QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
Hammersmatch Properties Limited
- and -
First Secretary of State
Welwyn Hatfield District Council
| Hammersmatch Properties Limited
|- and -
|First Secretary of State
Welwyn Hatfield District Council
Mr Philip Coppel (instructed by The Treasury Solicitor) for the First Defendants
Crown Copyright ©
Mr Justice Collins:
"Proposals for any other uses in the designated employment areas should generally be resisted and will only be permitted where it can be clearly demonstrated that the existing land or premises are no longer required to meet future employment requirements and business and community needs".
"planned regeneration, particularly through redevelopment, including mixed use schemes to make more efficient use of employment land and buildings."
"There are two main issues in this case. Firstly, whether the proposed development is an appropriate use of employment land, having regard to local planning policies, and secondly, whether there is a need for the proposed development in this location, having regard to the sequential approach to leisure development set out in national and local planning policies."
Mr Griffiths criticises this on the ground that it is incomplete in that it fails to deal with the question whether there were material considerations indicating that the restraints set out in the plans should not be followed. It was submitted that because the inspector did not refer to s.54A of the 1990 Act he must have failed to consider in accordance with its terms whether there were such material considerations. I do not accept that submission. When an inspector sets out the main issues, as is usual in any decision letter, he does not go into detail and spell out the various matters which are material to those issues. The decision letter when read as a whole will indicate whether the inspector has had regard to material considerations within the main headings and it is in any event impossible to believe that any inspector is unaware of the approach dictated by s.54A.
"Turning to the second issue, I have considered the proposed Health and Fitness Club against the town centre and leisure policies of the Development Plan. Even though there has been no local survey it is clear that there is a strong growth in this activity generally and that a demand for further facilities exists in the area. The Local Plan Review does not identify a specific need for health and fitness facilities, but I accept that a facility or facilities could beneficially be located in the north of the District over and above the two existing sites to the south of Welwyn."
In his statement, he sets out what he recalls of the evidence and asserts that he was not persuaded that there was an immediate and pressing need. Mr Coppel submitted that in paragraph 18 the inspector was accepting that there was a clear need and that the meaning was not obscure. I wonder why in those circumstances it was thought right to submit the inspector's statement which casts doubt on what he was intending to convey in paragraph 18. The claimant states that it called evidence which in its view did establish a clear and, if those adjectives are considered appropriate, an immediate and pressing need for such facilities. In the light of Mr Coppel's approach to the issue, I must accept that such a need has been found to exist notwithstanding the inspector's attempts to qualify what he said in the decision letter. Again, this does not engender confidence in the reliability of the inspector's conclusions. In any event, it is apparent that nowadays there is a much greater and growing emphasis on the need for exercise and fitness and clubs such as the one proposed are more and more popular. I note that a welfare centre has recently been constructed in the Royal Courts of Justice for those who wish to have access to such a facility in the building.
"Even so leisure is a town centre use that is encouraged and the use of this site for that purpose cannot be discounted at this stage."
In my view, it was in the circumstances unreasonable to regard this as a realistic alternative site. In addition, the inspector stated that 'first floor sites over the existing shops in the town centre would also be appropriate for leisure use, although they would probably not be strong enough structurally for a swimming pool use'. It is difficult to follow why the inspector included that sentence since he had placed emphasis on the desirability of a swimming pool and, as he must surely have recognised, the suggestion that a swimming pool could be constructed above a parade of shops was absurd.
"I acknowledge that the proposed development is not of sufficient scale to adversely effect the vitality and viability of the town centre. However, unlike the possible alternative sites that have been identified, it would not meet the Government's objective to sustain and enhance the vitality of the town centre either. It is true that the appeal site is readily accessible by a wide choice of means of transport, is within 10 minutes walking distance of the town centre and satisfies the other criteria in Policy CLT2. But it does not pass the sequential test and is not so accessible as the other sites I have identified. It is therefore not a preferred location for a leisure facility and would not comply with policy CLT2 of the Local Plan Review".
For the reasons I have given, I regard that as plainly wrong and the inspector should have found that there was full compliance with Policy CLT2. His conclusion that it would not sustain and enhance the vitality of the town centre is in my view highly questionable, but I recognise that he was entitled as a matter of judgment to reach that conclusion, insofar as it was material to his decision.
"It is true that the proposal satisfies all of the criteria in Policy EMP2 and would itself provide employment. It might also provide the kick start required to regenerate the complex as a whole. But the level of employment from the proposed change of use would be much lower than if the building was refurbished for business use and a kick start could also be provided by an imaginative business use scheme".