QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
Sitting as a DEPUTY HIGH COURT JUDGE
| THE QUEEN (ON THE APPLICATION OF HORNE & MEREDITH PROPERTIES LIMITED)
|- and -
|BRIDGNORTH DISTRICT COUNCIL
|- and -
|TESCO STORES LIMITED
||1st Interested Party
|- and -
|MERCIAN DEVELOPMENTS LIMITED
||2nd Interested Party
Peter Goatley (instructed by Eversheds) for the Defendant
Patrick Clarkson QC (instructed by Ashurst Morris Crisp) for the Interested Parties
Hearing dates: 6 & 7 October 2005
Crown Copyright ©
His Honour Judge Mole QC :
"Until the actual grant of planning permission the resolution has no legal effect. It is unlawful for the developer to commence any works in reliance on the resolution. And a developer expends money on the project before planning permission is granted at his own risk. The resolution may come to nothing because of a change of circumstances. It may fall to the ground because of conditions which are not fulfilled. It may lapse because negotiations for the conclusion of a section 106 agreement breakdown. After the resolution is adopted the local authority may come under a duty to reconsider its decision if flaws are brought to its attention: R. v. West Oxfordshire District Council, ex parte C. H. Pearce Homes Ltd (1985) 26 RV R 156. Moreover, it is not in doubt that a local authority may in its discretion revoke an outline resolution."
121. In my judgment a consideration is "material", in this context, if it is relevant to the question whether the application should be granted or refused; that is to say if it is a factor which, when placed in the decision-maker's scales, would tip the balance to some extent, one way or the other. In other words, it must be a factor which has some weight in the decision-making process although plainly it may not be determinative. The test must, of course, be an objective one in the sense that the choice of material considerations must be a rational one, and the considerations chosen must be rationally related to land-use issues.
"Have regard to"
122. In my judgment, the authority's duty to "have regard to" material considerations is not to be elevated into a formal requirement that in every case where a new material consideration arises after the passing of a resolution (in principle) to grant planning permission but before the issue of the decision notice there has to be a specific referral of the application back to committee. In my judgment the duty is discharged if, as at the date at which the decision notice is issued, the authority has considered all material considerations affecting the application, and has done so with the application in mind - albeit that the application was not specifically placed before it for reconsideration."
"126. In practical terms, therefore, where since the passing of the resolution some new factor has arisen of which the delegated officer is aware, and which might rationally be regarded as a "material consideration" for the purposes of s. 70 (2), it must be a counsel of prudence for the delegated officer to err on the side of caution and refer the application back to the authority for specific reconsideration in the light of that new factor. In such circumstances the delegated officer can only safely proceed to issue the decision notice if he is satisfied (a) that the authority is aware of the new factor, (b) that it has considered it with the application in mind, and (c) that on a reconsideration the authority would reach (not might reach) the same decision."
"115. As to section 70 (2), Mr Drabble submits (as he submitted unsuccessfully to the judge: see para.71 of the judgment, quoted earlier) that where there has been a material change of circumstances between the resolution and the issue of the decision notice consequent upon the resolution of the relevant question is whether the officer with authority to issue the decision notice remains entitled to act on the resolution, and that he will remain entitled so to act provided that that has not been a change of circumstances "of a kind that means the committee should be invited to form a fresh judgment" (I quote from paragraph 12 of Mr Drabble's skeleton argument, on which he based his oral submissions". Paragraph 12 of the skeleton argument continues:
"He is not obliged to go back to committee if his mandate remains good, as it will if the changes are small or if the original resolution remains consistent with the policy views of the council albeit expressed in a different context. If it is clear that the council as a whole (including the officers holding delegated powers) are alive to the various changes of circumstances, the council will have regard to all material considerations at the date of issue; express reconsideration by the original committee is not necessary."
"127. In substance, therefore, I accept the submissions made by Mr Drabble ... (quoted above) but with the proviso (which may in any event be implicit in his formulation of the statutory duty) that the test of a "material consideration" is an objective one in the sense explained in paragraph 121 above. It is not for the delegated officer to decide what is a material consideration within the meaning of section 70 (2). Hence it is no defence to a claim that an authority has breached its section 70 (2) duty for the authority to assert that in issuing the decision notice the delegated officer did not consider the consideration to be "material". Accordingly, I respectfully agree with the judge's observation (in paragraph 71 of the judgment) that "the delegation of the consideration of new material considerations is no answer to the... claim".
" All retail capacity assessments are predicated on estimating the turnover of existing and committed floorspace by using relevant sales floorspace figures, and where possible, published company average or benchmark turnover levels and comparing such turnover estimates with the forecast expenditure available in order to identify whether there is any expenditure surplus or headroom available to support new retail floorspace, having made appropriate allowances for existing and committed floorspace. Consequently, sales floorspace figures and benchmark turnover levels represent two key inputs into any capacity assessment."
"For the purposes of this analysis we have adopted, where possible, floorspace figures published by Focus to which we have applied the relevant company average turnover ratio published in Retail Rankings 2002... to identify the turnover based on these averages."
"6.27 on the basis of the above quantitative assessment, we conclude that the turnover required to support the proposed new store (£12.9 million derived from the primary catchment) can be justified on the following grounds:
(i) Over-trading at existing stores in Bridgnorth, principally Somerfield, currently totals approximately £9.8 million i.e. existing expenditure which is available to support new floorspace.
(ii) of the total current convenience business expenditure leakage from the PCA (approximately £9.3 million), we estimated that approximately £2.14 million could realistically be clawed-back, i.e. existing expenditure available to support new floorspace.
(iii) moreover, there is expenditure growth that also justifies additional convenience business floorspace. As demonstrated above, in the period up to 2006, such expenditure is forecast to increase by £4.8 million. If an allowance is made to account for that element of main food expenditure which is likely to be realistically attainable within the study area (80%), approximately £3.84 million of this will be available to support new floorspace, such as that proposed by Tesco.
(iv) existing levels of over-trading plus achievable claw-back and expenditure growth therefore total approximately£15.7 8 million. This contrasts favourably with the turnover requirement of the proposed Tesco's store that will be derived from the PCA i.e. £12.92 million."
"On the basis of this convenience goods based assessment, the additional convenience goods floorspace proposed by Tesco is justified in terms of surplus expenditure capacity, irrespective of which population forecast is adopted."
" If there are no material changes from what was approved on the 8th October 2003 in the overall content of the conditions or the section 106 Agreement it is the practice of this Council to issue the planning permission on completion of the Section 106 Agreement. If however there are changes to the overall content of the conditions and Section 106 Agreement then it would be referred back to the Development Control Committee for reconsideration to see if the Members were still willing to grant the planning permission based on the altered conditions/terms of the Section 106 Agreement. This practice is common to many Councils across the Country."
"I note the further papers supplied with your letter of the 16th November 2004. Obviously the Kwik Save Store has now been rebranded as Sommerfield Store.(sic) While not putting myself forward as expert in these matters I find Turley Associates statement that the catchment area population will decline by 2006 rather surprising. The demand for housing in Bridgnorth town is high (as reflected in the prices) and in recent months the Development Control Committee have given permission for additional housing units, which are currently being built. In addition the new local plan, which is due to go to Enquiry on the 7 June 2005, provides for an additional 500 homes within two miles of the Smithfield site."
"I appreciate at some Councils that there is an automatic reference back to committee when a certain period has passed from their original decision. This is not the present practice of Bridgnorth District Council's Development Control Committee and therefore given the content of the Section 106 and planning conditions taken together meet the requirements of Committee following its deliberations at the special meeting on the eighth of October 2003 of the Section 106 Agreement has been completed and the permission then issued."
Submissions – Ground 1
"Before development commences a Green Travel Plan shall be submitted to and approved in writing by the Local Planning Authority."