Trashorfield Ltd, R (on the application of) v Bristol City Council & Ors

The Planning Committee had the benefit of a Planning Officers’ Report (“the Officers’ Report”), which formed the basis of the Committee’s resolution to approve the application. The Officers’ Report concluded that the retail impact of the proposed supermarket on the Town Centre would not be “significantly adverse”. That was stated to be based on advice received from the Council’s own independent retail consultants, GVA Grimley (“GVA”). In particular, the report said (at page 28):

“In terms of the impact test, we consider that on balance none of the negative aspects of the scheme outlined above constitute a significant adverse impact. In reaching this conclusion, particular regard has been paid to current health of [the Town Centre] is good and the predictions of both the Applicant [i.e. Sainburys] and the Council’s Advisors included above are that it is set to continue to be good. Even adopting the Advisor’s more cautious assessment, the [Town Centre] continues to grow in the periods to 2017 and then on to 2022.”

However, Mr Kolinsky for the Claimant submits that that was materially misleading. Whilst GVA considered the current health of the Town Centre to be good, it never expressed the view that it would continue to be good if the development were to proceed; and, indeed, it expressed various concerns and caveats about the future retail health of the Town Centre if the supermarket were to go ahead, which are not articulated at all in the Officers’ Report. The Officers’ Report therefore gave an unfair and misleading picture of the expert advice the Council had received. That was material, and particularly important because the retail impact on the Town Centre was only rendered acceptable because of a raft of mitigation measures (which are the subject of Ground 2) and the report recognised that the key issues in the application (of which the retail impact on the Town Centre was one) were “finely balanced” (page 45 of the report).

The legal principles relevant to this ground are well-trodden. They are as follows.

As I have already indicated, relevant national planning policy is found in the NPPF.

Paragraphs 23-27 are headed, “Ensuring the vitality of town centres”. They require the application of a sequential test to planning applications for main town centre uses that are not in an existing centre (paragraph 24). In this case, it is common ground that (i) in the hierarchy of centres, Gloucester Road Town Centre is designated a “town centre” (Bristol City Council Core Strategy (June 2011)); (ii) the Site is “out-of-centre”; and (iii) the Site satisfies the sequential test. Consequently, by paragraph 26, the proposed development required an assessment of:

“… the impact of the proposal on town centre vitality and viability, including local consumer choice and trade in the town centre and wider area, up to five years from the time the application is made. For major schemes where the full impact will not be realised in five years, the impact should also be assessed up to ten years from the time the application is made.”

Paragraph 27 provides that, where an application is likely to have a significant adverse effect on town centre vitality and viability, it should be refused.

In determining the planning application, because of the provisions of the NPPF to which I have referred, not only was the impact of the proposed development on the Town Centre a material consideration, but there arose the specific issue of whether the proposed development would lead to a significant adverse impact. If it did, there was a policy presumption against permission being granted.

Therefore, in support of the application, in addition to a general planning statement, Sainsbury’s submitted a retail statement dated May 2012 prepared by its retail consultants, WYG (“the Retail Statement”). Mr Kolinsky accepts that this set out, properly, the relevant NPPF policies and tests relating to retail impact (paragraphs 1.03-1.08, and again at paragraphs 5.01-5.04); and an analysis of the impact of the proposed new superstore on the Town Centre. It set out the methodology, evidence base and assumptions used (paragraphs 5.05 and following), upon which was calculated an adverse trading impact on the Town Centre of 5.3% at 2017 and 4.5% at 2012 (paragraph 5.43 and figure 5.6). In 2007, the Bristol Citywide Retail Study had concluded that the Town Centre was “healthy”. WYG found that, since then, the Town Centre’s vitality and viability had improved (paragraph 5.52); and, given its retail health and the potential for spin-off benefits from the development, the proposal would not have any adverse effect on the vitality and viability of the Town Centre (paragraph 5.53).

The Council instructed GVA as independent retail consultants to conduct a review of the analysis contained within the Retail Statement, and they prepared a report in July 2012 (“the GVA Assessment”) of which the Claimant makes no criticism. The GVA Assessment too considers the Town Centre at present “healthy” in retail terms. However, it had “some concerns that WYG may have under-estimated the true financial impact of the convenience goods floorspace in the proposed new supermarket on the Town Centre”. It calculated the reduction in convenience goods turnover would be £6.5m (or 18.5%) by 2017 (paragraph 3.32). GVA were unable to rule out the closure of independent convenience goods traders and, although (they said) the extent of the risk was difficult to identify (paragraph 3.36), “the Co-op foodstore closest to the proposed Sainsbury’s [which already had declining trade] is likely to be the hardest hit” (paragraph 3.37). They considered that:

“… [T]he loss of the Co-op store will be a loss to the health of the northern part of the [Town Centre] which will need to be considered alongside any benefits associated with the proposed store” (paragraph 3.37).

GVA also did their own comparison of the likely impact of the large comparison goods element of the proposed store, assessing that at £1.2m, i.e. about double the WYG assessment (paragraph 3.40).

GVA concluded as follows:

“3.42

Putting the convenience and comparison goods impacts together, we estimate that the proposed Sainsbury’s will remove £7.7m of retail expenditure from [the Town Centre] and this is equivalent to a 12% impact on the centre’s 2017 turnover levels…. This is considerably higher than the 4.5% impact suggested by WYG, which we consider to be an underestimate of the likely direct effect that the proposal will have on existing traders.

…

3.51

In relation to the health of [the Town Centre], WYG are in agreement with the findings of the 2007 Bristol Citywide Retail Study, noting that the retail centre as a whole is healthy. We would share this view….

3.52

This review of the health of [the Town Centre] sets the context for assessing the significance of the financial impact of the proposed store. In our view, existing stores across the whole of the centre could lose a combined total of £7.7m of retail expenditure, which would reduce the turnover of the centre by 12%. The majority of this impact will fall on the convenience goods sector which would lose up to 19% of its 2017 turnover levels. At this level of impact we consider that store closure cannot be ruled out, with particular concern over stores such as the Co-op store…, although other local independent retailers across the centre will not be immune. Even where convenience stores do not close, a reduction in trips to both convenience and comparison goods stores may also mean the loss of any benefit that may occur in relation to linked trips with other facilities. This may be particularly important for comparison goods shops which, whilst likely to experience a smaller direct impact of around 4%, may rely on linked trips from convenience goods stores in order to maintain their viability.

3.53

…[W]hilst the opportunities for linked trips will lessen the impact on the health of [the Town Centre] to a certain extent they will certainly not be large enough to mitigate the whole of this impact.

…

3.55

Taking all of the above factors into account, we consider that the negative aspects of the proposed development are likely to outweigh the positive factors and we consider that it will have a negative adverse impact on the vitality and viability of [the Town Centre], which could be expected to bring about a potential loss of retailers and some decline in footfall.

3.56

In judging whether this is evidence of a significant adverse impact, which is important to how the proposal is considered in the context of paragraphs 26 and 27 of the NPPF, Council officers and members will need to take into account the following factors:

•

The current health of [the Town Centre], including current shopping visits to the centre, the changes which have occurred in the centre and fall in vacancies in recent years.

•

Significant levels of trade diversion from stores in [the Town Centre], particularly the convenience goods sector, including the potential for store closures and reducing footfall.

•

Whether the proposed Sainsbury store can provide a good volume of linked trips with [the Town Centre], bearing in mind the distance to the store, the nature and character of the route and the wide range of convenience and comparison goods to be stocked by the proposed store.

•

Whether the role and function of parts of [the Town Centre], particularly its northern section, will be undermined by the proposed store, with the effect of it competing for trade directly with the centre.”

Therefore, from the GVA Assessment, it appears that GVA held the following opinions. In terms of figures, by 2017, they estimated that it would have a 12% adverse impact on the turnover, being 18.5% on convenience goods stores and 4% on comparison goods stores. They were concerned about the closure of stores, particularly the Co-op store, and the knock-on effect that might have for other stores because of a possible decline in linked trips. The proposed development would have an overall net adverse effect on the Town Centre, but GVA did not offer an opinion on whether that adverse effect would be significant. They left that to the judgment to the Council, i.e. to the officers and Planning Committee. In paragraph 3.56, they identified several factors that they considered the Council should take into account in exercising that judgment.

The GVA Assessment prompted a response from WYG, in the form of a letter dated 22 August 2012. That letter did two things.

First, it updated the retail turnover analysis for the Town Centre, setting out in a table (table 1) that, on its analysis, from 2012 to 2017 the Town Centre would grow by 11.8% with the development and 16.5% without; and, on GVA analysis, the figures would be 4.6% and 15.4% respectively. WYG concluded that:

“… [E]ven before taking into account potential spin-off benefits arising from linked shopping trips, the impact of the proposal, on the total turnover of [the Town Centre] is assessed to be reduced to just 4.7% at 2017. Adopting GVA’s trade draw assumptions and impact assessment, their estimated impact on [the Town Centre] is assessed to be reduced to 10.8% at 2017. Both our and GVA’s impact assessments demonstrate that [the Town Centre] is anticipated to experience increase in turnover between 2012 and 2017 (11.8% and 4.6% respectively).”

Those figures were “real” in the sense that they took inflation etc into account.

Second, contrary to their initial Retail Assessment, WYG accepted in the letter that, even taking spin-off benefits into account, the development would have some adverse impact on the Town Centre; and they suggested a Retail Impact Management Package to mitigate the risk of that impact. They also proposed 2-3 hours free parking at the supermarket for those shoppers who are “town centre patrons”, with a clear and attractive pedestrian route to the Town Centre. Ground 2 focuses on the retail impact mitigation measures, and I will return to them when I deal with that ground of challenge.

Unlike the GVA Assessment, the letter did offer an opinion on whether the adverse impact of the development on the Town Centre would be significant. It concluded that:

“Overall, it is demonstrable that there will be no significant adverse impacts on the vitality and viability of [the Town Centre].”

GVA responded by letter dated 1 October 2012. This letter was not put on the Council’s on-line facility, but it appears to have been put in a box in which the application documents – too many for a simple file – were kept. However, there is no evidence as to when the letter found its way there, and in any event there is no evidence that any member of the Planning Committee saw it or asked to see it.

Mr Kolinsky puts considerable weight on this letter in support of Ground 1. The letter, whilst saying that “it would be incorrect for WYG to assume that we hold the view that the proposed store will not have significant adverse impact on [the Town Centre]”, again did not offer a view on whether the adverse impact would or would not be significant: that judgment was still left to the Council. Without seeking positively to controvert the assumptions on which the WYG analysis was based, it notes that no evidence had been put forward to support WYG’s assumption that the Town Centre draws 10% of its turnover from outside the primary and secondary catchment areas; and it says that, as part of the WYG assessment is based on “unsupported assumptions”, GVA found it difficult to agree that the Retail Assessment should be given much weight in the overall assessment of impact. The letter notes that WYG have calculated that, on the basis of the analysis in the GVA Assessment, the total impact on the Town Centre would be 12%, whilst the turnover of the Town Centre would continue to grow by 4.6% by 2017. It continues:

“This is a correct statement, although it is important to explore some of the related issues:

•

[The Town Centre] will lose market share over the 2012-2017 period. Using the study area derived from turnovers provided by WYG, the centre’s convenience retail sector will lose one fifth (20%) of its market share, falling from 5% to 4%. It will also lose 6% of its market share in the comparison goods sector. Overall, the centre will lose 13% of its retail market share as a consequence of the proposal and commitments. We consider this to be significant loss of market share within the highly competitive retail sector in Bristol.

•

Whilst WYG state that growth will occur, it is important to compare the growth in [the Town Centre’s] turnover with and without the proposed Sainsbury’s. As shown in Table 11 (Appendix 1) of the WYG Retail Statement, ‘[the Town Centre] would have grown by 17.3% between 2012 and 2017. Instead, with the proposed development, [the Town Centre’s] retail turnover will grow by only 4.6% over the same period.

•

Set against the total turnover of comparison goods floorspace in [the Town Centre] is the need to assess the trading performance of existing floorspace. WYG have indicated that [the Town Centre] has a gross comparison goods floorspace of 21,000 sq m and they suggest that a net to gross ration of 60% should be applied in order to estimate existing sales floorspace. We consider this ration to be at the lower end of expectations, but it equates to a current density of £2,500/sq m. Whilst it is not possible to compare against published company average turnovers for all retailers within the centre (due to the lack of available information), we consider this to be a relatively low sales density performance. If the net to gross floorspace ratio is 65% or 70% then the sales density is £2,345/sq m or “1,178/sq m respectively, which reinforces our conclusions over the standard of performance. Whilst the performance of the comparison goods sector within [the Town Centre] will rise between 2012 and 2017 it will not rise above £3,000/sq m which indicates a continued constrained performance of the centre. Therefore, alongside the large impact on the convenience goods sector, [the Town Centre’s] comparison goods sector will continue to have a relatively low performance level.”

The Officers’ Report dealt with the impact of the proposed development on the Town Centre, first, in the summary which was at the beginning of the report. It properly identified that “the proposals raise issues particularly in relation to retail impact and traffic impact”, which had to be weighed against the benefits the development would bring. Those were the two factors that, in particular, potentially weighed against the proposal. The manner in which the report dealt with traffic impact is not now criticised, and I need say no more about it. Of retail impact, the summary said:

“In terms of the retail impact, regard has been paid to the impact on the vitality and viability of [the Town Centre]. The current health of this centre is good and the prediction is that it will continue to be good in the period to 2022. The predictions of both the advisors to the Council [i.e. GVA] and the Applicants [i.e. WYG] are that even with the supermarket in operation, [the Town Centre] will continue to grow (but at a slower rate). In addition, it is predicted that although there will be levels of trade diversions from stores in [the Town Centre], particularly the convenience goods sector, including the potential for store closures and reducing footfall, there will be far greater impact on existing out of town convenience stores (Golden Hill for example), which are located at a further distance from [the Town Centre]. There is a difference of opinion on the level of linked trips that would arise from the proposal, but mindful that there are likely to more linked trips between the proposed store and [the Town Centre] (than from Golden Hill) and mindful that there is mitigation proposed (including secured free parking for three hours), the impact on [the Town Centre] will be further reduced. With a package of measures designed to promote [the Town Centre], it is considered that the application proposal will not have a significantly harmful effect on [the Town Centre].”

The section of the report on GVA’s advice concludes:

“The Advisor’s conclusion is that the proposed Sainsbury’s store will have ‘noticeable negative impact upon the convenience retail sector along Gloucester Road’, equivalent to about one-fifth reduction in the centre’s convenience goods turnover.

Putting the convenience and comparison impacts together, it is estimated that the proposed Sainsbury’s will remove £7.7m of retail expenditure from [the Town Centre] and this is equivalent to a 10% loss of trade on the centre’s 2017 turnover levels. It is noted that this is considerably higher than the impact suggested by the applicants.”

The report made clear that the Town Centre would grow in the period to 2017 and then to 2022, with or without the Development, although the growth would be greater without the supermarket. The differential figures as calculated by WYG and GVA respectively were set out in table 3 to the report, which reproduced table 1 from WYG’s letter dated 22 August 2012.

Under the heading “Overall Conclusion on Retail Impact”, the report said this:

“In terms of the impact test, we [i.e. the Planning Officers] consider that on balance none of the negative aspects of the scheme outlined above constitute a significant adverse impact. In reaching this conclusion, particular regard has been paid to current health of [the Town Centre] is good and the predictions of both the Applicants and the Council’s Advisors included above are that it is set to continue to be good. Even adopting the Advisor’s more cautious assessment, the [Town Centre] continues to grow in the period to 2017 and then on to 2022.

It is predicted that there will be levels of trade diversion from stores in [the Town Centre], particularly the convenience goods sector, including the potential for store closures and reducing footfall. However the evidence that has been gathered indicates that the greater impact will be on existing out of town convenience stores, which are located at a further distance from the [Town Centre]. There is a difference of opinion on the level of linked trips that would arise from the proposal. Considering the distance to the store, the nature and character of the route and a requirement for three hour free parking at the proposed store would help to increase linked trips.

Overall there will be an impact on [the Town Centre] and this must be balanced against the other benefits of the proposal (relocation of the stadium, additional housing). On balance, in the light of this assessment and subject to securing retail impact mitigation, your officers do not consider that the proposal would result in significant harm to the vitality and viability of [the Town Centre] and refusal on retail impact grounds cannot be sustained.”

At the 16 January 2013 Planning Committee meeting, it is recorded in the minutes that, as part of his presentation to the Committee, the Planning Officer said there was a difference of opinion regarding the impact of the supermarket on other retail businesses nearby, but officers had relied on the advice of the GVA that trading in the Town Centre would still improve over coming years, even if the development proceeded.

As I have indicated, at that meeting, the Planning Committee resolved to grant planning permission subject to a Section 106 Agreement; and, as soon as that agreement had been entered into on 14 June 2013, on the basis of that resolution and his delegated powers, an officer of the Council granted planning permission.

Mr Kolinsky accepted that the passage in the Officers’ Report summary and the outline of GVA’s advice were, insofar as they went, unexceptionable. However, he submitted that the report was positively misleading in stating that it was GVA’s opinion that the retail health of the Town Centre was not only good now, but “is set to continue to be good”. That was compounded by the report’s failure to describe, fairly, GVA’s caveats and concerns about the future of retailing in the Town Centre if the proposed supermarket were to go ahead as set out in the GVA Assessment and, in particular, their letter of 1 October 2012.

Forcefully as they were put, I am unable to agree with Mr Kolinsky’s submissions on this ground, for the following reasons.

I have set out substantial passages from the Officers’ Report, because the report has to be read as a whole. When read fairly and as a whole, it made clear the following:

Mr Kolinsky submitted that the report did not fully or fairly reflect GVA’s views as to the continued vitality and viability of the Town Centre in a number of respects. He focused particularly on the three matters in their letter of 1 October 2012, set out above (paragraph 26), which, he submitted, were caveats to their acceptance of the figure for continued growth, even with the development, of 4.6%.

Mr Kolinsky also referred to GVA’s reference in that letter to “the unsupported assumptions” upon which WYG relied, and the lack of evidence to support the assumption that the Town Centre took 10% of its turnover from outside the primary and secondary catchment areas. However, those assumptions (which were, to a significant extent, based upon the experience of the author of the Retail Assessment) were never denied by GVA, who merely questioned their robustness. In the circumstances, the extent to which the officers relied upon those assumptions was a matter for them.

Mr Kolinsky focused on the 1 October 2012 letter, but not exclusively. He also relied on the following points from the GVA Assessment:

Finally, Mr Kolinsky submitted that the Officers’ Report was misleading, because it stated that it was GVA’s opinion that the retail health of the Town Centre was not only good now, but “is set to continue to be good”; which GVA never stated to be their opinion.

The passage of the Officers’ Report upon which Mr Kolinsky relies is set out at paragraph 30 above. The pertinent paragraph reads as follows:

“In terms of the impact test, we [i.e. the Planning Officers] consider that on balance none of the negative aspects of the scheme outlined above constitute a significant adverse impact. In reaching this conclusion, particular regard has been paid to current health of [the Town Centre] is good and the predictions of both the Applicants and the Council’s Advisors included above are that it is set to continue to be good. Even adopting the Advisor’s more cautious assessment, the [Town Centre] continues to grow in the period to 2017 and then on to 2022.” (emphasis added).

However, the prediction of GVA referred to there, and relied upon by Mr Kolinsky, is the prediction “referred to above”. The only relevant prediction of GVA earlier in the report was that, even with the proposed supermarket, the Town Centre would grow by 4.6%. Immediately following the sentence upon which Mr Kolinsky relies, there is the explanation that, even on GVA’s more cautious assessment, the Town Centre to 2017 and then on to 2022 will continue to grow. The reference to the earlier prediction GVA is, clearly, a reference to their prediction of continued growth in any event. Given that both WYG and GVA considered the retail health of the Town Centre to be “healthy”, and that it would in grow in real terms, the report cannot be said to be misleading when it says that their prediction is that the retail health of the Town Centre “is set to continue to be good”. As I have explained, it is clear from other passages of the report that the retail growth of the Town Centre would be greater without the supermarket; and that GVA’s other caveats and concerns as to that future are fairly and appropriately fully set out elsewhere in the Officers’ Report.

For those reasons, I am quite satisfied that, in this regard the Officers’ Report was not misleading at all – and certainly not significantly misleading.

Those were the specific points made by Mr Kolinsky. I find them unpersuasive. But, in any event, as I have said, one cannot take individual points from an officers’ report and subject them to minute consideration on an exegetical basis. One must look at the report as a whole. Looking at the Officers’ Report in that way in this case, I am quite satisfied that, with appropriate fairness and fullness, it properly identified the retail impact of the proposed development on the Town Centre, and properly set out for the Planning Committee councillors the evidence relating to that issue including, fairly and fully, the evidence of GVA.

Although I have focused objectively on the wording of the report, I am fortified in my conclusion by the statement dated 20 December 2013 of Mr Matthew Morris, Director of the Planning, Development and Regeneration team at GVA, who was responsible for the advice given by GVA to the Council in respect of this application. He confirms that he had the opportunity to comment on the retail material in the Officers’ Report, in draft and final publication form; and, if he had held any view contrary to those in the report, he would have had no hesitation in making his views clear and asking for changes to be made, or at least making sure his disagreement was brought to the attention of the Planning Committee (paragraph 12). Furthermore, he attended the 16 January 2013 Planning Committee meeting, where he could have corrected any misinterpretation of his views (paragraph 13). However, he considered the Officers’ Report did not misinterpret his advice (paragraph 14); and so, although he had the opportunity to do so, he did not need to correct anything that the Officers’ Report said.

For those reasons, Ground 1 fails.

Mr Kolinsky submitted that the Officers’ Report advised that a planning obligation in respect of retail impact mitigation measures could only be necessary to make the development acceptable in planning terms, if a specific package of measures were identified and agreed following consultation. The Planning Committee approved the application on the basis (and only on the basis) that, before any Section 106 Agreement were entered into, that package of measured would be so identified and agreed with relevant stakeholders. In the event, there was no consultation and no specific measures had been identified or agreed before the Section 106 Agreement was completed on 14 June 2013; and that remains the position even now. Therefore, the Section 106 Agreement was (i) out of conformity with the statutory regime, and in particular with regulation 122(2) of the Community Infrastructure Levy Regulations 2010 (SI 2010 No 948, “the CIL Regulations”) which restricts section 106 obligations to those which are necessary to make the proposed development acceptable in planning terms; and (ii) outside the powers given to the officer in this case under his delegated powers. The grant of planning permission by the Council’s Officer under delegated powers was therefore unlawful and indeed ultra vires.

I recently summarised the relevant position with regard to planning obligations in R (Hampton Bishop Parish Council) v Herefordshire Council [2013] EWHC 3947 (Admin) at [23]-[25], as follows:

“23.

Section 34 of the Town and Country Planning Act 1932 gave local planning authorities the power to enter into planning agreements for the regulation of development and use of land. That survived until section 12(1) of the Planning and Compensation Act 1991 which replaced that power, by then found in section 106 of the 1990 Act, with a power to enter into planning obligations set out in a new, substituted section 106. Such obligations are of course the subject of negotiation between the planning authority and developer, but can be imposed if not agreed.

24.

To deter abuse, the Secretary of State issued successive policy guidance in relation to the exercise of this new power, now found in the [NPPF] which was issued in March 2012 in replacement of many earlier policy documents. Paragraphs 203-204 of the NPPF, echoing earlier guidance, state:

‘203. Local planning authorities should consider whether otherwise unacceptable development could be made acceptable through the use of… planning obligations….

204.

Planning obligations should only be sought where they meet all the following tests:

•

necessary to make the development acceptable in planning terms;

•

directly related to the development; and

•

fairly and reasonably related in scale and in kind to the development.’

25.

However, that is not now merely policy; because regulation 122(2) of [the CIL Regulations] provides that, where a determination is made which results in a planning permission being granted for development:

‘A planning obligation may only constitute a reason for granting planning permission if the obligation is:

(a)

necessary to make the development acceptable in planning terms;

(b)

directly related to the development; and

(c)

fairly and reasonably related in scale and in kind to the development.’

‘Planning obligation’ is defined in terms of a section 106 obligation (regulation 122(3)).”

As I have indicated (paragraph 23 above), in their letter of 22 August 2012, WYG accepted the development would have some adverse impact on the Town Centre; and they suggested a Retail Impact Management Package to mitigate the risk of that impact. They said (at page 6):

“It is proposed that the potential Retail Impact Risk Management Package would involve a total contribution of £202,500. This contribution would be split between management and project costs over a 3 year period. The split would be subject to agreement with the Council, stakeholders and other community groups.

The potential mitigation measures that could be included within the Retail Impact Risk Management Package are set out in the attached “Retail Impact Risk Management Statement….

These steps are for guidance only and for agreement with the Council and other relevant third parties. It is acknowledged that for a future town centre improvement initiative Action Plan, the priorities and specific projects for the [Town Centre] would need to be determined in full consultation with local businesses, community groups and relevant public service agencies…”.

In their response of 1 October 2012, GVA commented on these proposed measures as follows:

“The WYG statement omits a very important piece of information which is required by the… Council in order to assess whether any of these measures proposed are relevant to [the Town Centre] and whether they are able to go some way to mitigating the impact of the proposed supermarket. For example, the information provided by WYG simply deals with the proposed measures and omits reference to the current conditions surrounding matters such as the physical environment. Without this information it is impossible to judge whether the proposed measures are relevant and have the potential to be effective. Therefore on the basis of the current set of information, the proposed package is not, in our opinion, compliant with part 122 of the CIL regulations. If the applicant wishes the… Council to take the retail impact risk measures into account as a material consideration then we recommend that further information is provided on how the proposed measures will meet the tests as set out in part 122 of the CIL regulations.”

In November 2012, WYG produced a “Retail Impact Risk Management Statement” (“the Risk Management Statement”). Section 4.2 set out four main categories of measures: (i) environment (street furniture, maintenance, cleaning, landscape improvements and flowers), (ii) access (signage, public transport and parking), (iii) safety/security (CCTV cameras, better lighting, improvements to policing, and Shopwatch and Pubwatch schemes), and (iv) marketing/promotion (identity, new events, website, loyalty card, publicity and community events) (paragraph 4.3). It identified two main approaches, town centre management or the creation of a Business Improvement District (paragraph 4.4.2); but it said that, after feedback from the Gloucester Road Traders’ Association (“the GRTA”), the former appeared to be preferred (paragraphs 6.2.3 and 7.1.1). It then continued:

“The cost of a town centre manager over a 3 year period is estimated at circa £42,500 per annum (including salary and other expenses). Over a 3 year period this would equate to a cost of £127,500. Alongside the town centre manager a budget of £25,000 per annum is proposed (over a 3 year period) for potential improvement measures. In total this would result in a financial contribution of £202,500 over the three-year period. The £25,000 per annum project budget has been carefully considered in consultation with [the Council] and is of sufficient amount to deliver a range of effective measures for [the Town Centre]. Due regard has been given to the level of impact, size of the town centre and the effectiveness of other town centre improvement schemes in the UK.

Having regard to feedback from the [GRTA], Figure 6.1 below sets out a number of measures/projects which are included in our Indicative Retail Impact Management Package. In order to allow for flexibility a range of costs have been identified for certain projects.”

There followed a table of projects and indicative costs, stated to be “illustrative of the kind of projects that could form part of a broader delivery plan should the opportunity of a town centre improvement initiative be pursued”(paragraph 6.11). It emphasised that: “It is important that the priorities and specific projects for each centre are determined in full consultation with local businesses and relevant public service agencies” (paragraph 7.1.3). It said that, following distribution of the statement to relevant parties and confirmation from the Council as to the preferred means of delivery, the next steps would be:

“Step 1: To have further discussions with the Council, traders/businesses, and other public service agencies.

Step 2: To draw up a business plan to set out the preferred measures, costs and timescales.”

The officers considered the retail impact mitigation measures proposed by WYG in their report to the Planning Committee where it is stated, under the heading “Proposed Mitigation”:

“The advice received is that the proposed supermarket would have an adverse impact on the vitality and viability of [the Town Centre] in particular and could give rise to the risk of some closures occurring. Therefore it is justifiable to seek mitigation to address this predicted negative impact.

…

The Applicants have submitted an indicative Retail Impact Risk Management Package for [the Town Centre]. A summary of the proposed mitigation is included at Appendix A. It is intended to be illustrative of the kind of projects that could form part of a broader delivery plan should the opportunity of a town centre improvement initiative be pursued.”

Appendix A reproduced the table of indicative measures contained in figure 6.1 of the Risk Management Statement.

At page 28, the Officers’ Report went on to assess the proposed mitigation as follows:

“It is essential that any future scheme of mitigation is compliant with Part 122 of the [CIL] Regulations. This states that measures have to be necessary to make the development acceptable in planning terms; directly related to the development and fairly and reasonably related in scale and kind to the development.

Your Officers acknowledge that a variety of different measures could be employed to mitigate for the harm caused and that retailers might be best placed to advise exactly what would work best. However in moving forward with this mitigation, there will be a need to ensure that the CIL regulations are complied with.

Consequently it is recommended that were members minded to approve the application, the applicants should be bound by a legal agreement which contains a specific package of measures which has been determined in advance of completion of the agreement and following consultation with local traders, ward members, the GRTA, the Neighbourhood Partnership and Council officers and the Officers be given delegated authority to assess the compliance of the measures with CIL regulations.

The Legal Agreement should set aside a sum of money and a timescale to secure these works. Appendix A includes indicative costs.”

As recorded in paragraph (B) of the resolution, at the 16 January 2013 meeting, the Committee resolved to approve the application subject to (amongst other things):

“b)…the completion within six months from the date of this Committee or any other time as may be reasonably agreed with the Service Director Planning and Sustainable Development, at the applicants expense of a Planning agreement made under the terms of Section 106 of the Town and Country Planning Act (as amended) entered into by [the] Council and any relevant owners to cover the matters;

– Retail Impact Mitigation

Contribution of £202,500 to fund a full time town centre manager (including a £42,500 per annum budget) for [the Town Centre] for a 3 year period; and to fund a package of environmental improvements, business support and marketing measures to mitigate retail impacts of the development, the exact package of measures to be agreed in writing with the Bishopston Community Partnership, ward members and other interested parties. Such alternative mitigation measures are to be directly related to the development, as well as necessary to make the development acceptable in planning terms and fairly and reasonable related in scale and kind the development.”

The resolution also provided that:

“(C)

That the Head of Legal Services be authorised to conclude the Planning Agreement to cover matters in (B); and

(D)

That on completion of the Section 106 Agreement, Planning permission be granted, subject to conditions”

The Section 106 Agreement was entered into by (amongst others) the Council, the Football Club and Sainsbury’s on 14 June 2013. It contained the following provisions relevant to retail impact mitigation:

Mr Kolinsky also relied upon the Council’s responses of 8 August 2013 to the Claimant’s letter before claim.

Mr Kolinsky submitted that the position set out in the Officers’ Report was that any planning obligation in respect of retail mitigation measures would be compliant with regulation 122(2) of the CIL Regulations if, and only if, specific measures were identified and agreed following appropriate consultation. The Planning Committee adopted that position, and approved the application on the basis that such specific measures would be identified and agreed as part of the Section 106 Agreement. They were not: the Section 106 Agreement merely required Sainsbury’s to pay a Retail Impact Mitigation Contribution, and required the Council to fund a town centre manager and “a package of environmental improvements, business support and marketing measures” to mitigate the retail impact on the Town Centre. No consultation had been performed; and no specific measures had been identified, let alone agreed. As the Section 106 Agreement met neither the requirements of regulation 122 of the CIL Regulations or the Planning Committee, the grant of planning permission under delegated powers on 14 June 2013 was unlawful.

This submission is again based primarily on the Officers’ Report. Mr Kolinsky summarises the purport of the relevant part in paragraph 83 of his skeleton argument, thus:

“The Officers’ Report concluded that given the acknowledged adverse impact of the proposed development on [the Town Centre] it was justified to seek IP1’s [i.e. Sainsbury’s] commitment to a retail impact mitigation package to be provided within the terms of the planning obligation before granting permission.” (emphasis added).

That is right. The report, at page 28, refers to a requirement that:

“[T]he applicants [i.e. Sainsbury’s] should be bound by a legal agreement which contains a specific package of measures which has been determined in advance of the completion of the agreement and following consultation.... and the Officers be given delegated authority to assess the compliance of the measures with the CIL regulations”. (emphasis again added)

It is clear from the report that the officers were concerned that, if Sainsbury’s retained control over the sum it committed to retail impact mitigation, then a mechanism would be necessary to ensure that there was proper consultation on the measures and that Sainsbury’s were tied into performing the measures that the Council through its officers considered appropriate after consultation. Otherwise, the measures might not be appropriate and the obligation might consequently not be such as to make the development acceptable. Hence the need for Sainsbury’s to be bound by a legal agreement that included specific identified measures, which had been the subject of consultation and pre-approved by the Council’s officers as the necessary measures.

However, in this case, that was not the form of the final agreement, which was not that Sainsbury’s committed a sum of money that they would spend on retail impact mitigation measures; but that Sainsbury’s paid a contribution to retail impact mitigation over to the Council, in two tranches, so that the measures on which it was spent were entirely in the control of the Council. Sainsbury’s had no say, nor any continuing interest, in those measures. The burden was on the Council to ensure that the measures employed were appropriate. This form had considerable practical advantages, because, the moneys to be spent on the town centre manager apart, the precise nature of the projects upon which the £25,000 per year was to be spent over the three-year period was dependent upon consultation with those involved with the Town Centre and fine tuning given the circumstances at the time of expenditure. The town centre manager, once in place, would no doubt be able to contribute very substantially as to how the allocated moneys could best be spent in mitigating the retail impact of the proposed supermarket.

Therefore, in the Section 106 Agreement, Sainsbury’s were only committed to paying the Council the money. The Council were committed (by paragraph 1 of the Sixth Schedule to the Section 106 Agreement) to fund a full-time town centre manager for the Town Centre for three years. That manager would cost £42,500 gross per year, and would have a budget of £25,000 per year for projects. Mr Kolinsky does not suggest that the £202,500 was anything other than an appropriate figure for a Section 106 obligation as a contribution by Sainsbury’s to retail impact mitigation measures; nor does he suggest that the employment of a town centre manager at a gross £42,500 per year is anything other than appropriate as a specific measure. His submission is focused on the balance of £25,000 per year. However, to have agreed “specific identified measures” for projects funded by that money, that would be put in place in perhaps five years time, would have been difficult, unwise and (in terms of the CIL Regulations) quite unnecessary. As the moneys were to be in the control of the Council, there would be no point in determining now what specific measures should be taken over the three year period proposed.

In support of his submissions on Ground 2, Mr Kolinsky relied upon the comments made by GVA in their letter of 1 October 2012 in response to WYG’s initial proposal for a Section 106 contribution to be made towards retail impact mitigation (quoted at paragraph 49 above). However, I do not consider those comments give him any real support: GVA’s concern was about the failure of the initial proposals to deal with the current position in the Town Centre, so that it was difficult to see how the proposed measures would mitigate the impact. Hence, GVA recommended that further consideration be given as to how the proposed measures would meet the tests as set out in regulation 122(2). However, the harm to be addressed was clear – diminution in turnover, including the possible downturn of linked trips and closure of stores – and the means to address that harm also became clear – steps to make the Town Centre more attractive and of higher profile, and the route between the (free) supermarket car park and the Town Centre distinct and well-appointed. The Council having control over the expenditure would ensure that the projects undertaken would be appropriate and no doubt best value.

Nor am I impressed by the submission, faintly made by Mr Kolinsky, that the Section 106 Agreement somehow put off consideration of compliance with regulation 122(2). On the basis of the information before them (including the indicative measures and costs), it was open to the Planning Committee to be satisfied that a contribution of £202,500 by Sainsbury’s was a necessary obligation imposed to make the development acceptable in planning terms, coupled with an undertaking on their part to spend that contribution by employing a town centre manager with a budget of £25,000 per year on projects to be the subject of consultation with relevant stakeholders in due course. Of course, in considering whether mitigating measures might make a proposed development acceptable in planning terms, that would be unacceptable without the obligation, it is of course important that the decision-maker considers the nature and extent of the predicted adverse impact and how the measures will address that impact. However, that does not mean that the precise detail of the measures needs to be specified at or before the obligation is entered into, and then locked into that obligation. That is particularly so when the planning authority is going to have control over the committed moneys.

In my judgment, on a fair reading of the Officers’ Report and the resolution, it is clear what the Planning Committee resolved to do and the basis of that resolution. They considered that an obligation on the part of Sainsbury’s to pay £202,500 in respect of retail impact mitigation measures, coupled with the obligation of the Council in paragraph 1 of Schedule 6 to the Section 106 Agreement to “… fund a full time town centre manager for [the] Town Centre… for a three year period and to fund a package of: environmental improvements, business support and marketing to mitigate retail impact of the Development on [the] Town Centre and make the Development acceptable” was necessary to make the development proposal acceptable in planning terms. They were entitled to do so. There was no need to tie Sainsbury’s into a specific package of mitigation measures in the Section 106 Agreement; nor, consequently, to identify and agree, prior to the execution of the Section 106 Agreement, specific measures which Sainsbury’s would have to make. It is therefore perfectly understandable why the Planning Committee’s resolution does not require consultation etc on specific measures prior to, or as an integral part of, the Section 106 Agreement.

Thus, the grant of planning permission was inconsistent with neither (i) the basis upon which the Planning Committee approved the application, and thus is not outside his powers as delegated to him by the Committee; nor (ii) the CIL Regulations.

Mr Kolinsky relied upon R (Mid-Counties Co-operative Ltd) v Forest of Dean District Council [2013] EWHC 1908 (Admin), in which Stewart J found that a section 106 obligation comprising a contribution towards retail impact mitigation was not necessary to make the proposed development – another supermarket – acceptable in planning terms, because there was no analysis of the mitigation of harm. However, in my view, the case before me is easily distinguishable from the Forest of Dean case on its facts. Here, as I have indicated, the adverse impact of the proposed supermarket on the Town Centre had been considered, as had the mitigation in terms of making the Town Centre more attractive and of higher profile, to which the indicative measures went. Planning cases are always fact-specific; and I do not consider that the Forest of Dean case assists the Claimant’s cause.

For those reasons, Ground 2 also fails.

I stress that I have come to the conclusion that Ground 2 must fail on the basis of the contemporaneous documents, which, when read objectively, fairly and as whole, I consider to be sufficiently clear. However, I am again reinforced in my conclusion by recent evidence. In a statement dated 20 December 2013, the author of the Officers’ Report, Mr Peter Westbury who is a Planning Coordinator in the Council’s Development Management Team, confirms that, in writing the report, he considered £202,500 as a contribution to retail impact mitigation was a reasonable sum in all the circumstances, and that, of that sum, £127,500 should be spent on the employment of a town centre manager. He considered £25,000 per year an appropriate sum as a working budget for projects etc; and, if that money was controlled by the Council which intended to consult various interested parties in the identification of specific measures at some time in the future, the package would be appropriate and compliant with the requirements of the CIL Regulations. Whilst not relevant to my determination of Ground 2, the Council’s commitment to consultation in respect of the specific retail impact mitigation measures is now formally reflected in the variation to the Section 106 Agreement dated 14 February 2014

This ground can be dealt with more shortly.

As part of the Bristol Development Framework, the Bristol Local Plan Core Strategy adopted in June 2011 saved a number of policies from the Bristol Local Plan adopted in 1997. Those saved policies included Policy L8, which, whilst the plan acknowledged that “a long-term site for Bristol Rovers Football Club… would be desirable in the city” (paragraph 10.4.30), provided:

“The following sites… will be protected from development which would erode the community’s opportunity to participate in sport and will be promoted for the use of sports stadia:… (b) Memorial Ground.”

At the time of the planning decision, article 31(1)(a)(i) and (ii) of the Town and Country Planning (Development Management Procedure) (England) Order 2010 (SI 2010 No 2184, “the 2010 Order”) required a notice of a planning decision to include a summary of reasons for the grant of permission (a requirement now removed by articles 2 and 7 of the Town and Country Planning (Development Management Procedure) (England) (Amendment) Order 2013 (SI 2013 No 1238)).

The notice granting planning permission in this case contained a section entitled “Reasons for Granting Approval” pursuant to the requirements of the 2010 Order which stated:

“Taking account of Section 38(6) of the Planning and Compulsory Purchase Act 2004, it has been concluded that the development accords with the policies of the Development plan comprising the Joint Replacement Structure Plan adopted September 2002, the Bristol Core Strategy 2011 and the saved adopted Bristol Local Plan, December 1997 so far as material to the application and the National Planning Policy Framework – March 2012 and all other material planning considerations listed below including emerging Development Plan policies:

…

L8 – Sports Stadia…”.

It was made clear in the Officers’ Report that the development would not comply with Policy L8, but there were grounds to make an exception to that policy, particularly because of the benefits of a new purpose built stadium. The Council have, since the reasons point was raised, said it had never been suggested that the proposal had complied with Policy L8, which had been included in the notice in error. Indeed, Mr Kolinsky referred to it in his submissions as “an obvious error”, as obvious it is.

Mr Kolinsky realistically accepted that, even if this ground were found to be good, it could not possibly result in the decision to grant permission being set aside. However, he contended that permission to proceed should be granted on this ground, the claim for judicial review granted, and the notice should be remitted to the Council so that the error can be corrected.

On the papers, Burnett J refused permission on this ground. He said:

“Ground 3 (which it is accepted could not lead to the quashing of the decision) is makeweight adding nothing of practical consequence. I refuse permission on that ground because it is abundantly clear that an error was made in suggesting policy L8 was complied with, which was immaterial (given the officers’ report) and which has now been explained.”

I agree. As Mr Kolinsky himself observed, the inclusion of Policy L8 in the list of policies with which the proposal complied was an obvious error. The policy required the use of the Site for the purposes of a sports stadium; the proposal was to knock down the stadium and redevelop the Site with a supermarket. The non-compliance was inherent and obvious. The Planning Officer and Planning Committee were well aware of the non-compliance, and Mr Kolinsky does not suggest otherwise. There is no evidence that anyone has been misled by the slip. If the matter went back on the basis that the reasons, in this one respect, were deficient, the Council could correct the error by simply amending the notice (Threadneedle Property Investments Ltd v Southwark London Borough Council [2012] EWHC 855 (Admin) at [153]). The Council could – and, no doubt, would – reissue the notice with corrected reasons omitting the reference. If they were to do so, none would be the wiser – as the error sought to be corrected is obvious in any event.

As such, the challenge on this ground is pointless and, to the extent that money has been spent on bringing and defending this ground, it has been wasted. Relief in this court is always discretionary, and it is open to the court to refuse permission in respect of such claim (see, e.g., R (Smith) v Cotswold District Council [2007] EWCA Civ 1341). In my view, this court should do nothing to encourage entirely pointless claims.

For those reasons, like Burnett J, I refuse permission to proceed with Ground 3.

For those reasons, despite his determined and able efforts, Mr Kolinsky has made good none of his grounds.

As I have come to the decision on the merits which I have, it is not necessary for me to deal in detail with the contention, made by Mr Findlay and Miss Sheikh, that the application for permission should be refused on the basis that, although brought within three months of the planning decision challenged, the claim was not brought promptly.

Briefly, the Planning Committee resolved to grant planning permission at their meeting on 13 January 2013, and the permission was issued on 14 June 2013 after the Section 106 Agreement had been completed. Therefore, the Claimant knew that permission was going to be granted in January 2013, but the decision being challenged – and the starting point for time to challenge – was June 2013. Mr Kolinsky says – and I accept – that the decision was not publicised until 28 June, when it was both put on the Council’s website and posted to those who had objected. The pre-action protocol letter was sent on 25 July 2013, to which the Council responded promptly. The claim was issued on 4 September 2013.

Mr Findlay and Miss Sheikh each submitted that the delay in issuing the claim was inexcusable, and the prejudice substantial. In support of the application that the claim be expedited – an application granted by Burnett J – the Chairman of the Football Club pointed out in his letter of 26 September 2013 that, with the money available for the new stadium project fixed, delay would involve the Club in increased construction costs and continuing trading losses. That in turn, Miss Sheikh explained, would or might result in the scaling down of the facilities at the new stadium. Reiterating the words of Simon Brown J in R v Exeter City Council ex parte J L Thomas Limited [1991] 1 QB 471 at page 484G, she said that the Claimant had not acted with “the greatest possible celerity”; and, given the prejudice to the Football Club, even if I found the Council had acted unlawfully, the relief allowed should not extend to quashing the planning permission.

As I have found against the Claimant on the merits of its grounds, it is of course unnecessary for me to consider the relief that might have been appropriate had the claim succeeded. However, may I echo the comments I made in a similar context in R (Hampton Bishop Parish Council) v Herefordshire Council [2013] EWHC 3947 (Admin), which involved a development including the relocation of Hereford Rugby Club, complex and sophisticated in both commercial and planning terms. The facts of that claim of course differed from those in this case; but there too the claim for judicial review of the planning permission was brought just within three months. The developer there too relied upon the commercial detriment it had suffered as a result of the delay. I referred to that detriment, and continued (at [153]):

“However, the reason why public law claims must be brought promptly is not focused on private interests, but rather in the public interest of having development that the relevant democratically-elected decision-makers have determined is itself in the public interest.”

In this case, as in that, I do not underestimate the challenges faced by individuals who wish to bring such a claim as this. They do not wish to bring a claim without proper consideration and advice. They may need authorisation to bring the claim, and, in this case, they wished to bring the claim through a corporate vehicle which they had to set up. They then have to instruct legal representatives.

Nevertheless, there is a particular public interest imperative to bring planning claims promptly. That is reinforced by the fact that, since the issue of this claim, CPR Rule 54.5(5) has been introduced, which reduces the time in which a claim for judicial review in a planning case must be brought from three months to six weeks. That is a clear indication to those who wish to challenge planning decisions that they must bring claims quickly, or face the real risk of being refused permission to extend time and to pursue the claim and/or being refused relief.

For the reasons I have given, I dismiss the application for judicial review on Ground 1 and 2, and refuse the permission to proceed on Ground 3. I order that judgment be entered for the Council on that basis.