ON APPEAL FROM THE HIGH COURT OF JUSTICE
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
LORD JUSTICE HUGHES
| The Queen (on the application of Telford Trustee No.1 Limited and Telford Trustee No.2 Limited)
- and -
|Telford and Wrekin Council
|- and -
|Asda Stores Limited
Ian Dove QC and Hugh Richards (instructed by Telford and Wrekin Council Legal Department) for the Defendant
Jeremy Cahill QC and Satnam Choongh (instructed by Messrs Osborne Clarke) for the Interested Party
Hearing dates : 6-7 July 2011
Crown Copyright ©
Lord Justice Richards :
The history of the planning application
"Reasons for grant of planning permission
The decision to grant planning permission has been taken having regard to the policies and proposals in the Telford & Wrekin Core Strategy Development Plan Document adopted December 2007 and the 'saved' policies in the Wrekin Local Plan 1995-2006 set out below, and to all relevant material considerations, including National and Supplementary Guidance:
[There followed a list of policies including, under National Planning Policies, PPS4.]
The application has been the subject of an Environmental Statement under the Town & Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. The impacts have been fully assessed by the Local Planning Authority and the conclusions reached that any outstanding environmental effects can be satisfactorily mitigated with the use of planning conditions.
The proposed retail store has been fully considered and assessed to be in accordance with guidance in PPS4, the RSS and Core Strategy policies CS3 and CS4. The proposed store is of a suitable scale, mass and design, which respects and responds positively to the site context and surrounding environs, strengthening local identity of Telford Town Centre. The site layout creates and reinforces pedestrian linkages to produce a safe and secure environment in accordance with the urban design policies in the Core Strategy and Wrekin Local Plan. The traffic movements generated by the development can be accommodated without detriment to the highway safety. The layout also provides adequate car parking and bike storage provision. The development will preserve either in-situ or through translocation those trees on the site which are of important value to the visual amenities of the area and reinforce this through additional tree planting and landscaping. Issues of ground conditions, flooding, drainage, ecology, noise and pollution have been fully assessed and it is considered that any impacts can be adequately mitigated through the imposition of suitable conditions. The proposal creates a demand for additional off-site requirement, which can be adequately achieved through planning obligation contributions."
The reasons challenge
Reasons for the grant of planning permission: the legal principles
"22.(1) When the local planning authority give notice of a decision … on an application for planning permission … and –
(a) planning permission is granted, the notice shall include a summary of their reasons for the grant and a summary of the policies and proposals in the development plan which are relevant to the decision;
(b) planning permission is granted subject to conditions, the notice shall –
(i) include a summary of their reasons for the grant together with a summary of the policies and proposals in the development plan which are relevant to the decision to grant permission; and
(ii) shall state clearly and precisely their full reasons for each condition imposed, specifying all policies and proposals in the development plan which are relevant to the decision;
(c) planning permission is refused, the notice shall state clearly and precisely their full reasons for the refusal, specifying all policies and proposals in the development plan which are relevant to the decision …."
"14. A local planning authority's obligation to give summary reasons when granting planning permission is not to be equated with the Secretary of State's obligation to give reasons in a decision letter when allowing or dismissing a planning appeal …. [Referring to South Bucks District Council v Porter (No 2)  UKHL 33,  1 WLR 1953:] It is important to remember that that case was concerned with the adequacy of reasons in a Secretary of State's decision letter. Although a decision letter should not be interpreted in a vacuum, without regard for example to the arguments that were advanced before the inspector, a decision letter is intended to be a 'stand-alone' document which contains a full explanation of the Secretary of State's reasons for allowing or dismissing an appeal. By their very nature a local planning authority's summary reasons for granting planning permission do not present a full account of the local planning authority's decision making process.
15. When considering the adequacy of summary reasons for a grant of planning permission, it is necessary to have regard to the surrounding circumstances. precisely because the reasons are an attempt to summarise the outcome of what has been a more extensive decision making process. For example, a fuller summary of the reasons for granting planning permission may well be necessary where the members have granted planning permission contrary to an officer's recommendation. In those circumstances, a member of the public with an interest in challenging the lawfulness of planning permission will not necessarily be able to ascertain from the officer's report whether, in granting planning permission, the members correctly interpreted the local policies and took all relevant matters into account and disregarded irrelevant matters.
16. Where on the other hand the members have followed their officers' recommendation, and there is no indication that they have disagreed with the reasoning in the report which lead to that recommendation, then a relatively brief summary of reasons for the grant of planning permission may well be adequate. Mr Roe referred us to the observations of Collins J in paragraph 28 of his judgment in R (on the application of Midcounties Co-operative Ltd) v Forest of Dean DC  EWHC 1714 (Admin). For my part, I would respectfully endorse the observations of Sir Michael Harrison in paragraphs 47 to 50 of R (Ling)( Bridlington) Limited v East Riding of Yorkshire County Council  EWHC 1604 (Admin)."
"47. In considering the adequacy of reasons for the grant of permission there are a number of factors which seem to me to be relevant. The first is the difference in the language of the statutory requirement relating to reasons for the grant of planning permission compared to that relating to the reasons for refusal of planning permission. In the case of a refusal, the notice has to state clearly and precisely the full reasons for the refusal, whereas in the case of a grant the notice only has to include a summary of the reasons for the grant. The difference is stark and significant. It is for that reason that I reject the claimants' contention that the standard of reasons for a grant of permission should be the same as the standard of reasons for the refusal of permission.
48. Secondly, the statutory language requires a summary of the reasons for the grant of permission. It does not require a summary of the reasons for rejecting objections to the grant of permission.
49. Thirdly, a summary of reasons does not require a summary of reasons for reasons. In other words, it can be shortly stated in appropriate cases.
50. Fourthly, the adequacy of reasons for the grant of permission will depend on the circumstances of each case. The officer's report to committee will be a relevant consideration. If the officer's report recommended refusal and the members decided to grant permission, a fuller summary of reasons would be appropriate than would be the case where members had simply followed the officer's recommendation. In the latter case, a short summary may well be appropriate."
"16. I would adopt and approve the principles to be found both in Wall and Tratt, but I do not consider that in the present case there is any real possibility that there might be a different decision if the council were required to give proper reasons …."
Similarly, Sir Anthony Clarke MR referred at  to the court's discretion to quash a planning permission for failure to give reasons that comply with article 22 and stated that "[t]he principles applicable to the exercise of that discretion are, in my opinion, those set out in the case of Wall and Tratt, to which May LJ has referred".
The relevant policies in PPS4
"EC17.1 Planning applications for main town centre uses that are not in an existing centre and not in accordance with an up to date development plan should be refused planning permission where:
(a) the applicant has not demonstrated compliance with the requirements [of] the sequential approach (policy EC15); or
(b) there is clear evidence that the proposal is likely to lead to significant adverse impacts in terms of any one of impacts set out in policies EC10.2 and 16.1 (the impact assessment), taking account of the likely cumulative effect of recent permissions, developments under construction and completed developments.
EC17.2 Where no significant adverse impacts have been identified under policies EC10.2 and 16.1, planning applications should be determined by taking account of:
(a) the positive and negative impacts of the proposal in terms of policies EC10.2 and 16.1 and any other material considerations …."
"EC15.1 In considering sequential assessments required under policy EC14.3, local planning authorities should:
(a) ensure that sites are assessed for their availability, suitability and viability;
(b) ensure that all in-centre options have been thoroughly assessed before less central sites are considered;
(c) ensure that where it has been demonstrated that there are no town centre sites to accommodate a proposed development, preference is given to edge of centre locations which are well connected to the centre by means of easy pedestrian access;
(d) ensure that in considering sites in or on the edge of existing centres, developers and operators have demonstrated flexibility in terms of: (i) scale …; (ii) format …; (iii) car parking provision …; and (iv) the scope for disaggregating specific parts of a retail or leisure development ….
EC15.2 In considering whether flexibility has been demonstrated under policy EC15.1.d above, local planning authorities should take into account any genuine difficulties which the applicant can demonstrate are likely to occur in operating the proposed business model from a sequentially preferable site …."
"EC16.1 Planning applications for main town centres uses that are not in a centre (unless EC16.1.e applies) and not in accordance with an up to date development plan should be assessed against the following impacts on centres:
(a) the impact of the proposal on existing, committed and planned public and private investment in a centre or centres in the catchment area of the proposal;
(b) the impact of the proposal on town centre vitality and viability, including local consumer choice and the range and quality of the comparison and convenience retail offer;
(d) in the context of a retail or leisure proposal, the impact of the proposal on in-centre trade/turnover and on trade in the wider area, taking account of current and future consumer expenditure capacity in the catchment area up to five years from the time the application is made …;
(e) if located in or on the edge of a town centre, whether the proposal is of appropriate scale (in terms of gross floorspace) in relation to the size of the centre and its role in the hierarchy of centres …."
The Trustee's case on the sequential approach (ground 1)
"… The Red Oak car park and the Ash Grey car park formed part of the applicant's sequential assessment, both of which are sequentially preferable to the application site. In relation to the Red Oak CP, the applicant considers that this would not be a viable proposition as the development of a new store at this location would have practical and economic impact on the current Asda which would need continuity of operation whilst the new store is built, effectively on a large part of 'their' car park.
Not surprisingly, the objectors who are keen to bring forward their own scheme for the Red Oak car park maintain that this site is readily available and that the applicants have failed to clearly demonstrate its lack of availability and suitability in compliance with PPS6 test. This is an important point as the objectors have commented that active discussions did take place between themselves and Asda and that it was the Council's intervention in bringing forward the Civic site that has threatened future investment in the PSA. Moreover the objectors consider that continuity of operation is not an unfamiliar phenomenon in other town centres and is, in any event, not a planning issue.
The Council has to consider whether the two sequentially preferable sites in terms of PPS6 are genuinely available, suitable and viable. Taking the larger Red Oak car park site first, there appears to be a major constraint to the development of this site in that Asda would be able to block the early development of Red Oak. The existing lease between Asda and the owners of the Shopping Centre obliges the Trustees to maintain 600 parking spaces on the Red Oak car park during the period of the lease. Whilst the Red Oak CP site is closer to the heart of the centre ('PSA') and sequentially preferable and suitable, this site would not be available until 2014 at the earliest given Asda's current leasehold arrangements.
Turning to the question of viability, it is acknowledged that the particular set of circumstances arising within the Telford Town Centre is unusual in that it is Asda who is proposing the development and who are already within the town centre and have control over the Red Oak car park until 2014. In order for the Red Oak site to be viable in PPS6 terms, its redevelopment must be practicable to the end user, the applicant. The viability or 'practicability' of this site at the Red Oak car park coming forward is dependent upon agreement by Asda at least until 2014. Paragraph 3.16 of PPS6 highlights that LPAs should take into account genuine difficulties that the applicant can demonstrate are likely to encounter in operating the applicant's business model from sequentially preferable sites. Asda is unlikely to enter into any agreement with the owners of the Shopping Centre that brings forward the Red Oak site before 2014 as to do so would cause significant disruption to Asda, which would jeopardise their business at Telford, possibly irretrievably. Your officers conclude therefore that the Red Oak car park site is not viable as Asda has provided evidence to demonstrate that the business model could not operate viably from this site."
"For reasons stated in the main report, the Red Oak Car Park site forms part of the present Asda store's car park, the extent of which would be significantly diminished during building operations and result in unacceptable trading impacts on the existing Asda supermarket, a key anchor to the town centre. Asda maintain that current lease arrangements would prevent the Trustees from starting on the store until 2014."
"The principal matters raised … are rebutted specifically in comments above. Where not specifically rebutted, it is your officers' view that none of the points raised are of sufficient concern to cause either a delay in the determination of the applications or to refuse the applications."
"The matter of the new PPS4 is an important additional material planning consideration for Members and must be given full weight …. [T]he Red Oak Car Park site must be regarded as being sequentially preferable to the Asda site in planning terms and if granted planning permission would complement the town centre retail offer within the PSA. However, there is sufficient headroom retail capacity for more than one large food supermarket in the town centre. Even if it is assumed that the Red Oak Car Park site application is granted planning permission, there is no good reason on planning grounds to refuse planning permission for the Asda proposals currently being considered. In addition, the Red Oak Car Park site cannot be considered to be available until 2014, at the earliest, in the event of Asda remaining in occupation in their present store. This is to be assumed if planning permission is refused for their current application. The Red Oak Car Park site is therefore not 'available' within the meaning of PPS4 and the recently published (Dec 2009) PPS4 Practice Guide (which supersedes PPS6), having regard to the local circumstances of Telford. To wait some 4 years or more for a new food supermarket to replace the current inadequate Asda store is considered excessive by Officers. Reasons include the significant retail and other planning benefits brought about by the Asda development going ahead at an early stage, as set out in the main report, especially the early stemming of leakage from Telford Town Centre including to unsustainable out of town retail locations, the fact that subject to planning permission being granted Asda is committed to going ahead, and the significant benefits of regeneration of the Town Centre which are likely to be triggered by the new Asda edge of centre development which is likely to act as a catalyst for further development within and adjacent to the town centre."
The Trustees' case on the impact assessment (ground 2)
"… Further analysis of trade draw has been undertaken to ascertain the likely impacts arising, particularly on the town centre should planning permission be granted for this development. This assessment has to assume that the existing Asda store within the Shopping Centre is re-occupied for it to be realistic in terms of impact on the town centre. The conclusions suggest that the proposed new foodstore would draw trade from Sainsbury's (31%) followed by other convenience shops in the Town Centre (Iceland and M&S Foodhall) (24%) and then Donnington Wood Asda and Tesco Extra at the Wrekin Retail Park (9% each). …
In terms of the Town Centre itself the principal objectors stress that the new Asda store's trade diversion would mean £5m less being spent in the PSA. This is correct but only if the proposed store failed to function as part of Telford Town Centre i.e. as an out of centre/town stand alone store. The applicant has strongly countered this by arguing that the evidence from retail analysis and shoppers' surveys would suggest that the proposal would function as part of the town centre ….
The objectors believe that retail impact considerations put forward in the application are flawed. They claim that the loss of Asda from its current location would be unlikely to result in that store's re-occupation by a national food retailer thus causing detriment to the vitality and viability of the town centre ….
There is a degree of conflict between the evidence put forward by the applicant and that submitted by the objectors, who presumably can refer to up-to-date evidence of what's actually happening on the ground. But your officers believe that there is a quantitative need for additional capacity to be provided in the convenience sector going forward and that arguments about the current economic climate do not alter the fact that we are planning for a period well beyond the present recession ….
In relation to impacts on the Town Centre, there is a compelling argument to suggest that in order to secure the best outcome for the town centre the local planning authority should support the relocation of Asda to a new purpose built store without disruption and then pave the way for the redevelopment of the Red Oak car park site and existing Asda store for further retailing which the quantitative analysis shows is needed. The alternative – the 'do nothing approach' – would slow down retail growth in the town centre and the regeneration opportunities would be diminished, at least up to 2014 and possibly beyond.
Your officers are satisfied that the evidence provided by the applicant and supported by the Council's WYG Study would suggest that the proposal will not harm the vitality and viability of the town centre in terms of retail impact. It is accepted that the proposal would function as part of the town centre retail offer, provide for linked trips and serve the needs of the local community thus encouraging social inclusion …."
"Retail impact: it is a matter of conjecture whether by developing at the Civic, it would reduce the prospects of the site at Red Oak CP attracting a quality supermarket operator. No evidence has been submitted that would demonstrate that this would be the case. The Council's evidence however suggests that there is sufficient retail capacity for more than one new large supermarket store - the role of planning is to not protect existing businesses but rather to bring forward sites that meet proven need and at the most appropriate and sustainable locations. The retail impact of two large supermarkets would be acceptable."
A little later, in the context of "retail vacancies", it was observed that Asda's relocation "would moreover release the present Asda store to be converted to comparison [i.e. non-food] goods retailing – a probable outcome should the Trustees' proposals for Red Oak Car Park be supported".
The reasons challenge: discussion and conclusion
Ground 4: the Trustees' private law rights
Lord Justice Hughes :
Lord Justice Ward :