Salford Estates (No. 2) Ltd, R (On the Application Of) v Salford City Council

This is the rolled-up hearing of an application for permission to bring a claim for judicial review and, if granted, the determination of that claim in relation to a decision notice of the defendant local planning authority, Salford Council ("the council"), dated 22 October 2010. By that decision the council granted planning permission to the interested party, Tesco Stores Limited ("Tesco"), to build a new superstore in Pendleton, Salford. The claimant, Salford Estates (No. 2) Limited (“SEL”), is another retailer which owns a large separate retail area called Salford Shopping City This is close to the development site, although on the other side of what is presently a dual carriageway called Pendleton Way.

It is contended that I should refuse permission on the grounds of delay in that although the claim was made just within the three-month period it was not made promptly. The strictures of the European Court in the case of Uniplex v NHS [2010] 2 CMLR 47 do not apply here since the claim is not concerned with EU legislation or domestic law giving effect to it. For reasons which are better explained after I have dealt with matters of substance, I do not find that the claim has not been made promptly and accordingly permission should not be denied on that ground. I also consider that the grounds put forward are at least arguable, and so at the outset I grant permission. I therefore turn to matters of substance.

The site on which the proposed superstore is to be built is within an area of land to the west of Pendleton Way in a broadly triangular shape (see the plan at page 62 of the trial bundle). The location of the store itself is shown in the middle of the upper part of the plan at page 63. The area to the east and to the right of Pendleton Way is Salford Shopping City (“Shopping City”).

Prior to the meeting of the planning committee on 21 October 2010 Mr Lamb, the planning officer, produced a detailed report. I refer to certain parts of it as follows. First, at page 113 of the bundle, he describes the location of the site and the area concerned, gives a general geographical description and refers to Shopping City. At page 128 of the bundle towards the top he says this:

Then in the section headed “Design and Appearance” at page 129A of the bundle, two thirds of the way down he says this:

Then at page 129H, dealing with conditions he says this:

In the next paragraph:

One then goes to page 129I under the heading “Other Matters”. The first paragraph states:

Then under the concluding section:

I then turn to page 129P and the text of the first version of condition 32 proposed, which reads as follows:

On 21 October itself Mr Lamb produced an amendment report dealing with representations received, consultations, and changes to the plan. He reported that one representation was that the proposed superstore would not integrate with Salford Shopping Centre on the other side of Pendleton Way. He also proposed an amended condition 32 which added to the specified works as follows:

As to the meeting itself, I refer to Mr Lamb's own account of it in his witness statement, which is not challenged. First, at paragraph 5 he notes that the panel resolved to approve the application with one abstention, subject to the execution of the Section 106 agreement and in accordance with the recommended list of conditions set out in the main agenda, with the exception of condition 32. The minutes of the meeting state that 32 be amended:

In paragraph 8, Mr Lamb deals with the question of the closure of Pendleton Way. He says that he recalled the matter being raised by a member of the panel, specifically Councillor Antrobus, who focused on the provision of the super-crossings. Councillor Antrobus spoke of the importance of integration between the proposed food superstore and the existing Salford Shopping City as had been set out in the submitted reports, Mr Lamb's presentation, representations, and the panel discussion itself. Mr Lamb recalled that Mr Antrobus accepted that the closure of Pendleton Way was a clear desire (his emphasis) of the council albeit not necessary for the purpose of granting planning permission for the scheme which was before Members of the Panel.

In paragraph 9 he recalled that Councillor Antrobus had raised concerns that should the closure of Pendleton Way come forward, albeit through a separate process which the City Council was pursuing as local highway authority in any event, the provision and cost of super-crossings could be abortive. That being the case, Councillor Antrobus sought the advice as to whether the closure of Pendleton Way should therefore be conditioned. In response Mr Lamb recalls, and it was certainly his intention, that he advised that the closure of Pendleton Way should not be secured for the use of a Grampian condition given the matters set out in the report and throughout his presentation at Panel and the ensuing debate.

In paragraph 10 he said:

In paragraph 11 he says that:

In paragraph 12 he says that Councillor Antrobus then, as he recalled, moved the recommendation for approval subject to revisions which Mr Lamb had set out regarding condition 32. Mr Lamb was of the view that he professionally advised the panel how the concerns regarding impact of development on any future closure of Pendleton Way could be addressed and the panel resolved to approve the application with the revisions of condition 32 on that basis.

I then go to the minutes of the meeting itself. So far as this planning application is concerned, which is referred to in the last section of the table at page 37, the decision was said to be “Granted and see (2) below”. This is on the following page 38. Its states a resolution (a) to authorise a Section 106 agreement, (b) that the applicant be informed that the council was minded to grant planning permission subject to the conditions listed on completion of that agreement and (c) that authority had been given for a decision notice relating to the application to be issued (subject to the conditions and reasons stated) on completion of the above legal agreement; Part (f) of the resolution stated that:

One then goes to the text of condition 32 in its final form. It was set out in the decision notice dated 22 October 2010 at page 51 of the bundle, and I will quote it again and then indicate that which had been added from the last version proposed by Mr Lamb:

The new words added, following the meeting and resolution of the planning committee, were after the words “development details” in the first line, the additional two words "and phasing"; and then six lines down after the words “local planning authority” the words “unless otherwise agreed in writing by the local planning authority”.

As to the terms of the condition and foreshadowing some of the grounds of challenge, I return to Mr Lamb's witness statement. In paragraph 13 he says that he was clear that the revisions to the condition following the resolution were consistent with the resolution of the panel. In paragraph 14 he said that the word “facilitate” was not synonymous with the word “secure” but was more appropriately defined as "to assist the progress of". He was clear from the discussions of the panel that members did not resolve, nor intend to resolve, that Pendleton Way would be closed prior to the commencement of this development or indeed would therefore be necessary in order to grant this planning permission. The amendments to condition 32 he said in paragraph 15 allowed, in his view, an understanding as to when works for the super-crossings would be provided which would be an important factor to be mindful of in separate and wider discussions regarding any closure either full or in part. If the closure of Pendleton Way were to come forward in advance of the provision of the super-crossings it was his intention to allow flexibility to revise the precise details of the scheme whilst still dealing appropriately with pedestrian integration (even if this was a full closure which could then be facilitated) which was the purpose of the condition in the first instance. He was therefore satisfied that the wording of the revised condition was consistent with the panel's resolution.

In paragraph 16 he said that the amendments made to the wording to include for phasing and flexibility, adding the words which I have already described, appropriately addressed any potential future closure of Pendleton Way either in full or in part through a revised scheme which may be different from the precise details as may be agreed whilst still addressing the fundamental reasons for the imposition of the condition in the first place.

In paragraph 18 he said that he was clearly mindful of a wider aspiration to close (in full or part) Pendleton Way whilst addressing matters of integration and safety of the phasing concerns raised by Councillor Antrobus. In advising the panel and responding to Councillor Antrobus he therefore intended to allow flexibility whilst still securing necessary improvements. He remained of the view that the revisions of the condition would secure this should any closure of Pendleton Way progress. At the time (ie 17 February 2011), he was advised by colleagues within the highways department that the closure of Pendleton Way and the commissioning of any technical documents required to facilitate this were being explored.

Against that factual background I consider the four grounds of challenge.

Originally, this was to the effect that the planning committee had made an error of law caused by Mr Lamb, who told them it was not possible in law to have imposed a Grampian condition whose subject-matter was the closure of Pendleton Way. Having regard to the evidence of Mr Lamb, however (not challenged by SEL), that allegation could not be pursued; the committee was not so misinformed. Nonetheless, Ground 1 was maintained in this revised form: Mr Lamb materially misled the committee by telling or advising them that it was not necessary or appropriate to impose such a condition, because what he did not say is that they were entitled to differ from his opinion as their planning officer. They could have decided that it was necessary for the planning consent (something required by circular 11/95) and therefore either imposed a condition, or not granted the permission at all. Accordingly, when they resolved as they did they acted in error of law and this vitiated the decision notice issued the following day. I do not accept that contention. It is clear from the main report, as well as Mr Lamb's evidence as to what took place at the meeting recited above, that the reasons why he considered that such a condition was not necessary or appropriate, as listed in paragraph 10 of his witness statement, were made known to the committee. Paragraphs 8 to 10 of his witness statement make clear that the councillor who had raised the point understood what Mr Lamb said and agreed with it. He took his planning officer's advice as to why closure of Pendleton Way should not itself be the subject of a Grampian condition. Given that, in planning terms, the Tesco application was acceptable in its own right without the need for a condition as to closure, it might in fact have been difficult for the planning officer to suggest that the condition was necessary; but in any event, on the facts, there is no reason to suppose that the committee, in considering the further advice tendered by Mr Lamb, did not know that they were entitled to reject it.

It is well established in planning law that in matters of this kind it is not necessary for the planning officer to remind the planning committee of, as Mr Elvin QC put it, the “blindingly obvious” fact that they need not follow the planning officer's advice or recommendations (see, for example, the observations of Wynn-Williams J to like effect in relation to planning policies in paragraph 55 of his judgment in the case of Smith v The Secretary of State for Trade and Industry [2008] 1 WLR 394).

I am also of the clear view that the evidence does not establish or begin to establish that the committee here considered that it was under some legal fetter which prevented it from differing from the views of the planning officer in this respect. As they essentially followed his recommendation, ie not to make closure itself a Grampian condition, in the absence of anything to the contrary one assumes that they did so because they agreed with his reasoning on the point. See here the observations of Sullivan J as he then was in the case of R v Mendip Council ex parte Fabre [2000] 80 P & CR 500 at page 511. That the committee was nonetheless prepared to differ where they did think it was necessary is shown by the amendment to condition 32, which they resolved should be added following discussions on this topic concerning closure at the meeting itself. Quite what those amendments were intended to achieve is the subject of Ground 2, to which I now turn, but I conclude that there is nothing in Ground 1.

This alleges that there is a disconnect between the resolution on 21 October 2010 and the decision notice dated the following day. It is said to arise because when the committee resolved that condition 32 be amended so as to accommodate inter alia the facilitation of the closure of Pendleton Way, this meant that it should be a requirement of the condition that Pendleton Way be closed. To “facilitate” closure therefore meant to “secure” that closure. If that is what the committee resolved then indeed condition 32 as drafted would not reflect it, but in my judgment the committee did not so resolve for the reasons given below.

First what was said at the meeting, as recounted above, shows that the committee and in particular Councillor Antrobus accepted that a condition or pre-condition as to the closure of Pendleton Way was unnecessary and inappropriate. If so it is very hard to see why they should then have resolved to require just that. Mr Tucker QC said that the very use of the word “facilitation” shows that committee members did not in fact follow Mr Lamb's advice on this point, but that assertion, in my judgment, puts the cart before the horse. Its context, ie the discussion at the meeting, clearly shows that they did accept his advice, so that their use of the word “facilitation” must be read in that context and not vice versa.

Secondly, rejection of Mr Tucker’s analysis here does not deprive the word “facilitation” of meaning. In my judgment it was used so as to denote that the required highway works should allow for or assist or, put negatively, not prejudice any partial or entire closure which may come later. See in this regard Mr Lamb's explanation given to the meeting, set out in paragraph 11 of his witness statement. So if closure was on the horizon, for example, the detail of the works to be done might need to be adjusted to accommodate it and in any event the work should not be done in a way which would be taken to count against and therefore prejudice any proposal to close Pendleton Way later, nor should the cost of doing such works be taken against a later closure even if those costs would fall to be wasted.

On the timing of the particular works, for example, the crossings these might have to be phased so as to be done in conjunction with a closure if adopted in the near future. Clearly there was no detail or sophisticated analysis of all the particular issues or scenarios which might arise but in my judgment there did not have to be. As Mr Lamb said, the idea is to inject flexibility into the condition so that the works which were its subject matter would assist and not prejudice any later closure. That is the sense in which the word “facilitation” was used.

Mr Tucker points out that in another context in the papers Mr Lamb used the word “facilitate” to mean “secure”. See his report at page 129A, where he said that the super-crossings will “facilitate greater connectivity between the two parts of the town centre.” There I agree with Mr Tucker but such prior references cut both ways. So, for example in paragraph 1.5 of Tesco's planning and regeneration statement of July 2010 forming part of the application papers, at page 170, it is said that the scheme was designed to facilitate and safeguard the future closure of part of Pendleton Way, either as a freestanding proposal or as part of any design or aspiration on the part of the council to further enhance linkages with the town centre. “Facilitate” there again indicates allowing for or not prejudicing. It does not mean secure the closure because the highway work proposed by Tesco manifestly did not have that object.

The difficulty with Mr Tucker's contention here became apparent when he accepted that the words "facilitate" could mean something less than securing closure. He said that it could encompass something less than actual closure or be something "along the way to" closure” but that is very vague. It would be hopeless as part of a positive obligation to carry out certain works, whereas a provision for flexibility to ensure that the specified works do not prejudice or would accommodate any closure has no such vice. Mr Tucker also says that his interpretation of the resolution is to be preferred because it is clear that the committee did not follow Mr Lamb's advice that closure is wholly irrelevant, since they said something about closure in their resolution. But that begs the question as to what relevance they were giving to the question of closure. It is perfectly plausible for the committee to accept advice that closure was not part of the application and should not be made the subject of a condition, Grampian or otherwise, and yet decide that the condition which would be made should at least assist and not prejudice any closure plan which then came along.

Accordingly Ground 2 must fail.

This is to the effect that condition 32 constitutes an impermissible deviation from the planning permission along the lines of the "tailpiece" in the case of R (Midcounties Cooperative) v Wyre Forest District Council [2009] EWHC 964 such that it constitutes a subversion of the planning process by allowing a key element of the planning decision to be varied subsequently simply by the consent of the council and without any formal public involvement. In order to deal with this ground and Ground 4 it is necessary first to construe clause 32 as promulgated.

The particular question here is the subject matter of the additional words “unless otherwise agreed in writing by the local planning authority”, to which I shall refer as “the rider”. The drafting is not entirely happy, probably due to the fact that this was a swift amendment but in my judgment the additional words govern the requirement that the detail of the listed highway works, themselves described in parentheses, are to be submitted “as illustrated” within the documents referred to so that this requirement applies unless otherwise agreed in writing. So the rider does not commit the council to approve some entirely different highway works. It merely enables Tesco and/or the highway authority to submit, and the council to approve, a scheme for the designated highway works which may differ from the way in which they are set out in the illustrations in the transport assessment and technical notes. There is a point to this flexibility because, consistent with what I have found, the committee intended by its resolution to amend condition 32. This amendment provides the necessary flexibility to “facilitate”, in the sense found by me, any closure. What the words do not do is give Tesco or the local highway authority or the council carte blanche to provide some entirely different scheme.

Mr Tucker says that the rider more naturally governs the whole of the highway works because of where it appears in the body of condition 32 and, if so, the condition then does indeed become impermissibly wide. In other words it would have come immediately after the reference to the illustrations if it is to have the sense contended for by the council and Tesco. Yet it does not. However, while there is grammatical force in this point it certainly cannot be said that the rider in its present location within condition 32 cannot meaningfully and plausibly be interpreted in the other more modest way. If, therefore, there is an ambiguity as to its effect, I should interpret it in the way which is more consistent with the committee's intention and which is more plausible and workable. That points to the suggested interpretation stated above. as proposed by the council and supported by Tesco rather than that of Mr Tucker.

That being so, Mr Tucker's Midcounties point loses much of its force because the scope of the rider is much reduced - but in any event this is not a Midcounties case. There, the offending tailpiece allowed, by an informal route prescribed by the condition, the increase of the retail area given to the applicant, which was a central element of the planning permission for the construction of a new store. But here, condition 32 is not concerned with any aspect of the permitted superstore at all. It is rather concerned with ancillary highway works. Mr Tucker accepts that the facts in Midcounties are different from those in this case, but says that its underlying principle applies here nonetheless. I disagree because there is no sense in which this condition operates to subvert the planning process by allowing for a key element to be changed without the formality of a formal planning application or application to vary.

Accordingly I reject Ground 3 also.

This alleges that on any view condition 32 is defective because it is imprecise and therefore in breach of circular 11/95. The imprecision lies not in the fact that the details of the works, for example as would be later shown in engineering drawings, would only emerge and be approved by the local planning authority under this condition later on. That is not objectionable because it is a feature of scheme conditions, examples of which are given in the circular. Rather it is objectionable because the focus of the flexibility introduced by the rider is not stated. There is indeed no reference to the word “closure” at all. As with Ground 3, because of my interpretation of the rider, Ground 4 loses some of its force but in my judgment not all of it. Given the nature of the committee's resolution and the public nature of condition 32, it should in my judgment have explained the context of or reason for the extra flexibility introduced by the rider. It is no answer to say that there is flexibility as to matters of detail in condition 32 anyway, as there would be in any scheme condition. That is because we are not concerned with its basic form but the rider. It might be said that Tesco and the local planning authority, in dealing with condition 32 hereafter, will be alive to the discussion at the meeting and the committee's resolution as interpreted above but I do not think that this is sufficient to cure the imprecision.

All of that said, what Ground 4 boils down to is a drafting error or a defect in condition 32. The court cannot rewrite it nor can it be blue-pencilled by excision, as the tail piece was in Midcounties, but on the other hand, to quash the entire permission just so that the council, following this judgment, would reconsider the permission so as to redraft this clause seems a disproportionate answer. Fortunately there is another answer. That is for Tesco to give a unilateral undertaking under section 106 to confine any invocation of the additional flexibility given by the rider to depart from the illustrations, to a case where that flexibility is being to facilitate closure in the sense interpreted above. As Tesco would take this course in any event it has no difficulty offering that undertaking. It would then follow that if the extra flexibility is required it would only be so in a way which reflects the committee's intentions.

Mr Tucker did not contend that if I were to find as I have on Grounds 1 to 3 that this would be an unlawful or impermissible course or act on the part of Tesco, or could not then form a reason why I should not quash the planning permission. Obviously he reserved the right to make submissions in relation to any proposed wording. I gave the parties time to address me on that issue, therefore, following the hearing and they now have, in the form of a draft section 106 undertaking proffered by Tesco, letters from the solicitors for SEL and Tesco and communications from the council by e-mail. In my judgment the final draft section 106 undertaking as submitted by Tesco with an amendment suggested by the Council meets the point.

The core terms are as follows: first, “inconsistent submission” is defined to mean “a submission of details pursuant to condition 32.. which is not as illustrated in the Transport Assessment and accompanying Technical Notes...” And then the operative provision, clause 3, reads as follows:

The effect of this is that if the council has no partial or total closure plans which would require the highway works to be submitted otherwise than in accordance with the illustrations, then they are the works which it will consider and, if acceptable, approve and which will then be carried out. There would on that footing be no Inconsistent Submission. If the position is otherwise, however, and the council sees the need to invoke the flexibility connoted by the words “unless otherwise agreed”, they will require something different and which change will be for the purpose of the closure or partial closure of Pendleton Way.

SEL objects to the form of the 106 undertaking to which I have already referred. See the letter from Eversheds of 13 May 2011. The amendments proposed by SEL first add this to the text of 3.1 (a):

This addition to the words of 1 (a) is unnecessary. It seeks to avoid Tesco submitting proposals based simply on the illustrations if there is a closure issue, if I can put it like that. But it is for the council to decide if there is a closure issue and, if there is and the highway scheme proposed or to be proposed will need to be amended. then the council will so require amendments and then clause 3 (1)(b) will be in play and not clause 3(1)(a). The draft proffered by Tesco therefore adequately gives effect to the intentions of the committee as set out above and there is no need to complicate it.

SEL also suggests that there be a new paragraph added after 3. 1 (a) and (b) which states as follows.

“FOR THE AVOIDANCE OF DOUBT any such partial closure of Pendleton Way referred to in clauses 3.1 (a) and 3.1 (b) above shall extend across the full width of the carriageway of Pendleton Way.”

There is no warrant for that. The extent of any partial closure was not resolved or fixed upon by the committee and I can see no basis for giving "partial" this particular restricted construction. Once more, and as stated above, it will be for the council to decide the timing and the scope of any closure plans and how they will affect the condition 32 works.

Accordingly, while on one of the four grounds SEL has succeeded to a limited extent, I do not quash the challenge permission. The section 106 undertaking is coupled with a separate undertaking to the Court to have an executed version lodged within four days of this judgment or other order made upon it, and it is appropriate that this should be given, and accepted by the court.

The key point made here is that SEL could and should have brought proceedings long before it did because it had all the information it needed as from 21 October 2010 when the council resolved to grant planning permission, albeit that the decision notice was not issued until the following day. But that is not the whole story here because the focus of the challenge was on the wording of condition 32 as it appeared in the decision notice. Though apparently issued on 22 October. SEL did not see it then and it is not suggested for present purposes that it was in fact immediately available on a website or some such, even if issued to Tesco on that day.

SEL's planning consultant did ask about it on 29 October but received no response. SEL did have knowledge, however, by 25 November from the council that the decision notice by then had been issued and it obtained a copy so it could then see what the condition looked like. There was then a further delay in fact because SEL wanted to see the section 106 obligation actually entered into. Though signed on 21 October, it was not supplied to SEL until 13 December 2010. The council and Tesco have questioned why sight of it was necessary at all since the focus of the claim has been on condition 32 not on the section 106 required at the time and which in any event dealt with other matters. But the fact remains that the sight of it was required by those advising SEL so that they could give advice (see the witness statement of Mr Fleming and Mr Holman) on the issue of delay. And of course, as it has turned out, the question of a section 106 obligation has arisen here and the notion that the sort of matters contained in condition 32, as amended, could be covered in an appropriate section 106 is not implausible. Further time was taken to issue a pre-action protocol letter on 23 December 2010 and await a response which came on 14 January 2011 after the Christmas break. Of course the issue of a pre-action protocol letter does not itself amount to a reason not to issue if time is running out, but in the circumstances here I do not hold against SEL the fact that they held off until they had received a reply from the council which was within the three-month period. In my judgment, therefore, the claim was made promptly but if I was wrong about that I would grant any required extension. That said, the claim fails as a matter of substance as already indicated, save to the extent described above, but this is catered for by the section 106 obligation in the form approved. It remains for me to thank counsel for their excellent oral and written submissions.