Cathco Property Holdings Ltd, R (on the application of) v Cygnor Gwynedd Council & Anor

MR JUSTICE COLLINS: This is a claim for judicial review seeking to quash the grant of planning permission by the Council to the interested party, the grant being on 13th February 2006, although the relevant meeting at which the Committee decided that the permission should be granted was 1st February 2006.

The development in question, for which permission is granted, relates to an extension of retail business on a site which is called Finneys, which at the moment, as I understand it, is a furniture store in a retail development which is, if I may put it his way, I hope correctly, on the outskirts of Bangor in North Wales. It has been regarded, and has always been regarded, for the purpose of the consideration of the permission, as an out of town development, albeit it is a development which, as I understand it, has been in existence for some time and there are a number of different retail outlets there. More recently, there have been major developments in convenience foods by Asda and Tesco. In Bangor, in addition, there is a substantial town centre retail development, in particular at a site known as Wellfield on which the claimants have a retail store. There has been, as I understand it, a development of the Wellfield site, an extension there which will produce a substantial increase in the retail services that are to be made available.

The claimants are concerned that the development, which is the subject of the permission in this case, will have an adverse impact on their own store in the town centre, and indeed on any extension that will be carried out there. Bangor itself is a subregional shopping centre, I think the only one in that particular part of North Wales. It is a thriving shopping centre. There is, as is always the case with such centres, continuing concern that, unless sufficient service is provided, there will be the danger that shoppers will go elsewhere and so it is important that such capacity is maintained.

In 2001, the Council, for the purposes of their UDP, which was to be considered because the existing plan was 1993 and therefore somewhat out of date, commissioned an inquiry, which is known as the Chesterton study. This indicated the importance of ensuring that sufficient steps were taken to retain a realistic proportion of the growth in non-food expenditure rather than letting it leak to competing centres and this would involve both the provision of additional retailing facilities and the strengthening of existing businesses which currently operated within the established centres.

The report, in addition, indicated, as I have said, that Bangor was indeed a thriving centre and that there was a forecast that suggested that between 1998 and 2016 expenditure upon convenience products, that is to say food, was forecast to remain relatively stable whereas expenditure on comparison goods, or non-food, was forecast to increase by 90 per cent or about £16,000 per-head per annum. That may have been the view taken in 2001; whether it is the view that is now appropriate I do know. One's impression is that perhaps it is not, in the light of the present economic situation, but that is not a matter which is of direct materiality to this claim, although it does make the point that, when one is dealing with forecasts and with questions of needs or retail development, one has to recognise that up-to-date reports can be very important.

The interested party made an application for development originally in January 2005 and the Council granted permission. The development in question that was sought was for the demolition of one retail building and the refurbishment and extension of the remaining building to provide altogether three retail units, that is three separate buildings, as I understand it, together with alterations to the existing vehicular access and car parking area. The location was Finneys, its full title being Finneys World of Interiors.

As I have said, that application was lodged and the grant was made on 23rd March 2005. That was challenged by the claimants. That challenge received permission for judicial review to be pursued from Richards J, as he then was, on 29th August 2005. The main point which persuaded Richards J to grant permission was that proper consideration had not been given on the face of it to the relevant policy, which was policy E3, rather than to an irrelevant policy, namely policy E1, and, although there were a number of other points taken, that was the one which in his view was the most significant.

In the circumstances, the interested party decided that it would be sensible to make a second application for permission. It was for the same development but it was an endeavour to ensure that the matter was properly considered and that a planning permission, if it were to be granted, could be granted in circumstances which could not be challenged through the court and that would, of course, have made the existing judicial review become entirely academic. So it was that the relevant committee were given the necessary advice by the officer and it is that advice in the officer's report which is said to be defective in a number of respects and which has led to the claim before me.

The plan that was in force at the material time, as I have already indicated, was a plan of 1993 vintage. The relevant policies in that plan, the Gwynedd Structure Plan of 1993, were as referred to in the officer's report, policies E3 and B1. E3 stated:

In addition, there was a policy guidance adopted in 1993 known as TAN 4 and in this it was stated that only if gross floorspace of a retail development proposal exceeded a threshold over 2,500 square metres was it necessary to submit an impact assessment in respect of such a proposal and such an impact assessment had to provide evidence of whether the applicant adopted a sequential approach to site selection and the availability of alternative sites and their likely economic and other impacts on other retail locations, including town centres, local centres and villages, including consideration of the cumulative effects of recently completed developments and outstanding planning permission. It went on:

It is the case that the approach to out of town retail development in particular, and retail development in general, has changed since the early 1990s and the approach now is very much more hostile to such out of town developments. That change of approach is reflected, so far as Wales is concerned, by first the planning policy for Wales, which was published in March 2002 and in Chapter 10 of that, which deals with retailing and town centres, this is said, so far as material:

Section 10.3 goes on:

Then in 2005 there came a Ministerial Interim Planning Policy Statement (MIPPS) 02/2005. Those are, as I understand it, the Welsh equivalent of the English PPSs. Its publication was shortly before the initial decision of the Committee on 7th December 2005 to grant permission. It was recognised that that could not stand because the officer had been unaware of the publication of MIPPS and thus had not drawn the Committee's attention to it and it was recognised that it was plainly a material consideration and that led to the original decision in December being annulled and the matter being reconsidered on 2nd February 2006. But MIPPS also in 10.3 provides as follows; indeed the same objectives in 10.1.1 and 10.1.2 of MIPPS as are contained in what I have already read in the PPW were included, and what 10.3.1 sets out, so far as material, is this:

The emerging UDP contains proposed policies which are consistent with the approach which is directly in the guidance in both PPW and MIPPS, to which I have referred. The relevant ones are D25 and D26, which read as follows:

Pausing there, that policy itself is not on the face of it of particular materiality in the context of the claim made in this case but D26 is and this reads as follows:

Now that clearly reflects and puts into force what is set out in PPW and MIPPS. I will come back to that because the approach that was adopted to it in the officer's report forms one of the grounds of this claim.

The development in question was, as I have said, to extend by rebuilding the existing units. The existing units contain respectively 1,140 and 360 square metres of retail floor space, or approximately that amount. The proposal will mean that there is an additional 1,034 square metres. In fact, although the figures I have given add up to more than 1,460, that is the existing retailing square metreage. The balance, one imagines, is office or other ancillary facilities. The result is that there will be an increase in the capacity of the development of something just over a thousand square metres.

It is, I think, convenient to deal initially with what is ground 2, namely the way in which the emerging policy D26 was dealt with. The UDP is at a very early stage. It has been put out for public consultation and representations have been received but it has not yet gone to any inquiry and so it cannot be said that the particular policy in question is at an advanced stage. What the officer said in the report in relation to it was this:

It refers to the resolution of the Council in a meeting as to the approach which should be adopted to this or to emerging policies generally. The operational guidance that was recommended, and indeed was given, was, so far as material, as follows:

The first thing to note is that the observation of the officer that in that meeting the Council resolved to give weight only to those policies which had received no objections was plainly wrong. The recommendation of the Committee said no such thing, as I have already indicated. Secondly, the assertion that because objections had been received little if no weight could be attached to the policy was equally wrong and misleading. It was necessary to consider the nature of any objections and since it was claimed that no objections went to the policy as it related to out of town developments in Bangor (I am not suggesting that Bangor should be taken out of the equation), then it was manifestly wrong to advise the Committee that it should in the circumstances attach little, if no, weight to that policy. It is true, as Mr White points out, that the report did refer to MIPPS and indeed to the existence of the approach in the PPW, so the Committee members were aware of the guidance but, since it was that guidance that was being put into effect through the proposed policy D26 and they were informed that they could virtually disregard D26, it is difficult to see how sensibly that could have left them in a position where they appreciated that it would be appropriate in fact to give such weight as they considered appropriate to D26. Indeed it would be surprising if it was not regarded as an appropriate approach that they should give very considerable weight to those emerging proposals in the context of the guidance which had been set out in the Welsh Asssembly's guidance.

That in itself, in my judgment, is quite sufficient to show that this decision cannot stand. The members did not apply, and were prevented from applying, their minds in an appropriate fashion to the relevant approach that they should apply. However, it does not stop there.

The officer's report, when dealing with policy E3, stated as follows:

So, one needs to see what was the evidence which was produced by the applicants, that is to say the interested party, because there was no impact assessment produced and no detailed assessment agreed and, indeed, the result of the realisation of the significance of MIPPS, the realisation that Mr Jones submits should have existed because PPW, which contained much the same guidance, has been in existence since 2002, required the officer in question to correspond with the representatives of the interested party in order to see whether the existing gap could be filled. There were produced, as a result of these enquiries, three letters from a Ms Jan Tyrer, who was the planning consultant who was instructed on behalf of the interested parties.

Her initial letter was 10th January 2006. In it she asserted that the main change in the advice appeared to be in relation to the requirement to assess the quantity of need for any additional retail floorspace being proposed. That was an important aspect but it was not the only one, because there was the need to ensure that the sequential approach was followed and the impact on the viability and vitality of the existing town centre must also be taken into account. She referred to the Chesterton study and cited from a paragraph in that which indicated that the retail study showed that most of the area's shopping centres already had either a fairly large food supermarket or a combination of small food supermarkets and traditional shops. Since the study suggested that there would be very little demand for any further food supermarkets the Council could scrutinise proposals carefully and would ask developers to provide evidence in a Retail Impact assessment that the additional provision was needed within the centre's local catchment area. But that was in the context of the communication in an earlier paragraph of the deposit draft of the UDP that the retail study showed that in the future the greatest demand in the plan area would be for comparison goods and she made the point that there was therefore, she said, an proven unmet demand for the sale of comparison goods.

That may well be so and there may be, and indeed there was evidence that there was, an unmet demand in Bangor as a whole and the claimants themselves had in fact produced a report, although perhaps they did not have to, in which they considered the need for their own development. That was in April 2003 and in that this is said:

It is true that there is a relatively small shortfall in the anticipated overall amount of local growth and expenditure that is to be anticipated, the difference between £13.7 million and £14.4 million, although it could be said that, since £14.4 million is merely to maintain current market share, it is desirable that there should be an increase over that. So, submits Mr White, there was material which entitled the officer to take the view that he could properly advise that there was existing need. That is one of the factors that he was entitled to take into account.

So far as other evidence supporting the question of need, reliance is placed upon what is said in the letter:

That may well be so, but the fact that there is nothing available to satisfy the applicant's requirements hardly makes the point that there is an overall need. It simply makes the point that the applicants want their development to take place because there is nowhere else where they can develop as they would wish and that frankly says nothing about whether there is established an overall need for this extension or this amount of retail floorspace.

The officer's report, as I have already said, sought to rely on the impact assessments which were included with the three larger retail developments to which reference was made. The first I have already dealt with, the Wellfield Centre. That was not an out-of-town and therefore was of only marginal relevance. The other two were Tesco and Asda. Both were food, convenience. Neither raised the issue, certainly directly, in relation to comparison goods and it is difficult to see, when one looks at them, and being referred to the best that Mr White could find in each of those assessments, that they have any materiality to the question of need for comparison goods. In those circumstances, what the officer has relied on are immaterial or largely immaterial considerations.

He stated "it is confirmed that no land to accommodate such development", by which he means development of this nature, is presently available within Bangor's town centre. The reality is that there was not evidence which could properly support that conclusion put in those precise terms. Although, of course, it is right that the development would produce or result in additional floorspace of just over a thousand square metres, what had to be taken into account in reality was the effect of the overall development, although there is some force in the contention that, as a matter of reality, the increase is what is largely material.

In truth there was no evidence of need; it amounted to no more than an assertion and it was in my judgment not permissible for the officer to reach the conclusion that he reached in those absolute terms. Of course, he could have stated, and Mr White submits that really this is all he is doing exercising his planning judgment, that that was his view but he should in those circumstances at least have summarised the reasons which led him to form that view. If a planning judgment is to be reached, it must be reached on the basis of proper evidence and proper material. He said that he had his own expertise, and indeed he states that in a statement that he has produced. So be it, but it is insufficient to rely upon his own personal judgment unless he tells the Committee that that is actually what he is doing and draws their attention to the fact that there really was not any evidence which had been put in by the applicants which supported that contention.

Accordingly, as it seems to me, there was insufficient consideration given and so insufficient advice given to the committee on the question of need. So far as sequential preference is concerned, which was another matter relied on by Mr Jones, the officer in his statement says that he proceeded to consider the retail unit availability of the city centre under the sequential assessment and he then develops that in the following paragraphs and concludes, as I have indicated, that the evidence to his mind had produced the result that he set out in his report. If that was his approach, and I have no reason to doubt that it was, as I say, it is in my judgment insufficient simply to assert it in a report; it is necessary to let the members know what is the basis of that planning judgment and, of course, it is not necessary for any detail to be gone into, two or three sentences would suffice, but at least it should be known.

So far as what should be contained in the officer's reports is concerned, I have been referred by Mr White to observation of Judge LJ in Oxton Farms v Selby District Council, a decision of the Court of Appeal on 18th April 1997. What Judge LJ said was this:

Submits Mr White, there was no misleading of the committee here. So far as the D26 point is concerned, in my view there clearly was such misleading and the committee was further misled as to the accuracy and so how they could depend upon the view formed by the officer, because they were unaware that it was actually based on a lack of material evidence. But, that apart, I have also been referred to observations of Sullivan J in paragraph 81 of the decision in R v Mendip District Council ex parte Fabre, a decision of 19th January 2000, CO/4770/98. He said this:

That is, I have no doubt, an entirely correct indication of the approach that should be adopted to officer's reports but I would add to that it is the practice in all councils, an appropriate practice, that members of the public are entitled to see in advance of a meeting of a planning committee the relevant reports, including of course the relevant officer's reports. The purpose of that is so that they too can know the basis upon which the Council is being invited to approach a particular application and (and this is the most important aspect) they can themselves make representations, either if the policy of the particular planning authority permits it orally at the meeting, alternatively in writing, and if an objector is aware of something which he or she regards as an error in the officer's report or an omission, that is the opportunity to apprise the committee of that error or omission and to make relevant representations about it. The whole purpose of advance disclosure is to enable objectors or those interested to have that opportunity and so, as it seems to me, albeit Sullivan J is correct and the officer's report is designed to give advice to knowing members of a committee and need not and should not extend beyond such as is necessary for that purpose, nevertheless it is important to remember that there is this further consideration so that the basis upon which relevant advice is given is at least made clear in a sentence or two. As I say, no more than that is in my view necessary. Here there was unsufficient even for the purpose of informing the members, let alone the purpose of enabling representations sensibly to be made, and, as Mr Jones points out, the matters which have been raised before me in this claim could and would have been adverted to in representations to the committee. Those two grounds individually, and Mr White accepts this and properly accepts it, suffice to show this decision cannot stand.

There were other points raised, first of all the question of an appropriate condition. In fact, what was imposed was a condition limiting 775 square metres to bulky goods. That was reached on the basis of representations made by Ms Tyrer but those representations were made under the assertion that they already had an unfettered right to an A1 retail use on the 1,460 square metres and in addition there was a further right which should be taken into account and should reduce the 1,034 to 775. I need not go into the details. Of course, the fact that there was an existing unfettered use was not, and could not be, determinative in deciding what should be the extent of any condition. If they chose to implement the planning permission, then that would overtake any existing use rights and so it would be open to the council to impose such conditions in relation to the extent of use as they considered appropriate and it was wrong to limit it, simply on the basis of existing rights. Certainly there was no reflection of that in the report, although there is some evidence that the matter was referred to in the committee meeting orally. One of the problems in this case seems to stem from the speed in which it was considered necessary to deal with the new state of affairs, having regard to the challenge to the earlier planning permission. So there was undoubtedly, as I see it, a problem in that respect.

The complaint is that the result means that there will be unlimited retail use of at least a substantial and a major part of the new development and that is a matter which could have a greater impact on the city centre. If it was merely bulk goods that would have a lesser impact and it is not entirely consistent with the officer's view in the report that the development, even assuming that he was there referring, and I think he probably was, to the 1,034 square metres required to be subject to the bulky goods condition when in the end only 775 square metres was made subject to that condition. Furthermore, there was a planning permission granted for a development in 1996. That was a development which was not entirely the same as the one with which I am concerned. Nonetheless, there was an extension and of retail space and it was not the subject of any conditions. It had the usual condition that it had to be implemented within five years of grant and by the time the committee reached its decision some ten years had passed.

It was said that there had been some activity, nothing to do with any building but some preliminary excavations to do with the car parking arrangements, and that was sufficient to indicate that the planning permission had been implemented. Whether or not that is the case I neither know nor have I any evidence to form any view. Suffice it to say that Mr Jones submits that his clients would want to consider the matter and to see whether that actually was something which could be maintained. Nevertheless, the existence of that planning permission was clearly, it seems to me, a relevant factor. It is referred to in the report and I am told it was referred to as an extant permission in the meeting but it became material because it might have meant that, if the conditions to be imposed by the Council were regarded by the applicants as too onerous, they might go ahead with the existing permission and avoid the need for any conditions and therefore it became necessary to consider whether in reality there was any likelihood of the 1996 permission being implemented. So the relevance of what is described as the fall back position became something which should have been taken into account.

There is some learning as to what existing permissions should have. I am not going to go into it in any detail because, as I say, it is a matter which I do not need to determine. Suffice it to say for the purposes of this judgment that it seems to me that it is necessary, and it was necessary, for an assessment to be made as to whether that planning permission was indeed one which was likely to be implemented or to go ahead because, as I say, that could have influenced the Committee in deciding what conditions should be imposed. If, for example, they imposed conditions which were regarded as too onerous then it might be that they would get the greater evil, namely the implementation of an unconditional planning permission and to that extent the views and the wishes of the applicants might well be something which had to be taken into account. Alternatively, if the reality was that the 1996 permission was not going to be implemented and the applicants were going to have to rely on their fresh application, then it might well be desirable to impose more onerous conditions upon its use, but the committee was deprived of the opportunity of considering those material matters because there was no assessment of the likelihood, or possibility even, of this 1996 permission going ahead and that clearly would have affected the weight which should have been attached to its existence.

For all the reasons that I have given, I am satisfied that this planning permission cannot stand and therefore this claim succeeds.

MR JONES: I am grateful to your Lordship. I have one point --

MR JUSTICE COLLINS: I am sure there are the plenty of errors. That is a problem with extemporary judgments.

MR JONES: No, it is a point that my Lord asked for the date of the first application.

MR JUSTICE COLLINS: Do not worry about that. The date of grant of permission will suffice. I have assumed it was probably in late 2004.

MR JONES: It is January --

MR JUSTICE COLLINS: Or very early 2005.

MR JONES: Yes, 25th January 2005. The first one was registered as a --

MR JUSTICE COLLINS: 25th January 2005. Thank you. You want some costs, I assume. I do not think you can resist.

MR WHITE: My Lord, to save time, I do not resist the principle. I have seen a schedule of costs, as have my solicitors, and we do not resist the schedule either.

MR JUSTICE COLLINS: All right. Well, how much is it?

MR JONES: My Lord, it is for £46,434.64.

MR JUSTICE COLLINS: All right. Well, you can have an order for costs in that sum.

MR JONES: I am grateful to your Lordship. Also could I say I am grateful to your Lordship for delivering the judgment today as well.

MR JUSTICE COLLINS: Well, I am sorry, as I say, one of the problems of extemporary judgments is that they take rather longer.

MR JONES: No, but we are grateful because --

MR JUSTICE COLLINS: Well, I did not want anyone to have to come again.

Incidentally, this court has an interesting time with Welsh cases because there is a great pressure sometimes that they should be heard in Cardiff but the reality is, I think, that transport between North Wales and Cardiff is less easy than transport between north Wales and London.

MR WHITE: Certainly from our side, my Lord, we were perfectly content to come to London because it is easier to get here.

MR JUSTICE COLLINS: Precisely. I had this in another case. Because of the geography of Wales, it is more convenient to come here.

MR JONES: We did have discussions actually between the parties and, all the parties, it was more convenient for London, particularly from coming from north Wales, because it was floated in the first application by Richards J.

MR JUSTICE COLLINS: Can I bang a drum that I have been -- you know there is this regionalisation. Of course, I recognise the desirability and possibility of cases that are local cases being heard locally, if that is possible, but, you know, we now do now have modern techniques such as a video link and it is very efficient nowdays and I see no difference in principle between having a judge sitting there personally and a judge sitting on the screen. Parties can -- and judicial review, particularly if it is not going to be too long, is an obvious candidate because there is no evidence. It does mean you have to get your papers in apple pie order but there is no harm in that and one has a dedicated fax machine so if there is any last minute paper. It is cheaper for everybody. You do not have to travel. Judges do not have to travel out and it means that local cases can be heard locally, can be heard with the knowledge you are getting the central tribunal as opposed to perhaps having a deputy or only one judge who is out at time, who may not know anything about planning.

MR WHITE: For the benefit of my clients, my Lord, is it simply a question of asking the court at some point during the proceedings that that is an appropriate way forward.

MR JUSTICE COLLINS: It is something that I have been trying to persuade the regions and I have got nowhere with the Welsh. But, I tell you, in fact, when I was president of the AIT, we had a UK wide jurisdiction and I did this in Scotland and we had our hearings, Scottish hearings, in London but the parties' representatives being in Glasgow and it meant that they got proper tribunals as opposed to deputies or people having to travel up to Glasgow and the expense of that. It meant the local Bar, or rather the local solicitors and so on, were happy and the same applies in England, in cases from the provinces, the local Bars benefit because it does not -- I mean, there is attendances sometimes from solicitors who go to London counsel if the case is going to come to London. Of course, it has been known.

MR JONES: My learned friend.

MR JUSTICE COLLINS: I see your point. All I am saying is that I wish people would know of this suggestion. I think it is in the long run cheaper, it provides your regionalisation. Of course, as I say, they will be some cases where it is desirable, particularly perhaps longer ones, that the judge goes out and that will no doubt happen, or the parties come in, but think about, if you would.

MR JONES: Could I just say, on video link, I have been involved in some cases in Northern Ireland. Whilst we have not had the hearings on video link, we have had conferences on video link, which has worked extremely well.

MR JUSTICE COLLINS: The modern equipment, I mean, you do not have this nonsense of delay, whereas if you watch something on television news, you have a -- that does not exist. As I understand it, it is six parallel telephone lines, ordinary telephone lines, and you do not get distorted if two or three talking at once and it really works very well.

MR JONES: On the other matter, my Lord, would it be of assistance to your Lordship -- I confess I should have on the other committee studied in more detail the regionalisation proposal -- but would it be of assistance, particularly in Wales, for the recognition of north Wales and south Wales to be made, so there is not automatic listing to south Wales for cases --

MR JUSTICE COLLINS: That, I think, is a matter -- I agree with you. I think that is -- as I say, this case is effective, and I have had other cases from north Wales where they have wanted to come to London rather than to Wales. I think that is matter that would be useful for you to raise with the powers that be in Wales. We are always quite happy -- if people want to come from Wales to London, there is no problem in accommodating them as far as the court is concerned.

MR JONES: The train service is just so much easier from London to north Wales and getting a train back then trying to get -- I have done going from the south to the north and you stop at every station and then you then go up on the English border, up the other way and round.

MR JUSTICE COLLINS: I am aware of the difficulties.

MR JONES: It can be beautiful, but time consuming.

MR JUSTICE COLLINS: Well, you think about it, if you would. As I say, I am quite happy in terms of encouraging video links. The court service would have to pay for some equipment but I think in the end it will pay for itself fairly quickly in avoiding the expense of travel, in particular. For example, if you were able to go from north Wales to Manchester, say, that would be very much more convenient, would it not, and very much easier.

MR JONES: Well, the other thing as well is the cost of travel by train is going up.

MR JUSTICE COLLINS: Huge amount. I saw someone had the gall to say what a marvelous attractive service and how cost effective it was. Our trains are more expensive than anywhere in the world, I should have thought.

MR JONES: There are cost effective, I suppose, compared to others in the line of a subsidy but certainly something I have appreciated, from a personal point of view, in the practice at the Bar, I do not know if my learned friend is the same, that there is a real increase in turn up and go, which I certainly tend to do, rather than booking in advance, because of the nature of the work, and it is incredibly expensive. Even for standard class tickets, it is the equivalent of air fares sometimes, and then there is -- I am sorry, it is a bit of a whine about the trains -- there is no chance of sometimes even getting a seat, if you are in standard class, so you have to go first class and then you could fly to Washington for the price.

MR JUSTICE COLLINS: I know the point. All right. Thank you both anyway.