ASDA Stores Ltd & Anor, R (on the application of) v Council of the Borough of South Tyneside & Ors

The claimants are members of a well-known supermarket group. It will be convenient to refer to them collectively as ‘Asda.’ They entered into an agreement with the defendant local authority (‘the Council’) pursuant to section 106 of the Town and Country Planning Act 1990. The agreement contained an obligation under which certain property which was then, but is no longer, owned by Asda would not be used for the sale of food save to the limited extent allowed by the agreement; and a provision that this obligation should be enforceable by the Council. The property is now owned by the first interested party (‘Wilson Bowden’) and let by Wilson Bowden to the second interested party (‘Morrisons’). Morrisons is another well-known operator of supermarkets. On the day on which I heard this case, Morrisons started to carry on business at the property. The business involves the sale of food to an extent greater than is permissible under the section 106 agreement. That activity is unwelcome to Asda, which has a new store which lies only 600 metres from the property.

It is common ground that, as a matter of law, a local planning authority may be compelled to enforce a section 106 agreement by way of proceedings for judicial review. That the Council should be so compelled is the object of Asda in bringing these proceedings. When permission to proceed with the claim was being considered on the papers, it became apparent that the case was one of unusual complexity, and I directed that the application for permission should be dealt with at an oral hearing. It is as well that I did so, because the way in which at least some of the parties have put their respective cases has shifted quite considerably in the course of the proceedings, and it was not until shortly before the commencement of the hearing that the issues which have to be resolved were firmly defined. There were by then just two matters which remained in controversy.

The Council and the interested parties were contending that, on the true construction of the section 106 agreement and in the events which had occurred since the agreement was made, the agreement had ceased to have effect. If this is right, then both the restrictive covenant relating to the use of the property and the obligation of the Council to enforce that covenant will have lapsed, and the claim for judicial review will be bound to fail. The question is rather more akin to one which would be determined as a preliminary point in commercial or chancery litigation than to one of a kind which turns up in the ordinary course of judicial review. But, this being the permission stage of judicial review proceedings, what I have to decide is whether Asda has an arguable case to the effect that the agreement is still in force: if it has such a case, then (subject to my decision on the second issue) permission to proceed must be granted even though I may regard the claim is one which is likely, although not bound, to fail.

The second point is one taken by the interested parties alone, and not by the Council. This is that the claim was not issued ‘promptly’ as required by CPR 54.5(1) and that, even if Asda can show that it has an arguable case, permission should be refused on this alternative ground. As is well known, questions of delay in seeking judicial review should, where possible, be determined at the permission stage. In this case the issue of delay has been fully canvassed in argument, so that it will be possible to reach a decision on it one way or the other.

I conclude this introduction by recording my appreciation of the written and oral arguments of counsel, and particularly the economy of presentation which enabled me to hear four quite complex submissions well within the confines of a single court day.

This case has to do with two parcels of land in the centre of South Shields. One of the properties is in Ocean Road and other is in Coronation Street. As I have already indicated, they lie only 600 metres apart. The Council is the local planning authority.

The story begins on 1 October 1985 when planning permission was granted for the construction and erection of a supermarket on the Ocean Road property. The supermarket was duly built and from about 1989 it was operated by Asda.

By May 2000 extensive discussions had taken place between Asda and the Council as to the relocation of the supermarket to Coronation Street, where a site had been identified by the Council as suitable for the erection of a supermarket as part of the redevelopment of the town centre and waterfront areas. The Council’s preferred developer was a company called Henry Boot Developments Limited (‘Henry Boot’).

These discussions culminated in the submission by Asda on 8 May 2000 of two planning applications to the Council. First, there was an application for outline planning permission for the erection of a new store on the Coronation Street site. Second, there was an application for change of use of the Ocean Road property “from retail to leisure (Class D2) and/or retail (Class A1) uses.” There does not appear to have been at this stage any definite idea as to how the building in Ocean Road would be used in the event of a move by Asda to Coronation Street. Looking, however, at matters from a negative point of view, one finds a letter of 8 August 2000 from Asda’s planning consultants to the Council, in which the consultants indicated that Ada would be willing to agree to close the existing store after the opening of the new store; they referred to an assessment which indicated that there was insufficient capacity for two large food stores in South Shields; and they offered, on behalf of Asda, to enter into a planning obligation which would limit by reference to square footage of floor space the size of a discount food store in the Ocean Road building.

By May 2002 draft section 106 agreements relating to both Ocean Road and Coronation Street were travelling between the solicitors acting for the parties then involved as owners of different parcels of land (who were more numerous than they subsequently became). The draft relating to Ocean Road contained a limitation on the area of floor space which might be used for the sale of food.

On 21 July 2003 Henry Boot entered into an agreement with Asda to assign to Asda the building lease of the Coronation Street land, which lease the Council was intending to grant to Henry Boot.

In December 2003 there was an exchange of emails between the solicitors then acting for Asda and those acting for the Council. It was agreed that the substance of the two drafts could be merged into a composite agreement dealing with both properties. The email from the Council’s solicitors stated that

On 24 May 2005, the Council, Henry Boot and Asda entered into a section 106 agreement. This included several provisions which were subsequently reproduced in the later agreement with which I am directly concerned. In particular, there were restrictions on the floorspace to be used for the sale of food at Ocean Road, and there was a provision about the agreement ceasing to have effect in the same form as that of clause 2.7 of the 2008 agreement to which I will come shortly.

On the same day, 24 May 2005, the Council granted outline planning permission for the erection of the new superstore in Coronation Street. Condition No 1 attached to the grant required the development to be commenced not later than the later of the expiration of 5 years from the date of the permission or 2 years from the approval of reserved matters.

Two days later, on 26 May 2005, the Council granted planning permission for the proposed change of use of the Ocean Road property “to leisure (Class D2) and/or retail (Class A1) uses.” Condition No 1 was in the standard form requiring the development to be commenced within 5 years.

The Council’s ideas as to its Action Plan for the town centre and waterfront area of South Shields were set out in a ‘Preferred Options’ Development Plan Document which was approved for Consultation by Cabinet on 1 March 2006. Paragraph 5.12 of the document contained the following statement:

On 17 November 2006 the Council granted Henry Boot a lease of the Coronation Street site for a term of 200 years. The lease was subsequently assigned by Henry Boot to Asda, but I do not have the date or other particulars of the assignment.

On 19 December 2007 Asda submitted a detailed planning application in respect of the Coronation Street site. It was envisaged by Asda and the Council that the planning restrictions relating to the Ocean Road property which were contained in the 2005 section 106 agreement would be reproduced in a fresh agreement. This in fact happened in the following year.

On 15 May 2008 Asda entered into an agreement for the sale of the Ocean Road property to Wilson Bowden.

On 6 August 2008 the Council granted detailed planning permission for the erection of the supermarket at Coronation Street. Condition No 1 required the development to be commenced within 3 years. This grant had been preceded by the execution on the previous day, 5 August 2008, of the fresh section 106 agreement, at which I must now look in some detail.

The parties to the agreement were the Council, Henry Boot, and Asda (that is, both the claimant companies).

The relevant definitions are in clause 1.1. Many are self-explanatory and there is no need for me to repeat them here. Those which are not self-explanatory and which are relevant to this case include the following: ‘1972 Act’ is the Local Government Act 1972; ‘1990 Act’ is the Town and Country Planning Act 1990; ‘Coronation Street Planning Permission’ is that which was granted on the day after the making of the agreement; ‘Ocean Road Planning Permission’ is that which had been granted on 26 May 2005.

Clause 2 of the agreement contained the following provisions:

Clause 3 of the agreement included the following covenants:

By clause 4 the Council covenanted with the other parties “to act reasonably and properly and diligently in exercising its discretions and discharging its functions under” the agreement.

Schedules 2 and 4 contained the obligations undertaken by Asda in relation to the Coronation Street property. These concerned (in Schedule 2) the giving of notice to the Council prior to the carrying out of material operations on the site and prior to the commencement of trading; and (in Schedule 4) recruitment of employees.

Schedule 3 contained the obligations undertaken by Asda in relation to the Ocean Road property. It is the first of these obligations which is of importance for the purposes of this litigation:

up to 5% of the remaining floor space of the Ocean Road Property as may be used for the sale of confectionery, snacks or similar food items within any unit within the Ocean Road Property the main use of which is not the sale of food

In November 2008 the Council adopted the South Shields Town Centre & Waterfront Area Action Plan. As regards the Ocean Road property, the Action Plan envisaged mixed use development (Policy SS2(A)(i)), including entertainment and leisure development (Policy SS9) and non-food retail, “or for smaller-scale convenience retailing up to 1,115 sq m gross floor space” (Policy SS7(E)(i)).

Asda vacated the Ocean Road property in May 2009, and began trading from the Coronation Street site. The total cost to Asda of acquiring the land and of constructing and fitting out the superstore and of the associated works was in the region of £20,000,000.

On 20 July 2009 Wilson Bowden completed the acquisition of the Ocean Road property from Asda

Between November 2009 and June 2010 one finds a run of correspondence between Wilson Bowden and the Council about the future of the Ocean Road property. In the course of this correspondence the idea emerged that Wilson Bowden was looking to dispose of the property to a food retailer. For reasons of confidentiality the name of the retailer was not disclosed until towards the end of the period. Both Wilson Bowden and the Council were alive to the existence of the section 106 agreement. By January 2010 Wilson Bowden had consulted Mr Dove QC who had advised in writing that, if by 26 May 2010 the 2005 planning permission relating to Ocean Road had not been implemented, the section 106 agreement would lapse. An extract from Mr Dove’s Opinion was sent by Wilson Bowden to the Council. Asda was unaware of this correspondence.

By 16 June 2010 Morrisons, whose identity was by now known to the Council, had asked for formal confirmation that the 2005 planning permission had expired on 26 May 2010. This was provided in a letter from the Council to Wilson Bowden dated 17 June 2010.

On the previous day, 16 June 2010, the Council had written to Asda the letter which in due course led to the commencement of this litigation. By that letter the Council informed Asda that “the current owners of the Ocean Road store are negotiating with a food retailer, who intend[s] to occupy the whole of the Ocean Road premises and commence trading by the end of 2010.” The writer went on to say that counsel had advised that this would not involve any breach of the section 106 agreement as that agreement did “not expressly prohibit the reoccupation and use of the premises in terms of the 1985 planning consent.” The Council’s position was not, as it now is, that the agreement had come to an end, rather that the agreement was subsisting but would not be breached by the intended use.

This letter was sent to Asda’s head office in Leeds. It is date-stamped as having been received on 21 June 2010, but was not on the desk of the appropriate person in the Estates Department of Asda until 30 June 2010.

On 2 July 2010 Wilson Bowden granted Morrisons a 25 year lease of the upper floor of the Ocean Road property, at a rent of £755,000 a year. The contractual arrangements between Wilson Bowden and Morrisons included an obligation on the part of Wilson Bowden to make two contributions towards Morrisons’ costs of fitting out the property: £1,000,000, which was paid on completion of the lease; and a further £1,000,000 on the opening of the store for trading. The total cost of fitting out and of the associated works was around £6,000,000. Wilson Bowden’s costs in connection with the grant of the lease came to £150,000.

On 6 July 2010, Osborne Clarke, who are Asda’s planning solicitors, replied to the Council’s letter of 16 June. They asserted that the section 106 agreement was binding on the Ocean Road site; stated that they had been instructed to obtain the opinion of counsel; and asked the Council to “take no further action with regard to authorising or allowing the re-use and occupation of the Ocean Road site for a food based convenience store” for the time being. Osborne Clarke also asked to see a copy of the opinion which had been obtained by the Council.

The Council replied by a letter of 9 July 2010. In this letter the Council informed Asda that it had received an application for advertisement consent from Morrisons, thus making the identity of the operator of the new business known to Asda. The request for disclosure of counsel’s opinion was refused on the ground that the advice received was “highly sensitive, relating to an important site within South Shields town centre.”

On 19 July 2010 Morrisons took possession of the premises which were subject to the lease which had been granted on 2 July 2010. Soon thereafter the refurbishment work began, with a scheduled completion date of 27 October 2010.

During July and August 2010 Asda sought further advice from Osborne Clarke and also from Ward Hadaway, who are the solicitors on the record for Asda in these proceedings. In the formal response to grounds of resistance which has been filed on behalf of Asda, two reasons are advanced in explanation for the delay before any further, substantive letter was sent to the Council: “almost all relevant people” were on holiday; and a proper analysis of the position required “first obtaining and then considering all relevant documents dating back to 2000, most of which [had] been archived.”

On 16 August 2010, Wilson Bowden granted a lease of part of the ground floor of the Ocean Road property to Morrisons. The conveyancing mechanics are not altogether clear, but there is evidence that it was necessary for Wilson Bowden to surrender an underlease for which it paid a reverse premium of £87,500.

On 21 August 2010 Ward Hadaway wrote a lengthy letter to the Council, setting out Asda’s case (as the case was then being put) on the enforceability of the section 106 agreement. The writer asserted that the decision of the Council not to enforce the agreement was “unreasonable and accordingly liable to [be] quashed through judicial review.” A meeting with the Council was requested, and an early reply was sought “in view of the time limit for the commencement of judicial review proceedings.”

There was no substantive response by the Council to this letter.

Prior to the commencement of proceedings, Asda did nothing to make Morrisons (or Wilson Bowden) aware of its objection to the new supermarket

On 10 September 2010 the claim form seeking judicial review was issued. It was served on the Council, Wilson Bowden and Morrisons on 15 September.

The evidence from Morrisons is that it had no right to terminate the building contract into which it had entered, save in the event of default by the contractor or the suspension of work as a result of the exercise of statutory powers by central government (and, in the latter case, only upon payment of compensation to the contractor). A considerable amount of work had been done by the time proceedings were issued, and steps were in hand to recruit staff for the new superstore.

After acknowledgments of service had been filed in good time by the Council, Wilson Bowden and Morrisons, the application for permission to proceed came before me on the papers on 12 October 2010, when I directed that it should be adjourned for an oral hearing.

The new supermarket was due to open on 22 November 2010, which was the day of the hearing, and it was assumed at the hearing that this had in fact taken place.

Under clause 2.7 the section 106 agreement ceases to have effect “[i]f the Coronation Street Planning Permission [of 6 August 2008] or the Ocean Road Planning Permission [of 26 May 2005] expires unimplemented within the meaning of” specified provisions of the Town and Country Planning Act 1990. It is not necessary for me to set out these provisions as it is accepted on all sides that the Ocean Road planning permission expired unimplemented for the purposes of clause 2.7 on 26 May 2010.

Mr Warwick began his oral submissions on behalf of Asda by acknowledging that, on a strictly grammatical construction of clause 2.7, the section 106 agreement would indeed have to be regarded as having come to an end. That construction hangs on the word or: if full force is given to that word, then the expiration of the Ocean Road planning permission alone, that is without the subsequent expiration of the Coronation Street planning permission, would not result in the termination of the section 106 agreement. But, if you ignore the word or, or do not give it the force which it prima facie bears, or read it as a mistake for and, then the section 106 agreement has to be regarded as still subsisting even though the Ocean Road planning consent has lapsed.

I accept that, for a whole battery of reasons which were advanced by Mr Manley QC on behalf of the Council, Mr Dove QC for Wilson Bowden and Mr Fordham QC who (with Mr Maurici) represented Morrisons, Mr Warwick would have a steep uphill claim at a contested hearing. Among those reasons were: the absence of any ambiguity in clause 2.7; the section 106 agreement was drafted by lawyers who were highly experienced in the planning field; the agreement is not a mere private contract, but a public document intended to regulate land use, which makes it all the more likely that it should be read as it stands without attaching undue weight to extraneous matters; and, to some extent, Mr Warwick’s argument is dependent on material (Footnote: ¹ ) which, even if the ambit of the factual matrix by reference to which a document has to be construed has been widened by the decision of the Supreme Court in Oceanbulk Shipping and Trading SA v TMP Asia Ltd, (Footnote: ² ) is still inadmissible as an aid to construction. This list is not exhaustive.

I must, however, bear in mind that, at this stage, Mr Warwick has to do no more than show that Asda has an arguable case on construction. In my judgment, he has crossed this relatively low threshold. In reaching this conclusion, I have very much in mind the principles which were enunciated by Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society, (Footnote: ³ ) and in particular these:

The manner in which these principles could be used by Asda as the route to the desired conclusion will probably by now be obvious. The circumstances, or factual matrix, within which the section 106 agreement was made included an assumption by the parties to the agreement as to any re-use or redevelopment of the Ocean Road property after the Asda superstore was relocated to Coronation Street. That assumption, reflected in express provisions of the agreement, was that future retailing of food at Ocean Road should be restricted by reference to floor space used for such retailing. A restriction of this kind would, of its nature, have commercial as well as planning implications: and the commercial implications would inevitably be beneficial to Asda. The construction of the section 106 agreement which is advanced by the Council, Wilson Bowden and Morrisons is one which is destructive of what must have been the expectations of the parties to the agreement. They will never have contemplated that, consistently with the arrangements incorporated in the agreement, a new supermarket should open in competition with Asda at a distance of 600 metres two and a half years after the making of the agreement and 18 months after Asda opened its own new store.

I am not, of course, saying that an approach to construction of the kind which I have outlined in the preceding paragraph would succeed. These are, however, notwithstanding all that has been said on the other side, respectable arguments which Asda should (subject to the issue of delay) be permitted to deploy at a substantive hearing.

CPR 54.5(1) requires that a claim form in which judicial review is sought must be filed −

promptly; and

in any event, not later than 3 months after the grounds to make the claim first arose.

It is agreed that the Council’s letter of 16 June 2010 is to be regarded as containing and communicating the decision which is the subject of challenge and that the period of 3 months runs from that date. The claim form was, as I have mentioned, filed on 10 September 2010, and was served within the following 7 days as required by CPR 54.7.

There has been extensive citation of authority on delay in judicial review. I do not propose to go through all the cases for the simple reason that any decision on a plea of delay must necessarily depend on the particular facts of the case. I wish, however, to extract three points of principle from the authorities.

First, that the claim form be filed promptly and that it be filed within 3 months are distinct requirements which must both be satisfied. It is a misconception to take the view that, if a claim form is filed within 3 months of the impugned decision, all is necessarily in order: it may not be. (Footnote: ⁴ ) I would not agree with Mr Warwick’s proposition that, if the claim form is filed within 3 months, there is a rebuttable presumption that it has been filed promptly.

Secondly, the fact that a claim is a strong one does not dilute the requirement that it be made promptly. (Footnote: ⁵ )

Thirdly, particular emphasis has been placed on the need to act with promptness is cases involving planning decisions, (Footnote: ⁶ ) and in cases where the challenged decision affects the interests of third parties. (Footnote: ⁷ )

This is, in my judgment, a classic example of a case in which permission to proceed to a substantive hearing should be refused on the ground of delay. Further, I do not see this as a borderline case which falls within a spectrum which would accommodate a decision, which must contain some element of discretion, one way or the other: a proper appreciation of the facts appears to me to lead inexorably to a conclusion adverse to Asda.

The case of the interested parties on delay is, in essence, a simple one.

The delay is serious. The decision letter arrived at the head office of Asda on 21 June 2010. That informed Asda that the Ocean Road property was to be re-opened for the sale of food by the end of the year. Asda did not ask who the operator was to be, but was informed by the letter of 9 July 2010 that it was to be Morrisons, a company which, as every shopper knows, is in direct competition with Asda. Activity on the site will have been obvious from, or shortly after, 19 July 2010. Although Asda’s solicitors wrote a pre-action letter to the Council on 21 August 2010, no steps whatever were taken to inform Morrisons of the concerns of Asda prior to the service of the claim on 15 September 2010.

This delay has to be viewed in the light of the absence of anything resembling a cogent explanation from Asda and of the prejudice to Wilson Bowden and Morrisons occasioned by the delay.

The bulk of the delay is explained on the basis that the Ocean Road question arose during the summer period when many key personnel were on holiday and by the need to search for documents which were archived. I feel bound to say plainly that I am wholly unable to attach any weight to this explanation. Asda is a very large organisation, and the matter in issue is one which Asda clearly regards as of high importance (it would not otherwise have commenced this multi-party claim). The point of principle which Asda has taken, however much the way in which it has been formulated may have varied, is a simple one: that the section 106 agreement is still subsisting and so continues to bind the Ocean Road property. Matters could, in my view, have been carried to the issue of proceedings very much more quickly than they were. The delay would properly be characterised as inordinate and inexcusable in a case in which these tests fell to be applied.

Wilson Bowden and Morrisons both incurred heavy expenditure on the Ocean Road property after advice had been obtained as to the impact of the section 106 agreement. One has the grant of the main lease of the upper floor, the accompanying cost, the refurbishment and fitting out which was paid by both companies, and the acquisition by Wilson Bowden of a further interest in the ground floor. I see nothing to support the view that either of the interested parties was acting surreptitiously or in any way chancing its arm. Nothing of substance was done by Asda to halt the redevelopment, for example by seeking an interim injunction, or which might otherwise have limited the exposure of Wilson Bowden or Morrisons. Apart from the expenditure on works, Morrisons has naturally proceeded with recruitment of staff, and the stage has now been reached at which the store is open for trading and would, in theory at least, be placed at risk of closure if this claim were to proceed. That is a risk to which, in the light of the inexcusable delay to which I have referred, it would not be just to expose Morrisons.

I should finally mention the fact that there is evidence from Wilson Bowden as to its continuing inability to dispose of its interest in the Ocean Road property as long as these proceedings are on foot, and as to the monthly interest charges for which it remains liable on the money borrowed for the purchase of the property. That is a further matter of prejudice, although not as grave as those which I have already mentioned.

Mr Warwick made four specific points on delay, with which I should deal.

First, it is said that Wilson Bowden and Morrisons are not “real third parties”, because the section 106 agreement bound Asda and its successors in title, and Wilson Bowden and Morrisons are successors in title. This seems to me, with respect, to be a lawyer’s rather than a “real world” point. Morrisons came upon the scene after, not prior to, or concurrently with, the negotiation and execution of the section 106 agreement and, in any commercial sense, it is a stranger to it. The same goes for Wilson Bowden because, although it agreed to acquire the Ocean Road property before the section 106 agreement was made in 2008, the property was at the time subject to the corresponding provisions of the (then unrevoked) 2005 agreement.

Second, it is said that the case does not involve a challenge to a planning permission, rather it is an attempt to enforce a section 106 agreement which has been registered as a local land charge for all to see. I do not see that this point carries Asda any distance. It is true that many of the cases in which the requirement to act promptly has been applied stringently have been challenges to grants of planning consent: but the court would not, in my view, be any less concerned about the effect of delay on third parties where the decision impugned was one not to take enforcement proceedings, that is, of a negative rather than an affirmative kind.

Third, Mr Warwick rightly points out that Asda spent £20,000,000 on the move to Coronation Street, and says that the section 106 agreement was a key consideration in Asda’s arriving at the decision to move. The latter point might or might not be established at a full hearing, but I will assume for present purposes that it would be. The answer to the point is a simple one. If matters were of such grave importance to Asda, this should have elevated in the minds both of the decision-makers at Asda and of the persons giving advice to Asda the importance of acting with alacrity. The importance of the case cannot, in my judgment, rationally be employed after serious delay has occurred as a basis on which the court should look on the delay less strictly than it might otherwise have done.

Fourth, it is said that, even if Morrisons did not know at an early stage that Asda was going to challenge the decision of the Council, it certainly knew once proceedings had been served 15 September 2010, but carried on regardless. There is nothing in this point. By 15 September 2010 it was too late for Morrisons to call a halt to the development. Conversely, Asda did nothing, for example by applying for urgent consideration or for an expedited hearing, to get the matter before the court in haste.

I realise, upon looking back over the last four paragraphs, that they could be read as though I were entering into controversy with Mr Warwick and in some way “rubbishing” his submissions on delay. I hope that he will not interpret what I have said in this way. An advocate is necessarily constrained by such legal and factual material as he has available, and Mr Warwick is to be commended, not criticised, for a valiant effort made on behalf of Asda. I am genuinely appreciative of his submissions: that I find them unconvincing is no fault of his.

It follows that the application for permission to proceed with the claim must be refused.