Peel Group bids to take retail park restrictions case to Supreme Court

In Peel Land and Property Investments Plc v Hyndburn Borough Council [2013] EWCA Civ 1680, the Court of Appeal ruled that subsequent grants of permission for operational building works in connection with existing retail units at the Whitebirk Retail Park at Hyndburn in Lancashire did not result in a material change of use such that they would operate so as to remove existing restrictions against food retail or non bulky goods contained within section 106 agreements.

This was despite the fact that the later grants of permission did not themselves contain any restrictions on use.

The Court of Appeal refused permission for a further appeal but the Peel Group has now lodged an application with the Supreme Court.

A spokesperson for Peel said: “Peel Land and Property Investments plc has applied to the Supreme Court seeking permission to appeal against the decision of the Court of Appeal that restrictions over the types of retailers which can occupy Whitebirk Retail Park will continue to apply when new units are created, as approved by six separate planning permissions….

“Following the demise of various retailers during the recession, the park is now predominantly vacant and derelict and in desperate need of further investment, providing a wider retail offer – a view that is also shared by local people who, whenever we have consulted them, have overwhelmingly supported the plans.”

The spokesperson argued that Peel’s proposed investment would provide “a genuine local alternative” to the competing retail parks in Preston and Bolton, as well as new jobs.

“The broader retail offer needed to compete with these other retail parks relies on a successful outcome to the Court proceedings,” they said. “Such an outcome will clearly help support the economies of Hyndburn and Blackburn during these difficult economic times.”

See also: Restrictions at retail parks by Robin Purchas QC and Saira Kabir Sheikh QC of Francis Taylor Building.

Council sees off developer at Court of Appeal over retail park restrictions