on the nature and extent of the planning doctrine – ‘a new chapter in the planning history’ – and its ability to release developments from previous planning restrictions.

Hyndburn Borough Council, neighbouring Blackburn with Darwen Borough Council and owners of The Mall shopping centre in Blackburn town centre, joined forces to oppose Peel’s case.

Court of Appeal holds that the permissions granted subsequent to the S106  restriction do not open a new planning chapter in the history of the site

The Court of Appeal upheld the High Court’s decision on all grounds.  The Court dismissed outright Peel’s arguments that the later permissions created a new planning chapter in the history of the site.  It held that the later permissions were only for physical alterations for the improvement of the existing units without involving any material change from existing restricted use to unrestricted A1 use.  As such, this ‘was not a substantial or radical departure from the planning history.’  The Court held that in relation to all of the affected units on the retail park, the restrictions contained in the S106 agreement continued to bite.

This is a significant case for retailers.  The Court itself recognised that the ‘outcome of the appeal will have wider repercussions for other local planning authorities and other developers of out-of-town retail shopping parks as well as for town centres, for other kinds of retail outlets and for the public generally.’

If your existing site is subject to this type of bulky goods restriction, or you are interested in purchasing a site with a similar limitation, the Court of Appeal has made it clear that applying for subsequent permissions which authorise modifications to the original development (but to which the planning restriction is not attached either by way of condition or new S106 agreement) is not a way to avoid existing S.106 obligations.

Stay informed

Sign up to receive email alerts from our award winning Expert Insights team

Sign up now

See more insights by category

This site uses cookies to help us improve our services and your browsing experience. For further information about cookies, including about how to change your browser settings to no longer accept cookies, please view our privacy policy.