Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MR JUSTICE STEWART
Between :
The Queen (on the application of Mid Counties Co-operative Ltd) | Claimant |
- and - | |
Forest of Dean District Council and Trilogy Developments Ltd | Defendant |
Interested Party |
David Holgate QC & Gwion Lewis (instructed by Hewitsons Solicitors) for the Appellant
Richard Drabble QC & Graeme Keen (instructed by Forest of Dean District Council) for the Respondent
Hearing dates: 27th & 28th June 2013
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
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MR JUSTICE STEWART
Mr Justice Stewart :
Introduction
The Claimant, Mid Counties Co-operative Ltd, (“MCL”) claims judicial review of the Defendant’s (“the Council”) decision of 29th March 2012 to grant outline planning permission to the interested party (“Trilogy”). The outline planning permission was for:
“…a Class A1 retail store of up to 4645 m² including ancillary uses recycling centre associated accesses off Steam Mills Road and estate roads, car parking and landscaping (demolition of existing buildings)”
The site is land at Steam Mills Road, Cinderford, Gloucestershire. It is out of the town centre. Permission to bring judicial review was granted by Simon J after an oral hearing on 10th April 2013.
MCL owns and operates the Co-operative supermarket at Dockham Road, Cinderford. This is in the town centre. Trilogy is the relevant developer of the site. The retail store is to be operated by Asda Stores Ltd.
History
On 28th June 1999 the Secretary of State, accepting the recommendation from the Inspector, refused an application for outline planning permission on the site for a large retail store namely:
“…the construction of a Tesco foodstore associated parking and petrol filling station with car wash and additional car parking for an adjoining service station on land at the junction of Valley Road and Steam Mills Road, Cinderford.”
Tesco’s application, which had been supported by the Council, had been called in by the Secretary of State for his own determination. The Inspector reported after a 10 day public inquiry.
There have been further applications for extra retail provision in Cinderford over the years between 1999 and 2011. During the whole of the relevant period MCL’s store has been the largest retail store in the town. Three of the applications were on the rugby club site adjacent to MCL’s store. In 2008 Tesco made an application in respect of the rugby club site. The rugby club entered into an agreement with Tesco that it would relocate to a new ground outside the town. However the determination of the Tesco application was delayed because of further negotiations with the highway authorities as a result of ownership issues introduced by MCL. The agreement between Tesco and the rugby club expired. MCL then entered into a 10 year sponsorship deal with the rugby club which in effect prevented the club selling its site and relocating. Tesco then withdrew its application. The rugby club site is no longer available for retail development.
Trilogy’s Application
On 24th January 2012 the Officers’ Report was published. The case officer was Mr Tony Pope. It recorded that “Members had the opportunity to visit the site in July 2011”. The recommendation was:
“Delegated authority be given to the group manager – planning and housing and the group manager – legal and democratic to issue the planning permission subject to the completion of 106 legal agreements or unilateral undertakings to deliver contributions of £471,000 towards town centre enhancements in line with the adopted Cinderford Town Centre Regeneration Scheme, comprising £160,000 towards redevelopment of Cinderford bus station; £110,500 towards parking improvements and the implementation of restricted parking zones; £65,000 towards architectural lighting scheme; £30,000 towards soft landscaping and bulb planting; £45,000 towards high quality materials in the Triangle and High Street; £10,000 for minor footway improvements within the town centre; £2,500 towards crime prevention; £48,000 for associated design and supervision fees; £41,040 towards the improvement of the junction of St Whites and Valley Road and £46,008 toward public transport; and subject to the conditions set out below. If the agreements or undertakings are not concluded by 30 March 2012, to refuse planning permission.”
On 31st January 2012 the council’s Development Control Committee met and considered the 2011 application and the Officers’ Report. The committee resolved to accept the recommendation in the Officers’ Report and to grant permission. The majority was 14 to 1. Permission was formally granted on 29th March 2012. By this time the National Planning Policy Framework (“NPPF”) had replaced all national planning policy statements. Planning permission was granted subject to 20 conditions.
After pre-action correspondence MCL issued this claim on 12th June 2012.
The Grounds of Challenge:
Ground 1
This Ground (1 of 6) states “(a) Failure to consider the importance of consistency with the earlier decision of the Secretary of State that planning permission should not be granted for a Class A1 supermarket on the site as any benefits secured via a section 106 planning obligation would not be sufficient to outweigh the “very serious harm” to the vitality and liability of Cinderford town centre; (b) Alternatively, failure to provide reasons for departing from this earlier decision of the Secretary of State.”
MCL rely on the 1999 refusal planning permission to Tesco. That was an application for a store with a gross floor space of 3126 sq metres. The Inspector’s conclusions (with which the Secretary of State agreed) included the following:
“The Relationship of the Proposed Developments to National Planning Policy Set Out in PPGs 1, 6 and 13.”
i) “...the sequential approach.
14.6 The starting point for the sequential approach is the consideration of the need for any new shopping floor space…”
ii) “14.9…While there may be some capacity for additional shopping floor space within the Cinderford catchment even after the Co-op and Lidl are developed, such capacity need not be on the scale of the proposal. The first test of the sequential approach is therefore not met.”
“The possible impact of the proposed development on the vitality and viability of the town centre of Cinderford.”
“14.21 Cinderford town centre is a weak and vulnerable shopping centre. Food shopping is the main reason for visiting the centre, and there is relatively little comparison shopping. There is a high proportion (22%) of vacant shops scattered throughout the centre. All parties agree that the Tesco store would have a significant impact on town centre turn over…”
“14.26 The direct impact of the Tesco store on Cinderford town centre would lie in the range 25% to 37% …the actual impact is likely to be nearer to the higher figure than the lower. Even an impact of 25% could not be called insignificant, whilst one of 37% is likely to be crippling on a centre as vulnerable as Cinderford is generally accepted to be…”
“14.27…the greatest impact would be on the Co-op which would suffer around a 50% reduction in turnover…”
“14.29 Great reliance was placed upon survey results from other market towns which showed high level of spin-off associated with other centre stores…a survey of Cinderford shoppers who do not currently go to the town centre revealed that 91% said that it was unlikely that they would start to use the town centre as well as a new Tesco. 22% of those currently going to the centre said that they would no longer use it if the new Tesco is built. This suggests a decline in usage rather than increased spin-off…”
“14.30…The impacts of the Tesco store on the vitality and liability of Cinderford town centre would be serious causing significant harm to what is already a weak and vulnerable town centre. Leaving aside the sequential test such impact could only be justified if significant spin-off in terms of linked trips could be guaranteed to an extent that visitation to the town centre would be increased. The centre lacks a sufficient range of non food shops or other attractions however to give any hope of significant spin-off occurring.”
“The suitability of the site for the development proposed and whether there are any considerations which will outweigh any possible harm to the vitality and viability of the town centre.”
“14.33 Benefits would also accrue to the town centre in the form of increased parking at Hayward Road…paying for public toilets and other cosmetic enhancements to shop fronts etc would not be directly related to the impacts the development would not meet the tests in the circular nor significantly enhance the centre as a draw for Tesco shoppers.”
“14.35 In summary, whilst there would be tangible benefits associated with the proposal, they would not outweigh the very serious harm to Cinderford town centre that would result, should the proposal go ahead.”
In the 2011 Officers’ Report reference was made to an analysis undertaken on behalf of the council estimating that “between 25% and 30% of the current level of expenditure flowing to Cinderford town centre” would be diverted to the proposed Asda store. They said that little weight could be placed on Trilogy’s assumption that the store would generate linked trips into Cinderford centre. In paragraph 8 they concluded:
“It is considered that the principle of this development is in accordance with the aims and objectives of policy (R) FE.3 of the District Local Plan Review (started November 2005) and is consistent with policy CSP.7 of the emerging Core Strategy. It satisfies the sequential approach to site selection set out in policy EC15 of PPS4. Furthermore the proposal is consistent with policy CSP.1 of the emerging Core Strategy. However, due to the store’s out of centre location there is a harmful impact on the vitality and viability of the town centre contrary to policy (R)FS.2 of the District Local Plan Review and PPS4. The mitigation offered by way of financial contributions in support of the Cinderford Town Centre Regeneration Scheme is a significant material consideration and satisfactory to offset the harm to the vitality and viability of the town centre and consequently the proposal is acceptable. The contributions offered are appropriate to the development and meet the required tests of the circular 05/05 and CIL regulations. This is sufficient to outweigh the policy objection under (R)FS.2 and PPS4.”
This conclusion was reflected in the Council’s summary of reasons for granting permission. They noted that the proposal was in accordance with the objectives of policy of CSP7 of the Core Strategy and satisfied the sequential approach site selection as set out in the NPPF. They then recognised the harmful impact on the town centre contrary to the NPPF but concluded that the contributions offered were “sufficient to outweigh the policy objection under the National Planning Policy Framework.”
The reference in the Officers’ Report to the 1999 application was limited to the following:
“DF10635 – outline application for Class A1 food store car parking facilities petrol filling, station/car wash car park facilities for Hollywood Service Station, new access and roundabout – Secretary of State call in and appeal dismissed June 1999.
Reason – adverse impact on the vitality and viability of the town centre. In addition that the proposal failed to satisfy the sequential test as required in PPG6.”
There is a transcript of the Council’s Development Control Committee Meeting on 31st January 2012. Partway through the meeting Councillor Kirkpatrick asked what had changed since the last application was called in by the Secretary of State. The response was that since that application (erroneously said to be 1990)
“there has been a whole raft of policy changes since that time and one of the issues that comes out in relation to that original application is the Council’s consideration of it particularly in terms of the consideration of vitality and viability and that we didn’t undertake a sequential assessment so in terms of the policy position it has changed and we have evaluated the both proposals against the current policies. If you wanted to look at the sort of general thrust, it hasn’t changed, town centres first, edge of centre, out of centre, one of the circumstances prevailing at the moment that’s outlined in the report but you are considering out of centre sites there are no other viable options available forcing the fit at the moment, so on balance is that this Steam Mill site is acceptable.. ”
Mr Pope then added “Thank you. CSP10. It just reaffirms the need for retail in Cinderford 2006 metres of the others convenience and 18,300 sq metres for comparison, its just reaffirming the retail need within Cinderford. Amongst a whole raft of which the policy covers housing and general development”.
In North Wiltshire DC v Secretary of State for the Environment 1993 65P & CR137 Mann LJ said at page 145:
“…It was not disputed in argument that a previous appeal decision is capable of being a material consideration. The proposition is in my judgment indisputable. One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is self evidently important to both developers and development control authorities. Butit is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest and it would be wrong to do so, that like cases must be decided alike. An inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision.
To state that like cases should be decided alike presupposes that the earlier case is alike and is not distinguishable in some relevant respect. If it is distinguishable then it usually will lack materiality by reference to consistency, although it may be material in some other way. Where it is indistinguishable then ordinarily it must be a material consideration. A practical test for the Inspector is to ask himself whether, if I decide this case in a particular way am I necessarily agreeing or disagreeing with some critical aspect of the decision in the previous case? The areas for possible agreement or disagreement cannot be defined but they would include interpretation of policies, aesthetic judgments and assessment of need. Where there is disagreement then the inspector must weigh the previous decision and give his reasons for departure from it. These can on occasion be short, for example in the case of disagreement on aesthetics. On other occasions they may have to be elaborate.”
The principle is not limited to decisions of an Inspector/the Secretary of State. It requires an earlier material decision to be taken into account. A decision is material unless it is distinguishable. A decision maker in a subsequent matter therefore should (a) decide whether the earlier decision is distinguishable (b) if not distinguishable, then any disagreement must weigh the earlier decision and give reasons for departure from it. It is important to recognise that the Council’s submission is that the 1999 decision was distinguishable.
Another authority I must bear in mind insofar as the Officers’ Report is criticised is Oxton Farms Samuel Smith Old Brewery (Tadcaster) v Selby DC and Persimmon Homes (Yorkshire) Ltd 1997 WL1106 106 where Judge LJ stated:
“An application for judicial review based on criticisms on the planning Officers’ Report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken.”
Apart from the documents to which I have already referred I take into account the statement from Mr Tony Pope, Principal Planning Officer, dated 28 May 2013 and the statement of Ms Wendy Jackson, Regeneration Manager employed by the Council, dated 27th May 2013.
Mr Pope sets out the planning history of the site since 1999 in some detail. A brief chronology was attached to the Skeleton of Mr Richard Drabble QC, Counsel for the Council and I attach this as Appendix A to this judgment.
In outline Mr Pope says:
At a local level the Council adopted a revised local plan in 2005 and then commenced work on production of a local development framework. Two documents were prepared in parallel, a district wide Core Strategy and the Cinderford Northern Quarter Area Action Plan (“AAP”). Both of these were at a very advanced stage when Trilogy’s application was considered by the Development Control Committee. The Core Strategy was a significant material consideration in determining the application. Both the Core Strategy and the AAP had been formally adopted by the time planning permission was formally issued.
The Core Strategy sets out the strategy for Cinderford Town and states “The role of Cinderford in the district context is for it to provide a focus for new development, especially retailing and employment…”
The development of the Core Strategy and the AAP took place over a long period following 2006. District Council members were engaged during the period in the development of the documents and the contents. The full Council reviewed the Core Strategy in September 2010 and after further consultation, including review by the Joint Scrutiny Committee in January 2011, the full Council approved it on 24th February 2011 for publication and submission to the Secretary of State. Therefore members were fully aware of the status and content of this Core Strategy. The elected members had a clear understanding of the policies within the Core Strategy and the AAP and were fully familiar with the planning history relating to major retail proposals in Cinderford.
The 1999 decision was considered and applied throughout the processing of Trilogy’s application. A range of retail and town centre studies between 2006 and 2011 had been produced and these documents informed the Core Strategy. As a result of the policy change and the retail and town centre analysis (in addition to the length of time that had elapsed since 1999) Mr Pope felt that the 1999 decision had very limited weight.
Though the 1999 decision was a very relevant consideration in terms of the planning history and the site, reference to the detail of the decision was unnecessary since the considerations highlighted by the Secretary of State in the 1999 decision had been translated into the material considerations under the local plan and Planning Policy Statement 4 which were referred to in the Officers’ Report. PPS 4 and the District Local Plan Review were in force when the Trilogy application went to the committee in January 2012 but in February 2012 the Core Strategy was adopted and placed in the local plan. NPPF came into force on 27th March 2012 and replaced PPS4. The Officers’ Report took into account the emergence of the Core Strategy.
In the Officers’ Report under the heading “Retail need and Impact” the relevant considerations were examined. In essence these constituted the same exercise as the Secretary of State had done in 1999. However rather than making reference to the decision, Mr Pope referred to the then current planning advice in PPS4 and the local planning policy (R) FS.2. The Officers’ Report concluded that the Trilogy site was sequentially preferable due to better access to public transport. Having applied the sequential approach, the harm to the town centre was considered, this being independently assessed by GVA Grimley. This informed the Council of the level of harm the development would cause to the vitality and viability of the town centre. This was then sought to be balanced against the economic benefits the store would bring in combination with the section 106 contributions.
It is unnecessary to provide reasons for departure from the 1999 decision because that was not a point of reference in determining Trilogy’s application. Trilogy’s application was decided in terms of the relevant policy which then obtained.
With reference to the Development Control Committee Meeting on 31st January 2012 (see summary at paragraph 15 above) Mr Pope said he agreed with the comment that there had been “a whole raft of policy changes since that time” – a comment made apparently by Mr Pope’s colleague Peter Williams. However, Mr Pope says he would have qualified it by saying that changes in local policy and the reasoning and background work behind them that were the key difference.
Miss Jackson reiterates Mr Pope’s emphasis on the new local planning policy retail survey, regeneration objectives and community consultation exercises which have informed and added weight to local decision making. She also refers to the Cinderford Regeneration Board. This board was established as an informal partnership in 2005 by five public sector partners, including the Defendant and the County Council. It is now made up of 14 public and private sector organisations.
I turn now to MCL’s main criticism under Ground 1.
MCL say that the Council did not consider at all the reasoning in the 1999 decision. They point to similarities in respect of the two applications in terms of size, the policy imperative to protect the vitality and viability of the town centre, the harmful effect of a supermarket on the site on the vitality and viability of the town centre and the similar nature of the financial contributions proposed to offset the harm.
Mr Holgate QC for MCL submitted that this point was straight forward. The complication arose because of the Council’s lack of identifying any considerations flowing from the 1999 decision or considering its reasoning. He submits that it is the Defendant’s response which requires one to look carefully at the Officers’ Report.
There is some common ground between the parties namely:
A retail need of (up to about) 2600 m² of convenience goods floor space had been identified in Cinderford (I shall later deal with precisely what this retail need encompassed when I look at CSP.10 in more detail under Ground 3).
The sequential approach discounted any town centre sites (I shall return later to the health centre site proposed by MCL under Ground 5)
The impact on Cinderford town centre of the out of town store was such as to adversely affect the vitality and viability of the town centre. This much was consistent with the 1999 decision.
The section 106 contributions were not materially different from those at the time of the 1999 decision.
The first point which the Council make is that the duty on the Council was to give summary reasons, not detailed reasons as would be the case in an Inspector’s Report. I accept this submission. The real issue between the parties is whether the 1999 decision was distinguishable.
The Council submit that the first point of distinction is that the sequential test was not met in 1999 and there was no proper need. It is true that the sequential test was not met in 1999. It is also true that the sequential test has not been challenged in the present proceedings by MCL. MCL submit that the sequential test is a free standing test. For this submission they rely upon the Inspector’s words in paragraph 14.30 of the 1999 decision where he considers the harmful impact on Cinderford town centre as a completely separate point when he begins the second sentence with the words “Leaving aside the sequential test…”. In addition paragraph 12 of the 1999 Secretary of State’s decision relies as a separate matter on the “various harm to the vitality and viability of Cinderford town centre.” Finally National Policy at the time also referred (paragraphs 24 – 27) to the sequential test as an entirely separate matter from significant adverse impact on town centres. MCL say that one may test the point by considering its position if there had been a successful High Court challenge to the 1999 decision on the sequential test. The decision could have been upheld on the entirely separate impact test.
I accept this submission of MCL. If, as here, there were entirely free standing reasons for the earlier decision, the decision itself is not distinguishable merely because one of those separate reasons can be distinguished.
The adverse impact on Cinderford town centre from a supermarket development on the site (which was a constant as at 1999 and 2012) had therefore to be considered by the Council as a separate and free standing matter. Mr Drabble QC said that the Council members were told that there would be harm and that the negative impact would not be cancelled out by the section 106 contributions. However the difficulty with this submission is that on page 15 of the Officers’ Report stated:
“It is considered that the mitigation offered is satisfactory to offset the harm to the vitality and viability of the town centre and consequently the proposal is acceptable.”
Even more clearly at page 18 in the conclusion section is the following:
“Mitigation offered by way of financial contributions in support of the Cinderford town centre regeneration scheme is a significant material consideration and satisfactory to offset the harm to the vitality and viability of the town centre and consequently the proposal is acceptable.”
These statements were inaccurate. In addition there was no analysis, merely assertions, of the mitigation of harm. It is instructive that the Secretary of State and Inspector rejected, in relation to this particular site, (paras 14.27 – 14.30 of the Inspector’s decision) the “spin-off” arguments in terms of “linked trips” which were asserted by the Officers’ Report in the statement “These improvements to the public realm will enhance the town centre as a destination and encourage linkage trips”.
The Council rely on studies commissioned by them. However, they recognise that these did not consider the site or the impact of an out of centre supermarket on town centre vitality and viability or the improved linkages that would be required. They submit that this is not relevant. I disagree. It is in my judgment highly material that the studies did not address the position of the town centre given the very substantial impact. This was exactly the point which had in fact been addressed in the relevant paragraphs in the 1999 decision. This is particularly important given the estimated scale of the effect on the town centre in the Council’s Report for this application from GVA Grimley, the full picture of which is not reflected in the Officers’ Report (see Grimley Report, in particular paragraphs 6.22, 6.27, 6.33 – 6.39, 7.12 and 7.19). By not factoring in this part of the equation, those studies were of little significance.
I later reject (Ground 3) the Council’s contention that the need (and therefore the sequential test) for a store in the position of and of the size of this development has properly been made out – based, as it was, particularly on policy CSP.10. Mr Drabble QC accepted that, absent his making good the need argument, then permission should not have been granted since this is the real ground of distinction from the 1999 decision. There was much evidence as to regeneration following from this permission. Much of this is in the after the event evidence e.g. of Miss Jackson. Such hints as there are in the Officers’ Report are wholly insufficient to provide proper support for the site on this basis. Further, the types of regeneration referred to had been considered, and rejected, by the Inspector in 1999 (paras 14.2, 14.31 and 14.35 in particular). Mr Drabble QC relied upon these words in page 14 of the Officers’ Report “it has already been demonstrated that available development sites within the town centre are limited and that delivery of the identified retail space needed for Cinderford will involve an out of centre site.” This was really the only section which supported his submission that the need for the store and the consequential jobs etc flowing from it justified departure from the 1999 decision once it had been demonstrated that the sequential test had been met. I accept that the Officers’ Report and the Council’s reasons are not to be read as a statute or contract nor in the same way as an Inspector’s Report. It was argued that it was blindingly obvious that need distinguished this case from the 1999 decision. I do not accept this submission. It is not at all clear from the Officers’ Report that there was any clear reason or reasoning on the basis of need to distinguish the present decision from the 1999 decision.
For those reasons MCL’s case on Ground 1 succeed. I would add that there is no proper analysis of the 1999 decision in the Officers’ Report and that it is insufficient to submit that “members were familiar with the planning history related to major retail projects in Cinderford”.
Consistent with the dictum of Judge LJ (as he then was) in the Oxton Farms case, I therefore find that the overall effect of the Officers’ Report significantly misled the committee about material matters which were uncorrected before the relevant decision was taken.
Ground 2
This Ground states:
“(a) Failure to ask the relevant question and to take reasonable steps to obtain the relevant information before concluding that the benefits secured via the section 106 planning obligation would be sufficient to offset the harm to the vitality and viability of the town centre; (b) Alternatively, failure to provide any proper reasons dealing with this crucial issue; (c) In the third alternative, the permission was granted in breach of regulation 122(2) of the Community Infrastructure Regulations 2010.”
In the Officers’ Report there was a section at pages 14 and 15 headed “Impact Mitigation and Section 106 Requirements”. In that section there was reference to the District Local Plan Review acknowledging the need to regenerate the town centre, the strategy being “to recapture a proportion of this lost expenditure in the form of new retail floor space and other town centre investment.” The report then mentions the scheme for enhancement of the town centre in support of the local plan strategy. It continues “Although the proposed supermarket proposal is an out of centre location it is sited in a “gateway” location halfway between the town centre and the Northern quarter…the Northern quarter area is covered by the emerging Cinderford Area Action Plan (AAP) within the Council’s local development framework…the Cinderford town centre regeneration scheme has been adopted for developmental control purposes in October 2007 and is a material consideration in the determination of this application. It has been discussed with the applicant in a bid to mitigate the impact of the new out of centre supermarket.” The need for the proposed store to complement the town centre was described as “essential”; the fact that future customers would be likely to drive to the store and not journey into the main shopping centre in Cinderford would negate many of the spin-off benefits accruing from combined trips. The financial contribution of £471,000 towards town centre enhancement in line with the adopted Cinderford Town Centre Regeneration Scheme was said to “enhance the town centre as a destination and encourage linked trips to it”. Finally reference was made to circular 05/05: Planning Obligations and to the Community Infrastructure Levy (CIL) Regulations. The report then concluded in this section “it is considered that the mitigation offered is satisfactory to offset the harm to the vitality and viability of the town centre and consequently the proposal is acceptable. This outweighs the policy objection under (R) FS.2 and PPS4; furthermore it is considered that the proposal is consistent with policy CSP.1 of the emerging Core Strategy. The contributions offered are appropriate to the development and meets the required tests of the circular 05/05 and the CIL Regulations.”
MCL submit that officers did not ask themselves how contributions would improve linkages between the site/town centre sufficiently so as to offset diversion of expenditure from the town centre to the site. They say that the 2007 town centre enhancement study set out a general strategy and did not provide appropriate analysis of the benefits needed to reduce the harm to the town centre consequential upon granting permission. No adequate reasons were given to justify the opinion that the mitigation offered was satisfactory to offset the harm.
I have dealt with this point in full under Ground 1 particularly in paragraph 22.6 above. For the reasons given there I uphold this separate but related submission.
As to the alleged breach of Regulation 122(2) of the CIL Regulations 2010, this regulation provides:
“(1) This regulation applies where a relevant determination is made which results in planning permission being granted for development.
(2) A planning obligation may only constitute a reason for granting planning permission for the development if the obligation is –
(a) necessary to make the development acceptable in planning terms
(b) directly related to the development; and
fairly and reasonably related in scale and kind to the development…”
The Claimant says that there were contributions “not directly related to the development. These include the architectural lighting scheme, the landscaping and bulb planting scheme and provision of “high quality materials” in the Triangle and High Street. I accept the Defendant’s submission that these contributions could properly be said to be directly related to the development inasmuch as they were capable of encouraging some customers to shop in the main shopping centre of Cinderford Town Centre.
However, I consider that it flows from my judgment on Grounds 2(a) and 2(b) that it cannot be upheld that the s106 obligations were “necessary to make the development acceptable in planning terms” so as to “constitute a reason for granting planning permission.” Therefore there was a breach of Regulation 122(2)(a) but no breach of Regulation 122(2)(b).
Ground 3
This Ground states “(a) Misconstruction of policy CSP10 of the Core Strategy and/or (b) failure to consider the implications of granting the permission for the implementation of policy CSP10 and/or (c) failure to consider the exercise of compulsory purchase powers to achieve the implementation of policy CSP10”.
In section 6 of the Officers’ Report CSP10 – Cinderford was listed last in a long list of policies. On page 12 of the report there is the following passage:
“The most up to date study of retail need undertaken for the District Council was carried out by GVA Grimley in 2008 (updated in 2011). This Forest of Dean District Retail Study identifies a need for 2600 m² of convenience goods floor space and 2300 m² comparison goods floor space. These figures have been embodied in policy CSP.10 of the emerging Core Strategy. The proposed development is of a scale consistent with the identified need. Accordingly with regard to retail need the proposal is in accordance with policy CSP.10 of Core Strategy and (R) FS.2 of District Local Plan Review. It should be emphasised that there is only a need for one store of this size.”
The starting point is that the statement of planning policy in the development plan is to be interpreted objectively in accordance with the language used read in its proper context Tesco Stores Ltd v Dundee City Council 2012 UKSC13.
Policy CSP.10 forms part of Chapter 7 of the Core Strategy. Its opening words are “the Core Strategy will bring about major change in Cinderford to establish a more sustainable and economically diverse town using a new mixed development as a focal point for change which will be complemented by improvements in the town centre and other areas.” It then goes on to list eight bullet points. One of these bullet points is the main focus of MCL’s case. It says:
“Support the continued development of the town centre to bring improved facilities, including retail outlets, with up to about an additional 2600 m² convenience and 2300 m² comparison floor space public space and cultural facilities.”
The Claimant’s submission is that the Officers’ Report overlooked the fact that the stated objective of CSP.10 was to “support the continued redevelopment of the town centre.” The convenience and comparison floor space was to be provided within the town centre and therefore officers misconstrued policy by concluding that the proposal was “in accordance with policy CSP.10” in terms of “retail need”. MCL say that the reference in other parts of policy CSP.10 to Cinderford as a whole are irrelevant since the relevant part of the policy related to provision for “continued redevelopment of the town centre”. I follow the guidance of the Supreme Court in the Tesco Stores Ltd case (in particular paragraphs 18 -21 and paragraph 35) My interpretation is that policy object was to “support” the redevelopment of the town centre and this included retail outlets in the town centre.
It is correct that CSP.10 does not restrict retail outlet provision to the town centre. Neither does it positively support out of centre development. Mr Drabble QC’s point is that although the third bullet point expressly supports the continued redevelopment of the town centre, the objective of bringing improved facilities including retail outlets etc relates to the town of Cinderford as a whole and not only to the town centre. I do not accept this on the wording, taking account of the context. There is no support for out of town centre retail outlets, only for town centre retail outlets. I do not think it is tenable on the wording in its context, reading it in conjunction with the opening words of CSP.10, to find specific support for out of town retail development in the policy.
With reference to the transcript of the 31st January 2012 meeting (see paragraph 15 above) Councillor Kirkpatrick had also specifically asked how the application complied with CSP.10. Mr Pope’s response was CSP.10 “just reaffirms the need for retail in Cinderford.” Mr Drabble QC says that Mr Pope meant that CSP.10 reaffirmed the need was in Cinderford as a whole not just the town centre. I agree that is what Mr Pope conveyed. Where I disagree with Mr Drabble is that the policy does do that. Therefore Mr Pope’s response was wrong in that it did not draw attention to the fact that CSP.10 did no more than support redevelopment of the town centre including retail outlets. Here was a Councillor, and therefore a decision maker, asking for clarification. She did not receive proper clarification. She received an inaccurate response.
I make the following further points in support of my decision that Grounds 3(a) and (b) must be upheld:
The Council say that there was no possibility of retail space in the town centre of “up to 2600 m² convenience … floorspace”. However, the policy does not request this to be a single unit; also, the policy is in force to 2026. Things may well change over time.
The way the policy was presented by officers to members was as if there was policy support for the application. This was wrong.
Further, and in any event, the policy supports “up to about 2600m²; it did not support a development of the size of the application (3000m²).
Of course members, properly advised and giving reasons, were free to depart from policy. However, this was not how the decision was made; nor was it how the Council’s case was put.
I shall briefly consider Ground 3(c), namely that if there was a lack of town centre sites available, the Council failed to consider whether they should exercise their compulsory purchase powers so as to assemble land in the town centre, as advised by their retail consultants GVA. Mr Pope’s witness statement (paragraph 4.39) says he considered the possibility of compulsory purchase but immediately dismissed it as unrealistic he says there was only one possible site of which compulsory purchase powers could be exercised namely the rugby club site. The Council would have required funds to do this and the only possible relocation for the rugby club was a piece of land in the ownership of the Third Party Supermarket. He considered the prospect to be “too unrealistic, practically and financially, for consideration by members.” The Claimant submits that whether or not compulsory purchase was realistic or not was a matter for members and it was never put to them. The Council respond that given that the possibility was unrealistic it was a matter that probably fell to be addressed by officers in assessing the application and making recommendations to members. I reject this ground. The officers did not have to put to members any possibility, however remote. Members were not misled on this point.
Ground 4
This Ground states:
“Failure to mention policy CSP.10 of the Core Strategy in the notice of the decision to grant the permission and/or failure to provide summary reasons in the decision notice in relation to policy CSP.10 and the 1999 decision”.
The Council accepts that policy CSP.10 was not mentioned in the decision notice. Article 31(1) of the Town and Country Planning (Development Management Procedure) (England) Order 2010 states:
“31 – Written notice of decision or determination relating to a
planning application
When the local planning authority give notice of a decision or determination on an application for planning permission or for approval of reserved matters—
where planning permission is granted, the notice shall—
include a summary of their reasons for the grant of permission;
include a summary of the policies and proposals in the development
plan which are relevant to the decision to grant permission;”
The Council rely upon the case of R on the application of Ling (Bridlington)Ltd and othersv East Riding of Yorkshire Council Defendant [2006] EWHC 1604 (Admin). The relevant provision then in force was Article 22(1) of the Town and Country Planning (General Development Procedure) Order 1995 where sub paragraph (a) stated “The notice shall include a summary of their reasons for the grant and a summary for their policies and proposals in the development plan which are relevant to the decision”. Both parties in the present case accept that the judgment in Ling is to the effect that the summary of reasons will be considered adequate if it deals in substance with the main material issues. It is common ground that a brief summary is all that is required. MCL say it is impossible for the Council to claim that summary of reasons in the present case dealt in any way with the application of policy CSP.10 as a main issue. They point out that there was a complete absence of reference to CSP.10. The Council say that members concurred with the recommendation in the Officers’ Report and provided reasons which in substance dealt with the matter set out in policy CSP.10
I uphold this Ground on these bases:-
CSP.10 had in my judgment to be dealt with briefly in the reasons. The Officers’ Report was insufficient, especially in the circumstances that Councillor Fitzpatrick had asked for clarification.
Given that (a) (on the Council’s submission) the reason for distinguishing the 1999 decision was essentially need (based on CSP.10) and the consequential sequential test (b) Councillor Fitzpatrick had also specifically asked about this point – there should have been brief reasons explaining this decision.
Ground 5
This states “Failure to consider the Claimant’s proposed investment in extending its town centre Cooperative store and improving the adjacent health centre.”
At the time of the grant of permission policy EC16.1 of PPS4 applied. It stated:
“EC16.1 Planning applications for main town centres uses that are not in a centre…and not in accordance with an up to date development plan should be assessed against following impacts on centres:
The impact of the proposal on existing committed and planned public and private investment in a centre or centres in the catchment area of the proposal;…”
MCL had proposals to acquire the freehold to the health centre in Cinderford so as to extend its store by 464 m² with new accommodation for the health centre at first floor level above the extension. 45 additional car parking spaces would be provided. Sketch plans were submitted to the Council on 12th December 2011 and further plans were submitted in January 2012.
MCL’s proposed scheme was not mentioned in the Officers’ Report. Mr Pope deals with this in paragraph 4.41 of his witness statement. He says:
“I did not refer to the Claimant’s proposals in the Officers’ Report because at this time the proposals would have been treated as confidential. At this time the Claimant had not announced the development or submitted a planning application and so the details of the proposals would not be disclosed to the public….In the circumstances at the time to do so would not have been appropriate or consistent with Council practice.”
This explanation is described as “spurious” by MCL there being no evidence the proposals were ever approached by MCL or the Council as confidential in nature. I do not accept this. There is nothing whether expressly or by inference to contradict Mr Pope’s evidence.
MCL also state that the proposal is self evidently not confidential because the material was later included in a Late Material Note brought to the attention of members at the meeting of 31st January 2012. However there is nothing in this point since by this stage MCL had made an objection to the Trilogy application based on their own proposals. Therefore the proposal was in the public domain and the matter could be, and was, brought to the attention of members.
The Late Material Note circulated to members stated:
“The Objector has been engaged in pre-application discussions with Officers with regard to proposals to extend their existing store. However the proposed out of centre stores create commercial uncertainty for the objector in relation to future investment.”
MCL’s contention is that by this stage the PCT had expressed its support in principle to the scheme and that the Council’s Officers knew this. Officers already had received refined plans for the proposal and had signalled that they were broadly content with the proposal subject to improving the provision of car parking and certain matters in relation to the bus stops. Architects acting for MCL then submitted further refined plans to the Council for their consideration at the end January 2012. MCL complain that the Late Material Note failed to mention the need for improvements to the health centre and that such improvements would follow from the extension of MCL’s store; also that Officers did not provide further advice on the matter. Thus it is said Council members were not given the information needed to come to any judgment on the weight of MCL’s proposal. Therefore permission was granted without taking into account a material consideration, namely MCL’s proposal to extend its store in the town centre and to improve the health centre. MCL rely also on the GVA Grimley Report of 2008 which refers to the Health Centre as “potentially a key site”. MCL rejects the Council’s case that their approach to the proposal was sufficient in that it was still in its infancy, on the basis that (a) the Officers knew that PCT had expressed its support in principle, (b) the plans had already been redefined in January 2012, (c) Officers did not suggest that the proposal could be disregarded on the basis that it was in its infancy and (d) it could not be properly said that the scheme was in its infancy if it had already attracted the Officers’ support in principle and only detail matters such as those relating to the height and design of the building were outstanding. In summary they say the proposal was not in its infancy and the Council did not approach it on this basis before granting permission.
I reject this ground for the following reasons:
Council members knew of MCL’s proposal and that the Officers had further knowledge of it and that it was a proposal amounting to investment in the town centre. The proposals were therefore taken account of and members could decide what weight to attach to it.
This knowledge was against a back drop of the Officers’ Report which, although at that stage not mentioning the proposal for confidentiality reasons stated at page 12:
“…The applicant has followed the sequential approach considering nine sites within Cinderford…health centre site…the first seven sites have been dismissed as being too small. These sites have also been appraised by the authority having regard to its own retail studies and cannot accommodate a single large store capable of selling a wide range of convenience products and provide appropriate customer parking. Whilst clearly these seven sites are sequentially preferable due to their position either within or immediately adjacent to the town centre they are discounted as a result of their limited size. Disaggregation of the floor space into smaller units is unlikely to meet the same need as the current proposal. It would not meet the primary need for Cinderford which is a single destination food store to stem the leakage of spend to other stores and centres within and outside the district.”
Although MCL say they have been in discussion with the PCT since early 2010 no contact was made with the Council until December 2011. A meeting took place between Officers and MCL representatives on 26th January 2012 at which Officers said that proposals were acceptable in principal and officer level but there were a number of detailed issues that were not acceptable including the height and design of the building. Proposals were then sent to the Council three working days before the committee meeting. The documentation did not include any details as to how the extension would be achieved and was considered to be insufficiently advanced to attract any material weight. I accept the Council’s submission that Officers were entitled to take the view they did and there was no failure to put to members a material consideration.
Ground 6
This Ground states “Unlawful condition allowing a development which could be very different from that applied for.”
Permission was granted subject to condition 16 which provides:
“16. The application for the approval of reserved matters shall be in accordance with the permaters described in the design and access statement hereby permitted. Should the submitted scheme not comply with the submitted statement a revised design and access statement will be required to be submitted with the reserved matter.”
MCL submitted that the condition is unlawful because the second sentence enables different design principles to inform the development at the reserved matters stage. These would not have been the subject of consultation or assessed in any way before deciding to grant the outline permission and therefore sidesteps the statutory process for the grant of permission and the variation of conditions.
This matter has been superseded in that, between hearing and judgment, the s106 obligation necessary to deal with it has been executed.
Appendix A
28/6/99 SoS refused outline PP for a large retail store on the Site.
Nov 05 Forest of Dean Local Plan Review adopted.
July 08 Tesco applied for PP for a supermarket on the Rugby Club site.
24/2/09 MCL applied to extend Co-op store.
24/11/09 Tesco withdrew application for PP.
26/11/09 MCL withdrew its application to extend.
14/4/10 MCL leased Rugby Club Car Park for 10 years.
10/6/11 Trilogy submitted application for PP.
12/12/11 MCL sent sketch plans for extension proposal to the Council.
26/1/12 Officers and MCL representatives met for pre-application discussion relation to the extension proposal.
31/1/12 Late Material Note circulated to members.
31/1/12 The Council’s Development Control Committee resolved to grant PP.
23/2/12 Council adopted Core Strategy and Northern Quarter Area Action Plan.
27/3/12 National Planning Policy Framework published.
29/3/12 PP granted to Trilogy.
9/5/12 MCL pre-action protocol letter sent to Council.
22/5/12 The Council sent a letter in response to PAP.
12/6/12 Claim issued.
23/11/12 Permission refused (on the papers).
10/4/13 Permission granted (at oral renewal hearing).
11/6/13 Council resolves to grant duplicate PP.