Donald Trump and planning conditions

May 18, 2016

By Peter Dixon

Before Donald Trump began his assault on the Whitehouse, he was involved, through his company Trump International Golf Club Scotland Limited (‘Trump’), in the development of a golf resort near Balmedie in Aberdeenshire. Subsequently the Scottish Government granted consent for the development of an offshore windfarm visible from the resort which in the opinion of Trump would detract from the amenity of the development. Trump challenged the consent on two grounds one of which was concerned with a condition of the consent which required the submission of a design statement which it alleged was void for uncertainty in part for want of an implementation clause to require the development to be carried out in accordance with the statement when approved.

The matter was considered by the Supreme Court (Trump v Scottish Ministers [2015] UKSC 74) which on the second ground found no defect in the condition. Both Lord Hodge and Lord Carnwarth considered to what extent (if at all) the process of interpreting a planning permission was different from that appropriate to any other legal document in the light of a line of authorities the thrust of which was that conditions (such as implementation conditions) could not be implied into planning permissions by reference to extrinsic material. There was broad agreement between their Lordships that a rule which precluded implication as an interpretive technique was too restrictive albeit that a cautious approach was appropriate given that a planning permission is a public document that may be relied on by parties unrelated to those originally involved: the proper approach was to interpret a planning permission as a reasonable reader would understand it in its context.

Trump has been followed recently both in Menston and in R(Skelmersdale Limited Partnership) v (1) West Lancashire Borough Council (2) St Modwen Developments (Skelmersdale) Ltd [2016] EWHC  109 (Admin). The facts in Menston are summarised elsewhere in this bulletin. In addition to challenge to the grant of planning permission in that case (founded upon an alleged failure to properly apply the Framework’s policies on the risk of flooding), a further challenge was brought on the basis of alleged deficiencies in the relevant planning conditions by which various flood mitigation measures were to be secured. Applying Trump, the Court had little difficulty in finding that the conditions were unambiguous and that the necessary details had been submitted to enable them to be properly discharged.

In Skelmersdale a condition was imposed when planning permission was granted for an out of centre retail development with the aim of safeguarding the town centre by preventing retail units in the new development from being let to any retailer represented in the town centre except where the retailer ‘commits’ to retain their presence as a retailer in the town centre for a period of 5 years. The condition was challenged on a number of grounds including that it was unenforceable for want of an implementation clause (which could not be implied) and because the term ‘commits’ was in any case vague. The Court did not agree that the condition was vague and following a detailed and careful consideration of the speeches of Lord Hodge and Lord Carnwarth in Trump concluded that the term ‘commits’ could properly be interpreted as a requirement for a legally enforceable commitment and so, by implication, embraced an implementation provision.