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
		28 July 2004

MR JUSTICE SULLIVAN:

Introduction

1. In this application for judicial review the claimant seeks a quashing order in respect of an outline planning permission for a retail store and service yard at The Manor Public House, 3 Albert Road, West Bridgford (the "Site") which was granted by the defendant to the second interested party on 26th September 2003.
2. The proposal was for a food store of around 1700 square metres gross with a net retail floor space of around 1,000 square metres gross. The claimant operates a food store on another site in West Bridgford.
3. National planning policy.
4. National planning policies for retail development are set out in Planning Policy Guidance 6, "Town Centres and Retail Developments", a revised version of which was published in June 1996 (PPG6).
5. PPG6 emphasises the need to promote retail development within town centres. If a site for a proposed retail development is within a town centre, the applicant for planning permission is not required to demonstrate that there is a need for the additional retail facilities, nor is it necessary to cast around to see whether or not there might be a preferable site in policy terms.
6. If, on the other hand, the site is outside the town centre, the applicant for planning permission has to demonstrate both the need for the additional facilities and that a sequential approach has been followed in selecting the site, giving first preference to town centre sites, followed by edge of centre sites if no town centre site is available, and only looking at out of centre sites if no edge of centre site can be found.
7. Annex A to PPG6 contains a Glossary of Terms. The different types of centre, local centres, district shopping centres, town centres and regional shopping centres are all described. Town centres are described in the following terms:

"In this guidance the term 'town centre' is used generally to cover city, town and traditional suburban centres, which provide a broad range of facilities and services and which fulfil a function as a focus for both the community and for public transport. It excludes small parades of shops of purely local significance. The policy guidance in this PPG should be interpreted in a way that relates reasonably to the particular size of town centre concerned."

8. Different types of location are described in Annex A, including Edge-of-centre:

"For shopping purposes, a location within easy walking distance (ie 200-300 metres) of the primary shopping area, often providing parking facilities that serve the centre as well as the store, thus enabling one trip to serve several purposes. For other uses, such as offices or leisure, edge-of-centre may be more extensive, based on how far people would be prepared to walk. For offices, this is likely to be in the region of 500 metres of the station or other public transport interchange."

The Principal Issue

9. In deciding to grant planning permission on 26th September 2003 the defendant's Development Control Committee accepted the recommendation of the Borough Development Officer in a report dated 16th June 2003 (the "Report"). It is common ground that in so doing the members accepted the reasoning set out in the Report.
10. The Report stated that the Site was in the town centre of West Bridgford, and since it was in the town centre no demonstration of need was required and there were no retail policy grounds for objecting to the proposal.
11. The principal ground of challenge advanced by Mr Tucker on behalf of the claimant is that the defendant erred in concluding that the Site was within the town centre.
12. At first sight this submission does not look particularly promising since a decision as to whether or not any particular site is within a town centre is pre-eminently a matter of planning judgment, highly dependent upon a detailed local knowledge of the centre in question.
13. Undaunted, Mr Tucker submitted that this was a case where the town centre was defined in the development plan and the Site was outside the area so defined.
14. The development plan comprises the Nottinghamshire Structure Plan Review, which was adopted in November 1996, and the Rushcliffe Borough Local Plan, which was adopted in June 1996. Policy 6/1(c) in the Structure Plan provides, so far as relevant:

"Provision will be made for the appropriate expansion of retail and other central area facilities and office development within or on suitable edge-of-centre sites in the following central areas so as to sustain and enhance their role as district centres ... West Bridgford central area.

"Edge-of-centre sites should only be developed if there are no suitable in-centre sites available."

15. Paragraphs 6.22 and 6.23 of the Structure Plan are as follows:

"All the centres listed in Policy 6/1 should be regarded as 'town centres' as the term is used in Planning Policy Guidance Note 6. The boundaries of the centres will be determined in Local Plans.

"Policy 6/1 and Policy 6/2(a) set out the sequential approach as advised in PPG6."

16. The policy relied upon by the claimant is Policy S2 in the local plan, which is as follows:

"In the areas defined on the proposals map planning permission will normally be granted in ground floor frontage locations where:

"(a) The proposal is for an A1, A2, or A3 (retail services) use and the proportion of A2 and A3 uses would not exceed 35 per cent of the total A1, A2 and A3 units in the defined centres as a result of approving the proposal; or.

"(b) The proposal is for an A1, A2 or A3 use in the shopping parades in West Bridgford as defined on the proposals map.

"Outside these areas permission will only be granted for small-scale A1 uses which meet local needs in areas of identifiable service deficiency. Any proposal considered under this policy must comply with the criteria in ENV1 and M2."

17. The reasoned justification for this policy is contained in paragraphs 5.11 to 5.16 of the Local Plan under the heading "Local Shopping Centres":

"5.11. The shopping centre in West Bridgford and those in the main rural villages of Bingham, Cotgrave, East Leake, Keyworth, Radcliffe-on-Trent and Ruddington are very important to the residents of Rushcliffe. The policies of the Local Plan attempt to protect the vitality and viability of these shopping centres by concentrating shopping development (except for local shops), in existing shopping areas, controlling non-shopping uses, indicating areas for future expansion as shown on the proposals map and wherever possible initiating highway and environmental improvements."

"5.13. Offices and residential uses are obviously non-shopping uses and not appropriate to shopping frontages. The situation is not so clear cut for retail services such as building societies, estate agents, restaurants, et cetera. These do provide important services which are appropriate for shopping centres but if they predominate they can dramatically change the character of the shopping centre leading to the problems mentioned above.

"5.14. The challenge is to achieve a successful mix between retail and retail services and this is best implemented with a flexible policy that can respond to changes in provision.

"5.15. In Town and Country planning legislation retail services appropriate to shopping areas are defined as Classes A2 and A3 of the 1987 Use Classes Order. Their occurrence in West Bridgford and the main rural centres in 1990 is shown above in Table 4.

"5.16. It is generally accepted that there needs to be a mix of retail and service outlets within shopping centres but the proportion of A1, A2 and A3 uses can undermine the validity and viability of the centre. The Unit for Retail Planning Information has produced a report entitled "Service Outlets in Shopping Centres". This report discusses the problems of retail service outlets in shopping areas and states that, 'it was generally thought that the proportion of retail frontage in a centre could not go below two thirds or 65 per cent without some problems...' The Borough Council will therefore attempt to limit A2 and A3 uses in its main shopping areas to about 35 per cent. It will regularly survey and monitor the extent of non-retail uses in its shopping areas and produce guidance indicating the acceptable levels in each centre if necessary."

18. Under the heading "Shopping/Commercial" the key to the proposals map identifies the "shopping centre" which is subject to Policy S2A and the "other shopping areas" which are subject to Policy S2B. On the proposals map a number of shopping parades are shown as being subject to Policy S2B. The Site is adjacent to the boundary of the main shopping area which is subject to Policy S2A.
19. Mr Tucker submitted that Policy S2A, when read in conjunction with the reasoned justification, defined the town centre of West Bridgford for the purposes of PPG6. Recognising that if alternative interpretations of the policy were possible the defendant would be entitled to adopt such an alternative, he acknowledged that the key question was whether the only reasonable interpretation of Policy S2A was that it defined the town centre for the purposes of PPG6.
20. In my judgment there can be only one possible answer to that question, an emphatic "No".
21. Policy S2A is not a response to the statement in the Structure Plan that the boundaries of town centres will be defined in local plans. Approval of the Structure Plan post dated approval of the Local Plan. Although the Local Plan was approved in the same month as the revised PPG6 was published, its policies, including S2(a), were prepared long before PPG6 was revised.
22. The earlier version of PPG6 referred to town centres, but on its face Policy S2(a) does not purport to and does not define the town centre of West Bridgford.
23. That is not in the least surprising since the importance of the distinction between town centre sites and sites outside town centres was less apparent prior to the publication of the revised PPG and subsequent ministerial statements.
24. Policy S2 is not confined even to the main shopping area of West Bridgford since it identifies a number of outlying shopping parades which Mr Tucker accepts are not part of the town centre of West Bridgford.
25. On its face Policy S2 defines the main shopping area of West Bridgford and those shopping parades wherein retail and retail service uses will be encouraged, and discourages other than small-scale retail development outside those defined areas.
26. Its other main function is to protect the principal shopping frontage in West Bridgford from an excessive proportion of retail service outlets. Whilst it is perfectly reasonable to contend that if a site is within a main shopping area or a principal shopping frontage protected by such a policy then it must also be within the town centre, it does not follow that if a site is not subject to such a policy is must be outside the town centre.
27. Annex A to PPG6 describes town centres as providing a broad range of facilities and services. As a matter of common sense, to say nothing of planning judgment, a town centre will usually, if not invariably, be somewhat more extensive than the prime shopping area and may include, for example, pub, restaurant, club, cinema, theatre and other entertainment uses, employment uses, civic uses, transport uses and other uses, depending upon local circumstances and the size of the centre in question.
28. The Report pointed out that the application for planning permission was advertised as a departure from the development plan because the Site lay outside the "shopping policy area" shown on the Local Plan. The objections to the proposal were summarised, including the claimant's objection that the Site was outside the designated shopping area and there had been no assessment of need. There was no objection from the County Council.
29. Having summarised the policies in PPG6 in terms which are not criticised by the claimant, and noted that the Structure Plan stated that the boundaries of town centres would be defined in local plans, the Report said this in paragraphs 40, 42, 44 and 45:

"40. The adopted Local Plan does not define a specific town centre boundary for West Bridgford, but an area is defined within which planning permission will normally be granted for retail uses (Policy S2). Outside this area, planning permission will only be granted for small scale retail uses which meet local needs in areas of identifiable service deficiency. As the present site lies just outside the area defined on the current proposals map, it has been advertised as a departure from the Development Plan."

"42. Policy S2 of the [Rushcliffe Borough Replacement Local Plan February 2000] again defines an area within which planning permission for retail developments will normally be granted. In accordance with Policy 6/1(c) of the Structure Plan Review, the proposals map shows the defined shopping area for West Bridgford expanded in several places including the present application site, to accommodate appropriate expansion and to include the existing A3 (public house) uses which were already functioning as a part of the town centre."

"44. It is clear from both Government guidance in PPG6 and PPG13 and the relevant policies of the Development Plan that the preferred approach to new retail developments is to locate them in or adjacent to existing town and district centres...

"45. Whilst the site is outside the shopping policy area in the adopted Local Plan it is still considered to be within the town centre. Indeed PPG6 defines edge of centre locations for retail developments as being 200-300 metres from the primary shopping area. This site is immediately adjacent to the primary shopping area and in national retail policy terms is clearly in the town centre. The Replacement Local Plan in extending the shopping policy area reflects this position. The fact that no objections were received to the proposed Local Plan alteration adds further weight to this view. It will be recalled that when previous applications were considered by the Committee, the Site was described as 'edge of centre'. This was included purely as a description of its geographical location rather than in the context of the policy definitions contained in PPG6."

30. In my judgment there is no conceivable error in that advice. The claimant's proposition that Policy S2(a) defines the town centre for the purposes of PPG6 is untenable for the reasons set out above.
31. Mr Tucker relied on the description of the Site as an edge of centre site in reports which had been prepared on two earlier applications for planning permission that had been made by the second interested party in 2002.
32. In a report dated 17th October 2002 the Borough Development Officer had recommended that planning permission should be granted for the development proposed in the first application, saying that there were no retail policy objections to the proposal. Members disagreed and refused planning permission on grounds which included retail impact.
33. The second application in 2002 was not determined by the defendant within the prescribed time. The second interested party appealed. So the application was brought back for members to decide how they would have determined it. Again, the Officer's advice was that there was no retail policy objection. On this occasion members agreed and resolved that they would have refused permission on traffic and amenity but not retail policy, grounds.
34. The application which resulted in the grant of permission which is the subject of these proceedings was the second interested party's (successful) attempt to avoid the need for an inquiry into the appeals against the refusal of the second application and the non-determination of a fourth and similar application. The Report dealt with the descriptions of the Site in the earlier reports in paragraph 45:

"It will be recalled that when previous applications were considered by the Committee, the site was described as 'edge of centre'. This was included purely as a description of its geographical location rather than in the context of the policy definitions contained in PPG6."

35. Mr Tucker submitted that this was wrong. "Edge of centre" had been a description of the Site in policy, not geographical terms.
36. The earlier reports are not directly in issue in these proceedings but they must in any event be read as a whole. The Report dated 17th October 2002 stated in terms that the local plan, "did not define a specific town centre boundary for West Bridgford."
37. On the basis of the approach adopted by the officer in that report, it did not matter whether the Site was in or adjacent to the town centre. Thus members were told in October 2002:

"It is clear from both Government guidance in PPG6 and PPG13 and the relevant policies of the Development Plan that the preferred approach to new retail developments is to locate them in or adjacent to existing town and district centres."

38. The reasoning behind that approach is then summarised:

"The Borough Council has recognised this by allocating the majority of the present site within the designated shopping area for West Bridgford in the Replacement Local Plan. Government guidance in PPG1 states that where a plan has been deposited and no objections have been lodged to relevant policies, then considerable weight may be attached to those policies because of the strong possibility that they will be adopted and replace those in the existing plan. No objections were received in connection with the proposed modification of the allocated shopping area and, accordingly, considerable weight should be given to the fact that the majority of the present site lies within the shopping area as proposed to be amended in the Replacement Borough Local Plan."

"It is considered that the proposal complies with national, Structure Plan and Local Plan policies in terms of retail and town centre development as the site comprises an edge-of-centre location which is convenient for not only car but also public transport. Indeed the bulk of the site is shown as being within the shopping area of West Bridgford in the Replacement Borough Local Plan."

39. A similar approach to the retail policy issue was adopted in the report on the second application. Thus these earlier reports were based upon the premise that there was no retail policy objection whether the Site was regarded as being within or on the edge of the town centre.
40. I am not concerned in these proceedings with whether that approach in 2002 was right or wrong. Plainly, the Borough Development Officer had reconsidered the matter when he came to write the Report which formed the basis for the members' decision to grant planning permission.
41. Having reconsidered the matter, he concluded that the Site was within the town centre. Not merely was he entitled to reach that conclusion as a matter of planning judgment, he was plainly right to reject the proposition that Policy S2(a) defined the extent of the town centre.
42. Mr Tucker raised a subsidiary point. He submitted that the statement in paragraph 45 of the Report, "The fact that no objections were received to the proposed Local Plan alteration adds further weight to this view", was an incomplete summary of the advice which is contained in paragraph 48 of PPG1 which deals with the weight to be given to emerging local plans. The advice was therefore fundamentally misleading.
43. I can deal with this submission quite shortly because it is based upon a misunderstanding of the Officer's advice. The advice given to members had nothing whatsoever to do with the guidance in paragraph 48 of PPG1. Members were being advised that the fact that no objections had been received to the proposed Local Plan alteration added further weight to "this view".
44. "This view" was the proposition that the extension of the shopping policy area to include the Site in the replacement Local Plan reflected the position that the Site was clearly in the town centre. Since inclusion of the Site in the primary shopping area would undoubtedly point to its being within the town centre (although the converse would not be true for the reasons set out above) the fact that there had been no objection to that extension of the primary shopping area in the replacement Local Plan undoubtedly did lend weight to the view that the Site was "clearly in the town centre".
45. The Officer was making a short and simple point. He was not dealing in the abstract with the circumstances in which it may or may not be appropriate to give no weight or considerable weight to emerging development plans (the subject matter of paragraph 48 of PPG1).
46. For these reasons I am satisfied that there is no force whatsoever in either the primary or the subsidiary submissions advanced on behalf of the claimant and it follows that this application for judicial review must be dismissed.
47. MR MAURICI: My Lord, I ask for an order that the claimant pay the Council's costs. Can I give you the figure, because it is agreed. It is £10,033. I do have a schedule but I do not think there is any need for your Lordship to see it.
48. MR JUSTICE SULLIVAN: No, not if it is agreed. May I just check, Mr Tucker, the principal and the amount are both agreed.
49. MR TUCKER: My Lord, I am not instructed to oppose either.
50. MR KATKOWSKI: Before my Lord shuts my Lord's book, my Lord, I make an application in relation not to the costs of today, but merely, I hope modestly, in relation to the costs of the interested party filing for the acknowledgment of service and summary grounds of defence.
51. My Lord, the principal and the sum is agreed by my learned friend. The sum is £2,646.69 and I make that application.
52. MR JUSTICE SULLIVAN: That is the position?
53. MR TUCKER: My Lord, precisely the same as before; I am off to open a pet shop in Nottingham.
54. MR JUSTICE SULLIVAN: They have extended the shopping area.
55. MR TUCKER: I am absolutely delighted to hear it, my Lord.
56. MR JUSTICE SULLIVAN: Then the formal order is that the application for judicial review is dismissed. The claimant is to pay the defendant's costs, those costs to be summarily assessed in the sum of £10,033.
57. The claimant is also to pay the interested party's costs of filing and serving the acknowledgment of service and summary grounds, those costs to be summarily assessed in the sum of £2,646.69.
58. MR TUCKER: My Lord, can I just make two very slight corrections. Your Lordship indicated the interested party and, of course, there are two interested parties. For the avoidance of doubt, can I indicate it is the second interested party.
59. MR JUSTICE SULLIVAN: I am so sorry, yes, I had referred continuously to the "interested party" in the singular.
60. MR TUCKER: The first interested party being the landowner who has played no part in these proceedings.
61. MR JUSTICE SULLIVAN: Yes, thank you. Can that be corrected in the judgment.
62. MR TUCKER: My Lord, another very slight correction: the penultimate statement of your Lordship's judgment indicated a reference to paragraph 45 of PPG1. I think that is because we have spent most of the day talking about 45 of the --
63. MR JUSTICE SULLIVAN: It should be 48.
64. MR TUCKER: It should be 48, my Lord.
65. MR JUSTICE SULLIVAN: Yes, thank you very much for those corrections.