QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen (on the application of Frank Hampson)
|- and -
|Wigan Metropolitan Borough Council
- and -
Greenbank Partnerships Limited
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Miss Ruth Stockley (instructed by Wigan Metrolpolitan Borough Council) for the Defendant
Miss Frances Patterson QC (instructed by Platt and Fishwick Solicitors) for the Interested Party
Crown Copyright ©
Mr Justice Richards :
i) the construction of 2 office buildings with car parking on land off Atherleigh Way (application number A/03/58531);
ii) the construction of 44 residential units with open space at Madeley Park (application number A/03/58532);
iii) the construction of a bulky (non-food) goods retail warehouse with associated car parking and infrastructure and a children's play area at Leigh East (application number A/03/58533);
iv) the construction of a 10,000 seat stadium, a replacement Wigan and Leigh college, a conference and business centre, residential development including student accommodation, and a range of commercial, leisure and retail development with associated car parking and infrastructure at Marshall Street (application number A/03/58535); and
v) the laying out of sports pitches and associated car parking at Howe Bridge (application number A/03/59209).
The officers' reports
"10.1 The interpretation of whether a proposal is compliant with the requirements of national, regional and local planning policy is a matter that calls for a well reasoned and balanced judgment to be reached. There are a number of individual policies that apply to this series of planning applications. It is inevitable when dealing with large-scale proposals that have a number of potential impacts, that there will be examples of policies that pull in different directions.
10.2 For the proposals to be in compliance with the provisions of the development plan, it is not necessary that they accord with each and every policy. The issue is whether the proposals are in accordance with the provisions of the development plan as a whole. That is, whether they assist in delivering the strategy of the Plan."
No complaint is made about that advice, which is consistent with the observations of Lord Clyde in City of Edinburgh Council v. Secretary of State for Scotland  1 WLR 1447 at 1459E-F; see also R (Cummins) v. London Borough of Camden  EWHC Admin 1116, at paras 161-165.
"12.1 The proposal will contribute significantly to the regeneration of Leigh. It will provide a flagship development, and improve facilities for existing professional and amateur football, rugby and athletics clubs within the area. It will contribute strongly to increasing participation in sport, and promote more healthy lifestyles. The scheme will deliver first class educational facilities within a vibrant Campus that would be attractive to encouraging people to undertake further education. It will have substantial employment benefits and can be brought forward without unacceptable harm to the town centre, or local amenity. With appropriate safeguards, the impacts of traffic can be accommodated safely on the local road network and the scheme will assist in promoting public transport and park and ride opportunities.
12.2 The proposal accords in a material way with the provisions of the Development Plan and emerging Planning Policy Framework. The proposal could result in some delayed investment in the town centre, and on brownfield housing sites. However, these impacts would not be of such significance as to outweigh the overall benefits of the scheme.
12.3 The size of the retail facilities on site are not of such a a scale that they need to be referred to the Secretary of State under the terms of the shopping direction, and the proposal complies with the provisions of the Development Plan as a whole. Consequently, it is recommended that planning permission be granted, subject to planning conditions and legal agreements as set out in the main report ."
"13.29 The proposal will contribute significantly to meeting the retail needs of Leigh and arresting trade leakage from the catchment area. To this end, it will improve qualitative choice, and assist in promoting more efficient and sustainable travel patterns. The proposal is consistent with national, regional and emerging planning policy and would be an acceptable development in its own right. The fact that it will also assist in delivering the Leigh Sports Village proposal is a significant and material planning benefit that the proposal will bring. As it will provide funding to assist in delivering facilities on the main site, the development has wider benefit than the qualitative retail offer that it makes. It will also help to provide a flagship development, improving facilities for existing professional and amateur football, rugby and athletic clubs within the area. It will thereby contribute strongly to increasing participation in sport, and promote more healthy lifestyles. It also has a role in assisting the delivery of first class educational facilities within a vibrant campus complex. Consequently, it will have educational benefits. Lastly, in addition to the direct employment that will be provided on site, it will also help to deliver a wider range of employment opportunities on the Leigh Sports Village site.
13.30 Whilst the application does not accord with the Development Plan, this is as a consequence of the Plan being outdated and not fully reflecting current retail policy. The proposal accords in a material way with the requirements of national, regional and emerging planning policy and is therefore considered to be acceptable.
13.31 Consequently, it is recommended that planning permission be granted subject to planning conditions and legal agreements as set out in the main report subject to the application first being referred to the Secretary of State as a departure from the Development Plan ."
"14.29 The office development is contrary to the main thrust of national policy set out within PPG6, the requirements of the approved Development Plan, and the general strategy of the emerging Wigan Unitary Development Plan Replacement, Second Deposit Draft. Consequently, if the offices were a stand alone development they would be unlikely to be acceptable in planning terms. They would fail the sequential test, and could have some potentially harmful consequences to the town centre by delaying investment. However, the development has to be seen as an integral part of a large package that offers many benefits. The planning policy concerns raised above do therefore have to be set against the context of these benefits. If the linkage between the office and the main Leigh Sports Village site is accepted the benefits offered by the larger package would outweigh the planning policy concerns I have highlighted.
14.30 The Leigh Sports Village proposal will contribute significantly to the regeneration of Leigh .
14.31 The applicants have made it clear, that without the commercial components of development none of these benefits will be realised. The Council's emerging planning strategy has recognised the critical role of enabling development on this site, and it is for this reason that the policy framework would positively support a small scale office development, provided there was financial justification for it.
14.32 It is clear that the development is vital to enabling the Leigh Sports Village proposal as a whole to proceed.
14.33 There will be dis-benefits arising from the office development. However, I consider that the significant benefits that would be achieved as a consequence of the Leigh Sports Village complex as a whole are of such significance as to outweigh these.
14.34 Consequently, it is recommended that planning permission be granted subject to planning conditions and legal agreements as set out in the main report, subject to the application first being referred to the Secretary of State as a departure from the Development Plan ."
"15.19 Assessment of the proposal against the policies of the Development Plan, national, Regional and emerging local policies, and other material considerations, including the views of third parties, demonstrate the proposal to be acceptable.
15.20 As the development will also provide funding to assist in delivering facilities on the main Leigh Sports Village site, the development has wider benefits than the contribution it makes to improving the range and choice of housing within the Borough . Consequently, it will have educational benefits.
15.21 The proposal accords in a material way with the requirements of National, Regional and emerging planning policy, and will help to bring forward important planning benefits. It is therefore considered that the proposal is acceptable. Consequently it is recommended that planning permission be granted subject to planning conditions and legal agreements as set out in the main report ."
"15.35 Assessment of the proposal against the policies of the Development Plan, National, Regional, and emerging local policies, and other material considerations, including the views of third parties, demonstrate the proposal to be acceptable.
15.36 The proposal will contribute to improving both the quantitative and qualitative supply of sport and recreational facilities available locally, and assists in achieving wider objectives to encourage increased participation in sports as a means of promoting more healthy lifestyles. The proposal makes efficient use of investment that has already been made in sporting facilities within this area, and can thereby be more easily assimilated into the local area and it is not considered the proposals will unacceptably alter the current impact of the use. Consequently, it is recommended that planning permission be granted subject to planning conditions and legal agreements as set out in the main report ."
i) Ground 1 alleges a failure to have regard to relevant development plan policies and to national guidance in PPG17 concerning the loss of informal open space. It relates to the main Leigh Sports Village site and the adjoining office development at Atherleigh Way.
ii) Ground 2 alleges a failure to have regard to national guidance in PPG17 concerning the loss of existing sports pitches. It relates mainly to the suitability of the proposed facilities at Howe Bridge as a replacement for the sports pitches that will be lost at the Leigh Sports Village.
iii) Ground 3 is linked to ground 1 and alleges a failure to give reasons for not following the development plan policies and national guidance relied on in ground 1.
iv) Ground 4 alleges that the council erred in law in determining that the retail warehouse and residential developments at Leigh East and Madeley Park were "enabling development" such that it was entitled to take into account the financial link with the Leigh Sports Village development and the benefits arising from that development.
Ground 1: loss of open space
"L1C - Protection of Local Open Space and Outdoor Sports Facilities
Development will not be permitted on Local Open Space and Outdoor Sports Facilities unless:
(i) Alternative provision is made of at least equivalent standard in an appropriate location with similar community benefit or;
(ii) It can be demonstrated that there is (or would be) no deficiency in open space in the area compared with the standards in L1 as a result of the development; or
(iii) The Local Open Space or Outdoor Sports Facilities can be retained by development on part of the site.
This policy protects existing Local Open Space and Outdoor Sports Facilities as defined in Policy L1.
The Council considers it important to safeguard existing areas and facilities which form an important resource to the community .
L1D - Protection of Other Amenity Open Space
Development will not be permitted on open space of amenity value within built-up areas unless alternative provision is made of at least equivalent standard in an appropriate location with similar community benefit.
This policy refers to open space of high amenity value and community benefit within built-up areas, not included within the recreational open space defined in L1. These are open spaces which in the Council's view will need to be protected from development for as far ahead as can be foreseen. This type of open space will include:
iii. urban green spaces and landscape buffers which provide visual amenity and are of acknowledged local community benefit (whether or not there is public access to such land).
Protection of such sites is in accord with Government Guidance in PPG17 ."
"11.1 The application site is not subject to any site specific restraint policies which seek to protect the site from development, now or in the future. It is excluded from the Green Belt, defined by Policy OL2 and does not fall within the protected open land designation, defined by Policy OL3. The site is open land that falls within the urban area of the borough. As it is not subject to specific restraint policies, the expectation is that it is available to be brought forward for development within the life time of the plan. Proposals would need to accord with the overall strategy of the plan, and not offend specific policies intended to control the standard of development.
11.3 The plan strategy seeks to promote a range of measures to regenerate the Borough, improve its image, economy, infrastructure, environment and quality of life offer to residents. This raft of mutually supportive policies include inter alia
11.4 The proposal provides a range of sport, recreational, leisure, community, educational and housing facilities, including special needs. These are all supported by the dominant thrust of the plan to encourage such facilities within the urban area to contribute to the wider regeneration effort of the borough. The site also includes retail development. However, this is small scale in comparison to the proposals as a whole and in part will serve facilities on the site. Provided it can be shown this would not undermine the viability and vitality of Leigh Town Centre, it is difficult to conclude that the proposals do not accord with the overall plan strategy.
11.5 In addition to the above policies which give effect to the plan strategy, there is one general policy which gives locational direction for initiatives within the vicinity of the site, two site specific housing and environmental policies, criteria based policies relating to housing and a number of whole plan policies that seek to control the quality of development.
11.6 This suite of policies include inter alia;
6. A range of leisure, open space, community facilities and tourism policies, including L1, L1B, L1C, L1D, L1F, L5, E5.
11.8 The detailed report on the application and the summary of consultation responses in section 9 confirms that none of the statutory consultees who have considered the EIA, the Transportation Impact Assessment, the Retail Impact Assessment and the planning application has identified any technical reason for withholding planning permission. The site will incorporate some general needs housing and student accommodation. It is within the urban area, well served by infrastructure and facilities and will provide housing choice. Furthermore, the Retail Impact Assessment does not demonstrate any impact that would be of a scale to undermine the viability and vitality of the town centre as a whole. The financial information confirms the proposals to be indivisible and not a candidate for disaggregation. Consequently, the proposals not only deliver the plan strategy, but satisfy the detailed requirements of development plan policy.
11.11 My conclusions in respect of the development plan are that the proposals as a whole accord with the provisions of the plan. The site is within the urban area. It is not subject to restraint policies. Consequently the expectation is that it would be brought forward for development within the lifetime of the plan. The planning history confirms that planning permission has been granted on the site for major urban development. This permission pre-dated the adoption of the development plan. The fact that the site is a candidate for development is confirmed by the Plan Strategy and is a matter of public record as a consequence of the planning history. Part is also allocated for development. The proposal will bring forward major regeneration within an area of deprivation and need, on a site recognised within the Plan as being suitable for development and which is supported by appropriate infrastructure.
11.12 By excluding the site from restraint policies, it was clearly signalled in the process of plan adoption that the site was a candidate for development. The plan strategy promotes a range of uses intended to underpin the wider regeneration effort of the borough. The proposals bring forward many of the uses the strategy seeks to deliver. The detailed criteria set out in the range of policies seeking to control the standards to be achieved in new development can be satisfied. It is clear the proposals accord with the development plan. To this end the proposals do not need to be referred to the Secretary of State under the terms of the Development Plan Direction. The retail proposals are not of a scale to require referral under the terms of the shopping direction.
"Existing open space, sports and recreational buildings and land should not be built on unless an assessment has been undertaken which has clearly shown the open space or the buildings and land to be surplus to requirements ."
"There will also be significant impacts in terms of informal leisure usage of the site. The surroundings for walking and informal play will be significantly different in many parts of the site. Traditional informal activities, such as dog exercising, will be subject to considerable (and physical) restrictions to prevent fouling of playing areas.
Comments on the potential impacts of the development upon the site, both positive and negative, have been received as part of the public consultation process described in Section 1 of this document. Positive comments have exceeded negative ones, although in some cases the latter are supportive in principle whilst being critical of particular elements of the scheme" (original emphasis).
It may also be noted that, immediately before that passage, the EIA observed that the proposed development would be expected to have a significant impact on the development of Pennington Park, including opportunities to improve access to the park and complement the proposed new visitor facilities there.
" As the current proposal is different in nature, scale, function and target audience it is inevitable that it will fit differently with Development Plan policies, than the Xanadu proposal did. Consequently attempts to draw parallels between the two proposals are not helpful."
"2. The decision maker ought to take into account a matter which might cause him to reach a different conclusion to that which he would reach if he did not take it into account. Such a matter is relevant to his decision making process. By the verb 'might', I mean where there is a real possibility that he would reach a different conclusion if he did take that consideration into account.
3. If a matter is trivial or of small importance in relation to the particular decision, then it follows that if it were taken into account there would be a real possibility that it would make no difference to the decision and thus it is not a matter which the decision maker ought to take into account.
6. If the judge concludes that the matter was 'fundamental to the decision' or that it is clear that there is a real possibility that the consideration of the matter would have made a difference to the decision, he is thus enabled to hold that the decision was not validly made. But if the judge is uncertain whether the matter would have had this effect or was of such importance in the decision-making process, then he does not have before him the material necessary for him to conclude that the decision was invalid."
Conclusions on ground 1
Ground 2: loss of sports pitches
"The new land and facility should be at least as accessible to current and potential new users, and at least equivalent in terms of size, usefulness, attractiveness and quality" (emphasis added).
The contention advanced is that Howe Bridge is not as accessible as the existing locations and that this aspect of national policy was not drawn to the attention of members of the planning committee, with the result that they failed to have regard to a material consideration.
Ground 3: reasons
"Thirdly, the fact that a body had to have regard to the policy did not mean that it needed necessarily to follow the policy. However, if it was going to depart from the policy, it had to give a clear reason for not doing so in order that the recipient of its decision would know why the decision was being made as an exception to the policy and the grounds upon which the decision was taken."
Ground 4: enabling development
"That leaves Mr Carnwath's extreme hypothetical illustration of the undesirable office block in Victoria which is claimed to be necessary to generate the finance for a desirable development in Covent Garden. A combination of this nature would be unlikely to be properly entertained as a single planning application or as an application for one composite development, as in the present case. I therefore say no more about it save that all such cases would, in my view, involve considerations of fact and degree rather than of principle."
"I am not persuaded by this reductio ad absurdum argument. Circumstances vary so widely that it may be unsatisfactory and unwise to attempt to state a formula which is intended to provide a definitive answer in all types of case. All that need be said to decide this appeal is that the sites of the commercial development are sufficiently close to the Opera House for it to have been proper for the local planning authority to treat the proposed development of the office sites and the proposed improvements to the Opera House as forming part of one composite development project. As such it was open to the planning authority to balance the pros and cons of the various features of the scheme. It was open to the authority to treat the consequences, for the Opera House works, of granting or withholding permission for offices as a material consideration in considering the part of the application which related to offices."
"Where then is the line to be drawn between those extremes? In my judgment, the answer lies in the speech of Viscount Dilhorne in Newbury District Council v. Secretary of State for the Environment  AC 587 at p.599 . Conditions imposed must 'fairly and reasonably relate to the development permitted', if they are to be valid. So must considerations, if they are to be material.
In the present case, the improvement of the Royal Opera House, B, is a development which the Westminster City Council considers to be desirable, for valid planning reasons. The building of office premises in close proximity, A, is necessary if development B is to occur. It can fairly and reasonably be said to relate to the proposed development which ought to be permitted. The whole is, to quote the words of Kerr LJ, a composite or related development. The offices are not ulterior or extraneous; they are part of the whole."
"4.10 In looking at development finance, there can be no absolutes as the market is subject to change with the national economic cycle. However, overall the assumptions made appear to be realistic. They strongly point to the requirement for cross subsidy funding if the sports village is to proceed. If the development as a whole is regarded as important to the regeneration of the borough and the Committee is satisfied that the scheme is unlikely to be brought forward in any other way, the enabling role of the components of the scheme can be given considerable weight."
Conclusions on ground 4
- MISS ALLAN: Thank you, your Lordship. As costs follow the event and the defendant has been wholly successful I would like to make firstly an application that the claimant pay the costs of the defendant.
- MR JUSTICE RICHARDS: You are appearing for the defendant and the interested parties?
- MISS ALLAN: I have two applications to make. I feel they should be made separately.
- MR JUSTICE RICHARDS: So you are applying for costs - for the claimant to pay the defendant's costs.
- MISS ALLAN: Yes. I understand as the claimant is publicly funded --
- MR JUSTICE RICHARDS: It will have to be subject to the usual qualifications about postponement of determination of liability. Yes.
- MISS ALLAN: Would your Lordship like me to run through those?
- MR JUSTICE RICHARDS: The wording? No. The associate will be able to deal with that in the form of the order, far better than I can even.
- MISS ALLAN: I am obliged. I understand my learned friend does not intend to oppose the application of the defendant.
- MR JUSTICE RICHARDS: Let me check on that. Let us deal with the defendant first. Is that right?
- MR WHITE: My Lord I cannot resist the principle of costs to the defendant, the first defendant. I anticipate there is going to be an application in respect of the interested party's costs, my Lord, which I do and will resist in the event the application is made.
- MR JUSTICE RICHARDS: I see. At least we know where we stand in the defendant's costs. Yes. So now, with your other hat on, you are applying for costs for the interested party?
- MISS ALLAN: That is correct. I understand it is entirely the discretion of the court and that --
- MR JUSTICE RICHARDS: It is not just that, but the ordinary rule is that - well, there has to be some special reason to justify the payment of costs to the interested party and some separate interest that they have in the matter or separate reason why they had to attend.
- MISS ALLAN: As I understand in relation to the well-known case of Bolton it is a matter of separate issue or an interest requiring separate representation. To that end I simply make the following two points in which I would submit that the interested party required separate representation. Firstly, primarily in relation to the issue of delay of the application for judicial review. There were issues --
- MR JUSTICE RICHARDS: That is the ground on which you lost.
- MISS ALLAN: On the matter -- well, I lost in relation to the issue but in the matter of the interested party requiring separate representation on that matter because there were issues regarding undertakings given by the interested party, their security and the contracts in which, regardless of whether they lost, they felt that separate representation was required as the defendant themselves had no knowledge of them. That would be the first and main ground on which I would submit that the interested party required separate representation. The very secondary point are points highlighted by your Lordship in the judgment at paragraph 81. Those are points made specifically by Miss Patterson for the interested party in relation to ground 4 of the application, whether the application can be (inaudible). Those are the two issues in which I would --
- MR JUSTICE RICHARDS: That was a separate argument which you could have advanced but did not actually advance but she did.
- MISS ALLAN: I certainly did not advance it.
- MR JUSTICE RICHARDS: Yes, I see.
- MISS ALLAN: Unless I can be of further assistance.
- MR JUSTICE RICHARDS: Thank you. There will be no order for costs in relation to the interested party. It seems to me that the circumstances of the case do not justify two orders as to costs. All the matters capable of being advanced against the claimant could have been advanced even if they were not in fact advanced by the defendant counsel. In so far as reliance is placed on the issue of delay and the matters advanced by the interested party in relation to that issue, the fact is that the interested party lost on that issue and it does not seem to me to provide a proper basis for an award of costs by the claimant to the interested party. More generally I am not satisfied that the Bolton criteria are satisfied in this case so as to justify a separate award of costs.
- MISS ALLAN: I am obliged.
- MR JUSTICE RICHARDS: That completes the matter so far as you are concerned. Have you any applications, Mr White?
- MR WHITE: My Lord, I do. I understand of course that my client lost on the exercise of your Lordship's discretion. I just have two very short points to make, my Lord. Whilst I entirely understand and accept my Lord's reasoning in respect of discretion, counsel would not have made a different decision had the errors of law been fully identified in the reports -- just two points my Lord. Firstly, if the matter had gone back to re-determination there would have been an opportunity of course for my clients to have re-petitioned the Secretary of State as to whether the application should be called in for determination. My Lord I say that that might have made a difference had the Secretary of State been fully aware of the deficiency in the reports relating to the issue of amenity open space as opposed to playing fields etcetera. The second point, my Lord, of course had the matter been re-determined whilst the overall decision may not have been different there may have been compensatory - a requirement from the council for the applicant to provide compensatory open space or recreation purposes as part of the application. My Lord, those are just my two points in relation to the exercise of the court's discretion.
- MR JUSTICE RICHARDS: Thank you very much indeed. Very sensibly put in an economical way by Mr White though the application is, it is refused on the basis that relief was refused in the exercise of discretion and I am not satisfied that there is any real prospect of success in the Court of Appeal in challenging that exercise of discretion.