England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		15th January 2003

1. MR JUSTICE JACKSON: This judgment is in six parts: namely, part 1, introduction; part 2, the facts; part 3, the present proceedings; part 4, the inspector's decision; part 5, the individual grounds of challenge; and part 6, conclusion.

Part one: Introduction

2. This is an application pursuant to section 288 of the Town and Country Planning Act 1990 (to which I shall refer as "the 1990 Act") to quash a decision of the first defendant. That decision was made on the first defendant's behalf by his inspector. In this judgment I shall refer to the first defendant as "the Secretary of State". The second defendant is the Luton Borough Council. That is the local authority whose planning decisions were under appeal to the inspector. I shall refer to the second defendant as "the Council".
3. Before delving into the facts, I must first read out the relevant statutory provisions. Section 106(1) of the 1990 Act provides:

"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) ..."

4. Section 106A of the 1990 Act provides:

"(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."

5. Section 288 of the 1990 Act provides:

"(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."

6. Having indicated the relevant statutory provisions, I can now turn to the facts of the present case.

Part 2: The Facts

7. The claimant operates a retail park at Dallow Road, Luton. This retail park is situated outside Luton. It is presently occupied by Aldi (a food store) and a B&Q warehouse. The use of the retail park is regulated by an agreement dated 3rd September 1993 made between the Council and Laporte Industries Ltd, pursuant to section 106 of the 1990 Act. Clause 5(g)(ii) of the section 106 agreement imposes an obligation restricting the area of retail floorspace which may be used for selling electrical goods to 15,000 square feet.
8. On 10th April 2000 the claimant applied to the Council pursuant to section 106A of the 1990 Act to vary the section 106 agreement by removing the restriction on the amount of floorspace to be used for selling electrical goods. The claimant stated in correspondence following this application that it would be prepared to limit the floorspace for electrical sales to 50,000 or 40,000 square feet.
9. On 28th September 2000 the Council refused the claimant's application on the following grounds:

"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."

10. On 8th May 2001 the claimant made a further application to the Council pursuant to section 106A of the 1990 Act. On this occasion the claimant sought consent to use up to 35,000 square feet of floorspace in the existing development for the sale of electrical goods. By letter dated 11th July 2001 Mr Blackley, the Development Control Manager, informed the claimant that he would advise the development control committee of the Council to approve the claimant's application, provided that a further variation was made to the section 106 agreement at the same time. The further variation was as follows: no part of the development should be occupied by units of which the principal use was the retail sale of non-bulky, non-food goods. The claimant objected to the variation proposed by Mr Blackley. The claimant sought approval of its application dated 8th May 2001 without any strings attached.
11. On 18th July the development control committee duly met and considered the matter. The committee had before it a report prepared by Mr Blackley, the Development Control Manager, dated 18th July 2001. In that report Mr Blackley recommended that the application by the claimant should be approved, but that it should be part of such approval that the further variation proposed by Mr Blackley be made to the section 106 agreement. The committee considered this report, and it resolved to approve the claimant's application, provided that the claimant agreed to the further variation which had previously been proposed. In the event, however, in the period following 18th July, the claimant stood its ground and refused to accept the further variation which had been proposed.
12. In these circumstances the development control committee considered the claimant's application of 11th May 2001 on a further occasion. This was at their meeting on 29th August 2001. At this meeting the committee resolved to refuse the application on three grounds, as set out in a report prepared by Mr Blackley during August 2001. These three grounds were as follows:

"(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."

13. The claimant appealed against the refusal of its first application during 2000, and against the refusal of its second application during 2001. The two appeals were dealt with together. Mr Christopher Craig, an inspector appointed by the Secretary of State, visited the site on 20th May 2000. By a letter dated 24th July 2002 ("the decision letter") the inspector dismissed both of the claimant's appeals. The claimant was aggrieved by the inspector's decision. In order to challenge that decision the claimant has commenced proceedings in this court.

Part 3: The Present Proceedings

14. By a claim form dated 12th August 2002 the claimant applied to this court pursuant to section 288(1) of the 1990 Act to quash the inspector's decision dated 24th July 2002. The Secretary of State is first defendant to the claim and the Council is second defendant. The Council has taken no part in these proceedings.
15. The grounds upon which the claimant challenges the inspector's decision have to some extent been revised and re-categorised as this litigation has progressed. Accordingly, I shall take as my starting point not the claim form or the claimant's skeleton argument, but rather the five grounds of challenge as formulated by the claimant's counsel, Mr Kolinsky, yesterday in his opening speech. Those five grounds are: (1) the inspector did not refer to or consider Mr Blackley's report dated 18th July 2001; (2) the inspector did not refer to the contrary conclusions reached by Mr Sexton, another inspector, in what is referred to as "the Matalan decision"; (3) the inspector's approach to individual sites in the Arndale Centre shows flawed logic; (4) the inspector's conclusions concerning the effect on Luton town centre were neither based upon evidence nor reasoned; (5) the inspector failed to have regard to the local plan policies.
16. In order to put these five grounds of challenge into their proper context, I must now read out the material parts of the inspector's decision.

Part 4: The Inspector's Decision

17. In paragraph 4 of the decision letter the inspector formulated the main issue which he had to decide as follows:

"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."

18. The claimant accepts that that formulation is correct. In paragraphs 5 and 6 of the decision letter the inspector summarised the relevant policies of the structure plan and the local plan as follows:

"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.

19. In paragraphs 9 and 10 of the decision letter the inspector concluded that there was both a quantitative and qualitative need for additional electrical goods floorspace. The claimant accepts, and indeed relies upon, the inspector's findings in these two paragraphs.
20. In paragraphs 11 to 17 of the decision letter the inspector dealt as follows with the application of the sequential test:

"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."

21. The claimant challenges the inspector's conclusions in these paragraphs on the basis set out in grounds 1, 2 and 3. In paragraphs 18 to 21 of the decision letter the inspector dealt with the impact of the claimant's proposals upon the vitality and viability of Luton's town centre. The inspector wrote as follows:

"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."

22. The claimant challenges the inspector's conclusions in these paragraphs on the basis set out in grounds 4 and 5. Those, then, are the material parts of the inspector's decision letter. The scene is now set to deal with the claimant's individual grounds of challenge.

Part 5: The Individual Grounds of Challenge

23. I shall deal with the five grounds of challenge following the order in which Mr Kolinsky developed those grounds yesterday in his opening speech.

Ground 1

24. In relation to this ground Mr Kolinsky points out that there is a stark conflict between the officer's report of 18th July 2001 and the officer's report of August 2001. In the first report Mr Blackley advised that the sites in Francis Street, Power Court and George Street were unlikely to be available for selling electrical goods. In his second report Mr Blackley expressed a distinctly more optimistic view of this matter. When the inspector came to address this issue he made no reference to that change of position. Indeed, he made no reference at all to the 18th July report, or to the fact that the Council apparently preferred the later report to the earlier one. The inspector gave no reasons for coming to a conclusion contrary to the views expressed in Mr Blackley's report of 18th July 2001.
25. There are three reasons why I do not accept this line of argument. They are:

(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.

Ground 2

26. It is quite correct that the Matalan decision, if it had been brought to the inspector's attention, would have been a relevant consideration. It did not create any kind of binding precedent, but nevertheless the inspector would have taken it into account if he had known about it. The fatal flaw in this limb of the claimant's case, however, is that the Matalan decision was not drawn to the inspector's attention until after he had given his own decision. As a general principle a decision-maker does not err in law if he fails to take into account relevant matters which are not drawn to his attention and of which he is unaware. There is abundant authority for the proposition that a planning inspector's duty to take into account relevant decisions of his colleagues only extends to decisions drawn to his attention: see Rockhold Ltd v Secretary of State for the Environment [1986] JPL 130 at 131; Barnet Meeting Room Trust v SOSE [1990] 3 PLR 21 at 28A to B; North Wiltshire DC v SOSE [1992] JPL 955 at 960; R v SOSE, Chiltern DC, ex parte David Baber [1996] JPL 1034 at 1037 to 1038, and 1040.
27. In my view the earlier decision of Hollis v Secretary of State for the Environment [1982] P&CR 351, upon which Mr Kolinsky relies, does not support the opposite conclusion. Mr Kolinsky submitted that the duty of planning officers to be consistent with one another was an onerous one. Accordingly, it was their duty to take into account relevant decisions of colleagues, whether or not such decisions were cited in argument. This duty could be performed by carrying out a computer check of the database of all inspectors' decisions.
28. To my mind this is an unsound argument. It flies in the face of both principle and authority, as previously mentioned. Furthermore, if correct, the proposition of law advanced by Mr Kolinsky would impose a wholly intolerable burden upon the planning inspectorate. It should be borne in mind that there are some 400 planning inspectors, all engaged upon producing decisions. It is the duty of an inspector to decide cases, not to carry out extensive research on behalf of the parties.
29. For all these reasons, ground 2 is rejected.

Ground 3

30. It is true that the vacant units in the Arndale Centre are relatively small. They are less significant than George Street and Power Street. Nevertheless, they are part of the overall picture and the inspector was right to take them into account. There is no flawed logic in this part of the decision letter.
31. Ground 3 is rejected.

Ground 4

32. This ground is focused upon paragraph 20 of the decision letter. Mr Kolinsky contends that the inspector starts from the wrong premise. In particular he criticises the following sentence in paragraph 20 of the decision letter:

"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."

33. Mr Kolinsky submits that this proposition is supported neither by evidence nor by adequate reasoning. I do not accept this argument. The experts on both sides had concluded that the claimant's proposal would have some adverse impact upon Luton town centre. The inspector made his own assessment of that impact, and came to a conclusion which differed from that of the experts. He was entitled to do so. A planning inspector is not a hostage of the expert witnesses or confined by the barriers of their reports. In this case when one reads together paragraphs 16, 18, 19 and 20 of the decision letter, the inspector gave perfectly adequate reasons for the conclusion which he reached as to the impact upon Luton town centre.
34. Accordingly, ground 4 is rejected.

Ground 5

35. In support of this ground Mr Kolinsky latched upon one or two stray words in the decision letter and submitted that they were contrary to the purport of the local plan policies. Mr Kolinsky also developed an argument that the inspector either must have left the local plan policies out of account, or alternatively he reached conclusions which no reasonable inspector could reach.
36. I find this argument unconvincing. In the first place it is common ground that the inspector correctly summarised the effect of the local plan policies in paragraphs 5 and 6 of the decision letter. Secondly, in the course of his carefully reasoned decision, the inspector addressed the very issues which arose out of those policies. Thirdly, it seems to me that the conclusions which the inspector reached upon those issues were well within the permissible range.
37. Accordingly, ground 5 is rejected.

Part 6: Conclusion

38. I am grateful to both counsel for their clear and helpful submissions. For the reasons set out in part 5 above, each of the claimant's individual grounds of challenge fails. Accordingly, the claimant's application to this court under section 288(1) of the 1990 Act is rejected.
39. MR BROWN: I am grateful for that. In those circumstances I will ask for the first defendant's costs for these proceedings. Your Lordship should have a copy of the statement of costs. There are two amendments to make to that bundle. My Lord, there has been some discussion between those instructing me and my learned friend on the quantum, and in relation to work done on documents on page 2. The suggestion has been made to us that the figure there, in the order of about 20 hours, is too high, and, my Lord, in round terms we have agreed to half that. My Lord, there are also the costs of attending judgment today. The net result is that my application is for a summary assessment of costs in the amount of £5,350.
40. MR JUSTICE JACKSON: Thank you.
41. MR LYNESS: My Lord, (inaudible) neither the principle nor the quantum.
42. MR JUSTICE JACKSON: The claimant is to pay the defendant's costs, and those costs are summarily assessed at £5,350. Thank you very much.