Ashtenne Industrial Fund Ltd Partnership & Anor v Secretary of State for Communities and Local Government & Anor

This is a challenge brought under Section 288 of the Town and Country Planning Act 1990 in relation to the refusal of a planning appeal on 5 August 2008 by an inspector on behalf of the First Defendant. I propose to deal, firstly with the essential facts lying behind the appeal, then to deal with the legal principles and, finally, the conclusions in relation to each of the grounds of challenge that were pursued before me. In dealing with the inspector’s conclusions, I propose initially simply to address his overall conclusions, and then to provide in respect of the grounds the pertinent extracts from the decision letter that bear upon the Claimants’ complaint in respect of each of the grounds. At the hearing, ground 6 in relation to design and ground 7 in relation to the interpretation of housing policy were both withdrawn.

The decision letter related to four appeals. Appeal A related to an application for outline planning permission for a mixed use development comprising 192 houses and 4,831 square metres net of retail development on a previously developed site measuring about 7.7 hectares within the urban area of Chippenham to the north of the railway line as it passes through that settlement. Appeal C related to a detailed application for permission for a food/non-food store within the land forming the site of appeal A and in respect of a site of around 3 hectares. The retail development proposed was of the same scale as that proposed in appeal A. Appeals B and D were related Conservation Area consent appeals in respect of appeals A and C, and they sought the demolition of a building with the Conservation Area in order to facilitate the development proposed.

The history of the land comprising the appeal site for appeal A (and, of course, including that associated with appeal C) is as follows. In March 2003 the Second Defendant, North Wiltshire District Council, adopted a development brief for land called the North Site, Cocklebury. The development brief was said to be issued pursuant to the North Wiltshire Local Plan adopted in January 2001. The land concerned in this development brief was a wider site than the appeal sites. The appeal sites formed part of what was described in the development brief as zone A of the wider land addressed in the brief. The contents of the brief provided as follows:

“1.37

The land comprised within the ‘North Site’ represents a significant opportunity to address the provision of local employment and housing for the people of Chippenham together with ancillary retail and leisure amenities, subject to capacity analysis.

[...]

2.44

Apart from a small part of the site immediately north of Foundry Lane, the site is not within the defined town centre – any retail development proposals would therefore need to comply with adopted Local Plan Policy RS6. In particular, an examination of all town centre sites should be undertaken to ascertain whether the proposal could be accommodated within the town centre (sequential test); and a retail impact study would be required to consider the effect on the town centre. Linkages with the town centre should also be provided.

[...]

4.1

The ‘North Site’ plays an extremely important role in the provision of employment for the local population. This role cannot be overlooked and will be a primary focus of the vision. In addition, the site can play a role in providing housing for local people together with ancillary facilities to serve the local catchment area. The ‘North Site’ holds the key to the enhancement of this ‘prominent’ area of Chippenham. The vision for the ‘North Site’ is:

‘the opportunity reinforce and enhance the provision of employment, to address the lack of local housing and to improve the “first impression” of Chippenham...’

[...]

Proposed land use zones

4.9

In the light of the above key issues, and in view of the investigations that have been undertaken in order to produce this Development Brief, two land use ‘Zones’ are proposed for the ‘North Site’ (as indicated on Plan 5 below):

Zone A

8 hectares

LARGE SCALE RETAIL/LEISURE AND/OR RESIDENTIAL

An area of ‘mixed’ large scale retail/leisure and residential uses

This Zone should provide additional retail facilities adjacent to existing retail uses subject to there first being an identified need through an appropriate retail capacity study and compliance with both national and local retail policies provided subject to highways capacity analysis, access to be provided from Foundry Lane only.”

After the development brief had been adopted, the Second Defendant published a replacement for the Local Plan. In that replacement, it proposed retail policies including policy R3, which addressed allocations for retail use and identified one site for that use, namely the Bath Road Car Park, Chippenham. The First Claimant objected to this policy on the basis that they wished to have the whole of the wider area of the development brief allocated for mixed uses including a significant element of retail development. The Local Plan Inspector considered their objections and rejected them. The relevant passages from the Local Plan Inspector’s report are as follows:

“11.29

Issue c. The objection site forms part of the Langley Park area. It is located within the central part of the town some 800 metres from the town centre and adjoins the Hathaway Retail Park which contains several large, modern retail units. A development brief has been prepared for Langley Park. It divides the site into two parts. Zone A, which has an area of some 8 ha is close to the Hathaway Retail Park. The brief indicates that zone should be released for mixed use redevelopment, comprising primarily residential uses with additional retail and leisure facilities. Zone B, which would remain as a large scale employment location, has an area of some 14.5 ha. Zone A is allocated in the RDDLP for housing as part of a mixed use development with an estimated capacity of some 250 dwellings. Zone B is not allocated for development in the Local Plan.

11.30

It is suggested by the objector that the whole of the Langley Park site should be allocated for a mixed use development comprising major retail, employment, housing and leisure uses. It is suggested that such an approach would allow the area to realise its full potential through comprehensive regeneration rather than redevelopment on a piecemeal and incremental basis. However from the submitted evidence and my observations of the site, I am not convinced that a comprehensive redevelopment is necessary or appropriate at the present time. The approved development brief allows for an area of mainly vacant and surplus employment land to be brought back into beneficial use. The remainder of the park is mainly occupied by existing employment uses and does not require redevelopment at the present time. Zone A adjoins an existing residential area and is near to the railway station, town centre and employment areas. As such it is ideally located to provide a sustainable residential development which would make a significant contribution towards achieving the Structure Plan housing requirement.

11.31

The objector suggests that a comprehensive redevelopment of Langley Park could provide a 7,432 sqm net food store, 400 dwellings, 21,979 sqm of retained and new employment space, a 70 bed nursing home and a bar/restaurant. However such a development would result in the loss of occupied employment premises. I also have reservations about the relationship between the different land uses shown on the objector’s indicative site layout, with residential units enclosed on two sides by substantial industrial buildings. The objector has also provided details of an alternative scheme which will provide 7,400 sqm of food retailing floorspace and 62 dwellings. I consider the reduction in the number of dwellings to be unacceptable, given the characteristics of the site and its significance in terms of meeting the Structure Plan housing requirement.

11.32

I turn therefore to consider whether the need for additional retail floorspace is sufficient to justify the loss of employment land or the loss of housing provision. The objector argues that there is a quantitative and qualitative need for additional retail floorspace in Chippenham and that there is a current requirement to allocate sites for convenience and comparison goods shopping purposes. The objector’s estimates are challenged by the Council. The Council has accepted that some revisions were required to its estimates of retail need. The outstanding differences in the estimates can in part be explained by differences of methodology. However, there are also variations in the estimates which result from differences in the base population data which were not ultimately explained at the inquiry. Both sets of data were obtained from different but nevertheless authoritative sources. Consequently, the estimated floorspace capacity could not be agreed. The council suggests that there is some 2,531 sqm net capacity of convenience floorspace, while the objector suggests a figure of between 5,491 and 5,764 sqm net.

11.33

It is common ground between the objector and the council that the Bath Road Car Park and The Pippin in Calne are the only two potential retail sites in the District, other than the objection site. While I do not share the objector’s pessimism regarding the development potential of the sites, I agree that if they do come forward for development, it is likely that comparison retail floorspace would be provided. I accept that The Pippin could provide some 2,250 sqm gross floorspace, but for reasons I explain above, I believe that Bath Road could provide more than the 3,000 sqm gross of floorspace suggested by the objector. Nevertheless, on both the Council’s and the objector’s estimates there is the capacity to allocate additional sites. However, as I have explained above, I do not consider that the Council is under an obligation to necessarily allocate sites at the present time to meet the estimated need in full. Whether there is sufficient capacity to provide 4,459 sqm of convenience floorspace at Langley Park is dependent on whether the Council’s or objector’s calculations are correct. However, even if there is the capacity, I am not convinced that the need to provide additional retail floorspace is sufficient to justify the loss of housing provision or employment opportunities. Consequently, I do not consider that the allocations for Langley Park should be modified as suggested by the objector at the present time.

Recommendation

11.34

I recommend that no modification be made to the Local Plan in respect of the above objections.”

Thus, following the Inspector’s recommendation, the Local Plan was adopted as proposed, including the appeal site as a proposal under policy H2. Policy H2 provided as follows:

“H2 allocated residential sites

The following sites, as shown on the proposals map, have been allocated to contribute to the residential development needs of the district for the period up to 2011 [...] Foundry Lane, Chippenham (as part of a mixed use scheme) 250

Unlike other sites listed in table H2 supplementary planning guidance has not been prepared and adopted for the Chicken Factory. Therefore the mixed and extensive uses on the site will require further discussion with the council, taking into consideration the relevant policies in this local plan.”

The site was also referred to in policy BD1, which provided as follows:

“BD1 EMPLOYMENT LAND

About 150 ha of land is made available for business development (Use classes B1, B2 and B8 uses) within the period 1991 to 2011.

10.1

In accordance with requirements set out in the Wiltshire Structure Plan 2011, the District Council is seeking to allocate land for employment generating development over the plan period 1991 to 2011. The Structure Plan employment provision for North Wiltshire is for about 150 hectares of land a large amount of the proposed employment land provision has already been completed or committed through planning permissions and local plan allocations. From the proposed employment land provision of about 150 hectares, around 52 hectares of land for employment uses remains to be identified.

Development shall be permitted for business development (Use Classes B1, B2 and B8) on the following allocated sites, and outstanding allocations (from Adopted 2001 Local Plan):

Proposed Local Plan Allocations

Site	Area (Ha)
East of Beversbrook Farm and Porte Marsh Industrial Estate, Calne	4.4
Hunter’s Moon, Chippenham	5
East of Leafield Industrial Estate, Corsham	3.29
Former St Ivel Site, Wootton Bassett (as part of a mixed use scheme)	3
Cocklebury Road, Chippenham (as part of a mixed use scheme)	2.5
Garden Centre, Malmesbury	3.9

Outstanding Local Plan Allocations

Site	Area (Ha)
Littlefields (Bath Road), Chippenham	13.2
Braydon Lane, Cricklade	2.7
Land to the North of Tetbury Hill, Malmesbury	1
Brickworks, Purton	3.1
Templars Way, Wootton Bassett	3.44
Interface Business Park, Wootton Bassett	1.85

Total Amount of Land Allocated

47.38 hectares

The District Council would also support further employment opportunities as part of mixed use development schemes at the Foundary Lane and Flowers Yard sites in Chippenham. It is envisaged that the redevelopment in each case will be predominantly based upon residential uses, employment activities will make a positive and sustainable contribution to the local area. Business development on these sites will be additional to the provision set out in Table BD1.

10.3

The Wiltshire Structure Plan 2011 regards employment land as that which falls within the following use classes: B1 (Business), B2 (General Industrial) and B8 (Storage and Distribution). Whilst other uses (such as retailing, leisure and education uses) provide job opportunities, Use Classes B1, B2 and B8 act as a measure of economic strength.”

The only site which was allocated in the Local Plan for retail development remained the site identified by policy R3 at Bath Road Car Park, Chippenham. The site was identified as measuring 0.5 hectares. The last policy which is of relevance to this case is a general policy in relation to open space known as policy CF3, which provided as follows:

“CF3 PROVISION OF OPEN SPACE

Proposals for new housing development will be required to make provision for open space on site, to provide 15m² for Local Parks and 3m² for play areas per person. The council will accept in the appropriate circumstances, financial payments from developers for provision of open space according to the following order of preference:

i Provision of open space elsewhere which is appropriately located in relation to the development;

ii Contributions towards the upgrading of existing nearby open spaces.

Development will be required to make contributions to remedy local deficiencies in the quantity and/or quality of open space and the future maintenance of open space provided to meet needs arising from the new development as set out in North Wiltshire’s Open Spaces Study.

12.5

All residential developments regardless of scale have the potential to contribute to the increased need generated to improve existing open spaces or provide new open spaces. The preference will be to provide new open space provision on site. However, this may not be practical for minor residential development proposals (ten dwellings or less). For these minor residential proposals, the use of a financial contribution would normally be considered appropriate.”

In the light of changes to planning legislation, the Council began to prepare for the establishment of the new forward planning system of the Local Development Framework. They therefore prepared and published a Local Development Scheme setting out within that document the planning policies which they proposed to develop and those elements of planning policy which remained part of the development control system. This document was published in March 2007. It cancelled the development brief as a supplementary planning document, providing as follows:

“Cancelled supplementary planning documents

[...]

The North Site Cocklebury, Chippenham Development Brief 2003. This related to various policies within the NWLP 2001 now no longer relevant as new policies in that area now apply.”

The appeals with which this case is concerned proceeded to inquiry in May 2008. Following the inquiry, the Inspector gave his decision by a decision letter dated 5 August 2008. At this stage, it suffices simply to set out the Inspector’s overall conclusions in relation to the planning merits of the proposals which were as follows:

“Overall conclusions

54

In summary, I found no clear retail need for the amount of floorspace proposed in both planning applications at this out-of-centre location, which is not in a highly accessible location. The development of the schemes would have an adverse retail impact on the town centres of Chippenham, Calne, and Corsham and would place the retail development of a sequentially preferable site at Bath Road (including the Bridge Centre) at risk. On the information available at the inquiry I consider this site remains available, suitable and potentially viable for a smaller convenience store to meet some of future need, together with other retail and commercial development.

55

In the context of a need to develop the allocated site for housing and employment uses I consider there is no overriding objection in principle to retention of Building R15. But the configuration of the housing area in combination with the required density of development would create other design drawbacks, including the potential risks of overlooking, inadequate open space which are serious enough to justify refusal. There is some risk that the land left over after Asda’s requirements for such a large store would fail to meet the minimum number of dwellings proposed in Policy H2, taking into account the potentially very high density on the remaining land within the allocation. The configuration of the housing site and the necessary proximity of dwellings to operational buildings used by Westinghouse could lead to potential amenity problems for new residents. However, given the nature of Westinghouse’s activities and the potential for better use of the remaining land and buildings at Langley Park, I found no firm evidence to suggest that the schemes proposed would prejudice the continued operation of the company and the valuable employment it provides.

56.

The schemes would conflict with the land use policies of the Development Plan and with local and national policies to protect and regenerate town centres, ensure a high quality of design and provide significant amounts of new housing, in accordance with agreed figures. I have taken into account the possible benefits the schemes would provide, including the new cycle/footbridge, but consider them insufficient to outweigh the harm that I have identified above.

57.

For the reasons given above I conclude that the appeals should be dismissed.”

The relevant legal principles are well known and are as follows. Firstly, this is not a rehearing, and it is essential for the Claimant to establish that there has been an error of public law in the decision which is under challenge. It is not appropriate in a statutory challenge of this kind to seek to reinvestigate the planning merits or the planning judgements which have been exercised by the decision-maker.

Secondly, an error of law can arise from the following (although this is far from an exhaustive list). Firstly, it can arise from the taking into account of an immaterial consideration, or the failure to take account of a material consideration. A species of this kind of error is making a material factual error, as is the failure to apply or properly understand or interpret relevant planning policy. Certain material considerations are subject to subsidiary legal principles, none of which are in play in this case, such as the materiality of a fall-back position.

A further type of error of law arises from a failure to give adequate reasons for a decision which substantially prejudices the recipient of the decision. It is also possible, albeit very rare, for planning decisions to be guilty of an error of law characterised as irrationality. However, given that decisions of this kind turn on the exercise of judgement, such cases will be few and far between.

In relation to the provision of reasons, it is necessary to assess whether they are adequate bearing in mind the cases advanced and the issues presented in the appeal. It is vital to remember that it is only the principal controversial issues, and not every issue, that need to be addressed in the decision. The decision letter should be approached in a straightforward and down-to-earth manner and without unnecessary legal sophistry. The principles have been definitively set out by Lord Brown in his speech in the case of South Buckinghamshire County Council v Porter (No 2) [2004] 1 WLR 1953 where, at paragraph 36, he distilled the principles as follows:

“36

The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact on future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”

Errors of law can also arise from the procedures adopted in the context of the appeal. The procedure can fail the requirements of fairness. In particular, in relation to issues which are ultimately determinative of the appeal, it is necessary to be satisfied that the disappointed party has had a reasonable opportunity to address the issues through the appeal process. That is often described in the cases as having been provided with “a fair crack of the whip”. As will be obvious from a legal principle which is commonly characterised as a figure of speech, the detailed requirements will be highly fact-sensitive and will vary significantly from case to case.

This ground relates to the Inspector’s conclusions in the appeal relating to the Local Plan and the development brief, and whether or not the proposal was in accordance with the Local Plan. The Inspector concluded as follows:

“Policy background

7.

The sites lie within the urban area of Chippenham, to the north of the Great Western Railway line. The land, together with a further 0.58 ha to the west of the larger site, is allocated in the 2006 North Wiltshire Local Plan under Policy H2 for 250 dwellings as part of a mixed use scheme. The footnote to the policy states that ‘unlike other sites listed under Policy H2,’ Supplementary Planning Guidance (SPG) has not been prepared for the Chicken Factory’, another site listed under the policy. No other sites allocated under Policy H2 are specifically mentioned in this footnote. The appellants argued that the failure to exclude the adopted planning brief for land including the appeals sites indicated strongly that the sites should be developed in accordance with a planning brief prepared as SPG. There is no doubt that the appeal schemes comply with the brief, which provides for ‘large scale retail/leisure’.

8.

I note however that the brief was prepared in 2003, before the first draft of the current Local Plan was published. It was drawn up when a different policy context applied, under the previous Local Plan. At the inquiry into objections to the now adopted Local Plan, including those presented by the appellants, the inquiry inspector confirmed the allocation of the sites, without any reference to retail in the policy itself. The inspector’s report rejected the suggestion that the whole of the Langley Park area should be allocated for mixed use development comprising major retail, employment, housing and leisure uses. Policy BD1 of the Local Plan states that the Council would support further employment opportunities at the site (known as Foundary Lane sic) as part of a mixed use development. The supporting text to this policy envisages that the redevelopment on sites such as the appeals sites will be predominantly based on residential uses. I place little weight on the appellants’ claims that the retail development would create employment that would comply with this wording. The explanatory text to Policy BD1 in paragraph 10.3 indicates that employment land is that falling within Use Classes B1, B2 and B8.

9.

In any event, the LDF scheme approved by the Council in March 2007 stated in terms that the brief had been withdrawn. While it was unfortunate that the appellants were not aware of this change, it seems clear to me that the Local Plan inspector rejected any significant retail use of the sites and this binding recommendation was reflected in the adopted Local Plan. I therefore accord the development brief very little weight with regard to its provisions for the land use of the sites.”

The essence of the Claimants’ complaint is a failure to properly interpret planning policy and an associated deficiency in the reasons provided by the Inspector. As the Inspector records, the Appellants’ case was that their scheme accorded with the development brief, and that therefore they were entitled to a finding that their scheme complied both with the development brief and with policy H2.

Firstly, it is said that the Inspector has failed to provide reasons why the fact that the Development Plan was drawn up under the old Local Plan diminishes the weight to be attached to it, particularly in circumstances where it was inferentially incorporated into the new Local Plan in policy H2. Further, it is said that the reasons given in relation to the conclusions of the Local Plan Inspector are in error as they fail to appreciate the significance of the fact that the objection sought allocation of a wider area of land, and the fact that when properly understood the Local Plan Inspector supported the approach of the development brief to fostering large-scale retail/leisure development as part of a mixed use scheme. Further, it is said that the reference in the Inspector’s reasons to policy BD1 is unclear and the reasons in relation to it unsatisfactory, in particular since the Claimant had relied upon the references in PPS4 to retail jobs as providing beneficial employment opportunities. Finally, it is said that the cancellation of the development brief was wrongly regarded by the Inspector as being of significance, and that it was incumbent upon him to assess the merit of that withdrawal and, in undertaking that assessment, to ascribe weight to its withdrawal as a material consideration.

I am unable to accept that these criticisms are either valid or give rise to a finding that there has been an error of law. What the Inspector was doing, correctly, was to consider the precise terms of the plan in the light of the competing submissions which he had received, and form a view as to what the plan meant. He was clear that policy H2 allocates the site for residential use as part of a mixed use scheme and therefore does not allocate it for a significant quantity of retail use. He addresses the point in relation to the Local Plan Inspector by accurately reflecting in paragraph 8 of his decision what had happened at the Local Plan inquiry, and by reference in paragraph 9 of the decision letter to the fact that the Local Plan Inspector did not actually accede to significant retailing or alter the allocation of the land for residential use as part of a mixed use scheme which reflected this conclusion. The cross-reference to policy BD1 was clearly drawing together the references in the Local Plan to the site to see whether there was any basis on which to conclude that the Local Plan supported significant retailing upon it. The Inspector correctly records that in fact the terms of that policy do not permit of retail development and specifically exclude retail jobs as counting towards an employment use for the purposes of the policy. Whatever may have been the status of draft national policy in the emerging PPS4, the Inspector’s conclusions were both factually right and a legitimate exercise of planning judgement, bearing in mind the clear terms of the policy. The effect of this was that he exhausted all potential reference in the Local Plan to retail uses on the site, with the exception of the inferential reference relied upon by the Appellants to the development brief. However, the coup de grace in relation to that point was the withdrawal of the brief.

In the course of argument I raised the question as to whether or not the appropriate remedy for a claimant in this situation was to judicially review the decision to adopt the local development scheme. That is perhaps an academic point, bearing in mind that the development brief had been withdrawn through the adoption of the local development scheme without challenge over a year prior to the inquiry. That withdrawal was a clear and obvious reason for the Inspector according the document little weight. The fact that it had been withdrawn from the Council’s portfolio of operative policies against which decisions about planning permission were to be taken obviously had a material impact on its significance and the weight to be attached to it. If further reasons were required, it is clear from paragraph 9 of the decision letter that the absence of direct reference in the allocations of the Local Plan (as opposed to the precarious, inferential and unparticular reference, which depended on the continuity of the development brief) to significant retail use of the site and therefore the disparity between the development brief and the Local Plan was clearly the Inspector’s reason, as it was the local planning authority’s reason, for regarding the development brief as of very little weight. Once the Inspector had reached the conclusion as to the weight to be attached to the development brief and the proper interpretation of policies H2 and BD1, the conflict between the retail element of the appeals and the Development Plan was clear and his conclusions unimpeachable. I thus dismiss the Claimants’ contentions in relation to ground 1.

It was accepted that the proposals had to establish a need for both the comparison and convenience goods which the store proposed to sell. There was a dispute as to whether the evidence in the appeals had done so in relation to convenience need, but it was agreed between the Claimants and the Second Defendant that there was an established comparison goods need. The Claimants’ case is put on this ground in respect of both comparison and convenience goods need.

The Inspector concluded in relation to both kinds of need as follows:

“Need

11.

PPS6 advises that quantitative analysis of retail need should, wherever possible, be based on assessments carried out for the development plan document, updated as required. In this case both main parties provided figures showing estimated convenience and comparison goods turnover for an agreed catchment area in 2008 and for 2013, the expected opening date of the proposed Asda store. The updated Local Plan assessment carried out by Donaldsons showed a District-wide requirement for some 2,531 sq m of convenience floorspace and over 11,000 sq m of comparison goods floorspace, some of which derives from the opportunity to claw back expenditure leaking out of the District. Chippenham is identified as a Strategic Service Centre in the Wiltshire and Swindon Structure Plan but the Local Plan identifies only one major retail site, at Bath Road Car Park. I note that the Local Plan inspector rejected a suggestion that the plan should allocate sites to meet all the suggested need for convenience floorspace at that time.

12.

The Council agreed that there was capacity for the turnover likely to be generated by the floorspace which the appellants stated would be given over to comparison goods (some 2,324 sq m). This area is well within the expected requirement for the Local Plan period, most of which is likely to be directed to Chippenham as the largest centre within the District. I have some reservations that the desirability of retaining all such comparison expenditure within the growth town, rather than direct it to the regional town centres of Bath and Swindon, is sufficient justification to allow provision in an out-of-centre location.

13.

While a number of matters, including population and expenditure estimates for 2008 and 2013, existing floorspace and commitments were agreed, the need for the proposed convenience floorspace was disputed. At the time of the inquiry the largest convenience store in the town centre was closed for renovation, following its takeover by Tesco from Somerfield. There was a significant dispute about the trading level of the former Somerfield store: the appellants said £11.2m, the Council £6.3m, compared with an agreed benchmark figure for Somerfield of £9.9m. While it would be unusual for an operator to sell an overtrading store, in this case there may have been a strong commercial reason for Tesco to establish a presence in an area where the company is comparatively under represented.

14.

On balance I consider the appellants’ estimate, which is consistent with the Donaldsons figure, to be more realistic. From Tesco company averages and expected expenditure growth it seems likely that the turnover of this store is likely to increase significantly up to 2013, taking up some of the capacity in the catchment. As there is no doubt about the change of operator, I consider the estimate of the turnover on the basis calculated by the appellants, using Tesco figures, shows what is likely to occur. On this basis, an increased turnover from about £11m in 2008 to about £18.9m in 2013 (without Langley Park) should be expected. However, as the Council pointed out, a calculation on this basis, including the expected growth in turnover due to Tesco, would not show the true impact of the new Asda store on town centre trading in comparison with the previous position.

15.

A key area of dispute concerned overtrading in existing stores. The two largest convenience stores are Sainsburys and Morrisons, both at out-of-centre locations on the western and northern edges of the built up area respectively. It appears highly likely that the proposed store would attract a substantial proportion, possibly over 60%, of its trade from Sainsburys and Morrisons. Paragraph 2.36 of PPS6 refers to overtrading in the context of qualitative demand but the appellants quoted several appeal decisions where it had been used to justify quantitative need. As a matter of principle, other cases indicate that it would be wrong in law to exclude overtrading from quantitative needs assessments. I note that the Secretary of State has taken it into account in previous decisions.

16.

However, the significance of overtrading to quantitative assessments is likely to vary depending on the circumstances of each case. I agree strongly with the general comments of the inspector in the Worthing appeal decision quoted by the Council (ref 1196226), in particular that to argue that overtrading in out-of-centre stores justifies another out-of-centre store flies in the face of government and local policy to focus retail development on town centres. Despite the appellants’ comments, I see strong similarities with the circumstances here and those in Worthing. Although the Worthing store site was further from the town centre, at 2.4km compared with 0.9km here, the appeal schemes would undoubtedly encourage more car-based travel to a location which offers minimal advantage in terms of the sequential test. As I discuss below, I do not consider the store site to be in a “highly accessible” location and in my view the strength of potential links to the town centre was much over-stated by the appellants.

17.

As to qualitative need, I give little weight to the potential benefit of reduced travel costs and times for residents living on the south and east side of Chippenham, if their expenditure were drawn away from Sainsburys and Morrisons. The extensive parking areas on the site layout indicate that the proposed store is clearly of a traditional type, where by far the majority of shoppers would be expected to arrive by car. I see no significant qualitative advantage in some customers driving a shorter distance, when others may drive further. As to choice, there is already a range of different convenience goods providers in the town. These include Sainsburys, Morrisons, Iceland, smaller retailers in the town centre and imminently, Tesco. On my site visits I found that Sainsburys appeared busy, especially at peak times; Morrisons, which has a commitment for expansion, was slightly less so. But there is no firm evidence that any overtrading at stores in Chippenham, including those in the town centre, is creating an unacceptable shopping experience for customers, as the popularity of the two large stores indicates. I have concluded therefore that the proposed store cannot be justified on grounds of qualitative need.

18.

In a policy context where it is for the appellants to demonstrate need exists, I am far from convinced that a store with this much convenience floorspace can be justified. The need to provide more floorspace to relieve overtrading at the two out-of-centre stores is predicated on benchmark turnovers which, as an average, mask variations. The two large out-of-centre stores are relatively modern premises of a type that one could well expect to trade above benchmark without undue concern. In the circumstances of this case therefore I consider that it would be inappropriate to conclude that all the alleged overtrading should be counted towards quantitative need, even allowing for robust assumptions about floorspace efficiency changes. Other elements to be considered are the extent of trading in the town centre stores which appeared to be below benchmark figures in both parties’ assessments. The new Tesco store in the town centre could also take up more capacity than what is expected using benchmark turnovers. I have concluded therefore that a need for the full amount of the floorspace proposed has not been demonstrated in accordance with the requirements of Policy R4(i) of the Local Plan and paragraph 3.10 of PPS6.”

In relation to this issue and the arguments made, it is also important to appreciate that at paragraph 22 of the decision letter, to which I shall turn in due course, the Inspector concluded that the capacity of the Bath Road Car Park together with adjacent land promoted by the Council as a sequentially preferable site was 1,400 square metres so far as convenience goods were concerned. The conclusions which the Inspector reached in relation to need were summarised in his overall conclusions on retail policy aspects, which it is as well to set out here, but which also bears upon other grounds of the case, as will be evident from subsequent parts of this judgment. He concluded:

“33.

A substantial element of the requirement was comprised of alleged overtrading at existing out of centre stores. I am not convinced of a need for all the floorspace proposed on the basis of relieving overtrading at existing out-of-centre stores. The proposed store in an out-of centre location would be primarily aimed at car borne-shoppers and would not have particularly good links to the primary shopping area of Chippenham. The combined Bath Road site is available, appears suitable for such development and while there were some potential difficulties with viability, a detailed scheme with costings had not been drawn up. Much would depend on relocation costs for an existing community centre, which could well have been over-stated by the appellants, and the ability of the scheme to include other income generating uses. I agree with the Council’s point that this sequentially preferable site remains a realistic and genuine opportunity to develop some of the needed floorspace that should be pursued before any permission is given for an alternative out-of-centre scheme. Finally, such a large store as proposed would inevitably draw trade from existing town centres (including the smaller and more fragile towns of Corsham and Calne), which would be adversely affected.

34.

I have concluded therefore that the scheme would conflict with Policy R4 of the Local Plan and would not meet local and national policy objectives to direct major new retail development to town centres, having regard to the need for the development, the availability of suitable viable alternative sites and other criteria, including accessibility. I note that since the inquiry a new draft of PPS6 has been published, on which the parties have not had the opportunity to comment. In so far as it differs from PPS6, I accord this document little weight at this stage.”

The Claimants’ case is that it appears, in particular from paragraph 12 of the decision letter, that the Inspector expresses some reservation in relation to comparison need in respect of the desirability of retaining all of the identified comparison need in Chippenham, where it is submitted the Local Plan indicates comparison goods expenditure should be accommodated. I do not accept this criticism. All that the Inspector was doing at this stage of his reasoning was to express a generalised view of the means available to meet the totality of comparison need in the light of a retail hierarchy which clearly recognised a higher status to the city centres of Bath and Swindon, and their role relative to the role of Chippenham. In his conclusion, the Inspector did not in any way gainsay the assessment that a comparison need had been identified, nor in his decision does he in any way suggest that it is an absence of comparison need which has led to his conclusions that consent should be refused.

Turning, then, to convenience goods expenditure, the Claimant complains that the Inspector’s approach to the issue of overtrading is legally flawed. Firstly, it is said that it is entirely unclear as to what element of overtrading the Inspector did in fact allow for and take into account in his assessment of convenience need. It is a further aspect of the Claimant’s case that the Inspector ought to have identified the quantum of convenience need that he considered did exist, since it is contended it is necessary for the Claimants to know this in order to enable them to frame any new retail proposal for the site and tailor it to the need which the Inspector found. It is further submitted on behalf of the Claimants that the Inspector has in the paragraphs quoted confused the issue of retail need and the sequential approach in his consideration of the materiality of overtrading. Indeed, the Claimant contends that the approach from the Worthing appeal decision is wrong and inconsistent with a logical approach to understanding retail requirements. Finally, it is contended that in the final sentence of paragraph 14 of the decision letter the Inspector, in referring to “the true impact of the new Asda store on town centre trading”, confused his assessment of need with considerations relating to retail impact.

Again, in my judgement, these criticisms do not disclose an error of law on the Inspector’s part. Firstly, I do not accept that it was necessary in the context of this decision for the Inspector to give his own figure in respect of convenience need. That is not to say that that will never be the case, but, in the context of this appeal, what the Inspector had to address was whether or not there was in fact a need for this store proposal in terms of convenience goods. Obviously, part of that assessment would have to be whether there were sequentially preferable alternatives to absorb any need which had been identified. In addition, here, as is often the case, the contentions about need essentially turned on one aspect of the assessment, namely the conclusion which was to be reached in relation to overtrading. This is clear from the evidence at the inquiry offered by Mr Hollis on behalf of the Council.

Here, the essence of the Inspector’s conclusions was that the Appellants’ case was not proven. He was entitled, reliant on the relevant policy, to found his conclusion on the basis that it was for the Appellants to demonstrate a need for their proposals. Once he had concluded that not all overtrading could count towards the convenience goods need, then the conclusion that need had not been proved by the Appellants followed and was sufficient to resolve the question before him against the Claimants, without the need to identify any specific figure. In the circumstances of this case it is, to my mind, clear why the Inspector did not offer his own figure but rather relied on a conclusion that the Appellants’ case was not proven. The circumstances of this case were that the assessments before him were of necessity ephemeral and founded upon forecasts, for instance in relation to the future turnover of the town centre Tesco store, which might or might not prove accurate. Once that store was open for trading more reliable empirical information about its trading pattern would be available. Thus, in the circumstances of this case, it was not necessary for him to produce a figure for the Claimants to know how to frame their resubmission. The basis of his conclusion would require them to reassess the issue of need bearing in mind that a need case could not be built in large measure upon overtrading, or without accounting for the 1,400 square metres of convenience goods retailing he anticipated on the Bath Road site, unless circumstances in relation to that site had themselves changed.

Turning to the Claimants’ criticisms of the Worthing approach, I do not consider what the Inspector concluded amounted to any error of law. He rightly concluded that overtrading could be a matter to be included in a needs assessment but that it would depend very much on the circumstances of the case, and he gave his reasons for taking the view that the circumstances of this case were similar to those which had pertained in Worthing. It is not illogical to suggest that one of the circumstances to be borne in mind is the location of the overtrading which is relied upon, and to afford less weight to overtrading occurring in an out-of-centre location. This consideration is also relevant bearing in mind the Inspector’s finding in paragraph 18 of the decision letter that there could be greater capacity for the new Tesco store in the town centre to trade at higher turnovers, absorbing more expenditure. Lastly, I do not consider that the reference in paragraph 14 in the last sentence to the impact of the new Asda store to represent any confusion in the Inspector’s reasoning, since it is in essence a piece of continuity foreshadowing in this part of the text conclusions which the Inspector was to reach later in relation to considerations of impact. I therefore reject the Claimants’ case in relation to this second ground of challenge.

The sequential approach is set out in national government advice, in particular in paragraph 2.45 of PPS6, which provides as follows:

“2.45

Local planning authorities should, in consultation with stakeholders (including the development industry) and the community, identify an appropriate range of sites to allow for the accommodation of the identified need. Flexibility and realism is required from both local planning authorities and developers and operators in discussing the identification of sites for inclusion in development plan documents. Local planning authorities should be sensitive to the needs of the community and stakeholders, including developers and operators, and identify sites that are, or are likely to become, available for development during the development plan document period and which will allow for the accommodation of the identified need, including sites capable of accommodating a range of business models. In planning terms, the factors that should be taken into account in considering business models are: scale, format, car parking provision and the scope for disaggregation. In turn, when proposing sites for inclusion in development plan documents, developers will need to be flexible and innovative, and should explore fully the possibility of fitting development onto more central sites.”

Paragraph 3.19 of PPS6, in the part of the document which deals with development control, provides criteria against which to test whether or not there are sequentially preferable sites, as follows:

“3.19

Where it is argued that otherwise sequentially-preferable sites are not appropriate for the particular development proposed, applicants should provide clear evidence to demonstrate why such sites are not practicable alternatives in terms of:

Availability: the sites are unavailable now and are unlikely to become available for development within a reasonable period of time (determined on the merits of a particular case).Where such sites become available unexpectedly after receipt of the application the local planning authority should take this into account in their assessment of the application; and

Suitability: with due regard to the requirements to demonstrate flexibility (paragraphs 3.15–3.18), the sites are not suitable for the type of development proposed; and

Viability: the development would not be viable on these sites.”

Against this background, as I have set out above there was one site in issue, which was the site identified in the Local Plan under policy R3, Bath Road together with additional land adjacent to it, which was currently occupied by a community centre. During the course of the inquiry it emerged that the site was affected by a covenant which would preclude the use of part of the site for convenience retailing but not comparison retailing. Sketch exercises planning the site suggested that at most 1,400 square metres could be accommodated on the land which was not affected by this covenant. There were letters from both Tesco and Waitrose stating that they were interested in the site, but it is clear in the correspondence that they both had a requirement for a store which was of a size much larger than the Bath Road site could accommodate (that is larger than 1,400 square metres).

The Inspector concluded in relation to these matters as follows:

“Sequential test

Availability

20.

The Local Plan does not allocate sites to meet all of the identified retail need, for both convenience and comparison goods. However, PPS6 does not suggest that such action is essential. The one allocation in the town centre is the car park at Bath Road. The appellants argued that this site alone was better suited for a comparison goods store, as envisaged in the Local Plan, but was in any event not available for a convenience store. Since the approval of the Local Plan further information had come to light which showed that a covenant in favour of Eagle Star, the owners of the Emery Gate retail development soon to be anchored by Tesco, required agreement to any convenience retailing scheme larger than 1200 sq ft. In these circumstances it seems unlikely that the covenant would be released.

21.

However, the Council suggested that the site should be put forward for a retail development in combination with the adjoining land owned by the County Council, known as the Bridge Centre. While no formal resolution to release the land had been made, the County Council had indicated in writing that it should be marketed in combination with the Council site. Clearly existing uses on the site, including the community centre, would have to be relocated but there was no evidence that the authorities saw that as an insurmountable problem. If the covenant were not released (or bought out), the Council land would be available for car parking and associated commercial uses which might help the viability of any scheme.

Suitability

22.

Part of the combined site is identified as being suitable for retail use and the whole area can be classified as edge-of-centre. The combined site straddles a gyratory system and significant road re-configuration would be necessary to achieve a realistic site. From the appellants’ transport witness’ diagrams and my site visit I consider this would not be an insurmountable obstacle. The area suitable for retailing could constrain retail floorspace to about 1400 sq m, not a size of store consistent with for example Waitrose’s normal minimum requirements of about 2300 sq m. However, PPS6 advises that operators should be flexible about their business model in seeking sequentially preferable sites in or at the edge of a centre.

23.

The site lies within the Conservation Area and the design of any scheme would have to accommodate a listed building, Bank House. The partly culverted brook running through the site would have to be taken into account. Again these matters are not unusual constraints, nor are they overriding objections to the suitability of the site. At present the car park is well used and I heard evidence of a shortage of parking in the town centre, particularly at Christmas and in the busier summer tourist season. Nevertheless, PPS6 also advises flexibility in the application of normal standards and government policy in general seeks to reduce travel by car. This constraint is not critical and could be overcome by imaginative design, for example in the provision of decked parking.

Viability

24.

The appellants produced a financial appraisal of a potential scheme for the combined site which showed a likely deficit of £2–3m. However the assumptions behind this hypothetical development were open to question. The likely costs of relocating the community centre (estimated at £1m) and the inclusion of a large sum for a new replacement building were major doubts, in my view. Also, the outline scheme excluded any other potential income streams from retailing or commercial development in addition to the main store. While operators may only rarely open a new store in a town where they would not dominate, they may do so in circumstances where a presence was required to fill a gap in sub-regional coverage or to provide an offer where demographics suggest trade at their type of store would be especially strong. In this case two retailers have already shown strong interest in the site and a short term option on part has been taken up. Revised details taking into account the constraint of the covenant are about to be advertised.

25.

I have come to the firm view that the combined Bridge Centre / Bath Road Car Park site is suitable for some convenience retailing, will be available in the near future and is potentially viable. It should not be discounted at this stage as a sequentially preferable site to meet a substantial part of the needed convenience floorspace. The appellants’ witness expected the change of retailer at Emery Gate from Somerfield to Tesco could further affect the viability of the combined Bath Road site. If the appeals store were to go ahead, drawing trade from the town centre, I believe there is a very real risk that retail investment at Bath Road / Bridge Centre would be severely prejudiced.”

The conclusions in relation to suitability and viability are challenged by the Claimants. Dealing firstly with suitability, the Claimants make four points. The first three points are allegations that the Inspector failed to give adequate reasons in relation to how he could conclude, in the light of the expressed retail interest, that the site would suit a retail operator; how he could conclude, in the light of the Claimants’ highway evidence, that the highway infrastructure could accommodate a retail use; and, finally, how he concluded that the presence of the site in a Conservation Area adjacent to a listed building and with a water course running through it did not amount to unusual constraints precluding the site’s suitability. It is said, therefore, that there was no basis for the conclusion that the site was suitable for a food store operator. The fourth and final allegation is that the Inspector failed to deal adequately or at all with the fact that the site was, on the evidence, a well used car park.

In my judgement, all of these contentions are without substance. So far as the suitability of the site for food store operators is concerned, the evidence before the Inspector was both the letters from the operators to which I have referred and also the assessment which had been undertaken by the witnesses called by each side in relation to the requirements of the market to be appraised in the light of policy in PPS6. In my view, the Inspector was quite entitled to prefer the evidence provided by the Council’s witness, Mr Power, which I note was expressed at a time when the site had yet to be formally put to the market. His evidence was to the following effect:

“5.5

In my experience and bearing in mind the continued interest shown by specialist retail developers and food store operators in the site, I am of the opinion that there is a strong probability that food store led development will be viable on this site.”

Although a brief quotation, this is the summation of a strand of evidence and reasoning contained in his proof of evidence which it is unnecessary for me to quote in full. The conclusion suffices to show the basis of the Inspector’s conclusions, and shows not only that he accepted that evidence but also it is clear from his reasons that, like Mr Power, he took comfort from the continued expression of interest from operators to form the view at this stage that the Appellants had not proved that the site should be discounted, as was required of them by PPS6. His reasons are thus, in my judgement, clear and well founded.

Similarly, the reasons which the Inspector gave in relation to the suitability in terms of highway infrastructure, the historic built environment and the water course were also legally adequate for the purpose of the exercise upon which he was engaged and bearing in mind the requirements of the policy. He was not conducting an inquiry into a development proposal on that site, but was engaged in exercising his judgement, assisted by the evidence offered to him by the witnesses, as to whether or not that site could be precluded as a suitable site measured against the requirements of PPS6 for the undertaking of the sequential test. His observation that these were not unusual constraints and that the presence of these considerations were therefore not overriding was entirely adequate for the purposes. Once he had reached that conclusion, namely that these considerations were not “unusual constraints” or “overriding objections”, it was not, in my view, necessary for him to go further and explain in detail how they might be accommodated. The test which he was examining was whether or not, as constraints, they ruled out this site at the stage that it had reached in the consideration process from accommodating convenience retailing. Similarly, the reasons he gives for rejecting the current use of the car park as a constraint which is not critical is adequately reasoned and explained by his references to car parking policy and the potential use of imaginative design solutions to overcome any constraint presented by the existing usage of the car park. Nothing further, in my view, was required of the Inspector to explain to the Claimant why he had reached the overall conclusion that the Bridge Centre / Bath Road Car Park site could not be discounted at this stage.

In relation to viability, the Claimant contends that, even allowing for the Inspector’s doubts about the costs of relocating the community centre, the development appraisal which had been undertaken still would not produce a profit, since the appraisals showed a £2–3 million loss. The Claimant asks how the Inspector could have concluded, therefore, that this site was potentially viable on the basis of the evidence before him. To my mind, this submission overlooks the evidence from the Council which was provided as a contrary point of view and which I have quoted above. Initially the Claimant contended that the Inspector’s conclusions in relation to other income streams from other types of development than convenience goods was factually in error. At the hearing this contention was withdrawn, and it had to be accepted that the Inspector was right to conclude that there could be other potential income streams from retailing or other commercial development, bearing in mind that comparison retailing and other sorts of commercial development were not precluded by the covenant affecting part of the site.

The Claimant is critical of the Inspector’s reference to there being strong interest from two retailers in the site, on the basis that, as is clear from the correspondence, their interest was expressed as being for a store of a different size. However, this again, in my view, overlooks the following sentence in paragraph 24 of the Inspector’s reasons, where he demonstrates that he was both aware of the constraint of the covenant and also aware that the site was about to be put to the market with that constraint operative. He knew, as I have set out above, that Mr Power’s view was that retail interest would be sustained. Ultimately, consistent with the policy, it was for the Claimants to demonstrate that the site could be discounted as one which was amongst other things unviable. They had not produced an appraisal on the basis of the 1,400 square metres which the Inspector concluded upon, and the Inspector had explained his reasons for doubting the appraisal that they had done. Thus, in my view, the Inspector was entitled to come to the conclusion which he states, namely that the site should not be discounted on his assessment of such evidence as the Claimants had presented. Taking the evidence in the round, the Inspector concluded that the site was potentially viable. Although the Claimant was critical of the Inspector lighting upon the 1,400 square metres, it needs to be borne in mind that that figure came from a plan which they themselves had produced. Thus, I am not persuaded that there is any substance in the criticisms mounted by the Claimants on this ground.

Advice in relation to accessibility as a transportation issue is contained in PPS6 as follows:

“Ensuring locations are accessible

3.24

In considering proposed new developments, local planning authorities should consider:

i)

The need for accessibility by a choice of means of transport

3.25

Developments should be accessible by a choice of means of transport, including public transport, walking, cycling, and the car (taking full account of customers’ likely travel patterns). In determining whether developments are or will become genuinely accessible, local authorities should assess the distance of proposed developments from existing or proposed public transport facilities (bus or railway stations and interchanges). Account should also be taken of the frequency and capacity of services, and whether access is easy, safe and convenient for pedestrians, cyclists and disabled people. Distances should be measured as actual walking distance rather than as a straight line.

3.26

Local planning authorities should assess the extent to which retail, leisure and office developers have tailored their approach to meet the Government’s objectives as set out in Planning Policy Guidance Note 13: Transport (PPG13). For example through the preparation of accessibility analyses, transport assessments, travel plans and the promotion of opportunities to reduce car journeys through home delivery services, and contributions to improve access, traffic management and parking.

ii)

The impact on car use, traffic and congestion

3.27

In assessing new developments, local planning authorities should consider:

whether the proposal would have an impact on the overall distance travelled by car; and

the effect on local traffic levels and congestion, after public transport and traffic management measures have been secured.”

As part of the preparation for the Inquiry, the main parties discussed and entered into a statement of common ground in relation to transportation matters. Whilst that statement covered a wide variety of matters, for the purposes of this ground the following paragraphs are pertinent:

“10.2

Accessibility by a choice of modes of transport

The development will be served directly by two buses per hour operating Monday to Saturday. (Bus contribution is £500k via section 106)

Low floor buses will enter the site to drop off/pick up passengers at a new bus stop with low floor accessible infrastructure close to the entrance to the store.

Two other new bus stops with low floor infrastructure will be provided on the new route.

The buses have connections to Chippenham town centre and the wider area.

A contribution towards a new pedestrian/cycle bridge is to be made to link the site with the residential areas to the east of the railway line (section 106 contribution £750k)

40 cycle stands will be included for the food store.

New and improved pedestrian facilities are provided throughout the site and further afield at the Park Lane/New Road/Langley Road/Malmesbury Road/Foundry Lane junction. This is part of the highway infrastructure investment local to the site. Based upon the above, the development will be genuinely accessible by a choice of means of transport.

10.3

Impact on the overall distance travelled by car

The proposal will reduce the overall distance travelled by car as a result of the investment in non-car modes and the Travel Plan. There is currently a substantial amount of travel by car to food stores on the edge of the built up area, which have poor non-car access such as J Sainsbury and Morrisons. Some of this trade will be diverted to the new Asda which has better access by non-car modes and will involve substantially more linked trips with the town centre and other shops and services.

[...]

10.5

The extent to which the proposed development is consistent with the advice in PPG13

Promote more sustainable transport choices.

Travel plans have been prepared for the food store and the residential development. These, coupled with the initiatives to promote bus-rail travel, walking and cycling will promote sustainable transport in line with PPG13.

Promote accessibility to jobs, shopping, leisure facilities and services by public transport, walking and cycling.

The improvements to buses, cycle and walking facilities as part of the development proposal, will enable people working and visiting the site, to travel more conveniently by public transport, cycle and on foot. The travel plan will monitor car parking and travel by non-car modes for staff and set targets that will be monitored and reviewed. The associated transport improvements proposed, will lead to more people travelling to the town centre by non-car modes than at present. Accordingly, the development proposals are consistent with the advice in PPG13.”

Thus, at the Inquiry there was no issue between the Claimants and the Council in respect of the question of accessibility and the compliance of the site and its ancillary proposals with the relevant policy in that regard. The Inspector took a different view, as follows:

“Accessibility

26.

Structure Plan Policy DP6 reflects the tests of paragraph 2.44 of PPS6, which gives preference to sites which are well served by a choice of means of transport and which are close to the centre and have a high chance of forming links to the centre.

27.

The store site is reasonably close to the main line railway station but that is not a significant advantage in the context of a facility intended to meet the retail needs of Chippenham residents. The proposed bus service would be funded through the provisions of the Section 106 obligation, but this support would be capped.

28.

As to links with the town centre, I have already commented on the distance of the site from the primary shopping area. The store entrance would be set well back in the site, across a large car park. The site is separated from the core of the town by the railway and the river, across which there are just two main crossings, one of which is restricted to traffic much of the time. These obstacles, together with the distance of well over 1km from the proposed store entrance, prevent easy linkage with the main retail core of the town. I acknowledge that the proposed cycle/pedestrian bridge would improve accessibility, but even then the factors of distance, shortage of routes and gradient would act as strong disincentives to linked shopping trips on foot between the store and the town.

29.

While the site adjoins a secondary shopping frontage, the Hathaway Retail Park, this area is very much an appendage to the main shopping core and appears to trade as a destination in itself. The Council’s survey of users of the Retail Park showed a very high proportion (77%) of visitors to the retail park arrived by car, most travelling short distances within the urban area. The appellants made much of a survey result which showed that 77% of visitors combine their trip with a visit to the town centre. However, it seems that the main attraction of the retail park was free parking. Of the linked trips, 65% used their car to make the link. Given the greater distance of the proposed Asda from the primary shopping area, its focus upon car borne shoppers, I consider that its credentials as a highly accessible store where customers would make linked trips to the town centre on foot, by cycle or public transport are not good. I note also that the store would not be well placed to serve any customers travelling by car from the potential expansion area to the south east of Chippenham.”

This led to the conclusion, which I have set out above, that accessibility was an issue tending towards the refusal of the scheme.

The first contention made by the Claimants is that the Inspector applied a test which was unknown to policy, that is one of requiring the site to be “highly accessible”. This is founded upon the fact that that phrase appears in quotes in paragraph 16 of the decision letter and then is repeated, without quotations, in paragraph 29 and in the overall conclusions at paragraph 54. It is right to note that this phrase is not used either in the terms of the policy which is relevant to this issue or in the evidence or submissions which were before the Inspector. However, to my mind, the answer to this contention is that it is clear from paragraph 29 of the decision letter that the Inspector had the relevant aspects of the policies set out, and I accept the submissions of the Defendant that it is far-fetched to suggest that the Inspector abandoned these policies to apply a wholly new and home-made test shortly thereafter. In my view, the reference to highly accessible is essentially adjectival in the way in which it is used in the decision letter and not evidence of the Inspector applying a new and wholly inappropriate policy test.

The Claimants also complain that in these paragraphs the Inspector clearly departed from the conclusions of the statement of common ground as to the policy compliance of the site without any reference to that document, and therefore without providing any adequate reasons for disagreeing with it. In particular, they are concerned that he refers to the bus service funding being “capped”. There is also a submission that the Inspector behaved unfairly in relation to this aspect of matters since he reached his conclusions without permitting the Claimant to deal with the points upon which he relied. In this respect, the Claimants rely upon the decision of Sullivan J (as he then was) in the case of Poole v Secretary of State for Communities and Local Government and Cannock Chase District Council [2008] EWHC 676 (Admin). In that case Sullivan J observed at paragraph 44 of the Judgment as follows:

“44.

Mr Auburn referred to the Inspector’s obligation, whatever may or may not have been agreed between an appellant and a local planning authority, to take account of representations made by third parties. I accept that an Inspector is bound to take into consideration arguments raised by third parties, but the imperative in the Rules requiring the principal parties to focus their attention on the issues that are in dispute would be wholly frustrated if appellants and local planning authorities were unable to place any degree of reliance on matters that had been apparently resolved in a statement of agreed facts. It would be entirely unsatisfactory if, having agreed such matters, the principal parties to an inquiry would still have to prepare their evidence on the basis that the Inspector might wish to pursue a particular line of reasoning that departed from the agreed statement. While of course it is open to an Inspector to do so, whether of his or her own motion or in response to third party representations, if there is not to be a return to the ‘bad old days’ where proofs were prepared to cover every conceivable eventuality, it is essential that inspectors recognise that if they do intend to depart from what is the agreed position between the principal parties, it may be necessary to accede to applications for adjournments to enable the parties to address the (now disputed) issue or issues properly by way of expert evidence. it may not be good enough to ask a witness who happens to be at the inquiry for his or her view. By definition, that witness may well not have the professional expertise which is relevant to the matter which has been agreed between the parties as set out in the statement of common ground.”

It is of course correct to observe that the Inspector did not refer to the statement of common ground. But he was entitled and, indeed, obliged to exercise his own judgement, and was not bound by the contents of that document. Dealing firstly with the allegation made in relation to reasons, in my view he clearly expresses in terms of pedestrian linkage his reasons for considering that the site would not be well related to the town centre for those on foot and therefore, to that extent, differing from the statement of common ground. Similarly, the reasons for his concluding that such linked trips as would occur would be mainly car-borne are set out clearly in paragraph 29 of the decision letter. Moreover, that conclusion is grounded in empirical evidence from a survey, and he explains his basis for using that evidence to come to the conclusion which he reaches. It is clearly the reasoning in respect of these two matters which led him to form a different view as to whether or not the site passed the policy tests, and in my judgement those conclusions are clearly reasoned.

So far as the bus contribution is concerned, I accept that the reference to it could be treated as purely factual or could be treated as pejorative. The question of the sense in which that expression is used can be tested by reading the decision letter as a whole in the legally appropriate manner. When that is done, it can be seen that in fact the Inspector did not conclude as a factor telling against these appeals that the bus service would not be viable or would expire, or that the capped contribution was inadequate. The points which he observed told against the site are as set out above.

The question arises as to whether or not the Claimants were afforded a reasonable opportunity to address the issues of accessibility and deal with the points which bore upon that question. The answer to that, in the circumstances of this case, which differed materially from the circumstances in Poole, is that they were. This is not a case like Poole where, outwith the expertise of the witnesses who were to be called, a matter which had been agreed was reopened by the Inspector in circumstances where the relevant party did not have an expert witness available to deal with the point. In this case, the Claimants called a transportation witness who, it is clear from the record of appearances, gave evidence. This is not a case where the appellant was hijacked by the Inspector departing from the statement of common ground, or not being afforded a fair crack of the whip by being effectively prevented from presenting evidence in relation to accessibility. The Inspector’s conclusions were clearly drawn from the breadth of the evidence which he heard, which included the statement of common ground, and he was entitled to differ from it providing that he gave clear reasons for his alternative view. In my view he did in this case. It was not incumbent upon him to conduct some form of cross-examination of the appellants’ witnesses to challenge them on these points, and indeed it would be entirely inappropriate for him to do so. His task was to assess all of the material which he received, having been assisted by the inquiry process, subsequently to form his opinions based on that material, and to provide adequate reasons for his ultimate decision. That is an approach which he accomplished in this decision.

Both PPS6 and the Local Plan at policy R4 required consideration to be given to the question of retail impact on existing town centres. The extent and effect of retail impact was one of the issues between the parties. The relevant policy which addresses this point is contained in PPS6 as follows:

“3.22

In particular, local planning authorities should consider the impact of the development on the centre or centres likely to be affected, taking account of:

the extent to which the development would put at risk the spatial planning strategy for the area and the strategy for a particular centre or network of centres, or alter its role in the hierarchy of centres;

the likely effect on future public or private sector investment needed to safeguard the vitality and viability of the centre or centres;

the likely impact of the proposed development on trade/turnover and on the vitality and viability of existing centres within the catchment area of the proposed development and, where applicable, on the rural economy (an example of a positive impact might be if development results in clawback expenditure from the surrounding area);

changes to the range of services provided by centres that could be affected;

likely impact on the number of vacant properties in the primary shopping area;

potential changes to the quality, attractiveness, physical condition and character of the centre or centres and to its role in the economic and social life of the community; and

the implications of proposed leisure and entertainment uses for the evening and night time economy of the centre.”

The Inspector reached the following conclusions:

“Impact on nearby centres

30.

While much of the store’s trade is likely to be drawn from existing stores, the analyses of both parties show that there will be an impact on Chippenham town centre, Calne and Corsham. The main difference in the estimates of trading impact in the town centres focuses on the treatment of the former Somerfield store. The appellants’ figures show that even with the Asda store trading there would be a positive impact on trade in the town by 2013, equating to about 8%. This is wholly accounted for by the large increase in turnover at the former Somerfield store, renovated and trading as a Tesco. To show comparative impact, the Council’s witness put forward a hypothetical situation as if Somerfield continued to trade, in which circumstances there would be a negative impact of about 20%.

31.

The reality of the likely positive impact of Tesco on town centre spending has to be recognised, as I have already indicated. Nevertheless, the Asda store would have a considerable negative impact on the position and would draw a significant amount of trade from town centre shops, including independent retailers. Bearing in mind my conclusions about the ease of travel between the site and the primary shopping area, I have no doubt that the retail health of Chippenham town centre would be much stronger if the Asda store were not built.

32.

The Asda is expected to draw some trade from Calne, even if a planned extension to Sainsburys goes ahead. The agreed figure is a 5% impact. I consider even this relatively low impact is regrettable in a situation where the centre is known to have suffered for several years and is acknowledged to need revitalisation. The impact on Corsham is agreed to be about 14–15%. Although this is more of a large village than a smaller town, the adverse effect on the centre would be significant and is another disadvantage which weighs against the schemes.”

These conclusions fed into the overall conclusions which I have set out above. The first point taken by the Claimant in respect of these paragraphs is that the Inspector failed to provide conclusions against each of the specific questions raised in paragraph 3.22 of PPS6 and, in particular, did not identify whether his findings on impact made the development unacceptable or were in themselves reasons for refusing consent. It is submitted that his language was inappropriately vague on this issue. Secondly, it is contended that the Inspector appeared unaware that there was a regeneration scheme in Calne that was currently on foot at the time of his consideration. Lastly, it is submitted that the Inspector fell into error in only addressing impact figures which were related to convenience goods.

In my view, paragraph 32 of the decision letter makes clear that the Inspector is aware of the position in relation to Calne and he did not need, bearing in mind that it was well known to the parties, to refer directly to the scheme which was under way in order to provide adequate reasons. So far as the issue of only providing a conclusion in relation to convenience retailing is concerned, it was obvious from the debate at the Inquiry that the principal issues between the parties related to convenience retail impact. He did not need, therefore, to go through aspects of comparison goods, in order to deal with the principal controversial issues between the parties, nor, to my mind, in the circumstances of this case, did he need to answer each of the questions posed in paragraph 3.22 of PPS6 line by line.

So far as the language in which he expresses himself is concerned, I accept the submissions made on behalf of the Defendant that, in the particular circumstances of this case, and bearing in mind the position in the Inspector’s reasoning and analysis at which this point appears, it was not essential for him to provide some conclusion based upon a threshold of whether the scheme was acceptable or unacceptable in terms of retail impact. His approach has to be put in the context of his overall decision. He had already concluded that there was no need for the scheme and that the proposals had not passed the sequential test. In those circumstances, it was quite adequate for him to say that retail impact was another disadvantage which weighed against the scheme which he had already concluded gave rise to material breaches of retail planning policy. It was unnecessary for him to say that impact by itself would justify refusal when he had already determined that on other grounds the scheme infringed retail policy. Thus, I am satisfied that the Inspector’s reasoning in relation to retail impact was legally adequate.

At the Inquiry it was accepted that the scheme could not provide the quantity of open space which was required pro rata against the amount of residential development which was being proposed. That requirement was not 0.88 hectares, and only 0.38 was shown illustratively on the plans which accompanied the application and appeal. An issue therefore arose as to whether or not there should be an off-site contribution in respect of open space. The Claimants’ case was that it was not necessary, and they relied on an acceptance by the Council’s witness that the local open space currently available was adequate, together with a contention that such a contribution towards open space could not be properly calculated without amounting to an illegitimate levy unrelated to the impact of the development. The competing contention before the Inspector from the Council was that open space should be provided on site in the first instance. If it could not be provided on site, as suggested here, then there should be a contribution towards qualitative improvements in existing open space off site. Having heard these arguments, the Inspector’s conclusions were as follows:

“49.

As already noted the density of development shown on the illustrative scheme would prevent the provision of open space to the Council’s normal standards. Appellants argued there was no evidence of need for commuted payments to make up the shortfall, due to the adequacy of local provision near the site, in particular at Monkton Park and John Coles Park. From my own visits to Monkton Park, pleasant as it is, I could well imagine ways in which it could be improved. In any event, I consider the failure to provide the normal minimum requirements for green lungs within the proposed housing would have an adverse effect on the residential environment of this high density scheme, in conflict with Policy CF3 of the Local Plan.”

The Claimant complains that the concession from the Council’s witness has not been specifically recorded and then dealt with by the Inspector. They also complain that he misapplied the policy, which in terms permitted off-site open space contributions to be made.

In my judgement, there is no deficit in the Inspector’s approach or his reasons. In paragraph 49 of the decision letter he accurately summarises the Claimants’ case, and it was not necessary for him to record the concession upon which they relied in order to adequately express his conclusions. The Claimants’ submissions on this point overlook the explanatory text in paragraph 12.5 of the Local Plan (set out above), which justifies the Inspector’s approach that open space should be provided on site first. This, it should be noted, was the Council’s case. Furthermore, his conclusion was consistent with his approach that the only reason it could not be provided was because of the presence of an unacceptably high volume of development on the site. He was also entitled to conclude, in my view, that qualitative improvements could be made to the existing parks, based on his own site visits and judgement. He did not need to go on to design and cost them in order to provide adequate reasons. He provided a clear explanation of his conclusions and a signpost towards any future resolution of this issue either by the provision of adequate open space on site or, alternatively, by the provision of appropriate contributions to qualitative improvements. I am therefore satisfied that there is no error of law in this aspect of the Inspector’s decision.

For the reasons which I have provided above, I conclude that the Claimants have failed to establish any error of law in the Inspector’s decision. It is therefore not necessary for me to consider the submissions were made in respect of discretion in the event that any one of the grounds alleged was proved. In the circumstances, there must be judgment for the Defendant.