England and Wales High Court (Administrative Court) Decisions

1. Teesside Development Corporation, the respondent to these conjoined applications for judicial review, is an urban development corporation set up by the Secretary of State under section 136 of the Local Government, Planning and Land Act 1980. In appointing its members the Secretary of State is required by Schedule 26 paragraph 2, to have regard to 'the desirability of securing the services of people having special knowledge of the locality in which the urban development area is or will be situated', and to this end to consult local authorities about appointments. The Corporation's object, by section 136(1), is 'to secure the regeneration of its area'. This is to be achieved, according to sub-section (2):

'in particular by the following means (or by such of them as seem to the Corporation to be appropriate in the case of its area), namely, by bringing land and buildings into effective use, encouraging the development of existing and new industry and commerce, creating an attractive environment and ensuring that housing and social facilities are available to encourage people to live and work in the area.'

2. Sub-section (3) gives a UDC wide powers to hold land and carry out works and 'generally do anything necessary or expedient for the purposes of the object or for purposes incidental to those purposes'. Sub-section (4) then provides:

'No provision of this Part of this Act by virtue of which a power is exercisable by an Urban Development Corporation shall be construed as limiting the effect of sub-section (3) above.'

3. Sub-section (6) provides:

'To avoid doubt it is declared that sub-section (3) above relates only to the capacity of an Urban Development Corporation as a statutory corporation; and nothing in this section authorises such a corporation to disregard any enactment or rule of law.'

4. By section 149 the Secretary of State is empowered additionally to provide that an urban development corporation shall be the local planning authority for the whole of its area, a power which has been exercised in the present case by the making of the Teesside Development Corporation (Planning Functions Order 1987.

5. The purpose and effect of the challenged decision is to permit the construction and operation of what will almost certainly be an Asda hypermarket at Middlehaven. One of Asda's major competitors in the region is William Morrison Supermarkets plc, the applicant in the first motion. It is the contention of Mr John Steel QC, on its behalf, that the potential impact of the business of his client (I will call it the first applicant) goes further than simply establishing a sufficient interest in the material grant and creates planning issues to which the respondent has failed to have proper regard. A separate challenge to the same grant of planning permission is made by Redcar and Cleveland Borough Council (the second applicant), which is a neighbouring local and planning authority the inhabitants of whose area are potentially affected by the proposed development.

6. The site of the proposed development, which is owned by the Respondent under the powers contained in section 136(3) of the 1980 Act, lies alongside a dock on the south bank of the River Tees and to the north of a railway line and an arterial road. It is known as the Middlehaven or Cargo Fleet site. Not far to the south of it, within the Middlesbrough conurbation, the first applicant has a supermarket at Berwick Hills. To the east of the Middlehaven site, within the same conurbation at South Bank, Asda has an existing supermarket. This too lies within the urban development area, but the greater part of South Bank lies within the area for which the second applicant remains the planning authority.

7. The two governing statutory provisions are to be found in the Town & Country Planning Act 1990 as amended. By section 70(2):

'In dealing with ...... an application [for planning permission] the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations.'

'Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise.'

8. By section 140(1) of the Local Government, Planning and Land Act 1980:

'An urban development corporation shall prepare a code of practice as to consultation with the relevant local authorities about the exercise of its powers'

9. National planning policy is set out in departmental guidance notes, the most material of which in the present case is PPG6. The policy contained in this note changed significantly in the course of the present planning application. In its 1993 version PPG6, which carries the title 'Town Centres and Retail Developments', set out to facilitate the striking of a suitable balance between town centre and out-of-town-centre retail development. Its tone and purpose were uniformly positive towards retail development, both in itself as a service and job-provider and as 'a catalyst to further investment' (para 20). In the interests of accessibility it advised in favour of 'locating retail development in or next to existing town centres and concentrations of people', and advised careful appraisal of the impact of proposed retail developments 'away from town centres' (para 38). It used, in particular, a terminology which included the following:

'Town centre: ........suburban centres which provide a broad range of facilities and services and which fulfil a function of focus for both the community and public transport. It excludes small parades of shops of purely local significance.......
Edge-of-centre (or edge-of-town): A location within reasonable walking distance of the centre, and providing parking facilities that serve the centre as well as the store, thus enabling one trip to serve several purposes.
Out-of-centre: A location that is clearly separate from a town centre but not necessarily outside the urban area.'

10. During the course of the planning application with which I am concerned a consultation draft of the revision, circulated in July 1995, proposed no change in the definition of the term 'edge-of-centre'. But the final version, issued in June 1996, just before the crucial decision of the respondent in the present case, tightened up the definition by using the phrase 'easy walking distance' for shopping purposes and defining it as meaning within 200-300 metres of the primary shopping area. The Department's reasons for adopting this precise definition are explained in the guidance (para 3.14).

11. The most radical shift in the new guidance was from the assessment of individual retail development proposals on their merits, albeit having regard to the vitality and viability of existing centres, to what the new guidance described as 'the sequential approach':

'....... if a developer is proposing an out-of-centre development the onus will be on the developer to demonstrate he has thoroughly assessed all the potential town centre options.'

12. Adopting a sequential approach means that first preference should be for town centre sites, where suitable sites or buildings suitable for conversion are available, followed by edge-of-centre sites, district and local centres and only then out-of-centre sites in locations that are accessible by a choice of means of transport.' (para 1.11).

13. The guidance proposes a similar radial approach for local planning authorities in drawing up development plans (para 1.10). Since the 1996 version of PPG6 sets out as its leading objective 'to sustain and enhance the vitality and viability of town centres' (its predecessor had used the phrase "sustain or enhance"), it is plain that central government had in the intervening 3 years concluded that existing guidance was not operating with sufficient effect to protect existing town centres from the impact of major out-of-centre retail development. Both versions of the guidance, however, stress:

'It is not the role of the planning system to restrict competition, preserve existing commercial interests or to prevent innovation.'

14. The guidance also sets regeneration in its planning context in this way:

'Retail development should not be used simply as a mechanism to bring vacant or derelict sites into development, unless it would help to support the vitality and viability of existing centres. Developments, especially those out of centre, may compete with town centres which may need investment for their own regeneration.'

15. Clearly there is a tension between these two propositions, since if the viability of retail outlets in existing centres may be jeopardised by competition from an out-of-centre development needed to regenerate a derelict area, the planning authority will have a difficult task in setting on one side the fact of unwelcome competition while taking into account the need to support the viability of an existing centre. The latter objective is developed in detail in section 4 of the new PPG6, which sets out 'key tests' for proposed retail developments outside existing centres. These include their impact on the development strategy for the existing town centre and its likely effect on future private sector investment there in the long term, as well as the accessibility of the new site in terms both of varied modes of access and of reducing reliance on cars.

16. The effect of the policy shift is to place a new primary emphasis on enhancing - not merely preserving - existing urban shopping centres and to make the case for new retail developments proportionate to their proximity to existing centres. In particular (para 4.13) it requires supporting evidence on the key planning issues for all retail developments of more than 2,500 square metres gross floor space. As PPG1 advises, changes in planning guidance may well qualify the starting point afforded by a development plan (para 27.1)

17. The area with which this case is concerned falls within the Cleveland Structure Plan which, incorporating a first alteration, was approved in November 1995. It includes the following policies:

18. Within the Teesside Development Corporation area, the following locations will be considered for a variety of uses, including industrial, commercial, business, residential, educational and leisure but excluding special industry and large scale retailing:

19. The existing town and district centres should be maintained, improved and promoted to ensure that they compete successfully with out-of-centre stores. ......

20. Proposals for shopping developments in these centres will normally be permitted provided that the scale of development is compatible with the size, services and character of the centre and they are in accordance with the local planning policies of the Borough Council.

21. The main centres are ....... South Bank ...........

22. Large scale shopping developments should normally be located within town or district centres or on the fringe of such centres. The town and district centres are ....... Middlesbrough (the sub-regional centre) ....... and Redcar Town Centre. ........ [To these Berwick Hills has been added by policy SA4 of the deposit draft of the local plan, which defines it as a district centre].

23. Proposals for large-scale shopping developments, irrespective of location, should only be permitted where:

24. Whenever possible, large-scale shopping developments should improve the local environment and be located on derelict or disused land.

25. The Middlesbrough Local Plan was not in final form at the material time, but it had been published in consultation draft in January 1995. It included policies on shopping and retail services which, however, were modified in respects relevant to the present case in the deposit draft dated July 1996. Thus policy SA3, which sought to exclude retail development in industrial areas but made an exception of the Cargo Fleet area provided that, among other things, it did not adversely affect the vitality or viability of the town centre, was altered in the deposit draft so as exceptionally to permit retail development in Cargo Fleet only if it was for the retailing of goods in bulk or of low value in relation to their bulk (typically, building and garden supplies for which it is difficult to find suitable space in a town centre).

26. Policies SA7 and SA8, which remained constant, provided that larger scale retail developments would not normally be permitted outside the town centre, town centre fringe retail areas or district centres. The adverb 'normally' is glossed by reference to policy SH3 in the structure plan, mentioned above, and by the limitation contained in policy SA8 on the forms of retailing to be permitted in employment areas. Within the deposit draft of the local plan, reference continues to be made to the 1993 version of PPG6. This, plainly, had to yield, by the time the deposit was made, to the new version.

27. The policies in the local plan and structure plan were thus congruent with the policy of the new PPG6, at least so long as the exception contained in policy SA3 in favour of retail development in 'the town centre fringe locations of Cannon Park and Cargo Fleet' is read as meaning those locations within Cargo Fleet which fall within the planning definition of 'edge-of-centre' (that is to say within 'easy walking distance' ordinarily to be measured at 200/300 metres) and so long as the question of location was approached sequentially.

28. The respondent corporation was set up in 1987 by the Secretary of State following a feasibility study which had identified Middlesbrough Dock as one of its 'flagship projects'. The report said:

'The dock area is located in the heart of Middlesbrough. It should be developed privately for residential and commercial purposes, and every effort should be made to encourage development spin-off from the site to affect positively Middlesbrough town centre..... This project will be very difficult to bring about. It is a classic example of a project which will only happen with the involvement of the UDC. But if it can be achieved, the impact would be considerable. Not only will it utilise a specific derelict and rundown inner-city site, but it will directly stimulate the overall regeneration of inner Middlesbrough ......... The overall development timescale will likewise be lengthy with serious development momentum only being gained after about four or five years of UDC activity.'

29. The report went on to advise the Secretary of State that the new Corporation should be given all development control powers within its area.

30. Its Initial Development Strategy indicated that the Corporation had completed a study of retail demand and of the preferred locations for new retail development. It said:

'When considering current and future retail requirements, the Corporation looked not only to its own development area but to the hierarchy shopping centres .......
Fundamental to the approach of the Corporation and in line with the County and District Council policies has been the awareness of the need to protect the viability and vitality of the existing major town centres - culminating in the view that there should not be a direct impact of more than 10% in the diversion of trade from such centres.
Accordingly while it is accepted at this time that there should be no significant comparable food shopping centre in an out-of-town location there is a major opportunity for off-centre retail warehousing .....'

31. It is not suggested by the applicants that there is any inherent friction between this approach and the material planning policies. Equally, it is accepted by the respondent that more than this was required in order to establish the merits of Asda's retail application on the Middlehaven site in the face of present policy.

32. By 1996 it was possible for the respondent Corporation in its annual report to describe much progress on the regeneration of Middlesbrough dock: the new football stadium was complete, new roads had been built, an access bridge was under construction and a new marine engineering dock was under way. (Since then work has begun on the infrastructure for a National Tall Ships Centre at the dock.) The response of Middlesbrough Borough Council, it was reported, was awaited on a redevelopment scheme 'comprising a mix of housing, retail, office, leisure and industrial development'.

33. The retail element in this scheme derived from an approach from Asda in June 1995, expressing interest in building a superstore at Middlesbrough Dock. As early as the 15th September 1995 the Corporation, according to its minute, was advised that 'All the relevant occupiers are lined up for the further development of the area.' After discussion with the Corporation's chief executive, Duncan Hall, Asda at the end of October made a formal proposal to pay the Corporation (in whom the land is vested) a little under £7 million for the site of a superstore together with car parking and ancillary facilities, conditionally upon the grant of planning consent for a store area of 112,000 square feet gross. Solicitors had been instructed on both sides by November. The Corporation had also, by early November, instructed a well-known firm of planning consultants, Nathaniel Lichfield and Partners (NLP) to advise them about the proposed development.

34. No letter of instruction, it appears, was written to NLP; nor are there any discoverable notes of the briefing meetings which took place between NLP and the respondent corporation. The first record of NLP's involvement is their letter of 8th November 1995 to the Corporation's director of development setting out their initial views on the proposal and quoting their rates for follow-up work. The letter was captioned 'The Middlehaven and Cargo Fleet Areas' and began:

'We outline below our initial appraisal of the planning implications of pursuing retail development on the Cargo Fleet site. We have done this taking into account the possible development potential of the wider area, particularly around the Middlehaven dock and the implications of the newly constructed Riverside Stadium. Following our initial briefing meeting we have also taken into account your most recent proposals for the site.
Our conclusion is that in the existing Policy context of the emerging draft Local Plan we consider there is a good planning case to be made for some retail development on the Cargo Fleet site, subject to addressing retail impact and PPG.13 issues. Our advice below is geared towards minimising the chances of call-in of the applications (although the prospect of call-in would still remain) and maximising the chance of success should a public inquiry result.'

35. The tone and content of the letter are those which one would expect from a responsible expert advising a client on the best way of promoting a planning proposal. In the pages of detailed advice which follow such phrases occur as: 'it is unlikely that we can claim.....'; 'it would be advantageous if ....'; 'you may be able to draw some comfort from ....'; 'in support of our case'; 'your proposals'. The letter concludes with a passage beginning:

'We recommend submitting separate applications for the Asda and retail warehouse elements as both give rise to different retail planning issues.'

36. It recommends proceeding in a particular order 'to help minimise the chances of call-in and ward off potential objectors from the outset'.

37. Within this framework the letter deals in a businesslike fashion, although in outline only, with the factors which are going to count: the sequential test in the coming version of PPG6; a retail study to 'back up' development proposals; problems of accessibility, calling for separate expert advice; car use and carbon dioxide emissions; regeneration; national and local planning policy; the implications of retail use and finally a section on the best means of making progress with the application. The letter included a tender for further work which the Corporation accepted by a letter of 13th December 1995 from its chief planning officer, Simon Evans, which added:

'As discussed at our meeting last Thursday we see no reason to proceed with a household survey in support of the planning application. This work may, however, need to be considered in the event that the planning application is called in for public inquiry.'

38. On the 14th December 1995 an initial planning application was lodged, and on the following day the Corporation met and approved the outline proposals, 'subject to the full implications of the impact assessment of the retail proposals and the support of the Borough Council'. The minutes also noted 'that should the development go to a public inquiry the whole development would be lost', a prognostication explained by the fact that in March 1998 the Corporation is due to be dissolved having first divested itself of its assets.

39. The Borough Council referred to in the minute was Middlesbrough. On the 3rd July 1996 Middlesbrough Borough Council was to resolve, by committee:

'We are minded to support the application subject to early and satisfactory undertakings from the Teesside Development Corporation within 14 days that, amongst other things, all other projects at the Docks site will be commenced prior to the commencement of the retail development.'

40. Meanwhile, in May, NLP had produced their retail impact study for the Corporation. It was captioned 'Consultation Draft' but does not appear to have been superseded, although it was supplemented by an addendum at the end of October 1996. The report began:

'This retail impact study has been prepared in support of a planning application .......... '

41. It based its conclusions (para 7.3) on the assumed fact that the hypermarket in question was to be 'a replacement of an existing, albeit smaller, Asda store', viz the supermarket at South Bank. It further assumed that the new store would be in direct competition with the supermarket at Berwick Hills for which the first applicant had an extant planning consent. On this basis (para 7.7) NLP forecast a turnover for the new hypermarket which 'would have at least a 25% impact' on the first applicant's Berwick Hills store. The general conclusions (section 8) included the following:

'The relocation, which will involve the closure of the existing Asda at South Bank, will enable Asda to significantly upgrade their representation in Middlesbrough on an accessible site on the fringe of the town centre. There are no town centre sites in Middlesbrough which could accommodate a development of this type. The store will provide customers with a large, modern retail facility offering an extensive range of convenience and some comparison goods in an attractive and spacious shopping environment. The proposed store would have significant customer benefits for customer Asda shoppers as well as providing an attractive alternative shopping destination, improving the choice of convenience shopping in Middlesbrough. (Para 8.2)
The proposal site is located on the fringe of Middlesbrough town centre, as identified in the draft Middlesbrough Local Plan. The proposal will therefore provide a modern food and non-food retail development conveniently located in the town centre enabling shoppers and visitors to undertake linked trips to the town centre in one trip. (Para 8.4)
It is concluded that the relocated Asda store whether trading in isolation or together with a Morrisons store at Berwick Hills, would not undermine the vitality of Middlesbrough Town Centre or any district or local centre within the catchment area. (Para 8.5)
The closure of Asda [at South Bank] would release turnover into the area to be recouped by existing or new retailers .... who will continue to meet some of the needs of the surrounding population. (At para 8.6)
Overall, it is concluded that the retail impact effects on the proposed development at Cargo Fleet/Middlehaven are not so significant as to undermine the vitality and viability of Middlesbrough Town Centre or any district or local shopping centre as a whole. The proposal itself offers significant qualitative benefits in providing a large, modern retail destination, on an accessible site on the fringe of Middlesbrough Town Centre, enabling shoppers to link trips with the proposed new stores and the town centre. (Para 8.8)'

42. Between the unfortunate introductory sentence and these conclusions the study is, as one would expect, detailed and factual. But, as the concluding quotations indicate, it ends as it begins in a sanguine tone entirely supportive of the proposed development.

43. During the following month, June, the final revised version of PPG6 was issued by the Secretary of State. On the 20th of that month the first applicant wrote to Middlesbrough Borough Council setting out its objections to the Asda proposal. By the 3rd July, when it resolved conditionally to support the proposal, Middlesbrough's committee had before it a report of Hillier Parker, prepared as a critique of the NLP report which had been supplied in the course of the consultation process to the two borough councils. It was placed before the decision-making committees of the councils, and its conclusions were copied to the Corporation along with the councils' responses to the planning application. But by a chapter of accidents the full Hillier Parker report, although not a confidential document, was not sent by either council to the Corporation or sought by the Corporation from either council. All that had happened was that a request made directly to Hillier Parker had been refused on the legitimate ground that the latter had no authority to disclose it.

44. Nevertheless, the respondent's chief executive received with Middlesbrough's resolution of conditional support a note of other information that the council was likely to require, including the following:

'We would like the two firms of consultants to do some immediate intensive work to get an agreed impact on North Ormsby, Berwick Hills and the town centre.'

45. In addition to the concerns prompted in Middlesbrough's mind by the Hillier Parker draft report and - no doubt - the first applicant's objections, there was before the committee a thorough report of the council's Director of Economic Development and Transportation, drawing attention to the planning criteria, summarising the NLP study and concluding:

'These proposals are therefore contrary to both Structure and Local Plan policy. In my view, however, this is not necessarily in itself a sufficient reason to recommend rejection if their integral relationship to achieving the overall regeneration of the whole site comprising land at Middlehaven and Cargo Fleet can be proved. (para 6.3)
In a technical sense, therefore, and subject to appropriate conditions, the site can be accessed by the private car but clearly does not meet the relevant policy planning guidance issued by the Government...... (para 7.5)
My general conclusion in respect of PPG6 is that these proposals meet the 'sequential approach'. Members will know that realistically there is no alternative site in or adjacent to the town centre which could accommodate this scale of development. (para 8.2)
Members will appreciate that retail impact assessments are an art form not a science. If Hillier Parker's analysis is correct there will be impact on central Middlesbrough but the strength of the centre will not be too greatly harmed, although choice will be restricted for those who do not have cars. The effect on North Ormsby and Berwick Hills is high and could lead to closures. (para 9.3)'

46. Among the final conclusions are these:

'v. The proposed Asda development is contrary to established planning policies and does not fit government planning guidance .......
vi. There is no quantitative justification for additional food shopping in the area.
vii. The proposals are likely to stop the Berwick Hills redevelopment if Asda proceeds either before or in parallel with the Morrison scheme. If Asda trades later with Morrisons at Berwick Hills operational the impact on centres in Middlesborough such as North Ormsby and the other shops in Berwick Hills will be, according to our consultants, higher and unacceptable. (para 12.1)'

47. In consequence the Director advised further exploration before any decision was arrived at. In the event, as I have indicated, the council committee rejected his advice and instead resolved at its July meeting to give conditional support to the proposal.

48. The conclusions of the Hillier Parker critique, which had reached the respondent's chief planning officer, Simon Evans, formed part of the material upon which he reported to the July meeting of the respondent. It was Middlesborough's support, albeit conditional, which Mr Stanley Brodie QC on the respondent's behalf stresses was crucial to its decision of the Corporation to proceed. By the date of the respondent's meeting, the 19th July 1996, other responses to the consultation process had also been received. Redcar and Cleveland Borough Council, the second applicant, had resolved to oppose the development because of its conflict with the Structure Plan. Its chief economic development and planning officer had written to Mr Evans on the 17th July enclosing the full report to committee upon which the resolution had been based. The report, recommending that the application be opposed, said:

'The retail impact assessment from Nathaniel Lichfield clearly needs further clarification. Discussion between the two consultancy firms needs to take place.'

49. The second applicant's concern, naturally enough, focused upon the proposal to close the Asda store at South Bank. The day before the Corporation's meeting, however, Asda sent a letter to the second applicant's chief executive, saying:

'I wish to reiterate that Asda is prepared to keep open their existing South Bank store following the opening of the hypermarket at Cargo Fleet, Middlehaven Dock. Clearly we cannot guarantee that any store in our group could stay open in perpetuity but would reiterate the offer of the South Bank store remaining open for a period of up to three years.'

50. Although the text of the letter does not indicate that it was to be copied to anybody else, Mr Village, for the second applicant, has pointed out that the copy produced by the respondent can be seen to have been faxed to it on the 19th July. I will return to the significance of this in a moment.

51. Among the other responses to consultation, none of which supported the proposal, was the response of the Tees Valley Joint Strategy Committee. Upon the abolition of Cleveland County Council, which took effect on the 1st April 1996, provision had to be made for the replacement of strategic planning functions above local authority level. By a circular (4/96) the Secretary of State advised the making of arrangements for joint working on structure plans. Accordingly the borough councils of Redcar and Cleveland, Hartlepool, Stockton-on-Tees, Middlesbrough and Darlington pooled their strategic planning functions by the formation of a Joint Strategy Committee to deliberate and speak for all of them. Its establishment, consisting of the member authorities' planning officers, was known as the Joint Strategy Unit (JSU). On the officers' recommendation, the Joint Strategy Committee on the 2nd July resolved to oppose the development because it was contrary to the structure plan. The letter of 9th July 1996 conveying the Joint Strategy Committee's resolution to Mr Evans added:

'The important point to note is that the borough councils have delegated to the JSC the responsibility for approving the Structure Plan and for commenting on major planning applications.'

52. The respondent Corporation (this is its legal name, although its members collectively refer to themselves and are referred to by the Department as 'the Board') does not routinely see all the primary materials relevant to the decisions it has to take. Apart from the chairman, the members rely principally upon the report of the chief planning officer, Mr Evans. Mr Evans does not attend the Corporation's meetings, but the chief executive, Mr Hall, who is not a professional planner, does. Unlike a local authority, an urban development corporation is not required to publish its agendas or agenda materials. It has consequently only been in the course of these proceedings that Mr Evans' report to the corporation at its crucial meeting in July 1996 has come into the applicants' hands.

53. Mr Evans himself summarises the report in these words:

54. His report first sets out the proposal and then summarises the relevant parts of the Cleveland structure plan. In relation to the draft Middlesbrough local plan the report says:

'The application site is designated within the fringe of Middlesbrough town centre and is suitable for development for either prestige industry or retail development.'

55. Under the cross-head 'consultations' the report begins by reporting Middlesbrough's conditional support. It then reads:

'TVJSU - recommend refusal as contrary to Cleveland's structure plan Policies IND 7, SH2 and Sh3'.

56. The report then deals with the retail impact assessment, recording that NLP had been instructed to carry out such an assessment and drawing attention to NLP's appended conclusions. No mention is made in the body of the report of Hillier Parker's known doubts about these conclusions. The passage goes on:

'In summary, it is concluded that the retail impact effects of the proposed development are not so significant as to undermine the vitality and viability of Middlesbrough town centre or any district or local shopping centre as a whole. The proposal is considered to offer significant qualitative benefits in providing a large, retail destination, on an accessible site on the fringe of Middlesbrough town centre, enabling shoppers to link trips to the proposed new stores and the town centre' -

57. Mr Evans advised that because of the departure from policy IND7 the proposal would have to be referred to the Secretary of State so that he might consider calling it in. He flagged up as issues of outstanding concern the retail impact on South Bank, North Ormsby and Berwick Hills and the need to ensure that varied means of transport were available. In relation to the first, he said, 'It is accepted that a reconciliation of the Hillier Parker and Nathaniel Lichfield views should be achieved'.

58. Mr Evans' report continues:

(i) Asda have indicated that they are to close their South Bank store but in view of the current application ensure that the current store remains open.
(ii) Conversely Asda have indicated a willingness to work with the Council for the redevelopment of the neighbourhood centre ......
(iii) Nathaniel Lichfield also plainly recognise that the issue is not simply about trade diversion but the greater consideration of the neighbourhood shopping facilities for South Bank.

59. It is necessary to note that this passage is the first mention of the second applicant's objection. Perhaps because the letter conveying the planning committee's decision of 11th July had only been sent on the 17th July, it had not been included in the summary of consultations earlier in Mr Evans' report. The result, however, was that members of the respondent Corporation were given a damaging critique of the second applicant's objection without knowing what the substance of the objection was.

60. Mr Evans then summarised the principal factors which his report had addressed. His summary began:

'(i) the Development Corporation has a statutory duty to secure the regeneration of the Middlesbrough Dock area (when retail issues are considered this fundamental point is often ignored)'

'(ii) whilst the application is of necessity limited to the retail element of the overall Middlesbrough Dock redevelopment scheme,it is implicitly but a part of a £100 million scheme creating more than 2,500 jobs with two of the key elements already in place, i.e. the stadium and the new quayside facilities for ship engineering.'

61. It included the proposition, stated as a fact, that the development 'does not undermine the vitality and viability of any centre', and a final proposition that 'the detailed transportation provision can be addressed and facilitated'. Mr Evans therefore recommended that planning permission be granted subject to a series of pre- and post-commencement conditions concerning infrastructure, access, use of retail space, landscaping and - of course - referral to the Secretary of State as a departure from the development plan.

62. The minute of the Corporation's meeting of the 19th July reads as follows (I will italicise the sentences which have attracted particular criticism):

'9.5 Planning Application TDC/96/049 The Chief Executive advised the Board that Middlesbrough Borough Council have now agreed to support this planning application subject to a series of conditions, which the Board agreed to meet,including the publication of a statement that the full scheme will proceed before the start of the retail element. In terms of objections from other agencies, the Chief Executive explained that the Joint Strategy Group were not a consultee, and had no formal status. The objection from ICE, the developers at Berwick Hills had been taken into account by Middlesbrough's members. Helical Bar as developers of the last phase of Middlesbrough Town Centre objected to the scheme albeit a newly published national survey revealed that the Centre had the third highest rental growth in the UK. In relation to the objection from Redcar and Cleveland District Council on the grounds of closure of South Bank Asda. Asda have in fact agreed to retain their store for at least three years. Formally, TDC has a statutory duty to redevelop under Section 136 of the Local Government & Planning Act 1980 and there is no alternative site for this retail development. Because of the success of Middlesbrough Football Club the site has very high profile, being frequently exposed to national television which simply highlights the surrounding dereliction and decay which exist at present.
The Board agreed to accept the recommendations and noted that the National Tall Ships Centre would have to move to Hartlepool if the planning application was called in. It as agreed that the Chairman should write to Sir Paul Beresford and Lady Blatch to highlight the need to implement the redevelopment scheme as a whole and thus complete all of the major developments of the Corporation.
The Chief Executive advised the Board that the new footbridge for the football stadium would be in place by the start of the season, and the pedestrian ramps would be completed on 7th September.'

63. By the end of July Middlesborough Borough Council had changed its mind. The respondent's chief executive, Mr Hall, took the view that it was because of further representations by the first applicant that it did so. The first applicant had written to Middlesborough on the 25th July, having realised that Middlesborough had rejected its officers' advice to defer a decision and had instead resolved on conditional support for the proposal, to warn Middlesbrough that it was going to reconsider its input into the Berwick Hills scheme. I will not spend time on the detail of that input but it was regarded as capable of making the difference between the success and failure of the City Challenge project upon which Middlesbrough had embarked at Berwick Hills. The director's report to Middlesbrough's committee on the 29th July dealt both with Morrisons' concern and with the Corporation's failure to meet all the council's concerns about the development. As to the former, the director said:

'I believe there is now a possibility that if the Middle Haven/Cargo Fleet proposals proceed without the scrutiny of a public inquiry, Morrisons will withdraw.'

64. He advised that Middlesbrough should change its stance to one of opposition to the proposal because of its conflict with the structure and local plans. The committee resolved accordingly.

65. At its meeting on the 20th September 1996 the respondent corporation agreed to grant planning permission provided the application was not called in by the Secretary of State. Its minute reads:

'The Chief Executive advised the Board that following the last Board meeting Middlesborough Borough Council had reversed its decision and decided to request the Secretary of State to call in the planning application for the retail development at Middlehaven for a formal inquiry following pressure from Morrisons who are the developer of Middlesbrough's City Challenge Berwick Hills project. A decision is still awaited from the Secretary of State as to whether the project will be called in or left for the Corporation to determine. The Board formally agreed that in the event of the project not being called in the Corporation would approve the development. If the project however was called in the Corporation would cease the development of Middlehaven and would move the Tall Ships Centre to Hartlepool.'

66. There is no Board Paper among the documents relating to this

'Neither the Board nor myself thought it appropriate to place any great weight on the apparent change of view of Middlesbrough Borough Council. It appeared to us that the borough council had been pressurised by the [first] applicant to alter its position, by threatening to pull out of the Berwick Hills scheme if the borough council continued its support of the Asda hypermarket as an element of the Middlesbrough Docks scheme.'

67. At its meeting on the 15th November 1996 the Corporation had before it a supplementary paper from Mr Evans recording the decision of central Government not to call in the application. On his advice the Corporation granted planning permission for the Asda development upon a series of conditions proposed by Mr Evans, among which was one requiring the submission of a scheme for 'investigation of options for setting up and supporting a dedicated bus service to the retail development.'

68. The consent was issued on the 22nd November 1996. Following the grant of leave to the first applicant by Hidden J on the 4th February 1997 and to the second applicant by Collins J on the 19th March 1997, the hearing of both applications has been expedited. I record my thanks to those who have prepared an orderly series of complete and select bundles of the now voluminous documents.

69. At the start of the hearing I gave both applicants leave, without opposition on the respondent's part, to amend their originating notices of motion. The argument, however, has acquired a further dimension through the disclosure at the start of the hearing of Nathaniel Lichfield & Partners' letter of 8th November 1995 to which I have made reference. The applicants do not suggest bad faith, but they now submit that what had appeared to be a drafting slip in the report later submitted by NLP to the respondent Corporation ('This retail impact study has been prepared in support of a planning application ......') was in fact a reflection of the true situation. What the applicants had in any event intended to criticise as an over-sanguine report which neglected negative planning considerations, they are now able more boldly to criticise as a report which to the respondent's knowledge had set out not simply to evaluate but so far as respectably possible to support the application for a hypermarket development.

70. Mr Brodie for his part does not seek to gloss or explain away the approach taken by NLP or the respondent Corporation. It is his submission that the Corporation, charged as it was by statute with a duty to secure the regeneration of its area, was certainly entitled and arguably obliged to lean in favour of a development which in its judgment would contribute to the achievement of its statutory purpose. The report, he submits, was an objective professional appraisal of retail impact. The applicants do not, I think, heavily contest this description of the respondent's duties but they submit in addition that an urban development corporation in which planning functions have been vested is no different from a local planning authority with statutory obligations upon which its planning functions impinge. The duty in each such case, they submit, is to carry out the planning functions with objectivity and without favouritism, albeit with due regard to regeneration as a planning factor. Both sides agree that while regeneration always plays a part, and can play a crucial part in an appropriate case, in a UDC's planning decision, it has no legal priority. From this point there is a difference, perhaps only of emphasis but nevertheless significant, to which I shall return.

71. The broad issue can meanwhile be posed in this way: has the respondent Corporation in seeking to carry out its functions departed from its duty of objectivity and approached the Asda planning application in an unacceptably partisan way? Within this broad issue a series of specific legal issues is then identified by the applicants. The first tranche of these allegations is to the effect that the structure plan (a development plan to which the respondent's determinations are required by section 54A to conform unless material considerations indicate otherwise) and the local plan (a further material consideration within section 70(2)) both exclude a retail development of this size in this location; and that it was because of a series of failures to appreciate the meaning and effect of the policies and to weigh the countervailing factors properly against one another that the respondent Corporation concluded that it should grant permission for a development which breached the structure plan. The second tranche of allegations is of errors of fact which, it is submitted, were of sufficient importance to have been capable of making the difference in a case as problematical as this one.

72. For reasons which will become apparent, I propose to take these broad heads of challenge in reverse order.

73. Although taking into account a false fact must logically fall within the class of irrelevant matters taken into consideration, not every error of fact is fatal. In the important but unreported case of R v London Residuary Body, ex parte Inner London Education Authority (3rd July 1987) a Divisional Court, following the decision of Cooke J in Daganayasi v Minister of Immigration [1980] (2 NZLR 130), held that

'a mistake as to fact can vitiate a decision as where the fact is a condition precedent to an exercise of jurisdiction, or where the fact was the only evidential basis for a decision, or where the fact was as to a matter which expressly or impliedly had to be taken into account'.

74. One of the curiosities of planning law is that it seems to have developed its own jurisprudence of judicial review. The decision of the Court of Appeal in Bolton MBC v Secretary of State for the Environment (1990) 61 PCR 343 which is rarely cited in non-planning cases, sets out a slightly more detailed basis of review for error of fact. The case turned on the law relating to relevant and irrelevant considerations, and neither the ILEA case nor the Daganayasi case was cited; but in summarising the court's conclusions Glidewell LJ held:

'If the judge concludes that the matter was fundamental to the decision, or that it is clear that there is a real possibility that the consideration of the matter would have made a difference to the decision, he is ...... enabled to hold that the decision was not validly made.'

75. The latter of these two categories, it seems to me, chimes with and clarifies the last of the three categories identified in the ILEA case ('a matter which ...... had to be taken into account'). A matter which the court is satisfied could have made a difference to the decision is, according to the Bolton case, a matter which has to be taken into account (provided, of course, it is not excluded on other grounds), so that omission to take it into account (as held in the ILEA case) is a potentially vitiating factor.

76. The principal alleged error of fact concerns Asda's promise or indication about the immediate future of its existing store at South Bank. In the light of the local and national policy objectives the prospects for South Bank if the Middlehaven development went ahead were clearly important. The Corporation, which had before it two contradictory scenarios, appears from its minute to have assumed a third for which it had no evidence at all. As has been seen, the conclusions of the NLP report which were placed verbatim before the Corporation at its July meeting assumed and asserted an unqualified closure of Asda at South Bank, with consequences which in NLP's view included the release of purchasing power to existing or new retailers at South Bank. Mr Evans, by contrast, reported to the same meeting:

'Asda have indicated that they are to close their South Bank store but in view of the current application ensure that the current store remains open'.

77. This, as we know, was based on Asda's letter, plainly written with the July meeting of the Corporation in mind, reiterating 'that Asda is prepared to keep open their existing South Bank store following the opening of the hypermarket at Cargo Fleet, Middlehaven Dock ...... for a period of up to three years'. Mr Evans, the chief planning officer, was not at the Corporation's meeting; but I draw the inference that it was Mr Hall, the chief executive, who must have advised the Corporation - erroneously - that it was for at least three years rather than up to three years that Asda were either undertaking or indicating that their South Bank store would remain open: hence the minute. The alternative, if my inference is wrong, is that the minute is wrong and that the Corporation was correctly advised that the Asda assurance was for up to three years. In either case the information, and more importantly its planning implications, was directly at odds with the factual assumption made by NLP in their advice. If Asda's South Bank store was to remain open for up to three years, there would be three major retail food outlets during the start-up period at Middlehaven within a relatively small distance of one another; and if it was to be for at least three years the implications would change yet again.

78. Mr Brodie submits that there is nowhere anything which the respondent could have regarded as an agreement to keep the South Bank Asda premises open, with the result that there was no possible misappreciation of fact. As Sir Ronald Norman deposes, the leader of Redcar and Cleveland District Council, at a meeting in February 1996, had told him and Mr Hall that in his view the Asda store at South Bank would close imminently in any event. This view, Sir Ronald deposes, was reported to the Corporation at its July meeting. He says: 'While, therefore, the Board was in favour of deferring the closure of the Asda store at South Bank if that were possible, it did not believe that the effect of the proposed development would justify refusal of the planning application.' I find this puzzling. By the date of the July meeting of the Corporation, its officers knew (although its members apparently did not) that Asda had placed on record an intention to keep the store at South Bank open, manifestly because they thought it would help their planning application. While this, according to Sir Ronald, was something the Board favoured, 'it did not believe that the effect of the proposed development justified refusal of the planning application' - a syllogism which I regret I am unable to follow. Deferral of closure of the South Bank Asda store had nothing directly to do with the proposed development; but its indirect effect, which might be highly relevant, necessarily depended on whether the closure was to be deferred and, to an almost equal extent, on whether three years was the maximum or the minimum length of deferment. So I find it very difficult to accept the implication of the Chairman's evidence that the future of the South Bank Asda store was regarded, or could properly be regarded, as inconsequential to the planning application. In fact he goes on to depose that the impact on South Bank as a whole was considered:

'The Board took the view that the benefits of the scheme for the residents of Teesside outweighed the possible consequences for South Bank. The damage that the consultees claimed South Bank would suffer if the planning application were granted was contradicted by the Nathaniel Litchfield study.....'

79. That the Corporation was labouring under a material error of fact in this respect is thus in my view beyond doubt. I will return its materiality when I come to evaluate the case for intervention as a whole.

80. The second alleged error of fact relates to the status of the Tees Valley Joint Strategy Committee. As has been seen, it was marginalised by paragraph D of Mr Evans' observations to the Corporation. The reason given to the Corporation was that the JSC's objection conflicted with the support given by one of its member bodies, Middlesborough Borough Council, which was the statutory unitary authority and which, had the JSC's response been channelled through Middlesbrough Borough Council, 'would ..... have been subsumed into MBC's overall supportive response'. This dismissive treatment of a rather important local planning body is explained on the respondent's behalf as being influenced by the fact that the JSC was not a formal consultee. This, I suspect, was because it had only come into being after the list of formal consultees had been finalised. But it had a voice which the Corporation was obliged to hear and which, given its composition and remit which I have described above, was entitled to have its views taken seriously by the respondent Corporation. Indeed, on strategic matters it and not Middlesbrough, which had delegated these functions to the Joint Strategy Committee, was the voice which mattered. Instead the respondent Corporation was neither told what the JSC's grounds of objections were, nor indeed what the JSC was (the reference throughout was to its officers' grouping, the JSU). It was told, in effect, that whatever the JSC submitted could be safely ignored in favour of Middlesborough's supportive submission. This was in my view an error both of fact and of law, and one not negated (for reasons I will come to) by the chairman's deposition that 'Its views were recorded in the Board paper and were taken into account'. I will return to this error, likewise, at the end of this judgment.

81. I intend no disrespect to the applicants' counsel if I do not dwell upon the other errors of fact which they contend were influential. They are, in my view, either peripheral to the decision or more relevant to the question of approach, to which I will come.

82. A great deal of the applicants' case, especially as advanced by Mr Steel for the first applicant, is posed in terms of giving insufficient weight to planning policies and guidance which militated against the grant of permission. I do not say that such an allegation can never be made out, but the weight to be attributed to matters to which regard is lawfully had is axiomatically a matter for the decision-making body. It is only in the quite exceptional case where something is given a weight so disproportionate as to be irrational that the court can ordinarily intervene. Anything else is likely to take the court into the forbidden territory of re-evaluating the planning merits. Nevertheless, in the exercise upon which the respondent Corporation was engaged, some elements are by law given greater weight than others. In particular there is the statutory presumption, to which I have referred, in favour of adherence to the structure plan. As to the requirement to have regard to such material matters as the local plan, having regard to something means more than simply acknowledging its existence. It means understanding its character and making a fairminded appraisal of it in the context of all the other relevant matters with which it shares the floor.

83. Part of the exercise of independent judgment by a lay body advised by professional officers is the decision whether and to what extent to accept the officers' advice. In the present case the chairman of the respondent Corporation, Sir Ronald Norman, has deposed:

'The material advice given to the Board by these officers [Mr Hall and Mr Evans] ...... was, in the event, accepted in its entirety.'

84. He goes on to confirm the accuracy of the evidence of Mr Hall and Mr Evans as to events at the Corporation's material meetings. Mr Hall, the chief executive, deposes that at the crucial July meeting:

'The Board had before it the paper prepared by Simon Evans which seemed to me to have addressed all the relevant planning policies and the material considerations to be taken into account.'

85. I proceed, therefore, on the basis that what was acted on by the Corporation at this meeting, which Mr Brodie tells me was a long one, were the contents of and the annexure to Mr Evans' paper and any further information given orally at the meeting by Mr Hall. As to the latter class of information I have the official minute, and there is no evidence from either the chairman or the chief executive of any other material information conveyed by Mr Hall to the Corporation.

86. I propose to deal fairly shortly with this tranche of submissions because it appears to me to merge in the larger submission to which I shall come next.

87. The potent series of arguments set out on behalf of each applicant is predicated upon departures from all the planning criteria which I have described earlier in this judgment. But the reason why planning authorities exist is precisely to be able to consider whether in any one case policy should be adhered to or departed from. If everything else is done properly, a departure from policy - whether strategic plan, local plan or departmental guidance - is within its powers. But it behoves an authority which is considering such a departure to understand exactly what it is in the proposal which constitutes the departure. Without this foundation of knowledge, the relative merits of abiding by or departing from plan or policy cannot be properly judged.

88. I therefore single out the two respects in which, as it seems to me, the applicants may have grounds for contending that the respondent Corporation has misunderstood the policies to which it was obliged to have regard. Their broader submissions, to the effect that neither the Board Paper nor the minutes nor the affidavit evidence record any consideration of the relevant planning presumption and of what was needed to displace it, are in my view misconceived. This was a body of knowledgeable people, in the tenth year of its existence, which is not required in my view to intone a litany of basic principles every time it comes to a decision. If their approach to the planning issues is to be faulted, it must be because of flaws which can be affirmatively demonstrated.

89. One flaw which the applicants contend can be affirmatively demonstrated here is the understanding of 'edge-of-centre' or 'fringe-of-centre' upon which the officers' advice to the Corporation was based. Mr Evans, it will be recalled, advised the Corporation that the application site was 'designated within the fringe of Middlesbrough town centre and is suitable for ..... retail development'. He went on to summarise the NLP advice as being that the proposed development was 'on an accessible site on the fringe of Middlesbrough town centre'. In his observations, however, at paragraph B, he drew attention to what he took to be the discrepancy between the new PPG6 definition, which took the proposed site out of the 'fringe' category, and the draft local plan which, he advised, placed it within the town centre fringe and designated it for retail development there. Although policy SA3, in its 1995 consultation draft, had contemplated such development, Mr Steel points out that the deposit draft, dated July 1996, reduces retail use in the Cargo Fleet fringe location to bulk goods. The Corporation's attention was not, apparently, drawn to this at any time before it finalised its grant of permission. But more importantly, Mr Steel and Mr Village submit, the old SA3 policy was by July 1996 in clear conflict with the new guidance contained in PPG6, positing a test of 'easy walking distance' and calling for a sequential rather than a direct approach to location.

90. This is not a critique which I am prepared to endorse. It was for the Corporation, in deciding whether to accept, modify or reject Mr Evans' advice, to consider whether he had suggested an acceptable balance between two apparently incompatible planning criteria, to both of which weight had to be given but neither of which had the force of law. The chairman, Sir Ronald Norman, deposes that the Corporation appreciated the significance of the different concepts of 'edge-of-town centre' and gave greater weight to that contained in the new PPG6. However, 'even the more stringent condition ........ was ultimately outweighed by other considerations'. The real problem, to which I shall come, is the evident disposition of the Corporation first to seek and then to adopt advice which itself made every choice and placed every emphasis on the side of a development which under the strategic plan was presumptively objectionable.

91. A second objection under this head is that the sequential approach was misunderstood and so misapplied. Mr Evans, it will be recalled, passed on NLP's advice that, applying the sequential test, no site was readily available 'to accommodate the scale of the proposed development any closer to Middlesbrough town centre than the application site'. This, the applicants submit, entirely misses the point of the sequential test. Plainly the larger the proposed development, the less likely it is that there will be a site for it in or near the town centre. To allow the scale of the proposed development, therefore, to determine the outcome of the sequential test is to drain the sequential test of meaning and purpose. If one looks, for example, at NLP's plan in support of the sequential analysis, it identifies nine sites of varying sizes within the town centre.

92. I do find the approach of the professional advisers to this issue bland. But the sequential test itself has an inbuilt difficulty, since to refuse an out-of-centre planning consent on the ground that an admittedly smaller site is available within the town centre may be to take an entirely inappropriate business decision on behalf of the developer. In other words, some regard has inevitably to be given to the developer's own estimate of need in terms of space, with the result that the sequential approach is as much a negotiation as a calculation of the point at which a halt has to be called to the proposed exodus. For this reason I am not willing to accede to the submission that the admittedly bald and perhaps unconvincing assertion that a development of this size will not fit into the town centre represents a misunderstanding of the policy of PPG6. It seems to me, rather, to represent one extreme - the extreme most favourable to the development - of the range of possible balances between size and distance. If so, it is not legally objectionable in itself; but it too may have a bearing on the question of predisposition.

93. A further reason why I have deferred reaching a conclusion about the legal effect about the matters which I have so far identified is the wisdom of the course taken by Schiemann J in R v Poole Borough Council, ex parte Beebee [1991] 2 PLR 27 and commended to me, rightly, by Mr Brodie. The final two paragraphs of Schiemann J's judgment, which concerned apparent errors of approach by a planning authority which was in effect granting itself planning permission, contain these passages:

'Having looked at all the evidence, I am not persuaded that the committee here were misled at all. Planning circulars and structure plans are full of broad statements with many presumptions, many of which are mutually irreconcilable, so that in a particular case one must give way to another. Neither the instant report nor the planning circulars are to be read as though they were taxation statutes to be carefully construed........
In my judgment, when one looks at the evidence as a whole rather than the odd isolated phrase in one or other of the documents before the council, there is no reason to suppose that the council took into account any significant matter which they should not have taken into account; or that they failed to take into account any significant matter which they ought to have taken into account; or that they committed some other error which should lead to this permission being quashed. Some of the criticisms made by Mr Ryan of this phrase or that do have force. But at the end of the day the court has to sit back, as it were, and ask itself whether there was anything which vitiated the decision-making process and which would make it desirable for the council to look at this matter again.'

94. I start from the common ground that the planning function of an urban development corporation is no different in its character or content from that of any other planning authority. This includes an obligation to treat as a relevant factor the regeneration plans of the Corporation, exactly as would be the case if the Secretary of State had not made an order under section 149 and the planning decision was therefore being taken by Middlesborough Borough Council.

95. It is of primary relevance that the specific means spelt out in s.136(2) of the 1980 Act by which an urban development corporation may carry out its regeneration remit do not include the use of any planning powers conferred on it under s.149. While s.136(4) may in an appropriate case have the effect of dislocating the exercise of planning powers under s.149 from the wide functional powers contained in s.136(3), Mr Brodie is in my judgment right not to suggest that this permits the regeneration function to override the planning function. It is evident from s.136(6) that the wide powers are there in aid of the regeneration function, leaving the corporation under s.149 in the same legal position as any other planning authority.

96. Where a difference may legitimately arise in practice is in the weight which a planning authority decides to give, within reasonable bounds, to the regeneration of its area. If the planning authority is an urban development corporation, its members may choose collectively to give greater weight to the regeneration of the urban development area than the local authority might have done had a s.149 order not been made. To rule this out would be to ignore the necessary implication of Parliament's having allowed the transfer of planning functions to urban development corporations; but it is only in this sense that I would accept Mr Brodie's final submission that the purpose of the s.149 power is 'to assist in the discharge of [the Corporation's] statutory objectives'. This is enough, however, to draw the sting of the applicants' criticism that by highlighting the role of the Asda proposal in the scheme for regenerating Middlesbrough Dock Mr Evans in his Board paper placed an irrelevant consideration before the Corporation.

97. Where the two functions are united in the same body, and even where that body owns the land and can sell it only if it grants planning permission, no objection can be taken on the ground that the body has become judge in its own cause, any more than it can be where a local authority grants planning permission to itself.

98. There are, however, two factors of importance which qualify these propositions. The first is that a planning authority must be particularly scrupulous about evaluating a planning application in the correct policy perspective when it itself has an interest, in another capacity, in the success of the application (see Steeples-v-Derbyshire CC (1985) 1 WLR 356 at 388-389 per Webster J) . This applies to all planning authorities, but especially to one which does not distribute its functions among different committees. The second is peculiar to urban development corporations which, unlike elected local authorities, are entitled to meet behind closed doors and without prior or subsequent publication of their agenda materials or minutes, and which are composed of individuals who (although their probity and experience are not in doubt) do not have to submit themselves periodically to the public for re-election as commissioners. In this situation, with no ready means of public scrutiny of this decision-making process and no public verdict on their decisions, the obligation resting on an urban development corporation to take a scrupulously objective approach to planning applications is very real.

99. I have been driven to the conclusion that there has been in the present case a pervasive departure from the requirement of the law that a planning authority must evaluate an application objectively and without prejudgment of its merits. It can be seen from the material set out earlier in this judgment that in its capacity as an urban development corporation the respondent had come to the perfectly legitimate view that the regeneration of Middlehaven called for a comprehensive redevelopment which would include a major food retail outlet. The Asda proposal fitted the bill and was welcomed by the Corporation. But, as was plain almost from the start, such a development would be in direct breach of Policy IND7 in the Cleveland Structure Plan. This policy, it will be recalled, nominated Middlehaven among the locations to be considered for uses which excluded large scale retailing. On any view a food store of more than 100,000 square feet gross was going to be large scale retailing. In addition, a great deal was manifestly going to depend upon a careful appraisal of the likely effect of the development on the vitality and viability of the existing town centres of Middlesbrough and Redcar, which were - according to the policy which was being firmed up while the planning application was pending - to be so far as possible enhanced by and not merely protected from the effects of new developments. In these circumstances it was the Corporation's task to weigh up with great care the best objective advice they could obtain in order to decide whether the burden of establishing a case for departure from the development plan had been discharged.

100. It was not upon the developer, in the event, that the burden of rebutting the adverse presumptions fell. It was the Corporation which made the running on the developer's behalf. It is clear, in my judgment, from the tone and content of the two reports the Corporation obtained from NLP (the initial appraisal and tender and the draft retail impact analysis) that NLP took themselves to be in the same position as if they were advising the developer. It is also clear that the cause of this was the briefing which their letter of 8th November 1995 shows them to have had from the Corporation's officers. The object of both briefing and advice was to justify, so far as could be done within proper professional bounds, the departure from the strategic plan which the Corporation, pursuing its regeneration function, desired.

101. Mr Brodie, in an elegant and persuasive submission, has urged that in the absence of any suggestion of bad faith or incompetence on NLP's part - and there is none, for they are highly respected professionals in the field - the fairness and objectivity of their report cannot be impugned. The full report, as he points out, between its unfortunate opening paragraph and the conclusions which were placed in photocopy before the Corporation, contains nothing but a professional examination of the topics relevant to the consultants' remit. This I accept (making it unnecessary to set out the report in extenso); but what I do not accept is that objectivity is the same thing as neutrality. There is a certain dramatic irony in the persuasiveness with which Mr Brodie, never straying from the path of objectivity, has contended otherwise. What matters is that, without any more departure from professional standards than counsel is guilty of in presenting one side of a case rather than another, NLP directed its reasoning to the case for granting planning permission.

102. This might not have mattered if the Corporation's chairman and members had appreciated, or had been advised by their chief planning officer, that the conclusions which had been placed before them, whilst supported by the evidence in the report, were not the only conclusions it was reasonable to draw but were those which corresponded with the regeneration objectives that had formed part of the consultants' brief. But there is no evidence at all that this was done. Instead Mr Evans, the chief planning officer, pursued the regeneration case at the expense of the planning case in his report to the July meeting of the Corporation. The report does not come anywhere near being a neutral appraisal of the planning case. While Mr Evans' own summary (quoted earlier) of his stance is perfectly candid, his report does not reason its way to that stance: it simply adopts it. It fails to explain the terms in which NLP had been briefed; it adopts a version of the sequential test which is dominated by the chosen scale of the development; it dismisses the relevant views of the Tees Valley Joint Strategy Committee of local authorities without even saying what the views are; and it dismisses the second applicant's objections (which again are not set out) on grounds of which one is factually dubious and none of which the members of the Corporation were in a position to match against the objections themselves. When it came to evaluate the planning case, moreover, the Corporation lacked factual information about the likely future of Asda's store at South Bank, which (with due respect to what the Chairman has deposed) was capable of influencing the outcome; and it was misled as to the true status of the Joint Strategy Committee, whose views it was invited to disregard. And there is in my view force in this context (as there might not have been in an otherwise sound decision) in the applicants' submission that the requirement of policy SH3 in the structure plan of access for all is not realistically addressed by the weak condition annexed to the eventual permission of 'investigating options for .... a dedicated bus service'. In this context, too, the otherwise possibly unobjectionable references to the relevance of the statutory duty of regeneration to the retail issue and the magnitude of the redevelopment scheme to which the planning application would contribute acquire an inappropriate significance, for they contribute to the shift from the proper consideration of regeneration in the planning context to a relocation of the planning issues in a regeneration context. When, shortly after the July decision, Middlesborough changed its mind about supporting the proposal, the respondent's chief executive's dismissive evaluation of the change as a product simply of pressure by the first applicant, while perfectly open to him as a construction of what had happened, pre-empted any evaluation by the Corporation of Middlesbrough's reasoning and again demonstrates a determination not to be blown off course even by the loss of something as important (as Mr Brodie has emphasised it was) as Middlesborough's support for the project. For this reason, too, I do not wish to single out Mr Evans for criticism of his July Board Paper. He was telling the Corporation what it wanted to hear. The latter had, for instance, resolved as early as December 1995, before any consultation had been undertaken, to approve the Asda proposal subject only to the retail impact assessment and to Middlesbrough Borough Council's support.

103. Thus, in my judgment, the Corporation had allowed its regeneration function to dominate, if not to dictate, the performance of its planning function. Its officers and independent advisers, without in any way forfeiting their professionalism, had lent themselves to this task. The result was that in neither quarter - the Corporation or its advisers - was a balanced appraisal made of the case for not breaching policy. The entire exercise was weighted towards justifying the departure.

104. Mr Brodie has accepted that if this were the situation, the decision would be vitiated in law. In R v Secretary of State for the Environment, ex parte Kirkstall Valley Campaign Ltd. [1996] 3 All ER 304, 318-323 I had to consider the law on this question. Since the parties before me do not dissent from my reasoning in that case, it is sufficient to quote my conclusion, drawn from modern English and New Zealand authority:

'The decision of a body, albeit composed of disinterested individuals, will be struck down if its outcome has been predetermined whether by the adoption of an inflexible policy or by the effective surrender of the body's independent judgment.'

105. I held that this principle was not attenuated where Parliament had made the decision-making body to an extent judge in its own cause.

106. In this situation it becomes otiose to consider whether, the local authorities having omitted to send the Hillier Parker report to the Corporation, the Corporation ought to have sought it out; or whether it matters that the decision that the two consultants should be asked to try to reconcile their differences appears to have been allowed to lapse inconclusively. If they stood by themselves these could not in my view amount to grounds for the court's interference. In the light of what I consider to be the fundamental error of approach, they are simply facts which illustrate the want of objective counter-balancing data before the decision-making body: see for example the extract from the chairman's evidence quoted earlier. But they are, in my judgment, an effect and not a cause of the real departure from proper process.

107. If NLP's supportive advice on the application had been annexed to a more balanced paper from Mr Evans; or if Mr Evans' too- sanguine paper had been accompanied by a more phlegmatic set of conclusions from NLP; or if, failing either of these things, the Corporation had approached the professionals' advice with the reserve that the planning presumptions demanded, it might have been difficult for the applicants to impugn the grant of permission. But the Corporation had already decided that unless the retail impact assessment or a negative reaction from Middlesbrough deflected it, it was going to grant permission, and the advice it obtained from both outside and in-house experts was given with this end in view. This was a one-way street.

108. It is entirely understandable that the regeneration potential of the Middlesbrough Dock scheme and the crucial contribution of the Asda proposal to its realisation should have been in the forefront of the Corporation's mind; but its distinct duties in law as a planning authority required the regeneration factor to take its proper place in the planning exercise. Instead, in my judgment, the Corporation from an early date elevated the regeneration potential of the proposal to a level at which objective judgment of its planning merits was foreclosed. This was therefore a case both of the adoption of an inflexible policy in favour of the particular proposal and of the surrender of the respondent's judgment as planning authority to its judgment as urban development corporation. I recognise the difficulty of the dualism of functions which the legislation creates, but it was plainly Parliament's intention not to merge them, even when they were placed in the same hands.

109. It has not been submitted by the respondent, and rightly so, that if I come to the conclusion to which I have come I ought in discretion to withhold relief. I am acutely aware of the importance of this planning application to the UDC's flagship project for the regeneration of Middlehaven. I readily understand too, the great difficulty in which a UDC is placed by the juxtaposition of its proactive regeneration remit with a planning function governed by different principles. But this does not mean that there can be any foregone conclusions. If it were a bench of justices which had erred, I would direct that the decision be retaken by a fresh bench; but that is not possible here. The Corporation, working to as brisk a timetable as will permit it to be properly informed and advised, must retake this decision according to law and with an objective and open mind.

110. Certiorari will therefore go to quash the grant made on 22 November 1996 by the Teesside Development Corporation of planning permission for a hypermarket and related non-food units on land between Marsh Road and Ormsby Beck, Middlehaven, Middlesbrough.

111. This judgment having been communicated in writing to the parties before being handed down in open court without the need of attendance, there will be liberty to all parties to apply in relation to any consequential matter on which it has not proved possible within 21 days of today to submit an agreed order to the Crown Office. Any application for leave to appeal may, if desired, be made in writing, in the first instance ex parte.