Salford Estates (No 2) Ltd R (on the application of) v Dalton Park Ltd

This judicial review application is the second part of a challenge to a decision made by Durham County Council (Durham CC) on 7 June 2011 when it resolved, via the Planning Committee, to grant planning permission for three large retail developments in and around Peterlee in County Durham. The three sites are Castle Dene in the town centre (to be developed by the claimant in this case), the Tesco site on the periphery of the town centre (to be developed by Tesco Stores Limited), and the Dalton Park site, which is five miles from the town centre (to be developed by Dalton Park Limited).

The first judicial review application covered the Tesco site; the second covers the Dalton Park site. The application before me is a rolled-up hearing in the sense that I am determining whether permission to apply should be granted simultaneously with the full application if permission is granted. Consequently, I have heard full argument from all parties. I am grateful to all counsel for the erudition and expedition of their arguments.

I have already determined the first challenge by Salford Estates (No 2) Limited (SE2) to the decision of 7 June 2011. There was full argument in early September 2012, and I handed down a judgment in London on 19 September 2012 (see R(Salford Estates) (No 2) Ltd v Durham CC and Tesco Stores Ltd (first interested party) and Dalton Park Ltd (second interested party) [2012] EWHC 2512 (Admin)).

Reference was made to this case in the judgment. Indeed, upon handing down I gave certain case management directions for this case. For convenience I will refer to that case as "the Tesco case", and this case will be referred to as "the Dalton Park case".

This judgment must be viewed as supplemental to the judgment in the Tesco case. It would be unwise to view this judgment standing alone. The two judgments are to be read together. I have no intention of revisiting territory I have already covered, although I shall refer to certain passages of the judgment in the Tesco case. I simply note that SE2 have not sought permission to appeal against my decision from the Court of Appeal. I refused permission to appeal. The judgment in the Tesco case stands.

I simply note parenthetically that a portion of my judgment, where I explained the role of the court in judicial review applications of this kind, was recited with approval by Wilkie J in R(Estates and Agency Properties Ltd) v LB Barking and Dagenham and Tesco Stores Ltd (interested party) [2012] EWHC 3744 (Admin) at paragraph 10.

In an ideal world, both judicial review applications relating to the core decision made on 7 June 2011 would have been heard at the same time. However, for reasons which I shall briefly explain, that was not possible.

The Planning Committee of Durham County Council resolved to grant planning permission for three large retail sites on 7 June 2011. The critical decision was made on that date. However, the individual planning permissions for the three sites were made on different dates: Castle Dene on 27 June 2011; the Tesco site on 7 October 2011; and Dalton Park on 26 March 2012.

The Secretary of State for Communities and Local Government, following a period of consideration, decided much later, and sequentially, whether to call in the decisions. He declined to call in the three decisions. There was a further reason for the delay in the Dalton Park case because a planning obligation under section 106 of the Town and Country Planning Act 1990 had to be arranged. Consequently, the Tesco case was made the subject of judicial review proceedings before the decision was made in the Dalton Park case. Unwarrantable delay would have been caused to the Tesco case by waiting for this case to take its course.

Although Dalton Park Limited was an interested party in the Tesco case, they took no active part in the proceedings, albeit they were represented by counsel throughout. They in effect reserved their position until the outcome of the Tesco case was known, and the focus was firmly upon their part of the overall case. I shall not repeat or recite passages of my judgment in the Tesco case, except where necessary.

The challenge in this case (the Dalton Park case) relates to the decision of Durham CC to grant planning permission for a food store/out-of-town factory outlet/hotel/cinema and other related developments at Dalton Park on 26 March 2012. The decision was taken in principle on 7 June 2011. Permission to apply for judicial review in respect of the Dalton Park case was refused by me on paper on 10 October 2012. Wilkie LJ refused Tesco Stores Limited permission to become an interested party on 6 November 2012. By consent, I agreed to a "rolled-up" hearing, where the renewed application for permission would be heard on 5 December 2012 as that appeared the most efficient way to proceed.

The background to this case is fully set out at paragraphs 10 and 11 of the judgment in the Tesco case:

“10.

Peterlee is a new town which was built in 1948 under the provisions of the New Towns Act 1946. It is on the north-east coast in County Durham just to the south of Sunderland and well north of Teesside. Durham CC is the planning authority for the area as a unitary local authority. Within Peterlee town centre there is only one large retail shopping complex at Castle Dene Shopping Centre which is owned by Salford. The only large supermarket in the town centre is ASDA which is very close to the Castle Dene site. Durham CC has been desirous of expanding retail led regeneration schemes in the area for some while. It is part of the local plan (see District of Easington Local Plan 2001 which was adopted by the predecessor local authority prior to the creation of the county council as a unitary authority) [I shall call this ‘the local plan’ hereafter]. By June 2011 Durham CC had to decide upon, inter alia, three planning applications for major retail development in and around Peterlee. Those applications were:

(1)

The Castle Dene Site: this application was made by SE2 as part of the redevelopment of the Castle Dene Shopping Centre in the town centre. The plan was to construct a food superstore (12,802 square metres). No retail operator has been identified for this site. This application was made on 13^th September 2010.

(2)

The Tesco Site: this application was made by Tesco to construct a Tesco Extra food superstore (10,815 square metres) at the periphery of the town centre although it is separated from it by a main road called Burnhope Way (which is also the B1320). This is the site of the former college. This application was made on 23^rd December 2009. Tesco was additionally required to enter in to a Section 106 Agreement to provide underpass and other environmental advantages to Peterlee.

(3)

The Dalton Park Site: this application was made by Dalton to construct a food superstore (8,452 square metres) on an out of town factory outlet site called Dalton Park. The site is over 5 miles from Peterlee town centre and abuts the A19 arterial road. This application embraced a 90 room hotel, a cinema, food and drink outlets (including a drive-through arrangement) and a fuel filling station. This application was made on 29^th December 2009.

(4)

The North Blunts Site: this application was made by North Blunts Limited and related to a former school site on the edge of the town centre. This was refused by Durham CC. I shall make further reference to this aspect of the case at paragraph 16 (infra).

11.

On 7^th June 2011 Durham CC resolved to grant planning consent to the first three applications at the meeting of the County Planning Committee held at the County Hall in Durham. In respect of the Tesco site it was conditional upon a Section 106 Agreement being made (see section 106 of the Town and Country Planning Act 1990). The Secretary of State for Communities and Local Government (Secretary of State) has decided, through the National Planning Casework Unit, not to call-in the decisions in relation to the Tesco and Dalton Park Sites. The decisions of the Secretary of State in respect of the Tesco site and the Dalton Park site were not made concurrently and that has caused the judicial review application about the Dalton Park site to be considerably delayed. Hence, it has not been possible to have a single hearing to consider both cases.”

I also call attention to four important facts set out at paragraph 18 of my previous judgment. I also set out the more detailed facts of this case taken as a whole, and incorporate paragraphs 29 to 58 of my previous judgment.

“29.

The Castle Dene Shopping Centre in the centre of Peterlee opened in 1963. It comprises several shops. There is at present only one large supermarket in Peterlee: ASDA. Durham CC have been desirous for some while in promoting major retail led regeneration in Peterlee which furthers the Local Plan and national ministerial guidance contained in PPS4 where town centre redevelopment is prioritised.

30.

The three applications in this case were made between December 2009 and September 2010.

The Local Plan

31.

No useful purpose would be served by extensive recitation of the local plan which, by the time of the decision of the planning committee, was a rather antique document (it was by then 10 years old). It was devised by the predecessor local authority responsible for Peterlee prior to the formation of the unitary authority. Durham CC acquired those responsibilities in April 2009 when the new authority was formed. The protection and promotion of town centres was regarded as of critical importance (see paragraph 8.9). Policy 101 is of importance which makes it clear: ‘where sites within the defined town centre (of Peterlee) are unavailable (shopping developments) on the edge of the town centre may be approved.’ This is reinforced by Policy 104 which provides:

‘Where there is an identified need for a major new retail development, proposals should be located within the defined town centre of Peterlee ----. If it can be demonstrated that suitable sites are unlikely to be made available within a reasonable period, then proposals may be located on the (edge of the centre), followed at local shopping centres within those towns and finally by sites elsewhere within those built up areas, provided that:

(i)

the proposal would not, either by itself or cumulatively, undermine the vitality and viability of (Peterlee) centre ----- or prejudice future investment or a planned proposal intended to sustain or enhance the vitality or viability of an existing centre."

32.

The local plan plainly envisages the promotion and preservation of town centres and planning permission outside this area would only be granted when there is no alternative.

33.

Prior to determination of the applications Durham CC sought advice from expert consultants in respect of retailing: GVA Grimley. The consultants produced 3 reports all of which were made available to the planning committee when they convened to decide upon the applications on 7^th June 2011. It is also of note that each of the developers of the three sites (as well as the developer of the fourth site) provided expert reports for the committee. It is important to appreciate the import of these various reports. I have read them all with some care and extensive reference has been made to them in the course of argument. I shall simply summarise some of the salient points.

Retail and Town Centre Study [GVA Grimley] 2009

34.

This report encompassed an assessment of retailing within the Peterlee Catchment Area. It was a thorough report and pointed out the isolated nature of the town centre by reason of the road network. It was described as ‘lookingdated and not meeting modern expectations’. The main thrust of the report was to collate a raft of surveys and set out strengths, weaknesses, opportunities and threats to Peterlee (and other related areas) in terms of retailing. This was pithily set out in tabular form on page 149 of the report. The matters I shall refer to must be seen as part of the wider picture reflected in the table, but the lack of comparative mainstream retailers was identified as a problem (whilst appreciating the strength of ASDA). It was seen as important (by way of opportunities) to enhance retailing in the town centre qualitatively and quantitatively. It was also pointed out that competition from Dalton Park was seen as a threat to the town centre. Under the heading ‘Threats’ (to the town centre) was the clear statement that ‘Development pressure for edge and out-of-town schemes’ posed such a threat.

35.

Plain it was, the absence of comparable large retailers in the town centre was viewed as an opportunity that needed addressing and the threat posed by edge of centre and out of centre (extant or future) developments had the potential for adverse effect upon Peterlee town centre.

36.

I reiterate this was advice from a consultant to Durham CC. It was the result of work undertaken by the consultants. Although I do not need to refer to it in any detail there was a similar conclusion set out in the Housing Growth Retail Assessment prepared by the same consultants in April 2010 (see paragraph 2.34 on page 12).

Report on the Tesco Application [GVA Grimley] May 2010

37.

This report was sought by Durham CC on the planning application made by Tesco. The main thrust of this report was adverse to the Tesco application. It was specifically asserted the proposed Tesco store would facilitate a 30% increase in overall town centre turnover and would ‘primarily distribute expenditure within the catchment’: meaning trade would be diverted from ASDA.

38.

Tesco responded to this report by modifying the basis of its application for the Tesco site, by revising its own retail impact assessment and taking account of PPS4.

39.

It is also right to refer to the expert report prepared for SE2 by Sanderson Weatherall of 23^rd March 2011. It advanced the positive advantages of the Castle Dene Site and argued there had not been compliance with PPS4 by Durham CC. Furthermore is suggested that a thorough assessment of alternatives had not been undertaken (see, inter alia, paragraph 3.40 and 4.2).

Cumulative Impact Note [GVA Grimley] 2011

40.

There was no further report sought from GVA Grimley – in particular there was nothing specifically dealing with the revised plan. However, a document entitled Cumulative Impact Note (CIN) was prepared given the view (seemingly expressed by officers of Durham CC) that the Castle Dene and the Tesco sites would be likely to be approved. The central points of the CIN were these:

(1)

The trading performance of ASDA would be significantly reduced, but not to the point it would cease trading.

(2)

With Castle Dene and Tesco sites operating they would be ‘cannibalising each other’ (drawing trade one from the other, rather than enlarging the overall market).

(3)

There would not be ‘additional dis-benefits’ (I am not sure precisely what this unusual word means, but I trust I accurately speculate that it means disadvantages) in terms of a loss of linked trips between the large supermarkets (ASDA and Tesco) to other smaller shops in the town centre.

(4)

The report concludes ‘It is our view that approval of two new food stores in Peterlee would not have an overall significant adverse impact on the town centre in relation to PPS4 policy tests EC16.1b and EC16.1d. The introduction of two new food stores in Peterlee would deliver true competition and choice to local residents with out any material dis-benefit (ie drawing trade away from the town centre)’.

(5)

There was strong advice that Durham CC would need to carefully balance the benefits of two new stores in its overall planning assessment.

41.

There were retail assessments submitted by each of the applicants which do not need to be set out in any detail, but (as I have in part explained already) sought to advance the case of SE2 and Tesco respectively. No useful advantage is served by me reciting tracts from them.

42.

I sense a shift in tone from the original line taken by GVA Grimley in their very long reports undertaken in 2009 and 2010 (when they warned of potential dangers from edge of town shopping developments) to the cumulative report in 2011 when they were rather more positive towards such proposals.

43.

It is important for me to refer to the advice tendered to the committee by officers of Durham CC. The reports were long and detailed.

The Advice of Officers

44.

In summary form the advice to the committee from officials was: (i) the Tesco application for the Tesco Site should be approved; (ii) the SE2 application for the Castle Dene site should be approved; and, (iii) the Dalton Park application for the Dalton Park site should be refused. It is right to say that officials were much more supportive of the Tesco application. The advice was that the North Blunts site should be refused.

45.

The recommendation in respect of the Tesco site followed a long report to the planning committee. There can be no doubt that officers addressed the sequential test and described the Tesco site as coming ‘second in that test’. The Castle Dene site came first. I do not intend to quote at length from the report. I shall simply call attention to important passages by reference to paragraphs. It is plain from paragraph 24 that officers viewed the applications as a group for overall consideration by the planning committee. In paragraph 27 the fact that ASDA traded alone as a large shopping outlet revealed a need for another store. It is also plain that officials carefully addressed PPS4 (see, in particular, paragraph 34). The offer of a section 106 agreement by Tesco was also mentioned.

46.

It concluded as follows at paragraph 57 and 58:

‘57. On the basis of the information currently available doubts remain regarding the deliverability of the Castle Dene scheme to meet the immediate need identified in the Durham County Council Retail and Town Uses Study. There is a current need for a new food store to provide competition for the existing ASDA store and to improve choice for residents, however, regarding the likely timing of the Castle Dene development, that scheme cannot be considered to represent a deliverable option to meet the identified immediate need.

58.

This (Tesco) scheme is considered to accord with relevant development plan policies. With regard to sequential assessment, it is considered that there are no sequentially preferable sites in Peterlee town centre, or on the edge of that centre which are available, suitable and viable as alternatives to the (Tesco site) for the development of a food store to meet recognised immediate need. The impact assessment submitted by (Tesco) in support of the Tesco proposal is accepted; this details there will not be a detrimental impact on the current convenience and comparison retailing within the town’

It is beyond doubt officers felt that there were real doubts as to whether the Castle Dene site would be developed in a prompt timescale that met the desire for immediate development. It must be remembered that Castle Dene had no proposed operator for the Castle Dene site.

47.

The recommendation in respect of the Castle Dene site was equally clear: it should be approved. The one area of concern was the deliverability of the proposal. Basically, the officers indicated the proposal met all the criteria, but doubted whether it would actually come to fruition (see paragraph 44).

48.

The recommendation in respect of the Dalton Park site was as clear as the others; but the advice was to refuse the application. Reference is made to PPS1 and PPS4 where town centre sites are plainly to be favoured. The report advances the proposition that, if granted, there would be a real possibility of town centre business closures and job losses. Indeed the report goes as far as to say that:

‘---- there is also the risk of failing town centres within East Durham and the undermining of town centre regeneration objectives and recent successful regeneration projects’.

The report also points out possible wider impacts upon neighbouring towns.

49.

I should add that there was a negative recommendation in respect of the North Blunts site. It was regarded as the least preferential site in terms of the sequential test of the three applications (absent Dalton Park)

50.

A summary report pulling all the various strands together was also prepared by officers. I do not need to refer to this document in great detail as there is one passage that encapsulates the overall advice of officials: paragraph 4.13 which reads:

‘--- if more than two new stores were allowed in the catchment area (meaning Peterlee and surrounding towns) there would be substantial adverse impact on the vitality and viability of Peterlee.’

That passage – perhaps more than any other in the countless other passages – sets out the overall advice of officials. The advice in simple terms came to this: Peterlee can accommodate two new stores – one sequentially preferable (albeit they had doubts as to when it would be delivered) and another on the edge of town; but not a third either at the North Blunt site or Dalton Park site. If the latter was built there would be serious consequences for the town centre. The advice could not have been clearer. I repeat: it was advice.

51.

It is right to observe there was no advice or detailed information from GVA Grimley as to the potential retail consequences in the event the planning committee should be minded to grant all three applications (Tesco, Castle Dene and Dalton Park).

The Planning Committee decision of 7^th June 2011

52.

The minutes of the meeting reveal the committee viewed and heard much competing information. They debated the matter at some length. In the result three schemes were approved (Tesco, Castle Dene and Dalton Park). The fourth (North Blunts) was not; and is largely irrelevant for the purposes of this case.

53.

The reasons given for the decision to grant the Tesco application acknowledged the edge of town centre site but the committee felt the development would enhance the town centre and draw people to it. The committee concluded:

‘The scheme represents significant investment in Peterlee which will widen retail choice and contribute to the regeneration of the area.’

Similar reasons for the approval of the Castle Dene site were given. North Blunts was turned down on the basis there were other sequentially preferable sites and the cumulative effect of one more would adversely affect Peterlee.

54.

The Tesco site was approved although no specific reference was made to the section 106 agreement. Mention was made of this in the officers' report when the sum of £400,000 was covered as an aspect of the application. There is no suggestion that this was an improper inducement; but the fund would provide useful and much needed environmental improvements for Peterlee. This was an important item of investment for the town given the adverse description of the town centre in the expert reports to the committee and, doubtless, known to members of the committee in any event.

55.

In respect of the Dalton Park site (where members went against the advice of their officers) the reasons of the committee were set out with clarity.

‘Members considered all relevant policy issues, representations for and against development from interested parties, both detailed in the officer's report and made verbally at the committee meeting and officers' presentations. In addition committee members visited the application site, together with the sites of other retail proposals under consideration, so as to better assess their relevant locational characteristics’

56.

Thereafter, the Reasons set out the relevant PPS guidance and policy coupled with references to the local plan. The Reasons continued:

‘The application has been approved notwithstanding the policy conflict identified in the Officer's report to Committee because of the weight members attach to the other material planning considerations referred to below.’

Thereafter, the Reasons cover:

(i)

The creation of jobs and the regional economic advantages by reference the local plan and other government advice in relation to economic growth.

(ii)

The need to regenerate the former coalfields in County Durham.

(iii)

Enhancing consumer choice and widening leisure and retail facilities.

57.

The committee regarded the Dalton Park site as a ‘stand alone’ scheme which met the needs of north east Durham which would result in local citizens going outside the area for such facilities. The decision concluded in this way:

‘Having regard to the planning controls imposed via condition and the obligations contained in the legal agreement, the scheme would not cause an unacceptable impact on the vitality and viability of any nearby towns or other centres.’

58.

It has to be said the reasons given set out the basis of the members' decision with pellucid clarity. No one has sought to describe the reasons as anything but clear. The simple fact is the members felt this ‘stand alone’ scheme several miles from Peterlee and other areas of relevance provided much needed regeneration to a former coal field site and would not produce unacceptable problems.”

I have enquired whether there are any specific additional facts that are relevant to this Dalton Park case to which I need refer. Mr Paul G Tucker QC indicated there were none beyond those of which the court has already considered. However, it occurs to me there are two specific facts which I would wish to call attention simply to make it clear I have them well in mind. The one factual matter that is directly relevant to Dalton Park is that Dalton Park Limited (DPL) were required to pay £250,000 in respect of environmental improvements at Merton town centre and at Seaham under section 106 (the section 106 agreement). The second factual matter is that, unlike the Tesco case, officers were firmly recommending to the Planning Committee that the Dalton Park development should be refused. Members rejected that advice.

I shall refer to certain of the material called to my attention by Mr Tucker QC in respect of his case. I do not intend to indulge upon extensive quotation of long reports. It is, however, important to record that I have re-read all of the relevant material and have paid close attention to the portions of the evidence to which Mr Tucker referred. There can be no doubt officials at Durham CC were against the Dalton Park scheme.

I feel it is also important to record, as Mr Neil King QC for DPL called to my attention, that there was a sizeable body of support for the Dalton Park scheme. Furthermore, it must also be remembered that the Dalton Park scheme was, in reality, the second part of a scheme of development for that area, five miles from the town centre of Peterlee.

In the Tesco case, three points fell for decision. The three points that fell for decision were: (1) the retail capacity point; (2) the sequential test point; and (3) the section 106 point. SE2 failed in respect of each of them.

The basic argument that has been advanced by both Durham CC and DPL is that I have already determined these issues in the judgment delivered in the Tesco case and I should not be invited to revisit, still less judge, the same points in this case (the res judicata point). SE2 argued that I could and should revisit these points because in this case they are referable to the Dalton Park development, which is different to the challenge to the Tesco site. Mr Tucker QC makes these basic propositions: (1) the Tesco case was solely about the Tesco site and submissions were directed to that, whereas this is an out-of-town site with wholly different considerations; (2) DPL did not take an active part in the Tesco case and have an opportunity to direct their fire now; (3) the principle of res judicata applies, but is not being breached in this case as a pure "irrationality" argument is deployed in this case; (4) the section 106 point in this case is different to the point argued in the Tesco case; and (5), in relation to the sequential test point, he argues the Committee misunderstood the test.

I have to say that I listened to Mr Tucker's felicitous arguments, presented as they were with aplomb and force, but could not help but think that he was in reality rehearsing the same arguments as before on the retail capacity point and the sequential test point. The only true new argument related to the section 106 point.

Mr Patrick Clarkson QC (perhaps unkindly, perhaps accurately) described Mr Tucker's submissions as "smoke and mirrors", but essentially that which the court has decided already. I have to say that I was immensely impressed by Mr Tucker's powers of advocacy, but I was equally overwhelmed by an abiding feeling of déjà vu (already seen) during his submissions on the first and second grounds of challenge.

I do not intend to revisit what I decided in the Tesco case. The retail capacity point was dealt with between paragraphs 62 to 80:

“62.

It is entirely clear from PPS4 that the requirement to demonstrate need has vanished. Notwithstanding, Mr Tucker QC has submitted that Durham CC has acted unlawfully (perversely) and irrationally in making the decision to grant planning permission for three large retail outlets. His arguments are fully set out in his skeletal argument and I will not elongate this judgment by repetition of them. I trust I do him no injustice if I distil his arguments in this way:

(1)

The planning committee have acted irrationally by ignoring the advice of officers.

(2)

There was simply no information from any source as to the impact or assessment of the economic, or any other, situation, if the committee granted permission for the Castle Dene site, the Tesco site and the Dalton Park Site. In other words – all three.

(3)

He called attention to all the information in the various reports which tended to point against all three being granted permission. The high water mark being there was an acceptance of ASDA + 2 others, but not 3.

(4)

Members should have adjourned the meeting to obtain a report on the impact of approving all three applications plus ASDA upon Peterlee.

(5)

There was simply no material before the committee upon which it could form a judgment given the complex matrix of PPS material and the local plan the committee was required to digest and apply.

63.

In fairness to Mr Tucker QC, he was not simply asserting the decision was irrational; rather more, the committee failed to take into account a material consideration namely the impact of the approval of all three applications. He disavowed any idea that the court is being asked to enter the arena of planning merits. He simply submitted that the committee fell into legal error when they did not seek further information and acted without it particularly when it was against the recommendations of officers. Members had no information and to act as they did meant they could not take into account a material consideration namely the impact of approving all three applications.

64.

Mr Clarkson QC submitted that the judgment of members was a matter for them; and, unless they have acted irrationally, their planning judgment stands. He warned me against entering the planning arena and simply asserted that it was for the members of the planning committee to assimilate the enormous amount of information and decide whether a planning judgment could be reached on the information they had; and, in this case, there was no irrationality in declining to adjourn to seek more. He accentuated the catchy phrase – members know their own patch. He submitted that it was perfectly acceptable for members to prioritise the need for regeneration of the former Durham coalfields and the other matters set out in their decision. He described the decision to disagree with the advice of officers and to accentuate other factors as an entirely rational decision open to the planning committee. He reminded me that the members are the ones who have to answer for their decisions.

65.

Mr Katkowski QC sought to emphasize that I am only asked to quash the Tesco decision in this case and urged me to decide that it was not in the least perverse for the committee to decide the Tesco application without the additional information. There was more than enough information before the committee to decide the Tesco application and the Dalton judicial review was for another day. The Tesco application was after all, he observed, recommended by officers.

66.

I am very conscious I have much abbreviated the submissions of all counsel. I have reviewed all of their submissions made to me with conspicuous ability even though I have provided a pale shadow of their force in this brief summary of them. I apologise for the summary; I make no apology for declining to lengthen this judgment by more comprehensive recitation of what was advanced before me.

67.

I am very aware the court must not stray into the forbidden territory of judging planning merits or exercising planning judgment. I reiterate what I said at an earlier part of this judgment about the role of this court in judicial review proceedings and the primacy of the judgment of the elected members of the planning committee. If the members make a bad decision that is not a matter for this court. The electorate may judge them adversely and they may be exposed to all manner of criticism, but in the final analysis the decision is for them to make providing they act lawfully. It is only when they have acted irrationally and reached a decision that no reasonable planning committee member could have reached; or failed to take into account a material consideration (or took into account an immaterial one) that this court becomes involved. It is important to emphasize the primacy of the elected members to make decisions, and for this court to state without equivocation, that providing they evaluate the situation, the weight they attach to information is a matter for them. Indeed, they may attach whatever weight they feel is right (or no weight at all) to a material consideration. The portcullis I mentioned at the outset of this judgment must remain firmly closed to provide the divide between issues of law and the exercise of planning judgment.

68.

I use a cricketing metaphor: the captain of the team decides where to place his fielders. The captain may make good or bad decisions about this. He may or he may not have a fielder in place to take account of every batsman. That is a matter for his judgment – for good or bad. The captain might be exposed to all manner of criticism (valid or not) but he has acted within the rules. The umpire could only intervene if the captain brought on 14 players on to the field or otherwise breached the rules of the game.

69.

The argument of Mr Tucker QC was very attractive, but I have to say there were times during his enticing submissions that I felt he was asking me to opine as to the location and positioning of the fielders. My analogy to cricket is, of course, not a complete answer and has its limitations. It is, of course, open to this court to say that a planning committee has not taken into account a material consideration and/or has acted irrationally. The court is much more nuanced in its approach to unlawful decision making than a cricket umpire. It was forcefully submitted that the planning committee failed to take into account a critical material consideration. This submission deserves examination.

70.

In many respects it might have been wise for the committee to have commissioned further detailed work on the potential impact of approving all three applications (having eliminated the North Blunt application). Was it either: (i) irrational to decline to do that; or, (ii) a legal error to fail to obtain what might have been a material consideration? Mr Tucker's point is that the committee simply did not have any information upon a highly material consideration – the impact of granting all three applications. This was particularly so having regard to the local plan and the assessments needed to implement PPS4 and all that flows from it.

71.

I am not persuaded this is a material consideration point at all. It is self evident that officers were against the Dalton Park scheme. Members plainly took that into account and formed their own judgment as set out in their reasons for the decision to grant permission. Members are entitled to form their own views and disregard the advice of officials. They are entitled to place in the decision making matrix their own view of the local situation providing it is a material consideration. The fact is the members knew the risk they were taking by granting approval. They expressly stated in their reasons the impact upon other local areas was acceptable (in their judgment). They are the decision makers; and, it is their judgment that counts. In the context of this case officials are the advisors and the members of the planning committee are the decision makers. Although axiomatic it is worth recording: advisors advise; decision makers decide.

72.

I am completely un-persuaded that the committee fell into error by declining to obtain more information. I equally do not feel they failed to take into account any material consideration. Given the nature of the reports before them, they were only too well aware of the risks. The committee also had much information form other sources, all of whom made representations to the committee. One really significant factor was the potential for the creation of jobs in their bailiwick. I do not regard that as an insignificant issue or immaterial. It is highly material.

73.

I do not intend to incorporate the entire minutes of the planning meeting in this judgment – but I have read them with some care. It is manifest there were many representations including the local Member of Parliament, a local group seeking to promote tourism and local councillors (including Peterlee Town Council). This was all in addition to the representations from the individual applicants. It is always invidious to refer to one contribution and not others, but there was clearly a very powerful submission made by Ward Councillor Laing who, inter alia, set out the case for more jobs in the locality. It is also clear the members of the planning committee had a vigorous debate about the proposals after submissions from GVA Grimley and officials.

74.

I shall say more about the order in which the committee voted upon the proposals when I cover the issues relating to the Sequential Test Point (see paragraphs 81 et sequentia: infra). The planning committee voted upon the four planning applications.

75.

I regard it as of importance that the committee took the view the Dalton Park scheme was a "stand alone" proposal. After all it was 5 miles from Peterlee and had many other components to it beyond what was on offer at any of the central or edge of centre sites (extant or proposed).

76.

The reasons the committee gave were entirely cogent and, whilst some other committees might have sought more information, I do not regard it as wrong to have declined to seek more. The committee have not artificially restricted their view. They knew the advice and all the factors. They were prepared to accentuate other highly relevant and material considerations and attach less weight to the expert opinion and the advice of officers. They set out their reasoning for so doing with clarity. No one has sought to assert the reasons were inadequate.

77.

I have well in mind the contentions of Mr Tucker on behalf of SE2. I feel he was in reality inviting me to stray into the forbidden territory of planning merits. He mounted a perfectly respectable argument, but stripped of much surplusage, the challenge was really about planning merits. I am most certainly not persuaded that the planning committee failed to take account of a material consideration or reached an irrational decision to decline to seek further information if they were minded to approve the three applications they in fact approved. It is plain to me that this experienced group of elected members (and it is accepted they were) were very familiar with the relevant Planning Policy Statements, the local plan and the various other highly material considerations when they reached their conclusions. I am far from persuaded they departed from a lawful course.

78.

Whether they were right to decide as they did is a matter out-with the remit of this court. The councillors as elected members will have to answer for that to the electorate of Peterlee. Just because a decision may be wrong does not make it unlawful. I am in no position to say whether it was a wrong decision and could not do so even if I thought it was. That would be to stray – indeed plunge – into forbidden waters. Judges in the Administrative Court do not have a chart or compass for such a voyage. Much as Mr Tucker disavowed any suggestion of such a voyage of discovery, I feel in reality he was inviting me to make such a journey. I decline his offer.

79.

If I am wrong about this, it must be remembered that the decision to allow the Tesco application was not against officers' advice, and that is the decision under review in this case. The view of the committee was that Dalton Park stood alone. Consequently, if there is any challenge to that decision, it must await the next case.

80.

In the upshot, I reject the claim based upon the retail capacity point based upon either material consideration arguments or irrationality grounds”

The sequential test point was dealt with between paragraphs 81 to 91:

“81.

PPS4 makes it very clear that town centres are to be favoured and the sequential test must be applied to planning applications such as those in this case. There can be no doubt the members of Durham CC Planning Committee knew this. Mr Tucker has advanced the proposition that (i) officers have erroneously elided two concepts when tendering their advice to the committee in their reports, and (ii) the committee have failed to properly apply the sequential test. In oral argument Mr Tucker expanded upon the points he raised in paragraph 5.2 of his skeletal argument.

82.

With respect to Mr Tucker, I am not overly attracted to his argument on this aspect of the case and I feel the matter may be resolved in short form. Mr Clarkson accepts there may be certain infelicities of language in the report, but there is absolutely no doubt the committee plainly had in mind the sequential test and applied it to the facts of this case. Mr Katkowski allied himself with the submissions of Durham CC and pointed out that members voted in order of sequential merit thereby demonstrably applying the sequential test.

83.

The passage of which complaint is made is contained in the report relating to the Tesco site which has already been referred to and quoted (see paragraph 46 supra). The passages are paragraph 57 and 58 coupled with paragraph 56 (not quoted). The import of those passages is as follows:

(1)

There is a need for a mainstream food store in Peterlee comparable to ASDA. The Tesco store will meet this need.

(2)

There is doubt regarding the deliverability of the Castle Dene proposal, but there is a current need for such a store. Castle Dene cannot be regarded as an immediately deliverable option.

(3)

There are no sequentially deliverable preferable sites in Peterlee town centre or on the edge of centre that are as viable, suitable or available as the Tesco site to meet a recognised immediate need.

84.

Policy EC15.1 of PPS4 provides:

"In considering sequential assessments required under Policy EC14.3, local planning authorities should:

a.

ensure that sites are assessed for their availability, suitability and viability,

b.

ensure that all in centre options have been thoroughly assessed before less central sites are considered.

c.

ensure that where it has been demonstrated that there are no town centre sites to accommodate the proposed development, preference is given to edge of centre locations which are well connected to the centre by means of easy pedestrian access"

85.

There was no doubt Castle Dene do not have an operator of a shop for their Castle Dene site. I do not feel it can be seriously doubted that officers were entitled to report to the committee the Castle Dene proposal was not immediately available. Furthermore, there was an immediate need for such an outlet. I am entirely satisfied that the "in centre" proposal for the Castle Dene site was thoroughly assessed. I am equally clear that officers made an assessment of availability too. There is no challenge to the fact they assessed suitability and viability.

86.

The most that can be said is that officers did not set out the sequential test with as much clarity as they might. I am far from persuaded the members were under any misapprehension as to their approach to the issues before them.

87.

It is as plain as plain could be that the members approached this complex and interrelated series of planning applications with two very clear concepts well in focus: (1) they decided to consider all the applications together so that all views could be advanced fairly; and, (2) when the issues fell for a vote (that is to say a decision) the committee expressly voted on the applications in order of their sequential merit. Mr Tucker described this as being singularly unreal. I beg leave to doubt that. It is perfectly permissible to consider matters together and then vote on the individual decision in a particular order. There is nothing inconsistent in that at all. Courts do it all the time (particularly in the Court of Appeal, Criminal Division) where a group of related appeals are heard together and then: either single judgments are given on each case; or a leading judgment with separate judgments on the other cases; or separate sections of one judgment. Joint consideration means the committee viewed the issues arising in all the interrelated applications concurrently, but when it came to the vote to decide the individual applications they were arranged in a sequentially preferred order for voting purposes. It was an eminently sensible approach. The sequential voting order was specifically minuted.

88.

It is plain to me the planning committee decided the applications in this way:

(1)

Castle Dene Site: this was the sequentially preferred site as it was in the town centre, but there were real doubts about whether it would actually materialise in a sufficiently speedy timeframe to meet an immediately identified need. Notwithstanding, it was approved.

(2)

Tesco Site: this was edge of centre and was immediately available, thus it was second choice using the sequential test, but it had many other factors in its favour.

(3)

North Blunts site: this was not the preferred edge of centre site (see officers report). The committee plainly felt that one edge of centre development was right, but not two. This application was refused by the committee.

(4)

Dalton Park Site: regarded as a "Stand alone" out of town development; and, despite the advice of officers, there were countervailing arguments that won the day as material considerations and it was therefore approved.

89.

I am entirely satisfied the planning committee applied its collective mind to the sequential test and that officers addressed the issues (as did the members) in accordance with sequential test in PPS4. They voted upon the issues in their sequential merit.

90.

I have not referred to it specifically, but I have had well in mind the Practice Guidance 2009 relating to the sequential test. No useful purpose would be served by extensive or any recitation of the material. I am satisfied there was no legal error for the reasons I have given.

91.

I reject the challenge based upon an assertion of the misapplication of the sequential test.”

The section 106 point was covered between paragraphs 92 to 97:

It is important I should set out the reasons of the Planning Committee when they made their decision upon Dalton Park on 7 June 2011, which was fully set out in the planning consent of 26 March 2012:

“Members considered all relevant policy issues, representations for and against the development from interested parties, both detailed in the officer's report and made verbally at the committee meeting and officer's presentations. In addition, Committee Members had visited the application site, together with the sites of the other retail proposals under consideration so as to better assess their relative locational characteristics.

This application has been tested against the relevant national, regional and local planning policy. The relevant policies include National Planning Policy comprising Planning Policy Statement 1 (Delivering Sustainable Development), Planning Policy Statement 4 (Planning for Sustainable Economic Growth), Planning Policy Statement 9 (Biodiversity and Geological Conservation), Planning Policy Guidance Note 13 (Transport), Planning Policy Statement 22 (Renewable Energy), Planning Policy Statement 23 (Planning and Pollution Control), Planning Policy Statement 25 (Development and Flood Risk), Regional Spatial Strategy for the North East comprising Policies 1, 2, 3, 4, 6, 7, 8, 9, 13, 24, 25, 33, 35, 37, 38, 39 and 54 and saved District of Easington Local Plan Policies 1, 18, 29, 35, 36, 37, 75, 79, 101, 104 and 108.

The application has been approved notwithstanding the policy conflict identified in the Officer's report to Committee because of the weight Members attach to the other material planning considerations referred to below.

The significance of Dalton Park to the area

The scheme would create 550 direct / 80 indirect jobs and bring £13.5m GVA per annum to Easington district / £15.4m to the north east. The scheme as a whole would complete the regeneration of the Dalton Park site, bringing significant social and economic benefits and opportunities to ‘upskill’ local people. This accords with Policy 1 of the Local Plan, Policies 1 & 2 of RSS and the Government's Plan for Growth.

The development is not needed

There is a need for as much regeneration in the former east Durham coalfields as possible and this is part of the overall vision for Durham.

The proposals would protect and increase the vitality of the area

The scheme would enhance consumer choice in the area and claw back existing spending to more distant facilities. The food store is an enabling development required to deliver a wide range of leisure and retail facilities for legal communities. The local traders in Seaham support the increase in visitor numbers that would benefit the town.

The development is stand alone.

[The] Dalton Park proposal is a ‘stand alone’ scheme which would meet the needs of north east Durham and will reduce trade ‘leakage’ outside the area. Having regard to the planning controls imposed via condition and the obligations contained in the legal agreement, the scheme would not cause an unacceptable impact on the vitality and viability of any nearby town or other centres."

I propose to cover the three areas of challenge, mindful of the res judicata point. I will entitle the three points exactly as in the Tesco case: (1) the retail capacity point; (2) the sequential test point; and (3) the section 106 point.

I have read all the skeleton arguments. I intend no discourtesy to anyone by declining to set out the arguments contained in each. I have considered the written and oral arguments of all parties with care. As this is a supplemental judgment to the Tesco case, I must forbear to unnecessarily elongate this judgment.

Mr Tucker QC has argued that the members of the Planning Committee were legally irrational in their decision-making with regard to the Dalton Park scheme. He called my attention to a variety of passages in the expert reports on GVA Grimley and the written advice of officials. I do not intend to recite them. They were illuminating, but I fear they had already been illuminated in the Tesco case. I was fully aware of the advice of officials and the expert opinions as set out in my previous judgment. It has to be acknowledged (and in fairness Mr Tucker did acknowledge) that an irrationality argument is not an easy one. In order for permission to be granted in this case, it has to be shown it was properly arguable that no Planning Committee, applying its mind to relevant considerations and leaving out of account irrelevant considerations, could have reached the decision made in this case. Try as I might to be as indulgent to Mr Tucker's arguments, I have to say that all he has really done is to rebrand and re-label an argument that he deployed in the Tesco case and was rejected by me in the judgment I gave in that case.

The members of the Planning Committee were under no illusion that they were departing from the advice of officials and the retail experts, but were weighing a series of competing features (material considerations) and attaching the weight they thought could be properly attached to those features in their planning judgment which was rightly theirs to exercise.

I cannot but applaud Mr Tucker's ingenuity in his skeleton and oral arguments when he has endeavoured to dress this up as a new point. Mr Neil King QC has sought to demonstrate various items of evidence that permitted the Planning Committee to form their own judgment. I forbear to set it all out, but it would appear that the economic regeneration arguments won the day, as advanced by a series of individuals and groups, before the Committee.

I have no intention of revisiting that which I have already traversed (in respect of which there is no appeal). If I thought for one moment the rebranding truly advanced a new case or even an important variation on a theme, I would say so. As it is, I stand by every word I uttered in the Tesco case in relation to the retail capacity point. The endeavour of SE2 has been a thinly veiled attempt to get me to reconsider fundamental points I have already decided against them.

Durham CC has, through its Planning Committee, not only taken into account all material considerations; they were aware of all the competing factors. They ascribed the weight which, in their judgment, each factor deserved and reached an entirely rational decision. It was a decision on the material considerations before them, to which they were entitled to come. The argument that it was a decision to which no Planning Committee could reach is, in my judgment, untenable.

There were several passages in my previous judgment where I emphasised the primacy of the planning judgment of the Committee. I particularly call attention to the following paragraphs: 58, 67, 71, 72, 73, 75, 76, 77 and 78. Had the ingenious (or perhaps I should describe it generously) alternative argument of Mr Tucker been advanced on behalf of SE2 in the Tesco hearing, I would not have altered one word.

The Planning Committee were under no misapprehension as to what they were doing. It was open to them to do it. I cannot see any justification for granting permission to apply when the argument is essentially recycled from the previous case and has already been more than adequately answered.

Before leaving this part of the judgment, I must add that I have fully considered the points that were advanced forcibly and well by Mr Tucker. He endeavoured to dissect the decision with surgical skill. It was a dissection that had already been undertaken by him in the Tesco case. Whilst I appreciate he was endeavouring to approach the case via a different, but not that different, route, the destination is the same and the result is the same. In my judgment, whichever way one looks at the decision, it was one that was open to the Planning Committee to make.

This too has been considered before in the Tesco case. I set out the position at paragraphs 87 and 88. I will not repeat them. SE2 continue to assert Durham CC misapplied the sequential test. Mr Tucker sets out the argument at paragraph 5.2.2 of his skeleton argument wherein he asserts the members of the Planning Committee appear to have misunderstood PPS4 at EC 17.1 and have thus contravened national policy. I have read EC 17.1 with some care. It makes it plain that applications in respect of developments for out-of-town centres should be refused where the applicant has not demonstrated compliance with sequential policy. Mr Tucker has called my attention to a number of passages in officers' reports and the expert advice of GVA Grimley where there were clear pointers against granting permission based upon sequential considerations.

In my judgment, there is an answer to the seemingly attractive argument of Mr Tucker. It is to be found in the recent case of R (Zurich Assurance Ltd) v North Lincolnshire Council & Ors [2012] EWHC 3708 (Admin) where Hickinbottom J had to consider another shopping development case, that time in Scunthorpe. EC17.1 fell for analysis, and I particularly refer to paragraph 22 of the judgment:

“22.

The effect of Policy EC17, and the requirements it places on a local authority applying it, are clear – and again uncontentious as between the parties to this claim.

(i)

Where a planning application is for development of main town centre uses not in a centre and not in accordance with an up-to-date development plan, then it is for the applicant to demonstrate compliance with the requirements of the sequential approach (confirmed in paragraph 5.6 of the PPS4 Practice Guidance).

(ii)

The question as to whether the applicant has demonstrated compliance is logically binary, i.e. it is capable of only one of two answers, ‘yes’ or ‘no’. Compliance has either been demonstrated, or it has not.

(iii)

If it has been demonstrated, and no significant adverse impacts have been identified under Policies EC10.2 or 16.1, then the application is determined by the planning committee performing a balancing exercise, taking account of the positive and negative impacts of the proposal in terms of those two policies and any other material considerations. That balancing exercise takes place within the four corners of the policy: the policy requires it to be performed.

(iv)

If it has not been demonstrated, or if it has been demonstrated but there is clear evidence that the proposal is likely to lead to significant adverse impacts set out in Policies EC10.2 and 16.1, then the policy is that the application should be refused. However, that national policy (of refusing an application in these circumstances) is capable of being displaced if the planning committee considers that it is outweighed by other material considerations. That too requires the committee to perform a balancing exercise, but this exercise is performed outside the four corners of the policy: it is required because of the nature of the policy, not because of its terms. However, one negative factor that must be taken into account in this exercise is of course the fact that it is the national policy to refuse an application in these circumstances."

I agree with that analysis. There can be no doubt, having regard to the most recent articulation of the matter in the North Lincolnshire case, that members of a planning committee must place national policy into the forefront of their planning judgment, but it can be displaced by other material considerations if they are of sufficient weight. Hickinbottom J described it as a “balancing exercise”. I prefer to use the term "planning judgment". The language is unimportant. What is important is the exercise of that judgment or the performance of the balancing exercise.

In my judgment, in this case the Planning Committee was required to exercise its planning judgment when conducting the analysis of the sequential test and applying their collective mind to EC17.1. It will be remembered that the Committee voted upon the applications in order of their consequential merit. I have absolutely no doubt whatever that the Committee was well aware of the advice of officials and the expert opinion. The committee also had other material considerations to weigh before exercising its planning judgment. I am satisfied that it was open to the committee to attach weight to those other matters such that it tipped the balance against national policy.

There is no material that I have considered which reveals to me the Planning Committee fell into legal error when they applied their mind to EC17.1. They were aware of all the advice. They were aware of PPS4 (in all of its relevant components) and the memebers of the committee exercised their planning judgment. It was theirs to exercise and they did so. I detect no error of law. This point fails too.

In the Tesco case a challenge was made in respect of the £400,000 worth of environmental improvements package under section 106 relating to Peterlee. The answer to the challenge was covered by a decision of the Court of Appeal in Derwent Holdings Limited v Trafford BC & Ors [2011] EWCA Civ 832. I addressed that issue at paragraphs 15 and 95 of my previous judgment. I shall not revisit that.

SE2 now argue a separate point in relation to the Dalton Park scheme where a section 106 agreement was sought. The argument of Mr Tucker is developed in his skeleton argument at paragraph 5.5 and following paragraphs. It is important to note the reasons for approval in this regard:

Mr Tucker's argument is conveniently incorporated into paragraphs 5.5.3 and 5.5.4 of his skeleton argument. The central thrust of his argument is that, at the time of making their decision, they (the Committee) had no idea what agreement would be reached under section 106 save in a rather vague and unspecified way. It would not be right to ignore the advice tendered to the chair and vice-chair of the Planning Committee by officials in respect of the section 106 agreement when they came to consider the planning application under delegated powers (following the decision of the Secretary of State not to call in the decision of 7 June 2011):

Following that, a recommendation was made in section 4, which ultimately made its way into the reasons contained in the planning consent to which I have already referred.

Mr Tucker argues in short form that it is difficult to see how the section 106 agreement flows from the decision of members at the Planning Committee. I have considered his argument with care, as indeed I have considered the arguments advanced by Mr Clarkson QC for Durham CC and Mr King QC for DPL. I expressly state that I accept the arguments presented at paragraphs 36 to 40 of Mr King's skeletal argument. I should also add that I am persuaded by the thrust of Mr Clarkson's arguments from paragraphs 57 to 63 of his skeletal argument.

In my judgment, the matter can be distilled in this way:

It is my view that Regulation 122 requires that a section 106 agreement is necessary to make a development acceptable if it is directly related to the development, and fairly and reasonably related in scale and kind to the development. This and the earlier Circular 05/2005 requirements were well-known to members. The weight to be attached to a section 106 agreement is a matter for the planning judgment of members, alongside, if they wish, other material considerations. I have been influenced by the judgment of Pill LJ in R (on the application of Welcome Break Group Limited and Another) v Stroud District Council and Another [2012] EWCA Civ 993, in particular paragraphs 9 and 14.

In this case, despite the attractive arguments of Mr Tucker and the tenacity with which they were advanced, I am of the clear view that the facts of this case do not disclose any error of law by the Planning Committee or the planning process taken as a whole. The members were perfectly entitled to form their own judgment as to the weight to be attached to the prospect of a section 106 agreement in the factual matrix before them and to permit refinement thereof by the chair and vice chair of the committee under delegated powers. They were aware of the parameters and the weight to be attached thereto. The details were for later. This ground fails too.

This case, indeed the Tesco case, is about the exercise of planning judgment by members of a democratically elected committee of a local authority. They are not slavish adherents to the advice of their officials. They are permitted to take into account material considerations, but the weight to be attached to each of them is for them, subject to an irrationality challenge. I have viewed all areas of challenge by SE2, capably advanced by Mr Tucker on its behalf. But in the result none have proved to be valid. I have come to the conclusion that the latest section 106 point was arguable, but the other two points were not arguable given the contents of the judgment in the Tesco case. However, rather than indulge in an arid debate as to what was and was not arguable, given that I have in fact heard full argument, I propose to give permission to apply for judicial review on all grounds in this case, and in the result dismiss the application taken as a whole.

I emphasise this judgment must be seen alongside the Tesco judgment in the related case. To view this judgment in isolation would be wrong.

For these reasons, this application for judicial review in respect of the Dalton Park scheme is dismissed.