England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		July 11, 2002

 


Mr Justice Lawrence Collins:

I Introduction

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

II PPG6, RPG3 and the Caborn statement

PPG6

6. PPG6 on Town Centres and Retail Developments (revised 1996) identified a broad government objective to sustain and enhance the vitality and viability of town centres. It noted that among the key features of the guidance were emphasis on a plan-led approach to promoting development in town centres, both through policies and the identification of locations and sites for development; and emphasis on the sequential approach to selecting sites for development, for retail and other key town centre uses.
7. In the section on objectives and approach, PPG6 states:

“1.3 Town and district centres should be the preferred locations for developments that attract many trips, and local planning authorities should adopt planning policies to:

- locate major generators of travel in existing centres, where access by a choice of means of transport, not only by car, is easy and convenient;

- enable town, district and local centres to meet the needs of residents of their area;

- safeguard and strengthen existing local centres, in both urban and rural areas, which offer a range of everyday community, shopping and employment opportunities;

- maintain and improve choice for people to walk, cycle or catch public transport; and

- ensure an appropriate supply of attractive, convenient and safe parking for shopping and leisure trips.

…..

1.5 Structure plans and UDP Part Is, following consultation with business interests and the local community, should set out the hierarchy of centres and the strategy for the location of employment, shopping, leisure and entertainment, hospitals, higher education and other uses which generate many trips and should be well served by public transport. In particular, the development plan should indicate a range and hierarchy of centres, from city centre, through town centre, district centre to local centres and village centres, where investment in new retail and other development will be promoted and existing provision enhanced. Local planning authorities should, in indicating a hierarchy of centres, recognise that the role, function and relative importance of centres will change over time.”

8. Under the heading “Preferred Locations: the sequential approach” it states:

“1.10 In drawing up their development plans, local planning authorities should, after considering the need for new development, adopt a sequential approach to selecting sites for new retail development. Both local planning authorities and developers selecting sites for development should be able to demonstrate that all potential town centre options have been thoroughly assessed before less central sites are considered for development for key town centre uses. If, however, there is no need or capacity for further developments, there will be no need to identify additional sites in the town.

1.11 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.

1.15 This approach should also apply to all key town centre uses which attract a lot of people, including commercial and public offices, entertainment, leisure, and other such uses. These should be encouraged to locate in city, town and district centres. Small-scale facilities, such as health centres, branch libraries, local offices of the local authority, primary schools, pubs and restaurants, should be encouraged in local centres.”

9. In the guidance:

“…. the term ‘town centre’ is used generally to cover city, town and suburban district centres, which provide a broad range of facilities and services and act as a focus for both the community and for public transport. It excludes small parades of shops of purely local significance. The size of centre will influence the range of activities and its function. The scale of development possible and the opportunities available will differ from place to place. The guidance will need to be interpreted according to the different circumstances of each place.

In London and other large cities, outside the central area, the principal shopping centres usually perform the role of town centres and these are usually complemented by district centres.” (Section 2, box)

10. In the glossary under the term “town centre” it adds:

“The policy guidance in this PPG should be interpreted in a way that relates reasonably to the particular size of town centre concerned.”

11. In the section on planning for retail developments local planning authorities are advised to encourage “a wide range of facilities in district and local centres, consistent with the scale and function of the centre…” (para. 3.18). A local centre is a small grouping usually comprising a newsagent, general grocery store etc. and other small shops of a local nature; and district shopping centres are groups of shops, separate from the town centre, usually containing at least one supermarket or superstore, and non-retail services such as banks, building societies and restaurants (Glossary, Annex A).

Caborn statement

12. Following a series of cases on the interpretation of PPG6 (including R v. Hambleton District Council, ex p. Somerfield Stores Ltd [1998] EGCS 155) the Government issued clarification on the matters to be taken into account when applying the policy tests in the guidance. The thrust of the written Parliamentary answer of February 11, 1999 (“the Caborn statement”) was that planning authorities should, when deciding planning applications for retail and leisure developments outside town centres, take into account the need for the development.
13. According to the Caborn statement, which was intended to “add to and clarify the guidance in PPG6” and referred to the policy on town centres in PPG6 as aiming “to sustain and enhance the vitality and viability of our existing town centres by focusing new investment, particularly for retail and leisure uses within city, town and district centres”:

“Proposals for new retail and leisure development which accord with an up-to-date plan strategy or are proposed on sites within an existing centre, should not be required to demonstrate that they satisfy the test of need because this should have been taken into account in the development plan.

However, proposals which would be located at an edge-of-centre or out-of-centre location, and which:

- are not in accordance with an up-to-date development plan strategy; or

- are in accordance with the development plan but that plan is out of date, is inconsistent with national planning guidance, or otherwise fails to establish adequately the need for new retail and leisure development and other development to which PPG6 applies

should be required to demonstrate that both the need for additional facilities and that a sequential approach has been applied in selecting the location or the site.

….

In applying the sequential approach, the relevant centres in which to search for sites will depend on the nature and scale of the proposed development and catchment that the development seeks to serve. The scale of such proposals should also be appropriately related to the centre - whether town, district or local - the development seeks to serve.”

RPG3

14. RPG3 (Strategic Guidance for London Planning Authorities) states that London has a “dense pattern of town centres usually well served by public transport” (para. 5.1) and advises ( para. 5.2) that:

“Guidance on the national approach to planning for town centres and retailing is given in PPG6. This is applicable to London, but needs to be applied with care as London has many centres performing different functions. PPG6 sets out a sequential approach for preferred locations. The first preference should be for sites in established town centres, but if suitable sites are not available or cannot be made available, edge of centre sites should be considered…Out of centre developments are only likely to be acceptable

where existing centres are incapable of providing good retailing opportunities

where the scale, type and location of such developments would not undermine the vitality and viability of those existing centres

in locations that can be well served by public transport (either existing or proposed)”.

15. Table 5.2, under the heading “Types of London Town Centre”, includes “Major Centres”, “District Centres” and “Neighbourhood or Local Centres”. District centres are described as providing convenience goods and services for local customers, and sometimes having specialist shops or restaurants. Neighbourhood or Local Centres are described as traditionally providing local services for local customers.

III Inspector’s Report and Secretary of State’s Decision Letter

16. Following an Inquiry held over 11 days between April 11 and July 28, 2000, the Secretary of State’s Inspector recommended that both applications be refused. The Inspector concluded (inter alia):

(1) The different classifications of Balham Hill by Wandsworth (an Important Local Parade) and Lambeth (as a town centre) were not helpful in assessing its status in the retail hierarchy; those designations had been made by reference only to those shopping units within each borough, and not by reference to their part of the larger whole; and the previous appeals Inspector took a limited view in describing it as “a parade of small shops”;

(2) In terms of RPG3, Balham Hill as a whole could be regarded as a “Neighbourhood or Local centre” , but that

“even considered as a whole and taking account of all the characteristics of the area including the Underground station, my own view is that Balham Hill lacks a sufficiently broad range of facilities and services and does not sufficiently serve as a focus for the community for it to be regarded as fulfilling the role of a town centre as envisaged in national guidance for the purposes of applying the requirements set out in Mr Caborn’s statement. I therefore consider it appropriate that the proposals should be required to demonstrate need and a sequential approach to the site selection.” (para 8.22)

(3) The proposals could provide an “anchor” which would assist in the improvement of the shops at Balham Hill, whose in decline was due in part to the provision of facilities elsewhere.

(4) The proposals would not result in serious harm to either the Balham or Clapham High Street town centres.

(5) The overall effect of the proposals would be to assist regeneration at Balham Hill without unreasonable adverse consequences for other centres.

(6) There was a retail need for the development. The Inspector had noted that there were no provisions for demonstration of need or a sequential approach in the Lambeth UDP.

(7) There were no alternative sites which were preferable to the application site in terms of the sequential approach outlined in PPG6.

(8) In respect of access and car-parking, the proposal would “generally accord” with the aims of Government Policy on transport.

17. The proposal would, however, detract from, rather than preserve or enhance, the character and appearance of the conservation area. The overall conclusions were (paras. 8.97-8.99):

“In formulating my conclusions on the applications I have had full regard to the provisions of the development plan as required by Section 54A, to the statutory requirements in respect of conservation areas, to relevant national and regional planning guidance and to all other material considerations that have been raised.

With the safeguards that could be provided by conditions and the planning obligations as I have just discussed, I consider that in many respects both applications would sufficiently accord with the provisions of the development plan and national and regional planning guidance and be acceptable having regard to designation of the location in the retail hierarchy, size of the proposed foodstore, impact on town centres, area regeneration, need for such a store, sequential approach to the choice of site, access (in terms of vehicular movement) car parking provisions and the amenities of residents.

I have very serious reservations, however, about the design of the proposed extension to the Cooper building and its surroundings that have been necessitated by the need to accommodate the chosen form of vehicular access into and egresses from the site. I fully understand the highways and other reasons that led to the access/egress layout, including the BT fibre optics access chambers and the high costs likely to be involved in any relocation. Nevertheless, I consider the visual effect of the extension and the access/egress design would be so seriously detrimental to the character and appearance of the conservation area and the street scene in an important and highly conspicuous location as to be unacceptable. The harmful effect could not be offset by any conditions that might reasonably be attached to an approval and, in my opinion would not be outweighed by other benefits of the proposals. The difficulties likely to be experienced by pedestrians in the vicinity of the access and egresses, especially when walking to or from the car park, adds weight to my conclusion that planning permission should not be granted in respect of either application...”

18. In the Decision Letter the Secretary of State decided not to accept the Inspector’s recommendation, and to grant planning permission for both applications.

(1) He accepted the Inspector’s conclusion that, in terms of RPG3, Balham Hill as a whole should be regarded as a Neighbourhood or Local Centre, but he was satisfied that the application site was within a centre for the purposes of PPG6 and the Caborn statement, and accordingly, it was not necessary to show need or to take a sequential approach:

“12. As the Inspector notes, the existing shops at Balham Hill lie partly with LB Lambeth and partly within LB Wandsworth. The shops in Lambeth are designated in Lambeth UDP as a Neighbourhood centre, the shops in Wandsworth are identified in the Deposit Draft Wandsworth UDP as an Important Local Parade. The Secretary of State accepts the Inspector’s conclusion that PPG6 and RPG3 - Strategic Guidance for London Planning Authorities - must be read together. He agrees with the Inspector that Balham Hill as a whole may in RPG3 terms be appropriately regarded as a Neighbourhood or Local centre.

13. As the site is allocated in the plan for mixed-use development and is well related to Balham Hill neighbourhood centre, with properties either side of the application site being included in the definition of the centre in the adopted UDP, the Secretary of State is satisfied that the site is within a centre for the purposes of interpreting PPG6 in accordance with the requirements set out in Mr Caborn’s statement of 11 February 1999. He therefore disagrees with the Inspector that it is necessary to demonstrate need and a sequential approach to site selection for these applications.” (with references omitted)

(2) Contrary to the Inspector’s conclusion, the proposed food store was out of scale with the centre in which it was located. However, it was not so out of proportion as to justify refusal on that ground alone. He agreed that the proposals would assist in the regeneration of Balham Hill, without unreasonable adverse consequences for other centres.

(3) Contrary to the Inspector’ conclusion, the proposals would enhance the character and appearance of the conservation area:

“The Secretary of State disagrees. He notes that neither English Heritage nor Lambeth’s expert conservation officer raised substantive objections to the proposals. The Secretary of State agrees with the local planning authority that the various measures outside the Cooper building would improve its appearance and contribution to the area and whilst it would be clearly preferable to provide the missing wing as it was designed by Cooper, it has to be accepted that this is not practicable. He agrees that whilst a symmetrical central archway would be preferred, there are highways reasons why this is not possible, although on this matter it would appear that there are other significant constraints that also affect the design of the access/egress arrangements. The Secretary of State agrees with the local planning authority that inclusion of the archway is the best achievable solution and would not materially diminish the scheme’s overall benefit to the conservation area. Consequently, the Secretary of State agrees with your client’s view that the proposals as a whole constitute a well considered scheme of refurbishment and new development that would enhance the character and appearances of the conservation area, as well as the setting of the nearby listed buildings and the designated area of metropolitan open land and thus the proposals accord with local and national policy.” (para. 27, with references omitted)

IV Grounds of challenge

19. The present grounds of challenge relate to (a) the retail policy issues and (b) the conservation area issue.
20. What is said by Wandsworth in relation to the retail policy issues is: (i) the Secretary of State erred in law in concluding that the application site was within a “centre” for the purposes of applying the approach identified in PPG6 and expanded upon in the Caborn statement; (ii) even if the application site was within a centre for the purposes of PPG6 and the Caborn statement, the Secretary of State should not have concluded that it was exempt from the requirement to demonstrate need, since it had not been the subject of consideration in an up-to-date development plan; (iii) the Secretary of State failed to give adequate reasons for disagreeing with his Inspector, who concluded that Balham Hill was not a town centre in terms of PPG6 and the Caborn statement, and he failed to give proper or adequate grounds for his decision not to require the developer to demonstrate need. In addition, it was suggested that the Secretary of State erred in law in taking into account irrelevant considerations in his determination whether or not there was a retail need for the development.
21. On the conservation issue it is said that the Secretary of State failed to give adequate reasons for rejecting his Inspector’s conclusions on the impact of the proposals on the Conservation Area.

V Retail policy issues

22. The starting point is free from doubt. The courts will not interfere with matters of planning judgment: “if there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State”: Tesco Stores v. Secretary of State for the Environment [1995] 1 WLR 759, at 780.
23. Policy statements are material considerations to which regard should be paid, and if there is to be a departure from such a policy statement then clear reasons should be given for the departure: e.g. Grandsden & Co. Ltd. v. Secretary of State for the Environment [1986] JPL 519, affd [1987] JPL 365. The Secretary of State must interpret his own policy correctly. If there is a dispute about the meaning of the words included in a material policy document, it is for the court to determine as a matter of law what the words are capable of meaning. If those words are properly capable of bearing more than one meaning and the planning authority adopts one of them then it will not have gone wrong in law. The court will only intervene if the approach on the meaning is perverse or otherwise bad in law: see R. v. Secretary of State for the Environment, Transport and the Regions and Kettering B.C., ex p Tesco Stores Ltd (the Kettering case) [2001] JPL 686, 692, applying R v. Derbyshire CC, ex p. Woods [1997] JPL 958 (C.A.).
24. The essence of Wandsworth’s complaint is that the Secretary of State wrongly considered that the site was within a town centre in the context of government policy and accordingly that it was not necessary for Tesco to have demonstrated that there was a need for the proposals or that a sequential approach had been taken. The Secretary of State, it is said, gave no reasons for disagreeing with the Inspector’s contrary and reasoned view. As a result the Secretary of State took the view that it was not necessary to demonstrate need and a sequential approach to site selection for these applications. The Secretary of State merely noted that the Inspector concluded that the retail need for the proposals had been adequately demonstrated and that the sequential approach had been followed and satisfied.
25. Wandsworth relies on the fact that, as reflected in PPG6 and the Caborn statement, the central aim of Government policy for shopping is to ensure that the vitality and viability of town centres is sustained and where possible enhanced. Balham Hill serves local day-to-day needs and is not in any sense a focus for the community, and Balham Hill is, as the previous appeals Inspector described it, “a parade of shops serving very local needs” and which the present Inspector said was similar to many such collections of shops which had grown up around minor tube stations outside central London.
26. Accordingly it is argued that the Secretary of State has erred in law in treating such a centre as a town centre for the purposes of PPG6, RPG3 and the Caborn statement because: (a) the “key features” in PPG6 distinguish the promotion of development in town centres from support for local centres; (b) para 1.11 distinguishes town centre sites from district and local centres: “...a sequential approach means the 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”; (c) given that the Secretary of State did not state that he disagreed with the Inspector’s conclusions on the role of Balham Hill or the Inspector’s interpretation of PPG6 and RPG3, there was no basis for the Secretary of State to conclude that the site was within a centre for the purposes of interpreting PPG6. On the basis of the Inspector’s conclusions PPG6 was not capable of bearing an interpretation that includes Balham Hill as a “town centre” within the meaning of PPG6 and the Caborn statement.
27. I do not consider that the decision is capable of challenge on this ground. I set out again the main elements of the policy documents. PPG6 expresses the policy that planning objectives include sustaining and enhancing the vitality and viability of town centres. Town and district centres should be preferred locations for developments that attract many trips, and local planning authorities should adopt planning policies to locate major generators of travel in existing centres, to enable town, district and local centres to meet the needs of residents, and to safeguard and strengthen existing local centres.
28. In drawing up development plans, planning authorities should adopt a sequential approach to selecting sites for new retail development, and authorities and developers should be able to demonstrate that all potential town centre options have been thoroughly assessed before less central sites are considered for development. Adopting a sequential approach means that first preference should be for town centre sites, followed by edge of centre sites, district and local centres and only then out of centre sites in locations accessible by a choice of means of transport. Key town centre uses should be encouraged to locate in city, town and district centres. Smaller scale facilities should be encouraged to locate in local centres. Local planning authorities should encourage a wide range of facilities in district and local centres. The need for local shops is as important in urban areas as in rural areas to reduce dependence on the car. Local planning authorities should encourage appropriately sized local supermarkets in existing district and local centres.
29. RPG3 emphasises that PPG6 is to be applied with care to London, which has many centres performing different functions. The sequential approach in PPG6 means that the first preference is for sites in established town centres, but if suitable sites are not available then edge of centre sites should be considered, and only then out of centre developments where (among other conditions) existing centres are incapable of providing good retailing opportunities. For this purpose types of town centre include district centres, and neighbourhood or local centres which have traditionally provided local services for local customers.
30. The Caborn statement repeats PPG6 policy, and confirms that the aim is to focus new investment within city, town and district centres. Proposals for new retail and leisure development which accord with an up-to-date plan strategy or are proposed on sites within an existing centre, should not be required to demonstrate that they satisfy the test of need because this should have been taken into account in the development plan. However, edge of centre or out of centre site proposals should be required to demonstrate both need and that a sequential approach has been applied.
31. In the Kettering case the Inspector had concluded that permission should be refused on an application to extend an existing supermarket in an area which was regarded by the planning authority as a district centre. The Inspector found that need had to be demonstrated for all retail development outside existing town centres, and that there was no need for the proposed development in qualitative or quantitative terms. It was held that the phrase “existing centre” in the Caborn statement included a reference to a “district centre.” Keene J., as he then was, referred to the fact that PPG6 itself used the expression “town centre” in two senses, one including district centres and the other not including them in the expression “town centre”, said (at 692-3)

“What is meant by those words ‘an existing centre’? Nothing in the Ministerial Statement confines that phrase to a town centre in the narrow sense. Indeed the phrase being used there is not even ‘an existing town centre’ but merely “an existing centre” without indicating what particular type of centre is being referred to…It seems to me that the Ministerial Statement is quite clear. There are two categories of site: in the first, one does not have to show need; in the second, one does. District centres and sites falling within them must come into one category or another. They cannot fall within the second category, the edge-of-centre and out-of-centre locations…That confirms that the reference in the first category to ‘sites within an existing centre’ includes district centres…”

32. Paragraph 3 of the Caborn statement cannot be read in isolation. It identifies the situations in which it is not necessary to demonstrate need and a sequential approach; but the following paragraph identifies when it is necessary, namely for “edge-of-centre” and “out-of-centre” locations. A “neighbourhood or local centre” does not fall within the definition of either an “edge of centre” or an “out-of-centre” location. The reasoning in the Kettering case that nothing on the face of the Caborn statement which confines the phrase “existing centre” to “ a town centre in the narrow sense” applies to the neighbourhood or local centre in the present case. There is nothing in the statement to suggest that the words “existing centre” are confined to any particular form of centre.
33. The general guidance in PPG6 needs to be applied “with care” in London, because “London has many centres performing different functions” (RPG3, para. 5.2). It emphasises that the role of London town centres is not static: “some centres may increase their position in the hierarchy, while others may revert to a more local role” (para. 5.4). PPG6 does not exclude local centres from being town centres in such circumstances. Since both PPG6 and RPG3 support the protection of “local or neighbourhood” centres, and indicate that such centres can and should be the focus for appropriate retail development, there is nothing illogical or unreasonable in concluding that a “neighbourhood or local” centre is an “existing centre”.
34. The Caborn statement refers only to “existing centres”, and the words are plainly capable of encompassing a “neighbourhood or local centre.” This is supported by Annex A to PPG6, which includes under the heading “Types of Centre”: local centres, district shopping centres, and town centres (which is expressed to cover city, town and traditional suburban centres). Accordingly, the Secretary of State’s conclusion that Balham Hill, as a “Neighbourhood or Local centre” was an “existing centre” was a reasonable interpretation of policy.
35. Accordingly, in the circumstances it was fully open to the Secretary of State to conclude that Balham Hill, as a neighbourhood or local centre, was an “existing centre” for the purposes of the Caborn statement. The policy documents are not to be interpreted or read as if they were statutes. He was attaching a meaning to the words “existing centre” which, in the context of the other relevant policy documents, those words can properly bear.
36. The second point made by Wandsworth is that, even if Balham Hill was an existing centre for the purposes of the Caborn statement, the Secretary of State clearly should have taken into account whether there was a need for the proposals. The argument is that the test of need was not taken into account in the adopted Lambeth UDP, and accordingly paragraph 3 has the result that need must be demonstrated. This is because paragraph 3 of the Caborn statement should be interpreted as meaning that sites within an existing centre are only exempt from the requirement to show need “where this has been taken into account in the development plan.” Those words, it is said, qualify both (i) proposals which accord with an up-to-date plan strategy, and (ii) sites within existing centres.
37. There are three reasons why the Secretary of State was entitled to apply the Caborn statement in the way that he did. First, if Wandsworth is right, it means that existing centres are only exempt from the requirement to prove need if they are also in accordance with an up-to-date development plan. But if this were so, the words “or are proposed on sites within an existing centre” are redundant: the only requirement is that the proposal be in accordance with an up-to-date development plan. Second, as indicated above, paragraph 3 must be read together with paragraph 4. It is paragraph 4 which imposes the requirement to show need. No such requirement is imposed on sites within existing centres. Third, the purpose behind PPG6 is the protection of existing centres. The means by which that is done is to direct new retail development to those centres, and not to edge-of-centre or out-of-centre sites. Wandsworth’s interpretation would therefore require a developer to prove need for a proposal, even though that proposal was situated in the sort of a location to which PPG6 indicates it should be directed.
38. As Keene J said in the Kettering case, the absence of the requirement of need in the case of district centre sites makes sense in terms of the purpose of these policies, which clearly wish to sustain and enhance district centres as well as town centres in the narrow sense: “A new development may do that, that is to say may sustain and enhance a district centre and thereby fulfil these policy objectives, even if the specific need for development cannot be demonstrated” (at 693). There is no reason why the same considerations should not apply to local centres, and certainly no reason why the Secretary of State should not apply the Caborn statement in that sense. The result is that once the Secretary of State had found the site to fall within an existing centre for the purposes of the Caborn statement, he was entitled to interpret his own policy so as to find that the question of need did not arise, even though it had not specifically been addressed in the development plan.
39. The next group of complaints relate to lack of adequate reasoning. It is said by Wandsworth that the Secretary of State failed to explain: (i) on what basis he concluded that the site is within a centre for the purposes of interpreting PPG6; (ii) on what basis he reached that conclusion, given that he agreed with the Inspector that Balham Hill as a whole might in RPG3 terms be appropriately regarded as a Neighbourhood or Local Centre; (iii) on what basis he reached that conclusion given that the Inspector concluded that that Balham Hill lacked a sufficiently broad range of facilities and services and did not sufficiently serve as a focus for the community for it to be regarded as fulfilling the role of a town centre as envisaged in national guidance for the purposes of applying the Caborn statement; and (iv) his decision not to require the developer to demonstrate need. Wandsworth has been substantially prejudiced by this failure as it cannot be understood on what basis this conclusion has been reason and why the Secretary of State has rejected, if he has, the conclusions and approach of the Inspector.
40. I was referred to the familiar principles on the requirements of reasoning in planning decisions, and the need for prejudice (Bolton Metropolitan Borough Council v. Secretary of State for the Environment (1990) 61 P & CR 343 at 353; Save Britain’s heritage v No 1 Poultry Ltd [1991] 1WLR 153, 165), but I can deal shortly with this point. If the Secretary of State was entitled to take the view that Balham Hill was an existing centre he did not need to spell out why he disagreed with the Inspector. It is clear that the Secretary of State considered that a neighbourhood centre such as Balham Hill was an “existing centre” for the purposes of interpreting PPG6 and the Caborn statement. To the extent that this interpretation differed from that of the Inspector, the point needed no further explanation. So also, the Inspector having concluded that a demonstration of need was required but also satisfied, it was not necessary for the Secretary of State to spell out why need was not required to be demonstrated, still less to explain why notwithstanding the Caborn statement, it was not necessary to demonstrate it. That follows from the fact that he was entitled to take the view that for existing centres it was not necessary to demonstrate need.
41. A final point taken on the retail policy issue was that the Secretary of State erred in law in taking irrelevant considerations in his determination whether or not there was a retail need for the development. This ground was not developed in argument. There is nothing in it because it was developed as an attack on the Inspector’s reasoning, but the Secretary of State determined that need did not have to be demonstrated, and there is no basis for the suggestion that he took into account irrelevant considerations.

VI Conservation issue

42. As set out above (para. 18) the Secretary of State disagreed with the Inspector, and decided that the proposals would enhance the character and appearance of the conservation area. It was the Secretary of State’s decision and he was entitled to disagree with his Inspector’s recommendations and conclusions.
43. Wandsworth did not object on conservation issue grounds at the inquiry. But it is accepted that it is not precluded from raising the issue now, as a lack of adequate reasoning point. The argument is that the reasons given by the Secretary of State did not amount to saying more than that he disagreed with the Inspector. Those reasons were (i) the absence of any substantive objections from English Heritage and Lambeth’s conservation officer; (ii) whilst a symmetrical central archway would be preferred, there were highways reasons why this was not possible, although there were other significant constraints which also affected the design of the access/egress arrangements; (iii) the inclusion of the archway was the best achievable solution and would not materially diminish the scheme’s overall benefit to the conservation area; (iv) consequently the Secretary of State agreed that the proposals as a whole constituted a well considered scheme of refurbishment and new development that would enhance the character and appearance of the conservation area.
44. I do not consider that the decision can be faulted for lack of reasoning. The Secretary of State was entitled to take into account the specialist advice of English Heritage and the specialist advice of the conservation officer from the local planning authority. It was appropriate for him as decision maker to reach the view that, taking into account these constraints, this solution would not materially diminish the overall benefit that the scheme had to offer to the area. The reasoning is clear, adequately detailed, and intelligible, and it is not suggested that immaterial considerations were taken into account.
45. The challenges by Wandsworth therefore fail.
- - - - - - - - - - - - -

MR JUSTICE LAWRENCE COLLINS: For the reasons given in the judgment I have handed down the challenges fail.

MR BROWN: My Lord, I am very grateful. In the circumstances I would ask for the Secretary of State's costs. Given that this case was listed for a day and a half, I think in terms of actual argument it took a day but did spill over, there has been no schedule of costs exchanged and my application would not be for summary assessment, it would be for --

MR JUSTICE LAWRENCE COLLINS: I have had two schedules, one from Wandsworth and one from Tesco.

MR BROWN: Indeed, I have not seen either, my Lord, but in any event I do not have a schedule and therefore I cannot and do not ask for summary assessment.

MR LYNESS: Just to be clear, my Lord, we do not apply for costs in this case.

MR JUSTICE LAWRENCE COLLINS: I am grateful, thank you.

MR MORGAN: My Lord, I cannot resist the defendant's costs of course.

MR JUSTICE LAWRENCE COLLINS: Yes.

MR MORGAN: My Lord, I do wish to seek your Lordship's permission for appeal, if you will forgive me for a moment. Of course, it is difficult having just looked at the judgment, I hope I do not --

MR JUSTICE LAWRENCE COLLINS: If you want five minutes more --

MR MORGAN: Can I make my application, my Lord, and then hopefully I can make it clear, and if your Lordship is concerned that I am not making myself clear then perhaps we could deal with it that way. I start, of course, from rule 52 and that permission to appeal will only be given and the two criterion there, my Lord: firstly, the court considers that the appeal would have a real prospect of success, always difficult in front of the judge at first instance, with respect, for obvious reasons, or, secondly, that there is some other compelling reason why the appeal should be heard.

My Lord, my application for permission relates solely to the retail issues, not the conservation area issue. My Lord, it is put on this basis. We respectfully say that the matter before your Lordship, and indeed the judgment your Lordship has given on it, does raise important points in planning practice, important issues which I hope were rehearsed thoroughly and properly before your Lordship during the hearing. I do not want to repeat those, but it does raise matters of importance in practical everyday life for planning authorities. Therefore, my Lord, I would say it is an important matter to be dealt with in that respect.

My Lord, in terms of the substance, we, with respect, have expressed concern both on the categorisation of this as an open centre, but particularly in the circumstances that the inspector himself, who heard all the evidence and had been there, took the view that he did, and your Lordship will know the case was put on that because it is dealt with in your Lordship's paragraph 40 in terms of the reasons then given. We very much say it is important that the Secretary of State makes it clear why he reached the conclusion he did in disagreeing with the inspector. Even though, as a matter of law, he was entitled and the inspector was entitled to take the views he did, it is important that the approach to that is clear to the local planning authorities, and I do not just mean this authority, I mean authorities up and down the country. In other words, is it just, the centre, that is fine, you do not need to show need, or is the approach of the inspector correct that you look to the functional side? I do urge upon your Lordship that is in fact an important matter of practice upon which clarity is required, and it would be proper, I would say, given there are now two judgments at first instance on centres, that this matter be clarified in the Court of Appeal. When I say "clarified", you will remember Keene LJ (as he now is) left open the issue of whether that was properly called a district centre. What he said was that district centres can be centres, and existing centres, but he did not conclude that centre was.

MR JUSTICE LAWRENCE COLLINS: That is because it is not really a matter for the court. It is a policy matter.

MR MORGAN: Exactly, my Lord, but what I would respectfully say from my brief reading, with the greatest respect, could and should be taken further is a clarification of what is the appropriate approach. We urge that one looks at the functional side of it, as the inspector did. The Secretary of State simply said he thought it was a centre. It is unclear, I respectfully say to you, whatever your Lordship's conclusion here, as to what is the correct approach. Do you say, that is listed as a centre, therefore that is it, you do not need (inaudible), or is it proper and lawful for an authority and a decision maker, as I would urge upon your Lordship, to be able to say, well we look at the function, it does not actually function as an existing centre. My Lord, that is the essence of my application to you for permission, and it does raise important matters, and I do respectfully say, and I do not do with this any enthusiasm on a personal basis, that there is a real prospect of a different view being taken on that reasoning aspect.

MR JUSTICE LAWRENCE COLLINS: That is a perfectly legitimate way of putting it.

MR MORGAN: My Lord, I do not think I can take it any further. That is my application.

MR JUSTICE LAWRENCE COLLINS: Mr Brown, do you want to say anything?

MR BROWN: My Lord, as far as the interpretation of the policy is concerned, I understand and have some sympathy for what my learned friend says about the meaning of PPG6 having a wider importance, but, as I understand the basis on which he puts his application to your Lordship, it is not that the conclusion on the policy is unlawful, but rather the reasoning of the Secretary of State in relation to it is not clear. If that is right, my Lord, it follows that the basis on which he seeks permission is a very narrow one, a challenge to the adequacy of the reasoning rather than to the correctness of the principle. In those circumstances, my Lord, it is my submission that the Secretary of State's reasoning, coupled with your Lordship's judgment, and indeed the Kettering judgment, because we are to a certain extent going over well trodden ground here, are entirely clear. At that stage I would say there is no wider point of importance.

MR JUSTICE LAWRENCE COLLINS: Mr Morgan, unless you want to say anything more --

MR MORGAN: I would just say that the two issues are tied together, as I hope is clear. They really cannot be parted in that way. I put the emphasis where I have but it does not remove the underlying point, as I hope I made clear, in the substantive hearing.

MR JUSTICE LAWRENCE COLLINS: I refuse permission on the basis that this is simply a decision on the respective functions of the Secretary of State and the court and there is no realistic prospect of success on appeal. Thank you very much.