QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|GLOUCESTER CITY COUNCIL||(CLAIMANT)|
|FIRST SECRETARY OF STATE||(1ST DEFENDANT)|
|THE NOBLE ORGANISATION LIMITED||(2ND DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR J MORGAN (instructed by Treasury Solicitors) appeared on behalf of the 1ST DEFENDANT
MR R PHILLIPS QC & MR H PHILLPOT (instructed by Hay Kilner) appeared on behalf of the 2ND DEFENDANT
Crown Copyright ©
The decision letter
"The appeal site lies within the PSA in the First Deposit Draft City of Gloucester Local Plan Policies S8 and BE29 are of most relevance to this appeal. S8 permits the change of use of ground floor retail uses in the PSA subject to criteria. These include the proportion of non retail uses on the ground floor of properties on the same side of the street being below 30%; and, the property being vacant with unsuccessful marketing demonstrated; or, it can be shown that the proposal would sustain and enhance the vitality and viability of the PSA. Under policy BE29 development within conservation areas should preserve, enhance or enrich the character and appearance of the area, including the retention of the character of individual streets. Objections have been received to both of these policies. Although the Council proposes no significant amendments the Plan has not reached an advanced stage towards its adoption and only limited weight should be attached to these policies."
"I consider that the type and numbers of customers that are likely to be attracted to the premises would maintain the vitality of the conservation area. This activity would also be likely to continue after most shops have closed, extending vibrancy into the evening."
He concluded that the development would preserve the character and appearance of the area and would accord with the relevant structure plan and local plan policies.
"17. The Gloucester Retail Study was published in 2001 and provides the basis for the shopping policies within the emerging Local Plan. The report advises that Gloucester's retail economy is under-performing and highlights the need for further investment. The Council is committed, through the emerging Local Plan, to a major redevelopment of the Blackfriars area of the City, although planning permission has yet to be obtained. At the Inquiry the Council informed me that if the proposal sustained and enhanced the vitality and viability of the PSA then it would accord with emerging policy S8. I have already found above that the development would maintain the vitality of the area.
18. The current occupiers of the premises (Next) are an important national retailer. In my opinion they make an important contribution to the viability of the PSA. I also note from the Retail Study that there is a desire amongst customers within Gloucester to see more 'big names' in fashion within the City. The loss of Next would therefore be likely to harm the viability of the PSA. At the Inquiry however, the appellant informed me that Next had three more years remaining on its lease. At the end of this period the appellant expects to occupy the building with Next relocating to the Blackfriars redevelopment. Given the outstanding period of the lease, the likely future redevelopment of the Blackfriars area and the availability of other vacant retail units within the PSA, I consider that sufficient opportunity exists for Next to remain with the PSA.
19. The 'In Town Sales Requirements' (Document 9) reveals other retailers, including those in fashion, are seeking to locate in Gloucester. Next currently trades over two floors and whilst this arrangement may not be desirable to some retailers, I consider that the location of the premises would be attractive to others. There is no certainty however that these would be 'big names' in fashion or that they could enhance the viability of the PSA.
20. Survey information provided by the appellant reveals that where similar amusement centres have been established elsewhere there has been no demonstrable harm to the viability of shopping centres. The latest 'Number of Retail Requirements' (Document 10) also showed that Gloucester is now ranked 53 in the UK retail hierarchy compared to its previous position of 91 at the time of the Retail Study. Gloucester PSA does not appear to me to be in decline. Whilst the proposal would be at variance with the Council's non-statutory amendment to the adopted Local Plan, no convincing evidence has been presented to support the Council's concerns ...
22. I therefore conclude on the second issue that the proposal would not harm the viability of the PSA within Gloucester City Centre and would accord with Structure Plan policy TC1, adopted Local Plan policy S4 and the objectives of emerging Local Plan policy S8."
"The loss of Class A1 retail units to the ground floor of the Primary Shopping Area to other uses, such as offices and food take-aways, can harm its vitality and viability. Concentrations of non-retail uses can worsen these effects. We will therefore seek to restrict changes of use to non-retail uses in the Primary Shopping Area."
The wording of the policy itself is as follows:
"The change of use of ground floor Class A1 retail uses in the Primary Shopping Area will only be permitted where:
1. The proportion of non-retail uses on the ground floor of properties on the same side of the street is below 30%; and,
2. The proposal would not result in a continuous group of more than two non-retail uses on the same side of the street; and,
3. The property is vacant and the developer is able to demonstrate that the property has been marketed unsuccessfully for at least one year; or,
4. The developer is able to demonstrate that the proposal would sustain and enhance the vitality and viability of the Primary Shopping Area."
The second issue
"The Secretary of State, when successful in defending his decision, will normally be entitled to the whole of his costs. He should not be required to share his award of costs by apportionment, whether by agreement or by further order of the court."
My Lord, that is the passage I rely on in seeking costs in this case.