QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|GRANTCHESTER RETAIL PARKS PLC||(CLAIMANT)|
|THE SECRETARY OF STATE FOR TRANSPORT, LOCAL GOVERNMENT AND THE REGIONS||(DEFENDANT)|
|LUTON BOROUGH COUNCIL||(INTERESTED PARTY)|
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 PAUL BROWN (instructed by The Treasury Solicitor) appeared on behalf of the DEFENDANT
Crown Copyright ©
Part one: Introduction
"Any person interested in land in the area of a local planning authority may by agreement or otherwise enter into an obligation referred to in this section and sections 106A and 106B as a planning obligation enforceable to the extent mentioned in subsection (3) ..."
"(1) A planning obligation may not be modified or discharged except-
(a) by agreement between the authority by whom the obligation is enforceable and the person or persons against whom the obligation is enforceable; or
(b) in accordance with this section and section 106B ...
"(3) A person against whom a planning obligation is enforceable may, at any time after the expiry of the relevant period, apply to the local planning authority by whom the obligation is enforceable for the obligation-
(a) to have effect subject to such modifications as may be specified in the application; or
(b) to be discharged ...
"(6) Where an application is made to an authority under subsection (3), the authority may determine-
(a) that the planning obligation shall continue to have effect without modification;
(b) if the obligation no longer serves a useful purpose, that it shall be discharged; or
(c) if the obligation continues to serve a useful purpose, but would serve that purpose equally well if it had effect subject to the modifications specified in the application, that it shall have effect subject to those modifications."
"(1) If any person- ...
(b) is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action on the grounds-
(i) that the action is not within the powers of this Act; or
(ii) that any of the relevant requirements have not been complied with in relation to that action,
he may make an application to the High Court under this section."
Part 2: The Facts
"1. The proposed amendment to the existing planning agreement would be contrary to Policy 52 of the Bedfordshire County Structure Plan 2011 and Policy S3 of the Borough of Luton Local Plan and the advice in PPG6: Town Centres and Retail Development insofar as there is no need to locate additional electrical goods retail floorspace in this out-of-centre location and the proposal, if allowed, would therefore result in demonstrable harm to existing centres.
"2. There are alternative retail sites available within Luton's primary catchment area as identified by the 10 minute isochrone in the TPC report (document 6) to accommodate additional electrical retail floorspace. These sites are sequentially preferable to the application site and have the benefit of extant planning permissions."
"(01) The proposed amendment to the existing planning agreement would be contrary to Policy 52 of the Bedfordshire County Structure Plan 2011 and Policy S3 of the Borough of Luton Local Plan and the advice in PPG6: Town Centres and Retail Development insofar as there is no need to locate additional electrical goods retail floorspace in this out-of-centre location and the proposal, if allowed, would set a precedent that could lead to harm to existing centres.
"(02) The proposal, as submitted, fails to address the potential for the application site to accommodate non-bulky, non-food retailing in a location which is out of centre. The applicants' failure to agree to an appropriate change to the existing Planning Agreement for the site is thereby contrary to the Council's retail strategy and to the advice in PPG6.
"(03) There are alternative retail sites within Luton to accommodate additional electrical retail floorspace which are preferable to the application site in terms of the sequential test. There is therefore no need for the proposed amendment to the current Planning Agreement for the site which is in any case a valuation exercise rather than a proposal to accommodate the needs of a particular electrical goods retailer."
Part 3: The Present Proceedings
Part 4: The Inspector's Decision
"The main issue is whether clause 5(g) of the obligation restricting sales of electrical goods no longer serves a useful purpose and, if it still does, whether it would serve that purpose equally well if it had effect subject to the modifications specified in the application. In considering this issue I have had regard to the advice in Circular 1/97, including that the expression 'no longer serves a useful purpose' should be understood in land use planning terms."
"5. The development plan comprises the Bedfordshire County Structure Plan 2011 and the Luton Borough Local Plan adopted in 1997. Policy 52 of the Structure Plan states that the preferred location for major retailing developments will be within or adjacent to the town centres. Out-of-centre developments will only exceptionally be permitted, if it can be demonstrated that town centre or edge-of-centre sites are not available and provided that they would not individually or collectively affect the vitality and viability of the town centres.
"6. Policy S3 of the Local Plan states that planning permission will not be granted for any new shopping development outside the town centre shopping areas unless no town centre site is available, the vitality and viability of existing centres are not threatened and such provision is necessary to meet an identifiable local or special retail need. The policy goes on to state that in the case of out-of-town centre stores applications to vary the range of goods sold under formal agreements or planning conditions will normally only be approved where it can be demonstrated that the proposal would not undermine the vitality and viability of the town centre's shopping role."
The claimant's counsel accepted in the course of his submissions that that summary is correct, and indeed sufficient, for the purposes of these proceedings.
"11. The appeal site is an out-of-centre site, and the thrust of both local and national guidance in PPG6 and subsequent ministerial statements is that permission for additional electrical retail floorspace should only be granted if there is no sequentially preferable site. Three sites were identified by the Council that could potentially accommodate electrical goods operators, at Francis Street, Power Court and George Street, together with vacant units in the Arndale Shopping Centre. However, the appellants argue that these are not likely to come forward.
"12. The former British Gas site in Francis Street adjoins the Bury Park District Centre, which is the largest district centre in the Borough, and has an unrestricted planning permission for retail development. It is therefore clearly preferable in sequential terms. However, I recognise that its acquisition by Lidl makes it unlikely that it would now be developed for non-food retailing.
"13. The Power Court site, which can accommodate some 7,345sq.m. gross floorspace, is the subject of a Council resolution to approve an application for retail development (subject to completion of a Planning Agreement) with no restriction on the range of goods. Although negotiations point to food retailing as the strongest candidate for future occupation, unless or until this becomes committed I consider that the site should be considered as one with potential to accommodate electrical goods operators.
"14. The George Street site is within the town centre's Primary Shopping Area and has an extant planning permission for approximately 3,717sq.m. of retail floorspace on 2 floors. Although recently purchased by a major leisure operator, the Council has indicated that a significant proportion of the site should be retained in retail use and it must in my view therefore be treated as available for the purpose of the sequential exercise.
"15. In addition, there are a number of vacant units and units on temporary lets within the Arndale Centre ranging in size from 64sq.m. to 419sq.m.
"16. The location of each of the above is to be preferred in sequential terms to that of the appeal site and there is no conclusive evidence that, with the exception of the Francis Street site, they would not be available for an electrical goods operator. I note the appellants' argument that sites should only be considered which are large enough to accommodate modern electrical retailers seeking to provide the widest range of bulky electrical goods, together with ancillary advice and support services and customer facilities. I do not, however, accept that potential sites should be restricted in this way. Paragraph 1.12 of PPG6 clearly advises that developers and retailers should show flexibility about the format, design and scale of the development and the then Planning Minister Nick Raynsford in a speech on 29 February 2000 further emphasised that many items sold in retail warehouses are not 'bulky' and that PPG6 does not propose exceptions to the sequential approach. I note in the present case that, far from exceeding the 15,000sq.ft. (1395sq.m.) limit under the existing agreement, the existing electrical retail warehouses in the Borough range between 456sq.m. and 1,186sq.m. in size. I also visited on my inspection the Curry's store at Chaul End Lane and the Comet store at Gipsy Lane, both of which devoted a considerable proportion of sales floorspace to non-bulky 'brown' electrical goods that in my view could equally well be sold from a town centre site, including smaller sites. It is also relevant that no evidence has been produced to demonstrate that the appeal site is accessible by means other than the private car.
"17. I conclude therefore that it has not been shown that there are no available and sequentially preferable sites to the appeal such as to justify relaxing the current limitation on the use of this out-of-centre site for electrical goods sales."
"18. Estimates of the trade draw of the proposals from the existing retail facilities were based on TPC's judgment having regard to the retail offer of the competing facilities. It was assumed that, as there are only a limited number of retail facilities within the established town centres which sell the type of goods that would be sold from an electrical goods retail warehouse, the scope for competition and therefore impact on these centres was likely to be limited with the greatest impact falling on like facilities in out-of-centre outlets. On this basis the retail impact on the electrical goods turnover of Luton and Dunstable town centres was estimated to be only 2.51% and 1.5% respectively. TPC also emphasised that, since electrical goods represented only a small proportion of the overall floorspace of the 2 town centres, the impact on the town centres would be minimal and result in no material harm to their vitality and viability.
"19. The Council's consultants re-ran the TPC impact analysis, using what MVM considered to be more realistic figures for town centre electrical goods floorspace (3,284sq.m. net derived from the Luton Shopping Study compared to the TPC figure of 1,317sq.m.), turnover and sales density, resulting in a figure of 2.85% for the impact on Luton town centre. This was further refined on the basis of a less conservative assumption of 10% of the trade draw coming from the town centre instead of the 4% assumed by TPC, resulting in an impact figure of 7% on the town centre electrical goods turnover.
"20. MVM do not themselves consider that their calculated level of impact would be such as to harm the vitality and viability of Luton town centre contrary to Policy S3 of the Local Plan. I recognise that such a conclusion appears reasonable, bearing in mind that electrical goods floorspace amounts to only about 4% of total floorspace in Luton town centre and that the town centre appears to be generally healthy. However, the assessment of potential impact cannot be purely a mechanistic exercise. I note that the 1993 planning permission restricted the amount of floorspace that could be used for sale of electrical goods in order to limit the impact on the electrical goods sector of the town centre, whose floorspace has been falling since 1993. Any further reduction could be harmful to the availability of electrical goods in the town centre, which in my view would adversely affect the ability of the town centre to offer a full range of comparison goods. I have already referred in paragraph 16 above to my inspection of the Curry's and Comet stores, which confirmed that out-of-centre electrical retail warehouses sell not just the bulky goods which paragraph 3.3 of PPG6 recognises may not easily be accommodated on town centre or edge-of-centre sites, but also the smaller electrical items such as hi-fi, telecommunications equipment and small kitchen appliances (e.g. food mixers) which are comparison goods normally sold in town centres. To permit the relaxation of the agreement in the present case would be likely to undermine this role of the town centre, which I consider would risk eroding the future vitality and viability of the town centre. It would also make it more difficult for the Council to resist similar applications in the future.
"21. Clause 5(g) was included in the Agreement in 1993 in order to protect Luton town centre as the preferred location for, particularly, comparison shopping. That purpose clearly accords with the whole thrust of government policy as set out in PPG6 and subsequent clarifications of that policy. In my view therefore the present agreement continues to serve a useful planning purpose. I concluded above that permission for a substantial level of electrical goods floorspace on this out-of-centre site would not be justified, particularly in terms of the sequential test but also because of the potential longer-term adverse impact on the vitality and viability of the town centre. It follows that, if the limitation imposed by the clause was relaxed as sought under Appeal A, I consider that the Agreement would become very much less effective in serving that purpose. It should not therefore be permitted. Although the relaxation sought under Appeal B would result in a slightly lower limit on electrical goods floorspace allowed on the site, I do not consider that the difference is sufficiently significant to cause me to reach a more favourable conclusion in respect of that appeal. It similarly should not therefore be permitted."
Part 5: The Individual Grounds of Challenge
(1) it was the function of the inspector to come to his own conclusions concerning the availability of the sites in Francis Street, Power Court and George Street. That is what the inspector did in paragraphs 12 to 14 of the decision letter. The inspector duly applied his mind to the relevant evidence which bore upon those issues. There was no necessity for the inspector to trawl through the Council's past changes of mind in its decision-making process relating to that issue.
(2) It is quite true that in his decision letter the inspector did not refer to Mr Blackley's July 2001 report. Equally, he did not refer to Mr Blackley's August 2001 report. Indeed, he did not refer to the local authority's statement in respect of the appeal. The fact that the inspector did not refer to specific documents does not mean that he did not have them in mind.
(3) The July 2001 report was clearly referred to in the parties' submissions. It is unrealistic to suggest that the inspector simply overlooked this particular document.
"Any further reduction could be harmful to the availability of electrical goods in the town centre, which in my view would adversely affect the ability of the town centre to offer a full range of comparison goods."
Part 6: Conclusion