The Midcounties Co-Operative Ltd, R (on the application of) v The Forest of Dean District Council

Cinderford is a small town in the Forest of Dean. In what is now within the designated town centre is the Cinderford Rugby and Sports Club which, as its name suggests, includes a rugby ground. The claimants own a supermarket which adjoins the Sports Club. Tesco want to demolish the existing ground and three dwellings on the road which runs to the south of it and put in their place a superstore. Next to the site to its west is a bus station and behind the bus station to its north is the claimants’ supermarket. The claimants have opposed the application for planning permission made by Tesco and its agents, largely and understandably because the new superstore would be likely to have a profoundly damaging impact on their business.

On 6 January 2006 the defendant (the Council) granted planning permission, subject to a number of conditions and the need to enter into a s.106 agreement. I shall call this the Retail Permission. It was recognised that permission would not be granted unless an alternative site was provided to enable the Sports Club to continue. Accordingly, planning permission was also sought to erect a new club house, new rugby pitches and associated facilities on land which at present is an open field on a ridge to the south and east of the town. It is part of a farm known as St Whites Farm. The proposed development will include two rugby pitches and associated floodlighting. On 6 January 2006, the Council granted planning permission for the development subject to a number of conditions. I shall call this the Rugby Club permission.

One of the conditions (number 17) was that:-

“The floodlighting hereby approved shall only be illuminated between the hours of 0700 and 2100 on any day.”

On 8 January 2006, the applicants applied under s.73 of the Town & Country Planning Act 1990 for planning permission to be granted without complying with Condition 17 but varying it to enable floodlighting to continue until 2200. This was granted on 22 February 2006. A decision under s.73 leaves the original permission intact and enables, if it results in a change of conditions, the applicant to choose between what he was originally granted and what he is granted on his application. It must follow that any defects in the original permission can be relied on by a challenger to the new permission, which is technically what results from a successful application under s.73. It follows (unless of course the basis of any challenge is to the particular condition) that the grounds relied on to challenge the original permission will, if they have merit, prevail against the s.73 permission. In the context of this case, this is said to mean that a successful challenge to the Rugby Club permission means that the s.73 permission must also be quashed. Mr Clarkson, Q.C., did not in the end challenge that.

This claim, which was lodged as long ago as March 2006, received permission from me on 16 May 2006. A curious feature of the hearing before me is that the claim is resisted by only one of the twelve interested parties. The defendant and the other eleven interested parties were content to accept a consent order quashing the three grants of planning permission. The consent order was based upon acceptance that there were breaches of Article 22 of the Town and Country Planning (General Development Procedure) Order 1995 in that there were no summaries of reasons such as complied with the Article in either the retail or the Rugby Club permission and, since the s.73 permission was wholly parasitic on the Rugby Club permission, it had to be quashed too. That concession reflected grounds 1 and 11 in the claim form. It was not accepted that any of the other grounds were made out. Santon Group has not accepted that that is correct and so have maintained that the claim should fail. Fresh applications for planning permission have been lodged but, as I understand it, they have not been considered by the Council pending the conclusion of these proceedings.

Santon’s interest is described as ‘contractual and lies in the site the subject of the retail store’. Its precise nature is immaterial since it has not been suggested that it does not have an interest which entitles it to argue that the claim should fail.

Apart from the challenge based on Article 22, the claimants have put forward a number of other grounds which, they submit, show that there were material errors in the manner in which the Council reached its decisions on the applications. It is said that there were failures to take account of various material considerations, inadequacies in conditions or s.106 requirements and failures to deal properly with statutory consultees. As will become apparent, I do not think it necessary to deal specifically with all the grounds since I am persuaded that the permissions must be quashed. The Council was in my judgment for the reasons which will become apparent correct to consent to the permissions being quashed on the ground of failures to comply with Article 22, but I shall deal with some of the other grounds upon which reliance has been placed.

The application for the retail store permission was lodged on 22 September 2004. At that time, the site was outside the defined town centre area. The relevant policy did not support the sort of development proposed, development being limited to small schemes. Apart from that, the ground was an important open area so that new development was restricted to such as would not detract in an unacceptable fashion from local amenity or character of the area and loss of recreational open space was insupportable unless a compensatory provision offering a similar or improved range of facilities was provided. Thus the development was not in accordance with the applicable plans. However, the District Local Plan review (DLPR), which was to come into force in 2005, proposed significant alterations to the limits of the Town Centre so that the site would be included. This meant that shopping development would be permitted provided that it would not adversely affect the vitality and viability of the town centre and would not result in a significant increase in the length and number of car-based trips. But the loss of outdoor recreational space was still regarded as impermissible unless there was a provision of adequate compensatory facilities. The relevant policy was (R)FBE 10 (which in the draft referred to in the officer’s report was numbered (R)FBE 9 thus causing some confusion). This reads:-

“Development which would lead to the loss of public open space or private outdoor recreational open space and facilities will not be permitted. Exceptions may be made where:

1.

Compensatory provision is made which offers a similar or improved range of facilities within safe and convenient reach of anticipated users.

2.

It is evident that there is no over-riding community need for all or part of the existing open space and facilities at the present time and in the foreseeable future.”

The officers’ report was favourable to the development, provided that it was linked to ‘the proposal for the relocation of the Cinderford Rugby Club to a larger site on the edge of the settlement at St Whites Farm’. The officers were persuaded that the two proposals did comply with the exception contained in the policy, whether in the existing plan or the proposed DLPR. However, it drew attention to some particular concerns relating to pedestrian access. In paragraph 9.7(vii) of the report, this is said:-

“Even though the application site is included within the town centre in the District Local Plan review, owing to the scale of the development relative to the size of Cinderford town centre, it remains a concern that, in the absence of improved linkages and environmental enhancements elsewhere within the town centre, the new store may not achieve the expected degree of regeneration of Cinderford. It is essential that the store components rather than dominate the town centre. At present, owing to the relatively under-developed pedestrian links between the main shopping area and the application site, it is likely that future customers will have to drive to the store. The concern is that, in the absence of improved pedestrian routes, those customers will not be encouraged to walk into the other shopping areas of the town centre thereby negating many of the requisite spin-off benefits accruing from combined trips.”

One problem concerning pedestrian access lay with the claimant’s ownership of the bus station land. The applicants for planning permission had recognised the difficulty because there would be a need for pedestrian movement across land owned by the claimants. In a letter to the Council of 1 December 2004, they said:-

“If the Co-op fail to co-operate, your ability to use compulsory purchase enables the works to be undertaken before the store opens.

I am certain you appreciate that it is important to avoid making those improvement works a condition of grant of consent as it would hand a ‘ransom position’ to the competitor with obvious consequences.”

Apart from the problems of pedestrian access – and it is to be noted that the enthusiastic support of the Town Council was tempered by a concern that pedestrian access should be afforded a higher priority – objections were raised about safe vehicle access. It was said in the report that a proposed mini-roundabout had been subjected to a Stage 1 Safety Audit and that no issues had arisen as a consequence. The County Council as Highways Authority had written a lengthy letter on 18 August 2005 in which it referred to ongoing negotiations with the applicant which, if not entirely successful, might lead to an objection. It was said there had been a Stage 1 Safety Audit which raised no material concerns relating to pedestrian safety. By letter of 6 September, the County Council set out a number of conditions which it had negotiated with the applicants and which would, if attached to any permission, lead it not to object.

In a letter to the Council of 9 September 2005, the claimants’ agents noted that there had not been any consultation with Sport England. Paragraph (Z) of the Table to Article 10 of the Town & County Planning (General Development Procedure) Order 1995 requires Sport England to be notified of development which is likely to lead to the loss of use of land being used for a playing field. It is clear that the Retail Permission required such notification. That was, it seems, overlooked by the Council and there is no reference to Sport England in the report to the Committee. In fact, Sport England was not notified until 13 September 2005, the very day that the Committee reached its decision. It followed the officers’ recommendation which was to authorise the Head of Planning to grant consent “subject to the satisfactory completion of a Section 106 legal agreement relating to contributions to off site works, improvements to public transport and travel plan monitoring, together with Town Centre enhancement and pedestrian linkages with a contribution level of approximately £350,000; revised plans, any observations from Sport England and appropriate conditions and reference to the Government Office for the South West.” That reference was said to be needed because the existing plan placed the site outside the Town Centre so that the development was contrary to the Development Plan. Perhaps somewhat curiously, no reference is made in the resolution or the proposed conditions to the need to link with what was to become the Rugby Club permission since, without it, the development was contrary to the obligation not to lose a recreation ground without compensatory provision. The s.106 agreement to which the permission was subject did contain provisions which is said to contain the necessary obligations. That it does is not accepted by the claimant.

By letter of 27 September 2005, Sport England wrote objecting to the proposed development on the ground that it would lead to loss of part of the existing playing field and conflict with current government guidance and Sport England’s Playing Field Policy. Following receipt of proposals for the Rugby Club development, Sport England wrote again on 10 October 2005. It stated that it remained concerned over the following issues:-

“1.

Quantity of playing fields/pitches. What number will be lost/created?

2.

How will the quality of pitches and associated facilities be improved upon at the proposed replacement site?

3.

Is the new site in a suitable and as accessible location to the existing site?

4.

Will the new site have better management arrangements? Increased community use of the buildings?

5.

Would there be a planning obligation (s.106) in place to guarantee that the new site will be implemented and open prior to commencement of the retail development on the current Cinderford RFC site?”

Finally, on 7 December 2005 Sport England wrote in the following terms:-

“As explained over the telephone, Sport England is now satisfied with the replacement proposal in terms of the quantity and quality of pitches and facilities to be made available. Sport England is minded to withdraw our objection as the new site represents an adequate substitute for, or improvement on, the existing playing field and ancillary facilities and it would be beneficial for sporting interests to take advantage of this opportunity. However, we do have concerns regarding:

1.

the proposed condition / planning permission obligation guaranteeing that the commencement of development for the retail store will not happen until the new rugby pitches are ready for use; and

2.

the new site is in a location that those who are regular users or future users can conveniently gain access.

Sport England will gladly reconsider our position if further, more detailed information is made available on the above issues.”

On 13 December 2005 the Retail development was referred back to the Development Control Committee “to enable the scope of the Section 106 Legal Agreement to be expanded to tie the development to provision of the replacement rugby club”. It was not envisaged that there was any reason to reconsider whether permission should be granted in principle. At Paragraph 1.1(c) and (d) of the officers’ report, this is said:-

“(c)

Whilst Sport England supported the application for the replacement facility, which Members considered at the meeting held on the 8^th November 2005, one of the provisos related to the delivery of the new facility. Since the meeting of the 13^th September 2005, further discussions have taken place regarding the issue of securing the provision of the new facility. Members had agreed to additional conditions being attached to the planning permission, which may have secured the provision of the facility prior to the new retail store being developed. However, it appears that the most appropriate method of achieving this objective is through the Section 106 process. Therefore, it is suggested that Members consider an amendment to the previous recommendation relating to the Section 106 provisions to include a clause requiring the replacement rugby club and facilities to be provided before the retail store is constructed. In this way, the process is tidier and more robust and will achieve the stated objective of the Council’s planning policies.

(d)

As negotiations are continuing, it is conceivable that other matters may need to be brought within the scope of the legal agreement and Members are therefore requested to give the Head of Planning the necessary authority to negotiate on these terms in order to avoid both having to bring the proposals back to Committee and the delays that this will incur.”

One of the claimants’ concerns is that this was misleading since Sport England had never been given the information which had been requested in its letter of 7 December.

It was recommended that permission be granted “upon satisfactory completion of a planning obligation made under section 106 relating to (inter alia) provision of the replacement rugby football pitches, car park and access road of St Whites Farm … before the hereby approved development commences”. It had been noted in the report that it was necessary to avoid the situation arising where the retail development proceeded but the replacement rugby club was not delivered and so an important recreational resource was lost. On 6 January 2006 a s.106 agreement was executed. The relevant obligation is contained in Paragraph 7.6 under the heading “Phasing.” This provides:-

“The Parties agree with the [Council] not to commence or allow to be commenced the development on the Application Site before the playing field and access and car parking element of the Replacement Rugby and Sports Club Facilities have been completed.”

Planning permission for the Retail development was granted on 6 January 2006. The reasons contained in it are as follows:-

“The decision to grant planning permission has been taken having regard to the policies in the approved Gloucestershire County Structural Plan, the Adopted Forest of Dean District Local Plan Review, and to all relevant material considerations including Planning Policy Guidance Notes, Planning Policy Statements and Supplementary Planning Guidance.

The following policies in the approved Gloucestershire Structure Plan are relevant to the decision: NIL.

The following policies in the Adopted Forest of Dean District Local Plan Review are relevant to the decision: (R)FBE1, (R)FT1, (R)FTL, (R)FNE1, (R)FBE20, (R)FS.1a.

The development is considered to comply with those policies and guidance notes and it is not considered that it will cause material harm to the amenities of the area.”

It is to say the least unfortunate that no reference is made to (R)FBE 10, a highly relevant policy.

The application for the Rugby Club permission was also made on 22 September 2004. It came before the Development Control Committee on 8 November 2005. Sport England had by then been notified of both applications. On 10 October 2005 it had responded to the Rugby Club application stating that it would support it and it alone in principle since “at this time the applicant has yet to be prove (sic) that the linked application for the loss of the existing rugby ground meets Sport England and national planning policy”. It set out in the letter its technical guidelines dealing with what facilities should be provided.

The officers’ report noted that the County Council had objected because the site was remote from Cinderford itself and was likely to be accessible only by private car and so the development would be contrary to Policy T1 of the adopted Structure Plan, which required new development to be located ‘so as to minimise the length and number of motorised journeys’. It was recognised that the development was a departure from the adopted local plan in that it lay outside the defined settlement boundary for the district. It was said to be justified in that it was the development of recreation and leisure facilities which was acceptable provided that there were no resulting unacceptable pressures upon the countryside or landscape.

The officers’ report concluded:-

“The proposed development is considered to be acceptable in terms of its location and impact upon local visual amenity and highway safety, subject to the imposition of controlling conditions. The proposal constitutes a departure to the adopted local plan and will have to be referred to the Government office for the South West before permission is granted.”

Both applications were referred and the Government Office indicated that it would not call them in for his own determination. The Committee resolved to accept the officers’ recommendation which was to grant delegated authority to the Head of Planning to issue planning permission subject to specified conditions and subject to no objection by the Government Office. There was no requirement for any s.106 agreement and no condition linking the development with the retail permission.

On 8 December 2005, the application was referred to the full Council. A short report annexed the one which had been before the Development Control Committee and added the following, so far as material:-

“1.2.

The consideration central to this particular proposal is whether or not the likely increase in traffic flows to and from the site, especially during match days, is sufficient to justify refusing planning permission. The Highway Authority considered these proposals carefully and expressed concern that the distance separating the site from Cinderford, combined with the current lack of public transport service to the site, meant that the scheme failed to satisfy this important sustainability criterion. However, the site is accessible on foot as there are a number of public footpaths serving it, including from the allocated St Whites Farm Housing Site to the west. Proposals for improving cycleway in the area are also being planned for with developer contributions following on the back of the Tesco retail store and the St Whites Farm Housing Allocation.

1.3.

The proposed development is also inextricably linked to the development of the existing site for retail purposes. This scheme is essential to the regeneration of Cinderford town centre, a fact acknowledged by the Highway Authority. There are, therefore, two conflicting Development Plan objectives central to consideration of this proposal, and a balance has to be made by weighing up the merits and drawbacks of these two proposals, relative to both objectives.

1.4.

It is agreed that the new site for the rugby club is less sustainable than the existing. However, weighed against this is the fact that it proposes a significantly enhanced range of facilities, much of which are to be available for community usage, and will enable the retail development to proceed thereby bringing much needed economic benefits to Cinderford town centre and its residents,

1.5.

The applicants have considered alternative sites to relocate the rugby club, including a site near Littledean. However, no suitable sites of sufficient size are available within Cinderford and the Littledean option was considered to be even less sustainable than the St Whites Farm site.

The attached item has set out arguments for and against the proposal and concludes, on balance, that the benefits both development will bring to the town and area outweigh the argument that it is unsustainable.”

The minutes record that the Council decided to authorise the Head of Planning to grant consent subject to satisfactory completion of a section 106 legal agreement, no objections from the Government office and appropriate conditions. However, in a letter of 13 January 2006, the Council’s Head of Legal and Democratic Services stated that the reference to a s.106 agreement was an error and no such agreement was required or would be executed.

Planning for the Rugby Club development permission was granted on 6 January 2006. The reasons are stated thus:-

“The decision to grant planning permission has been taken having regard to the policies in the approved Gloucestershire County Structure Plan, the Adopted Forest of Dean District Local Plan Review and to all relevant material considerations, including Planning Policy Guidance Notes, Planning Policy Statements and Supplementary Planning Guidance.

The following policies in the approved Gloucestershire County Structure Plan are relevant to this decision: NIL.

The following policies in the Adopted Forest of Dean Local Plan Review are relevant to this decision: (R)FBE1, (R)FBE2, (R)FBE2, (R)FBE4, (R)FH6, (R)FT2, (R)FNE 1, (R)FBE21.

The development is considered to comply with these policies and guidance notes and it is not considered that it will cause material harm to the amenities of the area.”

No reference is made to the Policy T1 in the County Structure Plan although it was relied on by the County Council in objecting to the development and was clearly material.

I have already dealt with the s.73 grant of permission. The reasons are the same as those set out in paragraph 21 above save that the policies referred to as relevant in the DLPR omit (R)FBE2 (which was not in any event material since it deals with development in Locally Distinctive Areas), (R)FBE4 (which is concerned with energy conservation and might be thought to be relevant to use of floodlighting), (R)FH6 (which is concerned with new dwellings in the countryside and so was not obviously relevant), (R)FT2 (which concerns vehicular access) and (R)FBE21 (which concerns development on unstable or contaminated land). But other policies are added, notably (R)FTRL2, (which concerns inter alia recreational development in the countryside and so ought to have been included in the 6 January permission) and (R)FBE9 (which appears to have no relevance since it applies only to Crown Land in the Statutory Forest of Dean). (R)FBE10 has no relevance to the Rugby Club development since that policy concerns loss of public open space or recreational facilities.

The obligation to give reasons is set out in Article 22 of the GDPO of 1995. So far as material, it reads:-

“22(1) When the local planning authority give notice of a decision or determination on an application for planning permission or for approval of reserved matters and …

(b)

planning permission is granted subject to conditions, the notice shall:-

(i)

include a summary of the reasons for the grant together with a summary of the policies and proposals in the development plan which are relevant to the decision to grant permission; and

(ii)

shall state clearly and precisely their full reasons for each condition imposed specifying. ”

This provision came into force in December 2003 and it is apparent from the few cases which have reached this court that its effect has not been fully appreciated by some local planning authorities.

The first case in which what is required by Article 22(1) was considered is R(Wall) v Brighton & Hove City Council [2005] 1 P & CR 586. This was a decision by Sullivan J. It was conceded in that case that no reasons had been given. The permission notice was in the same terms as those with which this claim is concerned save that it omitted the last sentence. Mr Clarkson submits that the last sentence is, coupled with the whole process including the officers’ report, sufficient to establish compliance with Article 22(1).

I have considered the various authorities in a recent judgment which I gave on 25 May 2007, R(Tratt) v Horsham District Council [2007] EWHC 1485 (Admin). I had heard argument in that case before dealing with this claim but the judgment was given after the conclusion of the hearing. I do not in the circumstances propose to repeat what I have there set out but only to summarise my conclusions in dealing with Mr Clarkson’s arguments.

In Wall, Sullivan J indicated that the requirement to give summary reasons for a grant of permission would principally be for the benefit of interested members of the public. The successful applicant would, he said, not usually be unduly concerned to know the reasons why the local planning authority decided to grant him permission (Paragraph 53). No doubt that is generally correct, but an objector may well want to know whether there is a chance of a successful challenge by way of judicial review and so be interested in seeing whether the LPA has properly had regard to all material considerations. Equally, the applicant may be concerned to check that there is no apparent flaw in the grant of permission which might make it unwise for him to implement the permission immediately, particularly where there were vociferous and detailed objections. It follows in my view that the obligation to give summary reasons is based on the same considerations as apply to the obligation to give full reasons. Thus they should deal, albeit in summary form, with the main issues which have formed part of the consideration of the application for planning permission. Officers are accustomed to suggesting reasons where applications are refused or for the imposition of conditions. There is no reason why they should not routinely do the same in summary form for a grant of permission.

In submitting that the other parties were wrong to have accepted that the reasons were defective, Mr Clarkson has placed particular reliance on a decision of Sir Michael Harrison, R(Ling (Bridlington) Ltd) v East Riding of Yorkshire [2006] EWHC 1604 (Admin). In paragraphs 47 to 50 of his judgment, Sir Michael set out four factors which he considered to be relevant in considering the adequacy of reasons for the grant of permission. He said this:-

“47.

In considering the adequacy of reasons for the grant of permission there are a number of factors which seem to me to be relevant. The first is the difference in the language of the statutory requirement relating to reasons for the grant of planning permission compared to that relating to the reasons for refusal of planning permission. In the case of a refusal, the notice has to state clearly and precisely the full reasons for the refusal, whereas in the case of a grant the notice only has to include a summary of the reasons for the grant. The difference is stark and significant. It is for that reason that I reject the claimants’ contention that the standard of reasons for a grant of permission should be the same as the standard of reasons for the refusal of permission.

48.

Secondly, the statutory language requires a summary of the reasons for the grant of permission. It does not require a summary of the reasons for rejecting objections to the grant of permission.

49.

Thirdly, a summary of reasons does not require a summary of reasons for reasons. In other words, it can be shortly stated in appropriate cases.

50.

Fourthly, the adequacy of reasons for the grant of permission will depend on the circumstances of each case. The officer’s report to committee will be a relevant consideration. If the officer’s report recommended refusal and the members decided to grant permission, a fuller summary of reasons would be appropriate than would be the case where members had simply followed the officer’s recommendation. In the latter case, a short summary may well be appropriate.”

The reasons in that case read:-

“The proposal has been considered against the policies below and it is considered that the scheme accords with the policies, and there are no material considerations which indicate a decision should be otherwise.”

He concluded that those reasons were ‘as short as they could be’ and that ‘anything less would be inappropriate’. But they did, he said, ‘reflect the stated conclusion in the officer’s report’ and ‘anything further could be said to be giving a summary of reasons for reasons’. He was persuaded that they were adequate but he cautioned LPAs against trotting out a standard formula: see paragraph 56.

As I said in Tratt, I have some difficulty with the first two of Sir Michael’s four factors in particular. The purpose of giving reasons is the same whether they be full or summary and are needed to enable any interested person, whether applicant or objector, to see whether there might be grounds to challenge the decision. If in stating that the standard of reasons should be different for a grant than for a refusal all that Sir Michael was doing was reflecting the difference between summary and full, there is no problem. But if he was intending to indicate that there was a difference in the purpose of giving reasons, and so what they should deal with I must respectfully disagree with him. Since I am clear that the reasons should cover the same matters whether full or summary, I do not accept Sir Michael’s second factor. If there have been objections which raise one of the main issues in considering the application, the reasons for rejecting them will equally be reasons for granting permission. I do not think the distinction drawn by Sir Michael in paragraph 48 is a true distinction. Thus if for example a main objection to a development is its allegedly damaging effect on visual amenity, it would be appropriate to state that the LPA was satisfied that its effect would not be detrimental to visual amenity because it would be adequately screened or sited so as not to be intrusive or whatever dealt with the particular objection.

Whether or not I would have agreed with Sir Michael about the adequacy of the reasons in the Ling case is nothing to the point. I am entirely satisfied that the reasons given in the permissions in this case were inadequate. Mr Clarkson submits that the claimants were informed readers, were aware of the officer’s reports and so would know why the decision had been reached. That does not save inadequate reasons. Article 22(1) requires the reasons to be included in the notice and should not require the interested party (who may not have been aware of the application as an objector) to have to search the background material including officer’s reports to understand why permission was granted and in particular whether there were any issues raised against the application. No doubt if there were no objections, that can be stated and it will suffice in such circumstances to say no more than that the application accorded with the relevant policies.

There is a further defect in that there is not only failure to refer to relevant policies (a failure which is said to be due to computer error: that is no excuse) but a failure to do more than list the supposedly relevant policies. Article 22(1) requires a summary of the policies. That is not the same as a list of the policies. The purpose behind the requirement for a summary is I believe to enable the reader to see the relevance of the policy. All that is needed is an indication of what the policy deals with insofar as it is material to the permission in question.

I have no doubt that the parties other than Santon were correct to concede the inadequacy of the reasons and so a failure to comply with Article 22(1). I should add that it was accepted that the Rugby Club permission in particular represented a departure from applicable policies in the plan. It was therefore somewhat misleading for it to be said that it complied.

In their fourth ground, the claimants assert that there was a failure to deal properly with Sport England’s concerns. In its letter of 7 December 2005, Sport England has indicated that it was minded to withdraw its objections subject to two concerns, the second of which was that the new site was in a location “that those who were regular users or future users could conveniently gain access”. It went on to say that it would gladly reconsider its position if further more detailed information was made available. It was never given any such information and members were not told specifically of those concerns. The impression given was that the proposed s.106 obligations would meet Sport England’s concerns.

Criticism is made of the relevant obligation (paragraph 7.6 of the s.106 agreement). Since it only requires completion of the playing field (the singular includes the plural and so that can be construed to mean the two fields) and access and car parking elements and not the changing room and other facilities, it seems to me that Sport England might well have considered that it did not go far enough. Furthermore, as drafted it refers to the elements of the facilities which are defined in Paragraph 2.12 to mean “the land at St Whites Farm or alternatively such other land as will be acquired in order to provide replacement rugby and sports club facilities”. There are possible problems in this drafting if the developers sought to do less than Sport England would clearly regard as essential. Thus I am satisfied that the grant was defective because of the failure to deal with Sport England’s concerns in a proper way, both in failing to give full information to the Committee and in the inadequacy of the obligation in the s.106 agreement.

This is not a case where I should exercise discretion to refuse relief. It cannot be said that a reconsideration could not result in a different decision if all relevant matters were properly taken into account. It is important to note too that Policy (R)FBE10 and the relevant guidance in PPG17 requires consideration of the need to retain the existing ground, the identification of an alternative facility which would provide adequate compensation for the loss and which would have by virtue of some enforceable obligation to be provided. Furthermore, since the Rugby Club development was to be in open countryside, the Council would have to be satisfied that no alternative site which did not involve development in open countryside was available. It seems to me to be arguable that an insufficiently rigorous approach to these needs was adopted, perhaps because of the perceived advantage for Cinderford of the retail development. In all the circumstances, it is in my judgment impossible to say that the defects which I have identified can nonetheless warrant a failure to grant relief.

In the circumstances, I do not propose to reach any conclusions on the other grounds raised. Suffice it to say that there was undoubtedly some confusion in relation to the Stage 1 Safety Audit. It is also arguable that insufficient account was taken of the problems of pedestrian access if the claimants were unwilling (as they were) to grant such access over part of the bus station land. I am not impressed with the suggestion that the decisions were ultra vires the Council’s constitution, nor with any of the grounds relating specifically to the Rugby Club permission. The claimants sought leave to amend to add two further grounds. I granted that leave, although Mr Clarkson objected. It seems to me that, unless there is prejudice to a party, it should be possible once permission is granted to deal with any arguable point. But I was not persuaded that either was established. The first suggested that the existence of a listed building in the form of a Methodist chapel which might be affected by the retail permission has been overlooked. The fact is that the rear of the chapel faces the main road behind which the development will take place. There are additions to the chapel at its rear which cannot be said to be attractive and it is impossible to conceive that there would be any detriment to the listed building in the development. The other ground related to an effect on a nearby bat site of the floodlighting at the St Whites Farm site. It is said that an assessment was required under the Habitat Regulations. English Nature had been approached, but did not suggest any assessment was needed when the matter was being considered. No doubt on a fresh application the claimants may, if the need is established, have to provide such an assessment. But I see no error of law in the absence of one in the circumstances which then prevailed.

It follows that I quash all three permissions.