Bibb v Bristol City Council

On 26 November 2009, Bristol City Council granted planning permission for the change of use of premises lying between Cheltenham Road and Picton Lane in the Stokes Croft area of Bristol, from Comedy Club to retail use. The application was made in the name of the Comedy Club or its administrators. There were no restrictions on the type of retail use permitted. Conditions were imposed dealing with the hours of delivery and refuse collection.

In January 2010, Tesco Stores Limited stated that it was to operate this store in its Tesco Express format. This had not been known to the Council nor to consultees including local residents, when planning permission was granted. This news aroused considerable, indeed at times riotous, local hostility. No challenge was ever brought to the November 2009 planning permission however, whether on the grounds that the identity of the occupier was material, or that the range and degree of impacts assessed had not included those which a store such as a Tesco Express might bring, even though it was within the range of retail uses permitted.

In February 2010, Tesco Stores Limited made three further applications for planning permission. Two were granted in September 2010 and are not controversial in these proceedings. These were for external alterations to the shop front and for signage. The third application was “for the installation of plant and equipment, the erection of a screening wall and alterations to the rear service yard and for an external condenser unit.” The Development Control Committee meeting on 22 September 2010 adjourned consideration of this application for a noise assessment. On 8 December 2010, the application came back for determination, and planning permission was granted by Notice dated 10 December 2010 by four votes to three. These proceedings were lodged on 9 March 2011, raising a variety of grounds; a want of promptness is alleged by the Defendant. Permission was refused on paper but granted by Beatson J on one ground only, that a material consideration in relation to servicing impact had been ignored.

Although it is not clear from the papers, I am told and accept that the oral argument before Beatson J raised two points under this ground. First, the impact of servicing the Tesco Express pursuant to the 2009 permission was a consideration material to the 2010 application for the external plant now at issue, (a) because that impact had not been assessed when permission for the change of use was granted in November 2009, and (b) as an independent point, because without planning permission for the 2010 application, the store could not operate in the Tesco Express format as intended. Mr Wills for the Claimant qualified that argument before me by saying that the material servicing impact which had been ignored was the difference between the servicing impact of a Tesco Express store operated in accordance with the existing planning permission, and the worst case servicing impact likely to be generated by the 2009 store, if there were no further permissions.

The Defendant disputes the relevance of the servicing impact of the permitted shop as a reason for refusing this particular application. It does not dispute that it is relevant in setting a base against which any further impact should be assessed. That leads to the second point which the Claimant makes. This is that the additional impact caused by the additional floor space, in what the Claimant says is in reality an extension to the store, is relevant but was ignored. The Defendant accepts that the additional impact is, or is capable of being, a material consideration but contends that in fact it was not ignored. It saw no difference in substance between this point and the Claimant’s first point as reformulated.

The Claimant raised a further argument in relation to Ground 1, that the Council had failed to take into account the incremental impact from the external unit because it had failed to take steps reasonably necessary to acquaint itself with the relevant facts necessary for a judgment as to its significance. The Defendant contends that Beatson J refused permission for such an argument which was raised under another ground at the permission hearing, and that it is in any event wrong on the facts of this case.

On 21 October 2011, I rejected an application by the Defendant for permission to use witness statements from each of the four Councillors who voted in favour of the grant of permission, a counter-application by the Claimant in respect of the Chairman and related applications to cross-examine each of them. I did so principally in reliance on R (Young) v Oxford City Council [2002] EWCA Civ 990 especially at paragraphs 20-25 in the judgment of Pill LJ.

Planning permission was granted for the change of use in November 2009 as the shop fell within a secondary shopping frontage in the Development Plan. Among the amenity and highway issues considered was the impact of servicing and refuse collection vehicles. The transport officer raised no objection because there was an existing Traffic Regulation Order on Cheltenham Road preventing loading and deliveries between 7-10am and 4-6.30pm Monday to Friday. This was seen as addressing highway concerns but a further condition was imposed in the interests of residential amenity. Condition 4 limited “activities relating to deliveries” to hours between 8am and 6pm Monday to Saturday, and 10-4pm Sundays and Bank Holidays. The rear service yard is entered off Picton Lane, an altogether narrower and lesser road than Cheltenham Road.

The Officers’ report for the Committee Meeting on 22 September 2010 described the development proposal in this way:

“The third application seeks consent to install new plant and equipment and remodel the rear of the site. A chiller unit and freezer unit would be constructed and attached to the existing rear elevation of the ground floor of the building and would be linked and accessible to the rear stock storage area by two separate doors, air conditioning units would also be sited in the area adjacent to these two units and enclosed behind a new screen wall. The proposed screen wall would be rendered blockwork, it would be 3.5m high and have a doorway formed within it to enable access to the proposed plant and equipment, it would be rendered a light stone colour. A further element of plant (a condenser unit) is to be located on an existing raised concrete platform …”

The No to Tesco in Stokes Croft Campaign wrote a lengthy objection for consideration at this meeting of the Development Control Committee. The Campaign’s representations asserted that the impact of Tesco Express was very different from what was known when planning permission was granted. Data taken from Tesco’s evidence at two planning Inquiries showed that a Tesco Express required 42 deliveries per week, comprising 4 small vans each day with a short delivery time, and two vehicles each day in Tesco’s own 10.35 metre rigid lorries, each taking some 40 minutes to unload. The rear of the site, with access from Picton Lane was described by objectors as inappropriate and dangerous for such servicing. Deliveries to the front at Cheltenham Road would obstruct traffic including buses and would be dangerous for cyclists and pedestrians.

The report summarised their objection:

“1.3

Servicing: The impacts of the servicing of this proposed store are of material consideration for these applications because if these were granted permission then Tesco would go ahead and open their store. A direct consequence of granting this permission then would be the commencement of their servicing operations and the impacts thereof. Tesco have failed to provide any information about their servicing and therefore no impact assessment has been done with respect to the impact of servicing. Tesco’s standardized model of operation means this information is readily available and based on this, planning permission should be denied on the grounds of significant risks to highway and public safety, pedestrian and cyclist safety and security and disruption to neighbouring residences at both the front and rear of the site.”

The objection thus sought to use the further planning applications as vehicles for preventing the implementation of the permitted change of use for a store, from the operation of which Tesco Express were not excluded by any condition. No incremental impact argument of any variant was raised in these representations. The additional building in the rear yard for a walk-in chiller and freezer unit was seen as hindering the use of the service yard or creating car parking problems, rather than being problematic because it was an extension of floor space.

The Officers’ report for the 22 September 2010 Development Committee meeting commented on the grant of permission in 2009:

“…it is worth noting that the main thrust of the concerns relate to the public opposition in ideological terms to the applicants themselves and the nature of their business which the campaigners suggest is at odds with the ethos of all other business in the area.

The [Use Classes] Order makes it clear that there are no distinctions between different types of retail use and as such the Local Planning Authority in exercising its development management function cannot distinguish between, for example an independent retailer and a multi national retailer.”

The report continued:

“Firstly, there are two forms of highway control in place along Cheltenham Road, the first is the presence of double yellow lines which denote all hours parking restrictions and the second control is a Traffic Regulation Order (TRO) which prevents loading/deliveries between 7:00 and 10:00 and between 16:00 and 18:30 on Mondays to Fridays”

The report then turned to the objections, pointing out that:

“There were no off-street car parking spaces approved as part of the change of use application which was judged acceptable for this peripheral City Centre location, which would encourage the use of the retail premises by pedestrians and cyclist. It was judged that there was adequate space to the rear of the site within the yard for staff cycle storage.”

The report turned to “the following issues were raised that are not material planning considerations for the purposes of considering these applications”. Objections to Tesco as an occupier were irrelevant since the retail use was established and the specific end user was not relevant. Then:

“The external alterations to the rear service yard would increase servicing from the rear resulting in harm from additional traffic to Picton Lane. The proposals put forward for the rear service area only relate to the introduction of mechanical plant and would therefore have no impact upon servicing arrangements.”

(The response to the objection is what is in italics).

The report here plainly equates a want of materiality with a lack of significance.

The key issues included whether plant and equipment to the rear of the store were acceptable in visual and noise terms. The report stated:

“The applicant has indicated that in order to commence their use of the site they need to install elements of plant and equipment.

In order to do this it will be necessary to remove elements of redundant plant which has been left in-situ and would have served the last use of the site as a comedy venue. The application includes installing refrigerator and chiller units which would be attached to the rear elevation of the building at ground floor level and linked to the interior of the building by two doors to provide access to each facility.”

(The Claimant relies on the first sentence quoted as part of the foundation for her first argument.)

The visual and noise impacts were then assessed in the report, which recommended that permission be granted on all three applications. Consideration by the members was however then deferred pending a noise impact assessment report.

Ms Milne, as part of the No Campaign, subsequently wrote a further objection. Again what she said is important for how the Officer’s report for 8 December 2010 should be understood. She set out the estimated servicing impact of a Tesco Express based on Tesco’s evidence elsewhere, as already described. It would, she said, be negligent to grant planning permission without an adequate impact assessment of the servicing of this store since permission would lead to the store opening, and those impacts would be its direct consequence.

Her template letter for the No Campaign reiterated that the servicing impact of the store had not been assessed and that the Council was wrong to treat those impacts as immaterial to the application for the chiller/freezer unit. It placed reliance on an appeal decision concerning a proposed extension to an existing shop in Cambridge, which would enable it to be used as a Tesco Express. It said that this decision took into account the whole of the impact of the store and not just that of the extension.

The December report as requested did indeed set out the No Campaign’s representations in full. The report then immediately responded to that letter. It relied on the previous report in September for the reasons why “servicing” was not a material consideration. That remained the view of the Legal and Planning Officers. It is clear that this immaterial “servicing” was the servicing issue raised by the No Campaign i.e. the alleged servicing impact of the permitted store, which it was said had never been assessed on the basis that it might be occupied by Tesco Express. It was not the additional servicing impact of the additional floor space which the chiller/freezer unit was said to create.

The report then dealt with those issues which it did consider material, notably the noise and visual impact of the proposals, before again recommending approval.

There were one hundred or so residents at the 8 December 2010 Committee meeting, at least two of whom addressed the Committee on their case. There is a transcript of the discussion, including a note of the residents’ interventions. The Planning Officer said that there was no reason to believe there would be the number of servicing vehicles which the No Campaign referred to. The Legal Adviser then attempted to distinguish the Inspector’s decision in the Cambridge appeal involving Tesco Express as relied on by the Claimants and, after a misunderstanding, the Legal Adviser then addressed it. Although there were interruptions from the public, the sense of what she was saying is reasonably clear. Servicing had been considered in November 2009 and conditions had been imposed:

“[Servicing]…can be a material consideration but it is for you, the committee, to determine if in this particular case you believe it to be a material consideration – that’s the first thing. And the second thing that you have to consider is how much weight you are going to attach to that issue. That is a matter for you. What we can say to you is that we have looked at the application for the change of use, the servicing was considered then and that the officers have explained to you both on the 22^nd September and today, it was considered to be acceptable.”

The transcript records the members’ discussions about servicing, and officer interventions. Three of the four members voting in favour of the grant of planning permission discussed servicing, as did the Chairman, Councillor Goodman, who, having said that he would abstain, voted against the grant of permission.

Councillor Kent said the chiller/freezer unit was equivalent to an increase in floor space, so it was reasonable to argue there would be the potential for additional deliveries. He asked what work had been done on the number of deliveries in total and was told by an officer that in 2009 the combination of Traffic Regulation Order, conditions, and the expectation that Picton Lane would not be used, made it satisfactory.

Another officer intervened to say:

“If you feel that servicing is material in terms of this application for the chiller and freezer unit at the back what you have to have regard to in terms of making your assessment is the harm that will be caused from this particular application. Of course the applicant could move into the unit now benefiting from the existing A1 consent and have their chiller and freezer within the building without any further planning permission and that would be within the terms of the original permission.”

Councillor Kent replied:

“Thanks, I think that goes to the issue of weight. I think definitely it is an issue that we should be considering, I think there definitely will be more traffic movement if you’ve got more shop space, that’s fairly obvious especially with the Tesco’s with its style of not keeping too much in stock, that’s fairly obvious. The issue is the weight of that: how much do you think that will have.”

He then had a stab at working out the increase in traffic, starting with the increase in floor space from the chiller/freezer which he was advised would be about 10 percent (in fact it appears to be a 29m² increase on 320.97m²). He continued expressing concern about the additional traffic movements which the extension would cause, information about which he said would have been useful, adding:

“I accept, at the time I think the officers thought it wasn’t going to be irrelevant to the application and now they have now changed their mind, but at that element I do have concern. So I am currently of mind that I would like to see the plant equipment at the rear approved but not the additional freezer and fridge unit so there is only a partial approval is what has been sought but I could potentially be convinced the other way.” (He may mean relevant not irrelevant, in line 2.)

Next, Councillor Bradshaw was told that this Tesco Express would be similar to other Tesco Express stores already operating in Bristol. He said servicing was another area where agreement was unlikely, but he asked whether the TROs, could be varied if need arose, and was told that they could be.

The Chairman said on servicing:

“I am genuinely torn on the one hand I do see the arguments about servicing and I think that is material. I do afford it some weight but I balance that keeping in mind the fact we have the condition on the existing planning permission”.

He would probably abstain but was conscious that a refusal could lead to a costly appeal if Tesco were successful.

Councillor Kent returned to deliveries, asking what impact the 10 percent increase in floor space would have because:

“obviously I think this has been pointed out that in working out the weight of this, it would have to be substantial weight for me to move to a refusal based on this and that’s my problem I am not of the belief that it carries substantial weight just the 10% in floor space and I would like to ask the officer for their judgement on this road and what effect this could have”.

The Chairman added that he was worried that there was not enough to justify a refusal.

The officer did not know what the total number of Tesco Express servicing vehicles would be, but commented that there were 20,000 vehicle movements in Cheltenham Road in a 12 hour period so that the total servicing movements from the store would be but a very small percentage of them. The problems on this part of the highway network were similar to those on any other arterial routes into Bristol where the highway was also a shopping frontage, and where all users had to share the road; it was not an order of magnitude worse than other parts of Bristol.

Councillor Davies expressed concern at the number of large servicing vehicles, which would also use the rear of the store off Picton Lane. Councillor Bradshaw felt that servicing was an issue, where big articulated vehicles were used on narrow roads with no loading bays; he questioned whether breaking down the size of load, or loading bays, would help and was told that an operator could not be prevented from bringing an articulated lorry to its site during the permitted loading hours.

The debate closed. Councillor Kent and another, who had not spoken, respectively proposed and seconded the motion, which was carried by 4 votes to 3 with the Chairman voting against it.

The Notice of Decision gave reasons: the only part which could have related to servicing was that “full regard has been paid to all other material considerations including representations made in respect of the application”.

There was a subsequent exchange between the parties under the pre-application protocol which contained this from the Council’s Head of Legal Services:

“The legal advisor did confirm that servicing was capable of being a material consideration in relation to a planning application – that was evidenced by the decision letter that was produced to the committee. However, officers advised members that in their view it was not a material issue in relation to this application as the application before the committee for determination on the 8^th December did not relate to the principle of the use of the site. If members did determine that servicing was a material consideration in relation to the application it was for members to decide how much weight it should attach to that consideration in this particular case. Planning officers advised members that in their view there were sufficient controls in place to govern the servicing of the site and that there were not compelling reasons to resist the application for servicing reasons.

So in conclusion to your comments in this regard, officers did not make any errors in relation to this point – they advised members that their view was that servicing was not a material issue in relation to the determination of the application under consideration.”

Mr Wills’ first argument is simple: if planning permission for the chiller/freezer enables, or is essential to, the implementation of the 2009 permission, the impacts of the 2009 permission would be attributable to permitting the chiller/freezer application. They must be taken into account and indeed can lawfully lead to its refusal, since it is the decision on the chiller/freezer application which would determine whether the impacts consequential upon implementation of the 2009 permission would actually occur. This would be so even if the chiller/freezer impacts themselves were unobjectionable or negligible, as could obviously be the case with some minor changes which an operator might nonetheless regard as essential for his operation.

Mr Wills accepted that the mere fact, if it be so, that the servicing impact of the November 2009 was not fully analysed, because it did not specifically cover the impact of a Tesco Express, did not of itself mean that it became relevant on the chiller/freezer application. Indeed he accepted that the logic of his argument meant that, even if fully assessed in 2009, it would still have been lawful for the local planning authority to take the impact into account again, and assess it this time as unacceptable, merely changing its mind. The authority could then refuse permission for the chiller/freezer.

This was not an argument that the impact of the implementation of the 2009 permission is material because it provides a baseline for the judgment of the impact of the additional floor space, nor that it is material as part of the cumulative impact were the chiller/freezer also permitted. Nor was it an argument that in granting permission for an extension of the store, a condition should be imposed restricting the scope of the use of the whole site. It was to the Committee a simple argument that the impact of the 2009 store was undesirable if operated by Tesco and permission for the chiller/freezer should be refused so as to prevent that impact. It was to the Court, a simple argument that the impact of the 2009 permission was therefore relevant to the chiller/freezer application but had been ignored.

In my judgment, where a planning permission cannot be implemented, whether because of a financial impediment which a particular operator may face, or because a condition proves overly restrictive for an operator, or some other unhelpful circumstance has arisen which a further planning permission may overcome, the benefits of implementing the first planning permission may be relevant to the grant of the second. If the benefits of implementing the first planning permission are relevant to the grant of the second, then so too must be its impacts. If relevant, they could lead to the refusal of the further permission. Circumstances or policies might have changed so that implementation or further implementation of the first permission was no longer desirable, and the impacts of implementation enabled by any necessary further planning permission would be relevant to its grant. The grant of planning permission A does not mean that planning permission B should be granted simply because it is necessary to enable planning permission A to be implemented, or to be operated in a particular way which the developer would wish. Planning permission B could therefore lawfully be refused on the grounds that it would enable an extant planning permission A to be reactivated undesirably, e.g. if a new road were necessary to enable an old quarry to be reopened. Similarly, if a planning permission was necessary to enable a permitted use, granted without constraints, to be fully exploited in a way which was undesirable, it could be refused e.g. if permission for a caravan site covered a large field, but half could not be used in practice without a further facilities block, that block could be refused permission because it would enable the permitted but undesirable intensification of the use to occur.

There is therefore no legal bar to considering the effect which granting planning permission B would have in enabling planning permission A to be implemented or to be operated in a particular way, albeit according to its terms. That effect is not irrelevant merely because planning permission A has been granted, whether or not the particular impact now alleged to be of importance was taken into account when it was granted.

However, before this effect can be material, the local planning authority has to accept the factual premise that without the grant of planning permission B, planning permission A would not be implemented, or would only be operated in a materially different way from that proposed with permission B. But it cannot stop there. As Mr Wills recognised, it is the impact which would occur without the grant of planning permission B, the fallback position, which is the real baseline against which the significance of the grant of planning permission B to the implementation of planning permission A has to be judged. It is the difference between the two which is material. He defined the relevant baseline as the worse case impact likely to ensue without the grant of further planning permissions. There might be no difference between the impacts with and without the further permission.

I now consider how the City Council approached this issue. The recognition that what mattered was the difference between implementation of the 2009 permission by Tesco and the likely worst case if Tesco were refused the chiller/freezer permission was not part of the Claimant’s written representations to the Committee. I accept however that it is for the Committee to consider matters lawfully, even if the Claimant’s approach was unhelpful or misconceived in law.

I start with the crucial factual premise. It seems to me clear from the discussions as a whole that this essential premise was not accepted by the Committee. The evidence that planning permission B was necessary in this case for the implementation of planning permission A rested on three passages. First, there is the passage in the officers’ report for the 22 September 2010 meeting, cited above, to the effect that Tesco Stores Limited had indicated that to commence their use of the site they needed to install elements of planning and equipment. Second, the conclusion to the December 2010 report said that the proposals are “necessary for the applicant to open a store at the application site”. There is, third, an email of 14 September 2010 to the No Campaign in which a planning officer said that the three applications related to works to “enable the lawful retail use to commence.”

These are indirect summaries of Tesco’s position; there is nothing direct from Tesco’s. The first passage does not suggest that the facilities simply cannot be provided within the store operated by Tesco Express. The other two are not obviously intended to be different; the email is the precursor to the September report, the December report an imprecise repetition. The latter are at best equivocal on the point anyway. None are obviously directed to establishing the particular factual premise at issue here. They are couched in general language explaining the general purpose behind the applications as being to enable Tesco to operate this store as it wanted, rather than specifically identifying that the essential plant and equipment could only be placed outside the store. Those passages, moreover, treat all these applications in the same way, yet no one could regard the first two as permissions without which Tesco simply could not operate.

It is the comments of the planning officer at the Committee meeting, as quoted above, which go directly to the specific factual premise, and made it clear to the Committee that the plant and equipment could be placed inside. By this stage officers and members were focussing more clearly on what was and was not material to the decision before them, arising from the 2009 permission.

There is nothing in the ensuing Committee discussion to support the view that it thought that Tesco simply could or would not operate with an internal rather than external chiller/freezer at the store. That is a clear implicit conclusion from the discussion.

If members had concluded that it was essential for Tesco Express to house the chiller/freezer in an extension rather than in store, they would have had to go on to consider the true baseline, as Mr Wills recognised. There was no evidence which could have permitted members to conclude that it would be essential for any other food retailer, including national retailers, operating stores of that size range to have the chiller/freezer as an outside addition. There was no evidence that the chiller/freezer unit could not be located inside the store with any external vent being permitted development. There was no evidence of the servicing patterns of other national food retailers. There was therefore simply no evidence which could have permitted members to conclude that there was a material difference between the impact which Tesco Express servicing would have from the permitted store and that which a likely worse case baseline would produce.

There appear to have been two related bases upon which the City Council concluded that the impact of the November 2009 permission was irrelevant to its decision on the chiller/freezer application. The September 2010 report refers to the fact that the City Council does not control the nature or type of retail operation and could not distinguish between a national multiple retailer and an independent retailer. The second basis is that the November 2009 report in fact had considered the acceptability of the A1 retail use. The September 2010 report elaborated the 2009 thinking on the acceptability of the servicing impact.

The first point concerns what could be done about the 2009 permission at this stage rather than what was relevant in 2009. Plainly the nature and type of store can be controlled to a degree when planning permission is granted. At the present stage, to refuse permission for a chiller/freezer to one applicant and to grant the self-same application to another would involve an illegitimate distinction on the grounds of corporate identity, or a distinction generally between national and local retailers which would, on the Officer’s advice, be impracticable or impermissible. But the advice is premised on the basis that national multiples, including Tesco, cannot be prevented in reality from operating the existing permission by a refusal of this application; and the 2009 likely worst case impacts could be those of Tesco or not materially different from them.

The second point was that the servicing impact was found acceptable in 2009: Picton Lane would not be used by vehicles larger than medium sized vans because of its very nature; Cheltenham Road, which would be used for deliveries, and which members knew to be an arterial road with mixed frontages and all classes of users as the debate showed, was governed by a TRO permitting deliveries between 10.00am and 4.00pm, with a planning condition restricting delivery times during the other hours not covered by the TRO. That was clearly seen as acceptable control in 2009 over an unrestricted A1 use, which could include a national multiple retailer in a Tesco Express type format.

It seems to me perfectly clear that officers were advising members that servicing to the existing store as permitted in 2009 had been considered and was controlled acceptably. There is nothing in any report to suggest any anxiety that the impact might no longer be controlled acceptably, but regrettably nothing could be done about it. The fact that the operator now was to be Tesco, with the servicing pattern identified by the Claimant, was irrelevant because servicing had been considered and found acceptable, not because of some expectation that the number or size of delivery vehicles or the time it would take to unload them would fall far below that now said to be required by Tesco, but because of the controls that were in place on the hours of delivery on Cheltenham Road and the sheer difficulty of using Picton Lane above the size of a medium van. The details of Tesco Express servicing added nothing. It did not alter that acceptability. That, on a fair reading of the report and debate, remained the members’ conclusion in relation to the existing permission.

There was a muddle early on at the Development Control Committee in December 2010. It is difficult to know whether the legal adviser’s comments on servicing as a material consideration are directed to incremental impact or to the impact of the operation of the existing permission. The particular circumstances of the Cambridge case do not enable a simple answer to be given: the impact of the extension was at issue but since the existing store was admittedly too small for a Tesco Express the whole of the servicing was considered; the fallback scarcely featured because it would be in a very different store from that proposed.

I am inclined to the view that the legal adviser was not drawing such a distinction at all but was treating servicing generally as capable of being a material consideration, though pointing out that when considering the weight to be given to it, the impact of the existing permission had already been examined and found acceptable. There was no suggestion of any change of view on that aspect. This also explains why she used the not altogether helpful expression “can be a material consideration and it is for the Councillors to decide if it was and if so how much weight to attach to it”. I do not think she was addressing incremental impact. However, the City Council did not err in law in its consideration of the relevance of the 2009 permission.

Mr Wills’ second argument is that the additional impact from the chiller/freezer permission, effectively enabling an increase in floor space, was a material consideration which in fact was ignored. The Defendant says that it was taken into account. This is not really the way the servicing issue was raised by the No Campaign in its representations; those focused on the impact of the operation of the permitted store. Although it does not mean that the City Council can ignore a material consideration, it does mean that the reports responding to the representations have to be read in that light. It is quite clear that the September report responds to the No Campaign’s representations that the use of the existing permission by Tesco Express was a material consideration. None of the reports deal with incremental impact. The discussion of why additional traffic in Picton Lane is not a material consideration is not wholly clear. It may refer to additional traffic arising from the November 2009 permission in which case it is immaterial for the reasons discussed already. It may refer to the effect of changes in the yard, though it is difficult to see how that could increase servicing from the rear. The rear door in the screening wall was to enable access to the plant for servicing it, not for access for deliveries from refrigerated or chiller lorries which the Claimant says are 10.45 metres long and could not access Picton Lane or the rear yard. Either way the comment shows no error of law.

I do not find it remotely surprising that the reports are silent on incremental impact. On the Claimant’s figures derived from Tesco Express stores elsewhere, the extra floor space is an increase of less than 10%. Making the bold, even irrational, assumption that that translates into 10% more deliveries, rather than a slightly fuller load and longer delivery time for existing deliveries, the extra deliveries could not exceed more than 4.2 extra deliveries in a 7 day week or less than 1 extra delivery a day on a road with 20,000 vehicles passing in 12 daytime hours, and with all those hours controlled by a TRO and condition.

The issue was however raised at the Committee, though the major objection still concerned the relevance of the impact of the 2009 permission. As I have said, I think it more probable that the legal adviser’s comments on the materiality of servicing were directed to the incremental impact of the chiller/freezer permission releasing floor space inside the store for retail use, and not to incremental impact at all. Mr Wills however suggests that they were and he submits that they contain a legal error: incremental impact was a material consideration in law; members should have been so advised leaving the weight for them.

I agree that the legal adviser used an unhappy formulation. Lord Hoffman in Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759 at 780F, draws the sharp distinction between the question of law as to whether something is a material consideration and the question of the weight to be given to it. But the legal adviser’s formulation appears to derive from the principles set out by Glidewell LJ in Bolton Metropolitan Borough Council v Secretary of State for the Environment [1979] (61) P & CR 343 at p352-3. Mr Ground for the City Council supported the legal adviser’s words by reference to it. I am far from clear how consistent the decisions in Tesco Stores Limited and in Bolton are with each other now, but Bolton does permit of a category of lesser or insignificant considerations which it is not unlawful to take into account, but the omission of which does not invalidate the decision, even before any issues of discretion arise. That latter category could be described in the language used by the legal adviser.

However, on the basis that the City Council’s officers should have advised that the incremental impact of servicing was a material consideration but that the weight to be given to it was for Councillors, and the officers did not so advise, I have to consider whether incremental impact was considered. First, there is clearly no advice that incremental impact was irrelevant. I would be unwilling to say that there was actual positive or significantly misleading advice in the sense used by Judge LJ in Oxton Farm v Selby District Council [1997] EWCA Civ 1440. As Pill LJ pointed out in the same case, there is an opportunity for discussion and advice to be given during the meeting. This is what happened here. Second, in my view it is impossible to read the transcript of the meeting without concluding that all Councillors who spoke treated incremental impact as relevant in the sense that it could affect their decision. Councillor Kent specifically said it was relevant; Councillor Bradshaw raised the question about whether servicing would be controlled or could be managed; Councillor Davies raised concern about the length of servicing vehicles; Councillor Woodman specifically said it was material but was clearly concerned about whether it was of sufficient weight. No one, officer or Councillor, suggested otherwise whichever way they voted.

Third, the planning officer directed the Councillors early on as to how they should approach the incremental impact of servicing if they thought it material; he advised them perfectly properly as to how it could be relevant and what its significance might be. He left it open to them to take it into account. It is clear that, as with the legal adviser, there was a degree of confusion between materiality in law and materiality as having some significance or weight. It also clear that no reasonable Councillor, thinking that incremental impact could lead to demonstrable harm, could conclude that he should, as a matter of law, leave it out of account. Fourth, no opposing Councillor said that those in favour had omitted a legally relevant issue which told against the grant of permission. It would be very surprising if those in opposition treated as legally immaterial a point which could only tell against the permission, but which those voting in favour clearly treated as material. There is no reason to treat the non-speaking seconder of the motion as differing from the views of Councillor Kent, the proposer and the other supporters of the motion, but herself as leaving it out of account.

Mr Wills suggested that the whole Committee had to have taken it into account and that the advice given hindered any argument that they might put forward that it was relevant. That is simply not supported by the transcript. There is no basis in the transcript for saying that the Committee as a whole were not of the same mind as all those who spoke, that it was a material consideration. The reasons for the grant of permission do not take matters much further. They refer to all material considerations being taken into account but the value of that depends on what they thought was material. Here I am satisfied that they did treat incremental impact as relevant in the sense of being something worth considering. That is not to say any gave it any or much weight.

Mr Wills also relied on the letter from Mr MacNamara, the senior legal adviser in the pre-action protocol response. This rather continues the uncertainty as to whether it was talking about the servicing impact of the existing permission or the incremental impact or possibly both. The comment that there were sufficient controls over servicing, so that it was not a compelling reason for refusal, suggests that it was a material consideration in the legal sense but not material in the sense of being of significance. The letter continued that there was no error of law in that conclusion. I think that this comes from the way in which post Bolton materiality can be used and has been used in both legal and significance senses.

However, the Claimant also clearly understood that incremental impact was taken into account. Paragraph 21 of the Grounds says:

“ ..so, the Committee was wrongly advised that whether this was a material consideration was a matter for them to determine. Furthermore, it is apparent that Officers and the Committee purported to undertake an assessment of the servicing impacts during the course of the Committee. The fact that the materiality of the transport aspect was only accepted at this late stage of the application meant that the Claimant and other objectors were denied the opportunity to comment on such assessment before the Defendant made its decision. This sequence of events had the effect of significantly misleading the committee about a material matter which was not adequately corrected before the decision was taken”

Ms Milne in her Witness Statement says at paragraph 27:

“As can be seen from Document 10, what then occurred at the Committee was that the Committee members and the officers there and then sought to assess the potential servicing impact of the planning application, recognising that it was a material consideration.

…what is stated in Mr MacNamara’s letter does not accord with what the Committee were told, namely that on this occasion servicing was capable of being a material consideration. This contrasts with the written December Report to Committee which states that ‘servicing cannot be considered as a material consideration’.”

That is important because she is there giving evidence about what was discussed and the clear impression she gained from that discussion.

In my judgment the Claimant’s evidence and claim confirm that the factual basis for the argument about incremental impact is flawed.

It is not necessary for me to reach a conclusion on Mr Ground’s alternative argument that if the incremental impact was ignored, it was so slight and too small a factor to be capable of affecting the decision, though I suspect that fully analysed as to whether there would be any extra loads at all, it would have been unlikely in the extreme to have affected the decision.

Mr Wills also submitted that members had too little information to be able to reach a rational conclusion on the additional servicing impact, describing the discussion of this as being “on the hoof”. He accepted that before Beatson J he had put this aspect of his argument as part of a ground upon which permission had been refused. He contended that it could also find a home in Ground 1 which was permitted, since in order to take a point lawfully into consideration, a committee had to have sufficient material rationally to enable it to take it into consideration. Mr Wills argued this point with moderation and skill as with all his arguments, but I cannot accept it. It is clear that this point was raised as part of the irrationality Ground 3 and was rejected as unarguable by Beatson J; the point remains the same whatever guise it is given. In any event there is nothing in it. Mr Wills no longer contended that some elaborate traffic impact assessment was called for. Members had the material on the nature of Cheltenham Road and Picton Lane, the traffic flows on Cheltenham Road, the TRO and the condition. It had the Claimant’s views, the data relating to Tesco Express servicing, and was aware of the extra floor space. The maths simply follows that a 10% floor space increase could not possibly generate more than 4.2 vehicle movements or loads a week, even on the assumption that none of the 42 had any spare capacity to deliver 10% more to the store. That was ample on which to reach a view.

Accordingly I dismiss the claim. It is not necessary to say anything about the want of promptness in this case.