England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT LIST
(MR JUSTICE LAWRENCE COLLINS)

		Royal Courts of Justice Strand London, WC2
		8 October 2002

Tuesday, 8 October 2002

1. LORD JUSTICE LAWS: This is a renewed application for permission to appeal against a decision of Lawrence J given in the Administrative Court on 11 July 2002 when he dismissed the claim by the London Borough of Wandsworth brought under section 288 of the Town and Country Planning Act 1990. Permission was refused on the papers by Brooke LJ on 27 August 2002. The learned judge below introduced the matter thus:

"1. This application concerns the proposed development of the former South London Hospital for Women, Balham Hill. It was built in the late 1920s and designed by Sir Edwin Cooper. It is close by Clapham South Underground Station and Clapham Common. It was closed in 1984. In 1994 Tesco Stores Ltd ("Tesco") purchased the site, and submitted a scheme for mixed development in 1995, which was refused by Lambeth Borough Council in 1997. An appeal was dismissed in 1998 on the ground that the scheme would fail to enhance the character or appearance of the conservation area in which the site lies, Clapham Conservation Area No.1. 2. In 1999 Lambeth Borough Council resolved to grant planning permission in the light of a revised application which preserved the facade of the hospital. The applications were called in, and an inquiry was held in April 2000. The Inspector appointed by the Secretary of State to hold the inquiry recommended that both applications for planning permission be refused in a report of February 7, 2001. The Secretary of State for Transport, Local Government and the Regions did not agree with the recommendations of the Inspector and by letter dated December 11, 2001 ("the Decision Letter") the Secretary of State granted planning permission to Tesco for a food store and 104 flats. 3. In this application made under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") the claimant, Wandsworth London Borough Council ("Wandsworth"), which opposed the applications for planning permission, seeks to quash the decision of the Secretary of State. The boundary between Lambeth and Wandsworth is very close to the site. 4. The existing shops and other facilities at Balham Hill are partly within the London Borough of Lambeth and partly in Wandsworth. The whole of the site, save for 16 Cavendish Parade, is within the Clapham Conservation Area No.1. Wandsworth objected to the two applications. The area around the site includes a mix of residential, shopping and service uses. There are parades of shops to both the north and south of the site. Opposite the site is the Clapham South Underground station, which has shop units within it. There are some further shop units in 1-8 Westbury Parade, which adjoins the station. Clapham High Street and Balham Town centres are approximately 1 km to the north and south, respectively. In total, there are 78 businesses, including some 50 retail units. 5. The shopping units which lie within Lambeth (1-11 and 17-23 Balham Hill) are identified in the Lambeth Unitary Development Plan as a 'Neighbourhood Centre.' Those in the adjoining London Borough of Wandsworth (25-41 and 43-65 Balham Hill; 1-8 Westbury Parade and the units in the Tube Station) are identified in the Deposit Draft in the Revised Wandsworth Unitary Development Plan as 'Important Local Parades.'"

2. That part of the case which is relevant to the proposed appeal concerns the question whether the Secretary of State was entitled to arrive at a contrary view from that of his Inspector on the issue whether Balham Hill should be regarded as a "centre" within the meaning and for the purposes of three planning policy documents: PPG6 on Town Centres and Retail Developments; RPG3 (Strategic Guidance for London Planning Authorities) and the Caborn statement - that was a Parliament answer of 11 February 1999 which was intended to "add to and clarify the guidance in PPG6".
3. In short, if a proposed retail development was located in a centre there was no requirement to show that it satisfied the test of need; if not so located, need would have to be demonstrated. The Inspector held that Balham Hill was not a centre and so the proposed development was not located in a centre. That decision was overturned by the Secretary of State. The judge found that the Secretary of State was entitled to conclude as he did. The judge's reasoning is to be found at paragraphs 27 to 35, and in relation to the alleged failure by the Secretary of State to give proper reasons, paragraph 40. The judge held (see in particular paragraph 35) that in the context of all the policy documents the Secretary of State had been entitled to conclude that Balham Hill was and is an "existing centre", an expression which is used in the Caborn statement.
4. The essence of Wandsworth's complaint in this court is not as to the language of the policy documents - "existing centre", "town centre", "neighbourhood or local centre", but rather that the Secretary of State failed to consider in his decision letter a central part of the case put forward on the merits as to why Balham Hill should not be considered a centre; that was that the way Balham Hill functioned in the locality told against its being treated as a centre. The judge, it is said, did not deal with that argument. The function or role of Balham Hill had, however, been critical to the Inspector's reasoning. If the issue here were whether the judge was entitled to hold that the Secretary of State was in his turn entitled to the view that as a matter of the language used in the policy documents Balham Hill fell to be regarded as an existing centre, I would agree with Brooke LJ refusing permission that there would really be no prospect of showing that the judge was wrong. But that is not, with respect, really the issue. It is, as I have stated, the Secretary of State's alleged failure to consider Balham Hill's function, a failure that stands in sharp contrast, so it is said, with the reasoning of his Inspector. On this issue I have concluded that the appeal is arguable.
5. Mr Morgan, who has appeared for Wandsworth before me this morning, indicates that that is the whole of his case, and the appeal will no doubt go forward on that basis. The essential references in the decision document (which I need not read out) are paragraphs 8 and 22 of the Inspector's report and paragraphs 12 and 13 of the decision letter. I will accordingly grant permission to appeal.
6. I should say that in reaching this decision I have had in mind the representations made in a letter to the Civil Appeal Office from solicitors representing Tesco, who are an interested party. However, the letter does not persuade me that there are not here properly arguable matters, along the lines I have described.
7. I will indicate a time estimate of two hours, and that the case is to be heard by a court of three, but one of them may be a High Court judge.
(Application granted; no order for costs) .