Glenbrook Industrial Limited, R (on the Application of) v Wigan Metropolitan Borough Council

On 5 February 2025 Wigan Metropolitan Borough Council (“the Council”) granted an application for outline planning permission made by Caddick Developments Limited (“Caddick”). The application concerned “Ashton Park land off Lockett Road Ashton …” (“the Caddick land”) and was in respect of proposed construction of warehouse and associated office and other facilities together with access to the site from Lockett Road. The Council’s grant of outline planning permission described the development as follows:

“Outline application with details of means of access only from Lockett Road for the construction of (Use Class B2/B8) warehouse accommodation of up to 33,445sqm (360,000sqft) total including integral offices with associated car and commercial vehicle parking, servicing and landscaping. All other matters reserved.”

The Caddick land adjoins land owned by Glenbrook Industrial Limited (“the Glenbrook land”). Planning permission was granted for the Glenbrook land by an Inspector in May 2023, for the erection of “industrial, storage and distribution floor space and ancillary offices”. That planning permission was also outline planning permission with all matters reserved save for access. Access to the Glenbrook land is from Bolton Road. Taken together, the Caddick land and the Glenbrook land are two parts of an area identified for use as employment development land. As is apparent from each of the applications for outline planning permission both Caddick and Glenbrook intend to use their respective plots of land for industrial and/or warehousing purposes. There is one further piece of land within the area identified as employment development land. This is adjacent to the Caddick land on the side furthest from the Glenbrook land. That plot is not material for present purposes.

When granting planning permission for the Glenbrook land the Inspector considered the possibility of an internal road across the Glenbrook land and the Caddick land to connect Bolton Road and Lockett Road (“the estate road”). So far as concerns access from Bolton Road to the Glenbrook land and the possibility of an estate road joining Bolton Road and Lockett Road the Inspector’s report included the following:

“95.

... The details for the Bolton Road access were submitted as part of the details for consideration at this outline stage. However, the remainder of the road system has not been designed. All main parties agreed at the Inquiry that access should be a reserved matter with the Bolton Road junction details covered in the condition requiring compliance with approved plans. I concur with this approach but have prefixed the access with internal for clarity.

…

98.

The Appellant and Council agree that it is physically possible to join the existing access at Lockett Road to make a through route. Whilst this would need land outside their control the wishes of another landowner cannot be assumed, nonetheless they recommend a condition to safeguard this potential. I find that the implementation of both accesses, if it did take place, would help the accessibility of both employment areas to the surrounding residential areas for pedestrians and cyclists and help traffic go in their preferred direction. Accordingly, I impose this condition.”

The condition referred to was Condition 5 to the grant of planning permission for the Glenbrook land, and was in the following terms:

“Any reserved matters application submitted in respect of layout shall be accompanied by a connectivity and implementation plan, the details of which shall include:

–

Detailed plan to scale, including levels (to an agreed off site datum) showing a continuation of the estate road beyond the detail shown on plan reference – Site Access-Priority Junction Drawing No. 19479-02-GA Rev C, including footways and cycle routes within the site, including a connection between the development site indicated on plan reference Location Plan B9812-AEW-SI-XX-DR-A-501 Rev P1 and the remaining Primary Employment Area Land allocation (accessed off Lockett Road) to the north west terminating at the most northern point.

–

the continuation of the footway and cycle connection to the adjacent footpath (number 32) which runs along the southwest boundary of the site;

–

timing of the construction and implementation of the roads and connections in full, relevant to each reserved matters application.”

The remaining “Primary Employment Area Land allocation” referred to is the Caddick land.

The Council’s decision to grant consent for the planning application for the Caddick land was also subject to conditions. For present purposes Conditions 3 and 34 are material:

“3.

The development hereby approved shall be carried out in accordance with the details indicated on plan references;

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Location Plan Ref:2387/2000/Rev D

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Site Boundary Plan with proposed Site Access Arrangement Ref: 3578/F01 Rev A

–

Proposed Site Access Plan Ref: 3578/F05 Rev B; and

–

Land Use and Building Height Parameters Plan Ref: 2387/2005/Rev F.

Reason: For the avoidance of doubt and to ensure a satisfactory standard of development, in accordance with the policies contained within the Wigan Local Plan Core Strategy, the saved policies of the Wigan Replacement Unitary Development Plan, Places for Everyone Plan and National Planning Policy Framework.

…

34.

No development hereby approved shall be brought into first use, until the vehicle access provision from Lockett Road into the application site as shown on plan reference – Site Boundary Plan with Proposed Site Access Arrangement REF 3578-F01 Rev A and Proposed Site Access Plan Ref 3578/F05 Rev B, up to and including the application site’s north-east boundary and the full extent of the land in the applicant’s control in this location has been implemented in full.

Reason: For the avoidance of doubt, and to ensure safe and convenient access is provided into the application site from Lockett Road, safeguarding a connection to the wider Primary Employment Area land allocation, having regard to Policy CP7 of the Wigan Local Plan Core Strategy, Places for Everyone Joint Development Plan Policies JP-P1, JP-C1, JP-C3 JP-C5 and JPC7 and the National Planning Policy Framework.”

The consequence of these conditions was to fix the point where the estate road, anticipated by the Inspector when granting Glenbrook’s application for planning permission, would cross the boundary between the Glenbrook land and the Caddick land. The crossing point was on the north-east boundary of the Caddick land. The issue in this application for judicial review is whether in the Caddick application for planning permission Glenbrook had a fair opportunity to comment on the possibility that the estate road would cross from its land to the Caddick land at that point. Where the estate road crosses between the two pieces of land is a matter of practical importance to Caddick and Glenbrook. In practice, in terms of the likely uses of the respective pieces of land, the decision that the estate road should cross at the north-east boundary is less advantageous for Glenbrook and more advantageous for Caddick. Glenbrook’s preferred option was that the estate road should cross its land into Caddick’s land further to the south-west at the point shown on an illustrative plan submitted by Glenbrook as part of its planning application which had been decided by the Inspector in 2023. A crossing at that point would better suit the proposed development of the Glenbrook land but would suit the development of the Caddick land less well.

The primary matter that Glenbrook relies on in support of its application for judicial review is two plans submitted when the Caddick planning application was first made: the “Proposed Site Access Plan” (drawing no. 3578-F05, Revision A) and the “Site Boundary Plan with Proposed Site Access Arrangement” (Drawing No. 3578-F07). Each plan was submitted with the application as a plan to be approved by the Council. These plans were not merely illustrative plans. Each showed the new access road from Lockett Road into the Caddick site. Access from Lockett Road to the Caddick site is by way of a thin strip of land that meets the main part of the site (the main part of the site is in the shape of an irregular rectangle). At the point where the proposed access road meets the main part of the Caddick site each plan showed the access road meeting a T junction where the road split to the right and to the left. On each plan the left-hand side was shown stopping short of the boundary between the Caddick land and the Glenbrook land. Glenbrook also points to other illustrative drawings submitted when the planning application was made that are to the same effect (for example, those which show the possible location of the warehouses, offices and parking areas). None of these drawings showed the internal road on the Caddick site meeting the boundary of the Glenbrook land. Thus, contends Glenbrook, at the time the application was made the drawings submitted in support did not suggest that the estate road would run between the Caddick land and the Glenbrook land crossing between the two pieces of land at the north-east boundary of the Caddick land.

Further in this regard, Glenbrook refers to an additional plan filed by Caddick in September 2024. This was an illustrative site access plan which identified the land adjacent to the Glenbrook land at the north-east boundary as “land to be safeguarded for future pedestrian footway”. Thus this plan, like the others relied on, did not show any road crossing the boundary between the two pieces of land.

In addition, Glenbrook relies on other matters that occurred during the planning application process. First, observations made on the Caddick application by the Council’s transport officer in a response dated 14 August 2024. Under the heading “Site Access Arrangements” the officer commented as follows.

“It is proposed for Lockett Road to be extended into the site to serve the development and the wider employment allocation. In principle this is acceptable, however a 3m shared provision for pedestrians and cyclists on both sides of the carriageway at all times. This is a continuation of the standard permitted in land to the immediate east which has planning permission.

…

The current proposals include a service road to the rear and east of the building connecting the car park to the west and the service area to the north. The section of road to the east should be repurposed to provide a vehicular connection from the development to the adjacent land that was granted planning permission in 2023. This connection is required to deliver the councils long term aspiration for new road infrastructure connecting the A58 and A49, including a bypass of the A49/Bryn Road/Downhall Green Road junction.”

Thus, contends Glenbrook, the transport officer had not understood that the Caddick application made provision for the estate road linking the two sites. He proposed that the estate road should be located behind the warehouses shown on Caddick’s illustrative site plan. This would mean that the estate road would run on Caddick’s land, parallel to its boundary with Glenbrook’s land before crossing into Glenbrook’s land further to the south at a point that was consistent with the suggestion Glenbrook had made for the estate road when it made its own application for planning permission.

Second, on 20 November 2024 Caddick’s transport consultants, Eddisons, filed a note with the Council on traffic matters. This note was in response to further observations made by the Council’s transport officer on 16 October 2024. In those observations the transport officer had stated that it was “imperative” that the Caddick application should include a commitment to make provision for a connection between the Caddick land and the Glenbrook land (referred to in the note as “a vehicular connection to the land to the immediate east”). In response, in their note dated 20 November 2024, Eddisons made the case that there was no reason on grounds of highway capacity to require any estate road running through the sites to connect Bolton Road and Lockett Road. This too, submits Glenbrook, makes the case that the Caddick proposal did not contain any suggestion that the estate road should cross between the Glenbrook and the Caddick land at the north-east boundary.

Third, Glenbrook relies on two further plans that Caddick filed with the Council on 20 December 2024 which the Council failed to publish on its website until after it had decided to allow Caddick’s planning application. These plans were revised versions of the site access plans referred to above at paragraph 6: (a) a Proposed Access Plan (Drawing no. 3578-F05, Revision B); and (b) a Site Boundary Plan with Proposed Site Access Arrangements (Drawing no. 3578-F07, Revision A). These plans are referred to in Conditions 3 and 34 to the Council’s decision granting outline planning permission to Caddick. In the same way as the plans referred to above at paragraph 6 (“the original plans”), these plans (“the substitute plans”) show the road linking the Caddick site and Lockett Road and the T junction where that road enters the main part of the Caddick site. However, the difference between the original plans and the substitute plans is that the latter show the road that turns left from the T junction going as far as the boundary of the two sites rather than stopping short of the boundary.

Glenbrook did not see the substitute plans until they were published, after the Caddick application for planning permission had been granted. The Council has provided no evidence explaining why the substitute plans were not published before the decision on the planning application was made but it seems likely that the failure was an error rather than a deliberate choice. Glenbrook contends that it was only on sight of the substitute plans that it became apparent that the decision on the planning application might include a decision that the estate road would cross into its land at the north-east boundary of the Caddick land. Thus contends Glenbrook, it had no notice of that possibility and therefore no opportunity to make representations on it before the Council decided the application planning permission. Glenbrook submits this comprised material unfairness with the consequence that the decision granting outline planning consent must be quashed.

Glenbrook’s case comprises three grounds of challenge. Ground 1 is that Glenbrook itself did not have a fair opportunity to make representations by reference to the substitute version of the site access plans. Ground 2 is that the public had no similar opportunity. Ground 3 is that the lack of opportunity to make representations amounted to a breach of a legitimate expectation arising from the Council’s “Statement of Community Involvement”, a policy on public consultation on planning applications. Neither Ground 2 nor Ground 3 adds anything material to Ground 1. On the facts of this case, Ground 3 collapses into Ground 1, and Ground 2 adds nothing to Ground 1 at least so far as Glenbrook has any sufficient interest to pursue it. Moreover, Glenbrook made no submission on Ground 2 that was discrete from its submissions on Ground 1. I will therefore focus on Ground 1 and whether a failure to publish the substitute site access plans rendered the decision-making process unfair and therefore, unlawful.

I accept that it was irregular that the substitute plans were not published by the Council until after the decision on the application for planning permission. The Council has not filed evidence to explain what happened. From what I was told by Mr Humphreys, counsel for the Council it is likely that the failure to publish the substitute plans was an oversight. The fact that the plans were published in February 2025 immediately after the application had been approved, tends to suggest that when the matter came to its attention, the Council realised that the substitute plans ought to have been published earlier.

Nevertheless, I am not satisfied that this irregularity gave rise to any material lack of fairness or other error affecting the legality of the decision to grant Caddick’s application for planning permission. Three matters combine to produce this conclusion. The first is the information that was filed by Caddick when it made its application for outline planning permission, all of which was published by the Council and therefore was available to Glenbrook.

The most significant part of that information was a parameters plan. The parameters plan (referred to in Condition 3 to the grant of planning permission) was a material part of the Caddick application, described in the planning statement submitted in support of the application as a “plan for approval”. The parameters plan set the maximum extent of (a) the area within the application site to be used for the industrial buildings, (b) the area within the site that was to be landscaped, and (c) the area that was to be used for the internal road. On the parameters plan the “proposed roadway” was shown as running across the whole of the top of the site. The access road from Lockett Road was also shown, as was the T junction where the access road met the proposed roadway. On the side of the Caddick land adjacent to the Glenbrook land, the proposed roadway was shown running right to the boundary between the two pieces of land. Since the planning application was for outline consent, the application did not seek to identify the precise site layout, but so far as the internal roadway was concerned the parameters plan made it clear that were there to be an estate road connecting the Caddick land and the Glenbrook land that road would cross into the Glenbrook land at the north-east boundary of the Caddick land. Since the application was made in outline, the precise course of the road was not set. However, consideration of the parameters plan ought to have been sufficient for Glenbrook to realise Caddick’s intention as to where any estate road running through the sites would cross the boundary between the two pieces of land.

Other information in the documents Caddick filed with the Council when making its application was consistent with this position. In the planning statement dated 29 May 2024, the parameters plan was identified as a plan for approval and explained the outline application as being “the subject of a parameters plan”. Each of the Transport Assessment (dated April 2024), the Socio-economic Statement (dated 27 March 2024), and the Design and Access Statement made the point that the vehicular access from Lockett Road was designed to provide access to the land “to the east and west of the application site”, thus referring to the Glenbrook land. Further, one of the plans annexed to the Transport Assessment (plan 4) identified the point at the north-east of the Caddick land at the boundary with the Glenbrook land as the place for a “possible link road”. If all these matters are considered together, it was or ought to have been sufficiently clear that while Caddick’s primary position in its planning application was that an estate road connecting its site with the Glenbrook site was unnecessary (or at least not required by existing levels of traffic on Lockett Road and Bolton Road), its fall-back position was that any estate road should cross from its land at the north-east boundary into the Glenbrook land.

The second matter arises from Glenbrook’s own evidence in this case. Glenbrook’s application for judicial review is supported by a witness statement made by Dominic Page, a partner in Newmark Gerald Eve LLP, the property consultants instructed by Glenbrook. He had advised Glenbrook on the planning application for its own land that had been granted by the Inspector in 2023 and, he explains, monitored Caddick’s planning application on Glenbrook’s behalf in 2024 and 2025. It is apparent from his evidence that when the Caddick application was made Glenbrook realised that the application made no provision for an estate road at the position Glenbrook had intended when it had made the planning application for its own land. That was contrary to what Glenbrook had expected. Glenbrook also realised that the parameters plan showed the point of access between the Caddick land and the Glenbrook land at the point on the north-east boundary. Mr Page’s evidence is that the lack of an estate road crossing the boundary between the two pieces of land at the point Glenbrook had proposed in its own application caused Glenbrook to have “significant concerns” about the Caddick application.

In December 2024 Mr Page’s firm was in contact with the Council asking how the Council intended to deal with the issue of vehicular access between Glenbrook’s land and the Caddick land. Emails were sent and a meeting took place by video. It is apparent that these exchanges did not give Mr Page the clarity that he had hoped for on the issue. Nevertheless, what is important for present purposes is that Mr Page, and therefore Glenbrook, was aware that the route of any estate road connecting the two pieces of land remained a live issue within the Caddick planning application.

The third matter, also referred to in Mr Page’s evidence, is the discussions between Glenbrook and the Council about the meaning of Condition 5 to the Glenbrook planning permission. The premise for these discussions was whether that condition prescribed where the estate road linking the Glenbrook land and the Caddick land would cross the boundary. The significance of this is that it must (or ought to) have been clear to Glenbrook that as part of its consideration of Caddick’s application the Council was considering where the estate road would cross the boundary. This point is also apparent from Mr Page’s formal letter of representation written on Glenbrook’s behalf dated 30 January 2025, sent to the Council. Those representations were to the following effect.

I am satisfied that Glenbrook did understand what Caddick’s preference was for where the estate road would cross the boundary between the Caddick land and the Glenbrook land, and realised that it was different from its own preferred crossing point. Glenbrook raised this issue with the Council while Caddick’s application remained under consideration and attempted to persuade the Council that the estate road should take its own preferred route, running parallel to the boundary between the Caddick and Glenbrook land, on the Caddick side and crossing into the Glenbrook land further to the south. The 30 January 2025 letter sent on Glenbrook’s behalf set out representations in support of that case.

On consideration of all relevant circumstances nothing material attaches either to the fact that on the original site access plans (submitted with the application) the proposed estate road was shown stopping short of the boundary between the Caddick land and the Glenbrook land, or that substituted versions of the same plans showed the estate road going to the boundary. This was not material. The access plans concerned access to the Caddick site from Lockett Road, not the route of the estate road. Thus those plans do not, of themselves, warrant any conclusion on the route of the estate road within the Caddick land. The more important document was the parameters plan. Glenbrook’s submission by reference to the access plans (both the original and substituted versions) overstates their significance, understates the significance of the parameters plan and fails to account for its own evidence (through Mr Page) about its understanding of the significance of Caddick’s application so far as it concerned the route of the estate road, and the representations Glenbrook made to the Council on that issue.

All parties agreed, by reference to the judgment in R(Holborn Studios) vHackney LBC [2018] PTSR 997, that the guiding legal principle was the principle of fairness; that the requirements of fairness, from case to case, are matters for the court to decide for itself; and that one practical way of framing the requirements of fairness was to ask whether those concerned (in this instance Glenbrook) had been deprived of the opportunity to make representations (see the judgment of DHCJ Howell KC, at paragraphs 75 – 79).

Applying that approach to this case, Glenbrook did realise (or at the least ought to have realised) that the route of the estate road and where it should cross between the two pieces of land was an issue raised by Caddick’s application and would be decided by the Council. The 30 January 2025 letter is proof of this point. The submission for Glenbrook was to the effect that the representations made in that letter were brief, and that they were not “planning objections” because, for example, there was no technical assessment of the drawings or of the route of the estate road. The representations in the 30 January 2025 letter were concise but they did address: (a) the significance of Condition 5 to the Glenbrook planning permission which was a matter of concern to the Council; and (b) the reasons why Glenbrook opposed the possibility that part of the estate road should run through its land rather than the Caddick land. All these matters were under consideration by Glenbrook and the Council throughout December 2024 and January 2025. Had Glenbrook wanted to say more it had the opportunity to do so. In its submissions Glenbrook attempted to diminish the significance of the 30 January 2025 letter by suggesting that any discussion as to the meaning and effect of Condition 5 was in some way separate from the general issue concerning the estate road and where it should cross from Glenbrook’s land to the Caddick land. I disagree. In context, everything was part and parcel of a single issue.

Drawing all matters together, Glenbrook did have a fair opportunity to make representations on where the estate road would cross from its land to the Caddick land. There was no material unfairness in the decision-making process.

For these reasons, Glenbrook’s application for judicial review fails and is dismissed.