A local plan policy offered support for the new development. However, the council was concerned that some existing retailers, including two that anchored the existing mall, would relocate to it, thus weakening a fragile part of the centre.
The condition stated that for five years from the date on which the new scheme was first occupied, no floorspace should be occupied by any retailer who had occupied more than 250 square metres of retail space at the date when permission was granted or within the 12 months immediately before occupation. Existing retailers opening premises at the new site would have to commit to retaining their presence in the existing mall for at least five years following their first occupation in the new development.
In the Court of Appeal, Lord Justice Sales upheld Mr Justice Lay’s High Court decision to reject the challenge. He agreed that the terms of the condition were perfectly intelligible, effective and enforceable in its purpose of maintaining the vitality and viability of the existing mall and preventing existing retailers from decamping to the new scheme.
This option was available provided they committed to retaining a presence in their existing premises, he noted. In his opinion, meeting this requirement had to mean retaining a presence at the level and time any covenant or agreement was submitted to the council under the terms of the condition, and did not provide scope for any retailer to scale back its operation within the existing shopping mall.
Skelmersdale Limited Partnership v West Lancashire Borough Council & St Modwen Developments (Skelmersdale) Ltd
Date: 8 December 2016
 EWCA Civ 1260