ON APPEAL FROM QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE WAKSMAN QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SULLIVAN
LORD JUSTICE TOMLINSON
| DERWENT HOLDINGS LTD
| - and -
|(1) TRAFFORD BOROUGH COUNCIL
(2) TESCO STORES LIMITED
- and -
(3) LANCASHIRE COUNTY CRICKET CLUB
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Stephen Sauvain QC (instructed by Trafford Council) for the 1st Respondent
Christopher Katkowski QC & Sasha White (instructed by Berwin Leighton Paisner LLP) for the 2nd Respondent
Robert Griffiths QC & Matthew Slater (instructed by Hill Dickinson LLP) for the 3rd Respondent
Hearing date : Monday 4th July, 2011
Crown Copyright ©
LORD JUSTICE CARNWATH :
i) Failure to take account of the relevant guidance in respect of the planning agreement;
ii) Failure to have regard to UDP policy S11(iv);
iii) Procedural unfairness;
iv) Inadequate reasons.
Mr Tucker QC accepts that ground (iii) is largely "parasitic" on the first two, in that the principal detriment caused by the unfairness was the loss of the chance to press his client's case in relation to the first two points. To that extent it depends on showing that those points were well-founded. Before the judge, and before us, he conceded that the reasons challenge stands or falls with the other points. In those circumstances I shall be able to deal shortly with the latter two grounds.
The planning agreement
"(2) A planning obligation may only constitute a reason for granting planning permission for the development if the obligation is—"
(a) necessary to make the development acceptable in planning terms;
(b) directly related to the development; and
(c) fairly and reasonably related in scale and kind to the development."
"... they are all brief extracts from Councillors' observations, the first of whom voted against, anyway. And it cannot be said from the remarks attributed to the other two, who voted in favour, that they did so on the basis that they had identified planning objections in the Tesco element which they then disregarded because of the cross-subsidy. One has in any event to be wary of attributing too much significance to the speeches of only a few (here 2 out of 8) of the voting majority – see for example R v London County Council  2 KB 471 per Buckley and Pickford LJJ at p489 and R v Exeter County Council  1 QB 471 per Simon Brown J (as he then was) at pp483-484."
Although similar points were repeated in the appellant's skeleton argument in this court, Mr Tucker has not pressed them in oral submissions, but has relied instead on what he sees as internal contradictions in the chief planning officer's report itself, taken with the terms of the subsequent planning agreement.
"1. The proposed development seeks to ensure the retention of Lancashire County Cricket Club in the borough of Trafford and to secure redevelopment of the ground to meet the ECB's standards for International and Test match status. This part of the development would be partly funded by the sale of a Council owned site on Chester Road to Tesco on which permission for a large foodstore is sought. The applicant maintains that this is not an "enabling" proposal but instead is a "cross-subsidy" proposal. In essence the applicant's position is that each element of this planning permission is acceptable 'in principle' but that the cricket club element of the proposal will only come forward in the event that the whole proposal is approved by reason of the cross-subsidy to LCCC which will be released by the Council following the sale of land to Tesco for the purpose of this development. The link between the proposed foodstore and redevelopment of the cricket club would be through a separate funding agreement and a Section 106 agreement both of which will include clauses to ensure that the foodstore will not open for trading until LCCC have 'let' the contract for all those works at the ground required to meet the ECB's TSF2 requirements (listed as Phases 2a, 2b and 2c in the Supporting Statement). Other than the proposed pedestrian link there is no physical link between the two elements of this application and as such each must be considered separately by the Council when assessing the acceptability of the principle of development…" (emphasis added)
"The proposed foodstore has been assessed against the policies within the Development Plan and national guidance in PPS4. It is concluded that there are no sequentially preferable sites within the identified catchment area and that whilst 'adverse' impacts are identified on nearby centres these are not considered to be 'significant'. The proposal has been assessed against the relevant tests within PPS4 and is considered to be acceptable on this basis.
The proposed economic development (including the brasserie, and hotel extension) at the cricket ground has also been assessed against the same tests and are considered to be appropriate. The regeneration benefits accruing from the whole development, of the local, city and regional area would be substantial and the development would provide a top class cricketing venue for the North West, capable of hosting international matches.
The loss of the Protected Open Space on the northern site is considered to be acceptable as this part of the site (which has not been used for over 10 years) is considered to be surplus to requirements of the existing school and proposed Academy and LCCC will deliver, through the redevelopment proposals, a sporting programme which will provide educational links with local schools considered to be of greater community value than this site in its current form." (paras 140-2)
- The use of the cricket school and the media centre by community and educational groups and bodies (arrangements to be agreed);…
- That the store will not open for trading until the contract for the works described as phases 2a, 2b, 2c in the planning supporting statement (i.e. all those elements necessary to meet the English Cricket Boards TSF2 requirements by a specified date) has been let;..."
"Reading the Report as a whole it is clear that members were being asked to give weight to the regeneration benefits associated with the LCCC proposal... and yet members were not then being invited to disregard such benefits when addressing their minds to the question of whether or not the Tesco proposal considered on its own merits was or was not acceptable."
Reference was made, for example, to paragraph 142 of the report, which indicated that the loss of open space would be offset by the sporting programme for local schools:
"Members were thus being asked to judge the acceptability of each part separately whilst also being asked to consider parts of one in conjunction with the other."
"The Council is satisfied that the obligations in this Agreement are:-
(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 kind to the Development."
(Those words, it will be noted, follow the words of the CIL regulations which had by then come into force.) Clause (6) of the agreement imposed on Tesco the obligations contained in part 2 of schedule 1, including (at paragraph 10):
"The Foodstore Element shall not be open for the retail sale of goods to the public until the Stadium Contract has been entered into."
This says Mr Tucker, is express recognition that, again contrary to the approach adopted in the planning officer's observations, the works to the stadium were regarded as "necessary" to make the foodstore "acceptable in planning terms". Accordingly, he says, there is an inherent inconsistency in the way in which members were asked to consider the matter.
Failure to take account of policy S11
"55. The view which was obviously taken in the Report was that the relevant policy for retail developments of this kind could now be found exclusively in PPS 4 and there was no need to assess it against the requirements of S11. The body of the Report reflects that approach. As both sides accept that need has been ruled out, the only difference in practice concerns (iv). It can reasonably be inferred that the reason why the Report contains no assessment as to whether the Large Tesco store would amount to sporadic siting on a road corridor is because this was not now considered to be relevant...
I agree that it remains arguable that this limb of (iv) could be said still to have survived, although for my part I incline to the view that as national policy was one of the justifications lying behind S11 and that no longer includes (iv) and given the terms of the "saving" letter, requirement (iv) is no longer relevant. But on any view it seems to me that the approach taken by the Planning Officer of giving primacy to the terms of PPS 4 (thereby in effect disregarding any element in S11 which does not now reflect PPS 4) was an entirely rational and reasonable approach."
He also noted that Derwent's planning consultant, Mr Highton, had made no mention of policy S11(iv) in his long letter of objection dated 27th January 2010.
Procedural unfairness and reasons
"1.... This informative is only intended as a summary of the reasons for the grant of planning permission. For more detail on the decision please contact Planning & Building Control.
2. The proposal would result in a satisfactory form of development that is considered to comply with the provisions of Proposals [reference is then made to the policies and their titles including S11 although there is no reference to PPS 4 or H10].
3. In determining this planning application the Local Planning Authority have had due consideration of the information contained in the applicant's Environmental Statement (ES) including (additional information subsequently submitted), all comments made by the consultation bodies, and all representations from members of the public about environmental issues."
"26 …It seems to me that reasons in relation to planning decisions must normally deal with the main issues that have been raised. That is again a clear basis upon which the adequacy of reasons should be judged. …. It seems to me that the reasons ought at least to have stated, albeit only in a sentence in each case, why those issues have been decided in favour of the applicants."
LORD JUSTICE SULLIVAN:
LORD JUSTICE TOMLINSON: