Midcounties Co-Operative Ltd, R (on the application of) v Wyre Forest District Council & Ors

This is an appeal, with permission granted by Dyson LJ as he then was on 27 October 2009, against the decision of Ouseley J given in the Administrative Court on 27 March 2009 ([2009] EWHC Admin 964) when he dismissed the appellants’ claim for judicial review of the grant of a planning permission by the respondent District Council on 19 May 2008. The appellants also seek permission to appeal a costs order made by the learned judge below; I shall deal with that at the end.

The planning permission was granted to Tesco Stores Limited and Santon Group Developments Limited (who were interested parties in the judicial review). It was an outline permission for a new Class A1 supermarket, customer car park, petrol filling station, new road bridge, footbridge, other highway works, landscaping and further works. The location was at the Former Carpets of Worth site, Severn Road, Stourport on Severn. If the development proceeds it would no doubt offer bracing competition to the supermarket operated by the appellants in Stourport town centre; hence the latter’s interest. (In fact we were informed, in a note put in on behalf of the respondents and the interested parties, that since delivery of the judgment below the respondent council has resolved to grant planning permission pursuant to an application for a substantially similar development; and Tesco have indicated that it intends to implement this permission rather than the earlier permission the subject of these proceedings. Nothing, however, turns on these events.) I should add that Stourport Corporation NV and Worcestershire County Council were also named as interested parties, but have taken no part in the proceedings. References in what follows to interested parties are to Tesco and Santon.

The appeal is limited to one only of the grounds of challenge pursued at first instance. It was pleaded as Ground (1), and as the judge noted has always been the principal ground of challenge. Ground (1) alleges that Condition 6, attached to the planning permission, is bad in law. Condition 6 provided so far as relevant:

“The food store hereby approved shall not exceed the following floor space allocations (maxima);

Gross external up to 4209 sq metres measured externally

Nett retail sales up to 2919 sq metres, unless otherwise agreed with the Local Planning Authority.

Reason

In the interest of clarity, in order to define the permission and to ensure that it accords with Policies RT.1 and RT.4 of the Adopted Wyre Forest District Local Plan.”

The permission itself, which I have not set out, was for construction of the supermarket “in accordance with the application...”. The permission thereby incorporated the terms of the application for permission (see per Keene J as he then was in R v Ashford BC ex p. Shepway DC [1998] JPL 1073); so much was common ground, though counsel for the appellants entered a caveat at first instance with which however I need not now be concerned. The relevant documents thus incorporated were the planning application form, a document called the industrial questionnaire (which formed part of the application form) and the site layout plan.

The industrial questionnaire stated that the “floor space for retail trading” would be 2403 sq metres. But the layout plan referred to “nett sales 3422 sq ft (2919 sq metres)”. It referred also to the gross external measurement as 4209 sq metres. The planning application form itself, submitted on 30 October 2007, had no reference either to 2919 or 2403 sq metres as the space allocated for retail trading or sales. The 2919 figure only appears in the layout plan and in Condition 6. The discrepancy between that figure and the figure of 2403 sq metres is at the heart of the argument.

One of the submissions made by Mr Dove QC for the respondents was that other documents associated with the application or submitted with it show that the intention was to seek a planning permission which would allow what I may for immediate purposes call selling space over an area of 2403 sq metres. We were referred in particular to the Design and Access Statement which was required by law to accompany the application (see the Town and Country Planning Act 1990 (the 1990 Act) s.327A, and the Town and Country Planning (General Development Procedure) Order 1995 as amended, Article 4C), the Planning Statement accompanying the application, the GL Hearn Retail Statement prepared on behalf of the interested parties and submitted with the application (which however contains a reference to 2401 rather than 2403 sq metres: nothing turns on the difference), and the Environmental Statement, which accompanied the application (thus requiring the proposed development to be treated as “EIA Development” for the purposes of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, paragraph 4(2)).

Mr Holgate QC for the appellants placed some emphasis on the fact that in December 2007 the respondent council’s consultants, White Young Green Planning (WYG), drew attention to the contrast between 2403 sq metres (in fact 2401 – they took the figure from the GL Hearn Retail Statement) and 2919, and suggested that the respondents seek clarification. However in my judgment it is plain that a selling space over an area of 2403 sq metres was the basis on which experts for the developers and the council gave their advice. It was also the basis on which the council officials advised the Planning Committee that “on balance” the development would not have deleterious effects on the town centre: that was an important policy consideration. I will postpone consideration of the question what the 2403 sq metres selling space precisely included, and what it did not include, until I address the appellants’ primary case below at paragraph 12 ff.

Against this background the appellants at first put their case within the principal ground of challenge in four ways, as follows.

However, as I shall show, none of these formulations quite catches the point on which as I see it the case ultimately depends, which is best explained after I have addressed the principal ground of challenge set out above. For his part Mr Dove submitted that the appeal is most conveniently approached by asking and answering two questions:

There are some short points to note on the law relating to the construction of planning permissions. A planning permission is a public document likely to affect in varying degrees third party rights and the public at large. In consequence the materials that may be referred to for the purpose of its interpretation are quite strictly confined. In Carter Commercial Developments Ltd [2002] EWCA Civ 1914 Arden LJ observed (paragraph 27), basing her remarks on what had been said by Keene J in R v Ashford BC ex p. Shepway DC [1988] JPL 1073, that a permission is not to be construed like a commercial document, but “is to be given the meaning that a reasonable reader would give to it, having available to him only the permission” [and any documents incorporated by reference, such as in this case the application documents]. Extrinsic material may otherwise only be admitted in order to resolve an ambiguity in the permission, or to address a challenge advanced on the ground of absence of authority or mistake (see per Keene J in ex p. Shepway DC at propositions (3) and (4)).

It is worth noting (and Mr Dove for his part emphasises this: skeleton argument paragraph 10) that a mere ambiguity in a planning permission will by no means necessarily suffice to render the permission void for uncertainty. In Fawcett Properties v Buckingham CC [1961] AC 636, 678, Lord Denning was at pains to emphasise the fact that the courts’ daily task is to resolve ambiguities of language in legal documents, and to do so without striking down the document; but “a planning condition is only void for uncertainty if it can be given no meaning or no sensible or ascertainable meaning”.

As the learned judge below observed at paragraph 14 of his judgment (and I have foreshadowed this already), the relevant documentation offers no definition of “nett sales”, “net retail sales”, or “floor space for retail trading”. He accepted that the permission could be construed to reveal a contradiction relating to the subject-matter of the application. If the figures of 2403 and 2919 sq metres were both intended to refer to the same thing, one of them must be a misdescription and there would be an internal inconsistency in the permission. The court would conclude either that more had been granted than had been applied for (2919 as opposed to 2403), or that the permission was void for uncertainty.

However the judge did not so read the documents. He said:

“16.

The 2403 sq metres cannot be a separate area additional to the 2919 sq metres in a gross external area of 4209 sq metres. I regard it as obvious that the 2403 sq metre area is subsumed within the 2919 sq metre area rather than partly overlapping the 2919 sq metre area and partly overlapping all or part of the remaining 1290 sq metres in the building. Each of the phrases used in connection with the 2919 and 2403 sq metre areas include ‘retail’ and ‘trading or sales’. If the 2403 area overlapped the 2919 and the 1290 areas, it is difficult to imagine what sensible area or distinct use it could relate to. None was suggested. The grant does not conflict with that part of the application referring to 2403 sq metres ‘floorspace for retail trading’. That is a subset of the 2919 sq metre area.”

Mr Holgate submits (skeleton argument paragraph 61) that nothing in the application documents or the permission supports this view. It is true that nothing in those documents expressly spells out the proposition that the 2403 is to be contained within the 2919. But the judge’s reasoning properly leads to that conclusion, and I agree with it. However it does not explain the functional relationship between the 2403 and the 2919. It concludes only that the former lies within the latter. What is sought to be achieved by the demarcation of an area of 2403 sq metres within the 2919 (which is itself within the 4209 sq metres “gross external” area)? The judge said this:

“20... I regard it as plain from the application, its description of the development and the layout plan that the gross external area of the store would encompass the staff facilities, administration offices, storage, food preparation areas and so on, to which the shopping public would not have access but without which the store could not function. It was not in issue but that the store would need those areas and that they would be within the gross external area of 4209 sq metres.

21.

This clearly, to my mind, explains what the difference between the next largest figure, 2919, and the 4209 figure comprises. These are the two figures in the condition, and it is obvious that they refer to the two critical facets: how big is the building, how much is support or non-public, as opposed to selling and public? The staff and administration side, broadly put, complement with the shopping public side to which the words ‘retail’ or ‘trading’ floor space naturally apply, when used to distinguish an area from the whole gross external floor space of the shop. That makes good sense of the description applied to it in condition 6 and appearing in the layout plan. It is not vague or uncertain; there is nothing odd about it as a concept in retail planning. The condition thus controls the size of the development by reference to the gross external area and the internal area to which the public has access. So 2919 sq metres is the upper limit to the area within the 4209 sq metre gross external to which the shopping public can have access. Neither the condition, nor the planning permission are [sic] void for uncertainty. The condition could have controlled the size of the floor space by reference to the figure of 2403 sq metre, whatever that may cover, but the council was not obliged to choose whatever that measured as opposed to the 2919 sq metre figure, which measured the areas to which the shopping public would have access. The 2403 sq metre figure cannot be the limit of the areas to which the public have access without depriving the concept underlying the figure of 2919 of any meaning. No alternative concept was suggested.

22.

It is not necessary for these purposes to reach a view as to what the 2403 sq metre figure represents, although it is well-known that a distinction exists between the public areas outside the checkout and the public area inside and including the checkouts. If there is a reference to a smaller retail sales area within a layout it is probable that that is the area to which the smaller figure refers.”

The learned judge indicated (paragraph 25) that he had reached these conclusions without the need to refer to extrinsic evidence. He was able to do so, with respect, out of his long experience as a distinguished planning lawyer. He will not mind my saying that he must have seen many supermarket developments in his time. I am not confident that the ordinary intelligent non-specialist – Arden LJ’s “reasonable reader” – would be in a position to perform the same exercise. The respondents conceded below (see paragraph 49 of the judgment: but the concession was withdrawn in this court: Mr Dove’s note of 22 October 2009, paragraph 5) that the meaning of Condition 6 could only be ascertained (if at all) with the assistance of extrinsic material. In fact the judge in any event considered some of the extrinsic documents in addressing a submission of Mr Holgate to the effect that “the 2919 sq metres is the area which should have been assessed for the purposes of retail capacity, need and impact, rather than the 2403 sq metres which G L Hearn for Tesco/Santon (the interested parties), WYG for the respondents, and DPDS for Midcounties, had used in their separate assessments” (judgment paragraph 28). The judge referred (paragraph 32) to paragraphs 7.31 and 7.32 of Hearn’s study, which state:

“7.31

The likely turnover of the store has been identified by multiplying a turnover per sq metre with the net floorspace of the proposed store, being the area used for the sale and display of goods and including the checkouts and customer counters, but excluding lobbies, customer services and circulation areas.

7.32

In this instance, the net floor area amounts to 2401 sq.m. The proposed sales area of the store will comprise some 1527 sq.m of food floorspace and some 874 sq.m of non-food floorspace.”

The judge observed:

“33.

The relationship between the 2403 and 2919 is clear, albeit implicit. The former excludes the area on the exit side of the checkouts where the lobbies, customer services and circulation space are; the latter includes it.”

Later in his judgment the judge considered the extraneous documentation further, in response to Mr Holgate’s submission that to do so would produce clarity where Condition 6 was unclear. In fact the judge disagreed with this argument, being satisfied that “the 2919 sq metre figure in this planning permission represents the whole area to which the public have access” (paragraph 49). However he consented to look at the material given that there was a degree of uncertainty, albeit he had real reservations as to the propriety of the exercise (paragraph 62). In the result this further survey of the documents confirmed his earlier conclusion. He stated:

“61... [I]t takes no great effort of understanding to see from the retail study that the 2403 sq metre area is the area including and within the checkouts, that the other larger area to which the words ‘net’ and ‘retail’ are attributed includes it and lies, in part, beyond it, and that beyond that area of 2919 sq metres are the staff areas. There is really no other sensible meaning that can be given to those areas... The use of extrinsic material thus leads to the same result as I had already reached.”

On the judge’s approach the permission did not grant more than was sought by the application; nor was it bad for uncertainty. Both figures in the application documents, 2403 and 2919, were included advisedly and there was no conflict between them. The 2919 sq metres was the maximum area to which the public would have access. Thus it included parts of the shop beyond the checkouts – 516 sq metres, being the difference between 2919 and 2403 – intended for use as lobbies, circulation areas and customer facilities (such as lavatories, ATM, and cafe, as the judge said at paragraph 43). The 2403 sq metres, being within the 2919, was the area used for the actual sale and display of goods (including the checkouts and customer counters). This is the “selling space” to which I referred earlier in introducing the facts at paragraph 7. The space represented by the difference between “gross external” 4209 sq metres and the 2919 was the area of the shop to which only the staff would have access.

I agree with the judge on all these aspects of the case. It would be quite wrong to conclude that the apparent disparity between 2403 and 2919 was the consequence of a mistake or an aberration where there exists a perfectly rational explanation for it. I certainly accept that condition 6 is badly, even obtusely, drafted. To characterise the 2919 sq metres as “[n]ett retail sales up to 2919 sq metres” with no indication that in fact it includes more than the actual selling space is to say the least extremely unhelpful. But it is plainly possible to ascribe a sensible meaning which can readily be ascertained (to adapt Lord Denning’s language in Fawcett Properties), and that is what the judge did. As I have indicated (paragraph 15) I am less sanguine than he was as to the possibility of doing so without regard to any extrinsic documents. In that case, however, it is permissible to have regard to such documents.

In my judgment, however, that is not the end of the case. I stated earlier (paragraph 9) that none of the formulations of the appellants’ argument at first put forward by Mr Holgate quite catches the point on which as I see it the case ultimately depends.

On the face of Condition 6, the selling space in the development is controlled by reference to the 2919 sq metres figure, not 2403. Accordingly there exists the possibility that, consistently with the planning permission, the amount of actual selling space may be increased above 2403 (so long as it remains within 2919), and the non-selling space to which the public have access (customer facilities etc) may be correspondingly reduced. Given that the clear basis on which the application was put forward was that the actual selling space should be limited to 2403, does this circumstance invalidate the permission? The nature of the invalidity might be expressed as a variant of the first of the appellants’ four propositions set out above at paragraph 8: the planning permission allowed a greater area for actual selling space than had been applied for.

The learned judge disposed of this possibility by reference to the practicalities of the position. He said:

“45.

Mr Holgate submitted then that the store could in fact be built with more than 2403 sq metres behind and including the checkouts and that that could extend to the whole of the 2919 sq metres increasing the assumed turnover. In law, or at least in theory, that is correct. The 2403 figure is not used in the condition to control this aspect of the development. But the full difference of 516 sq metres could not be used for that purpose without making it impossible for the public to enter or leave the store. There is no evidence from Midcounties to show that a store of 2919 sq metres for the public access area would or could be sensibly laid out with so much less than 516 sq metres on the exit side of the checkouts, and with the balance then switched to the inner side of the checkouts, as to create a material difference to the need, capacity and impact assessments or to the Wyre Forest District Council decision. Certainly there is no evidence that that is contemplated by Tesco/Santon. There is no evidence therefore that a material consideration was ignored or that the store is not in reality controlled to what was assessed.

46.

I am not prepared to assume on the basis of theoretical legal argument that the store was assessed by the District Council on the basis either that only the bare minimum area would be provided, whatever that might be, for an uncertain number of customers at any one time to pass into the area where goods are displayed for sale and to pass out of the store with trollies and baskets, or that that is what would happen. I am not prepared in the absence of evidence, which Midcounties would have been well placed to provide were there any substance in this point, to assume that whatever of the 516 sq metres might then be left for incorporation into the area where goods were on display for sale could make any difference to the retail assessments or conclusion. This legal point as to materiality is utterly hollow unless there is some evidence as to its potential materiality in reality...”

While I appreciate at once the eminent good sense of this reasoning, I confess to some unease in accepting it as a sufficient answer to Mr Holgate’s legal objection that since the actual selling space is not controlled to 2403, the possibility exists – no doubt subject to quite pressing practical constraints – that the intended balance between 2403 and 2919 could in fact be altered by the developer. Planning permissions go with the land; what they are intended to permit should be clear from what they say.

The respondent and interested parties submit that if (contrary to their primary case) this point in truth gives rise to a potential legal difficulty, it is cured or avoided by a s.106 agreement entered into on 17 February 2009 by the interested parties. As is well known s.106(1) of the Town and Country Planning Act 1990 (the 1990 Act) permits “[a] local planning authority [to] enter into an agreement with any person interested in land in their area for the purpose of restricting or regulating the development or use of the land, either permanently or during such period as may be prescribed by the agreement”. Subs.(3) empowers the planning authority to enforce the agreement against successors in title of the other party “as if the local planning authority were possessed of adjacent land and as if the agreement had been expressed to be made for the benefit of such land”.

In this case the s.106 obligation restricts for all purposes the use of the development for the “sale and display of goods including the checkouts and the customer counters” to no more than 2401 sq metres. Mr Holgate submits that the scope of this obligation is itself uncertain. I do not agree. On the contrary, it seems to me to limit the development (as regards actual selling space) expressly to what had been assessed by the parties’ advisers, and to the area which the judge correctly held had all along been intended to be given to actual selling space.

It is true that the restriction imposed by the s.106 agreement does not have all the force of a planning condition. If it is desired to develop land without fulfilling an extant planning condition, a fresh application for permission must be made pursuant to s.73(1) of the 1990 Act to develop the land without complying with the condition; and “[o]n such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted” (s.73(2)). A s.106 agreement, by contrast, can be varied by further agreement, and can be discharged on application made to that effect after five years (s.106A).

Mr Holgate submitted that there was nothing to suggest that the respondent authority had expressly confronted the question whether the actual selling space might be sufficiently controlled by a s.106 agreement as opposed to a planning condition. He submitted also that the Secretary of State’s published policy (ODPM Circular O5/2005) betrays no consideration of the use of a s.106 agreement in these circumstances. But the reality is, as Mr Dove submitted (skeleton argument paragraph 28), that a planning authority may evince its intention to impose limits on a development either by imposing a condition or taking a s.106 obligation. If there were now a proposal to vary the s.106 agreement, or to discharge it, the respondent authority would need good planning grounds to take that course. In fact there is no evidence of any prospective application to modify or discharge the s.106 agreement, and no suggestion that in the event of such an application the appellants would not be consulted or the public excluded. In fact I understand that the respondents’ own rules would not permit discharge or modification without a specific resolution by elected members, and there would have to be a formal public process. The differences between such a procedure and the mechanics of a new application under s.73 of the 1990 Act are, on the facts of this case, essentially theoretical.

In all the circumstances I conclude that the planning permission including Condition 6, taken together with the s.106 agreement, provides a sufficiently clear and certain form of control of the intended actual selling space to 2403 (2401) sq metres. For those reasons I would dismiss the appeal.

I should add that we heard brief argument as to whether this court might usefully make a declaration as to the precise sense to be attributed to Condition 6. I do not consider that such a course is necessary, and there may in any event be technical difficulties in its way (see Reprotech (Pebsham) Ltd [2003] 1 WLR 348 at paragraphs 37 – 38).

I turn finally to the appellants’ extant application for permission to appeal the judge’s order for costs. The order was that the respondents (defendants) should have their costs against the appellants (claimants) and that the appellants should also pay one third of the costs of the interested parties. I mean no disrespect to Mr Holgate in dealing with this part of the case very shortly.

It is first submitted that the judge should not have awarded the respondents all their costs because they made what the judge conceived to be a wrong concession, namely that Condition 6 could only be saved from uncertainty by reference to extrinsic evidence; a concession which in any event has been withdrawn in this court. This is a hopeless submission. Not only because there is nothing that begins to show that the judge exceeded his broad discretion as to costs; also because counsel for the appellants below at no point sought to resist an order against his clients for all the respondents’ costs.

The second, and somewhat more substantial, argument is that the judge should not have awarded one third of their costs to the interested parties. Reliance is placed on Bolton MDC [1995] 1 WLR 1176 in which the House of Lords held that in planning proceedings the developer will not ordinarily get his costs unless he has some distinct issue proper for him to raise which is not covered by counsel for the Secretary of State (or here, the respondent council). But this indicates a general approach, not a rule. Here the planning permission was attacked across a broad front. It has to be borne in mind that the substantive appeal in this court has been contested over much narrower territory. Below some grounds were pursued, others were not. The judge accepted that the interested parties had to put in witness statements. Issues were raised which properly called for a response from the interested parties rather than the respondents. Mr Holgate submitted (I summarise) that the extra work reasonably required of the interested parties was no more than modest. But the judge, having heard argument over two days, was best placed to decide how those matters should be balanced.

The judge’s order was well within the scope of his discretion. I would refuse permission to appeal against it.

I agree.

I also agree.