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 WC2A 2LL
		30 July 2009

1. THE DEPUTY JUDGE: This is an application under section 288 of the Town and Country Planning Act 1990 by the Council of the London Borough of Bexley to quash a decision taken by an Inspector, Mr John Felgate, dated 2 January 2009. The Inspector allowed an appeal by Mr George Arslanboga against the Council's decision to refuse him planning permission. The development for which the Inspector granted conditional planning permission was for a change in use of 79 Maidstone Road, Sidcup from a retail use to use as a hot food takeaway, together with the installation of extraction equipment within the premises. Planning permission was required to regularise that use of the premises which had in fact begun in March 2006.
2. The premises are located in the Maidstone Road Neighbourhood Centre, which has a main shopping frontage comprising, in the Inspector's view, nine units of which the appeal site is one. The Council now seeks to impugn the Inspector's decision on one ground only, namely that the Inspector misdirected himself in law in treating matters, relevant to compliance with the development plan, as being considerations which may justify departure from it.

Background

3. As is well-known, in determining whether or not to grant planning permission those entrusted with the decision must have regard to the provisions of the development plan, so far as material to the application, and also to any other material considerations (see sections 70(2) and section 79(1) of the Town and Country Planning Act 1990). That determination must be made in accordance with the development plan unless material considerations indicate otherwise (see section 38(6) of the Planning and Compulsory Purchase Act 2004.) Although section 38(6) of the 2004 Act creates a presumption that planning applications will be determined in accordance with the development plan, it does not require them to be so determined. The decision is ultimately one of planning judgment for the decision-maker, in this case the Inspector.
4. How the decision-maker may approach making such a decision, given the presumption, is a matter for him. There is no legal requirement to adopt any particular approach. In this case the Inspector considered that the main issues raised by the appeal concerned the effect of the proposal on the viability, vitality and retail character of the Maidstone Road Neighbourhood Centre and on the living conditions of nearby residents. He concluded that:

"the continued use of the appeal premises for a Class A5 hot food takeaway shop would not cause unacceptable harm either to the retail function of the neighbourhood centre, or to the living conditions of neighbours."

5. His conclusions in respect of the living conditions of nearby residents are not impugned. This application relates solely to his conclusions in relation to the effect on the neighbourhood centre.
6. Unitary Development Plan Policy SH06 provides:

"Within the Neighbourhood Centres defined on the Proposals Map and listed at Appendix G, proposals for non-retail uses at ground floor level will be determined in accordance with the considerations and criteria set out in Policy SH05."

That policy refers to Policy SH05:

"In determining planning applications in the defined non core shopping frontages the Council will resist changes of use of shops (Use Class A1) at ground floor level to other uses that would harm the character, viability and vitality of the centre. In particular, proposals will be expected to satisfy all of the following criteria:

1 the proposed use is a food and drink outlet (Use Class A3) or a professional or financial service to the public (Use Class A2) or a use that will complement and contribute to the diversity of the services provided in the centre;

2 the proposed use will not create or add to a concentration of a particular type of non retail use within an area of non-core frontage where the cumulative effects could undermine the retail function or cause parking and traffic problems, or other adverse effects on local residential amenity and the environment;

3 (a)the proposed use is not located next to three or more average units in non retail use or with planning permission for a non-retail use; and

(b) the proposal itself, together with any adjacent existing or permitted non-retail uses, should not create a continous length of frontage in non-retail uses exceeding three average widths;

4 the proposed non-retail use would not increase the proportion of average units in non retail use in the centre as a whole to more than 45% of all units;

5 the proposed use would not have an adverse effect on the area's character and environment, or the amenity of occupiers in the vicinity or parking and traffic conditions; and

6 the proposal includes a shop style fascia, with an appropriate window display at ground floor level.

Proposals for food and drink outlets (Use Class A3) should in addition satisfy Policy SHO9."

7. Neighbourhood centres, it is said in the UDP, may provide a good cross-section of shops that provide a reasonably full and satisfactory range of local retail facilities and services for a locality. This might include a greengrocer off-licence, baker, butcher, newsagent, small supermarket, chemist and post office, as well as a hardware shop and other essential local services. The plan also states that non-core frontages are generally located at the edges of town centres adjacent to residential and other occupiers.
8. In this case the first reason which the Council gave for refusing planning permission was that:

"The use of the premises for purposes within Use Class A5 results in a concentration of similar uses and an unacceptably high percentage of non-retail uses which undermines the function of centre contrary to policies SHO6 and SH05 of the UDP Plan 2004."

9. The Inspector found that the first of the criteria in Policy SHO5 would not be met and accordingly that the proposed development did not accord with the development plan. He then considered other material considerations.
10. In his view the underlying basis of Policy SH05 was that space should be kept available for the kind of retail uses that served the essential needs of the community. The Inspector found that Maidstone Road Neighbourhood Centre was less well placed to serve the large residential area north of Ruxley Corner extending towards North Cray, than the neighbourhood centre at St James Way. In his view the area surrounding the Maidstone Road Neighbourhood Centre was primarily an employment area and it appeared unrealistic to expect that centre to attract many more food or convenience shops. It was therefore reasonable, in his view, to argue that the appellant's use of the premises offered an equally valuable service which complimented that centre's shopping function and generated at least as many customers as some A1 uses.
11. He also considered that finding occupiers for vacant units in the centre had often been difficult over a period stretching back some 15-years or so, and that nearby Tesco and LIDL supermarkets were likely to take a high proportion of the area's convenience trade affecting the demand for other units. Current economic and financial difficulties could only add to the difficulties in letting any vacant unit. Accordingly he attached weight to the fact that the appellant's business was already well-established, having traded there for four years, providing services to a sizeable clientele and providing employment for its staff. He considered, therefore, that forcing the takeaway shop to close would bring no clear advantages to the Maidstone Road shopping centre, or for the local community, but several disadvantages.
12. The Inspector also found that all the relevant criteria in SH05 had been met bar one, a matter to which I shall return, and he concluded in summary that:

"13. ... the appeal proposal is contrary to Policy SH05, in that it would lead the 45% criterion to be exceeded. But the policy's overriding purpose is to protect the viability, vitality and retail character of the neighbourhood centre. In this case Maidstone Road primarily serves an employment area, and hence it fulfils a different role from that envisaged by the Local Plan. Historical evidence supports the contention that premises in the area are difficult to let for Class A1 uses, and especially those A1 uses which would serve traditional day-to-day shopping needs. The economic downturn and poor financial situation increases my concerns in this regard. All other relevant policy criteria would be met. Based on the evidence before me, I can find nothing to suggest convincingly that the neighbourhood centre's existing character, or its vitality and viability, would be adversely affected if the present Class A5 use were to continue. On balance, I consider that a substantially greater risk of harm would arise from its forced cessation.

14. In these circumstances, I conclude that in this case failure to comply with the development plan is outweighed by the considerations that I have identified above. Since no material harm would be caused to the neighbourhood centre, the failure to meet criterion 4 of Policy SH05 does not justify the withholding of planning permission for the proposed use."

The Inspector's treatment of the development plan and other material considerations

13. The Council contends that the Inspector misdirected himself in law in treating matters relevant to compliance with the development plan as being considerations which might justify departure from it. Mr Whale, who appeared on behalf of the Council, submitted, section 38(6) of the 2004 Act with its two distinct limbs gives rise to a logical, obvious proposition: there is a distinction between those matters going to whether or not a proposal is in accordance with the development plan, on the other hand, and those matters that are material considerations on the other. In his submission the Inspector wrongly blurred that distinction. He refers in particular to paragraph 11 of the decision letter in which the Inspector stated that:

"Turning back now to Policy SH05, although the appeal proposal would not accord with criterion 4, it appears that the other relevant criteria would be met, or could be met by imposing conditions. I acknowledge that the Council considers that a concentration of catering uses would be created, contrary to criterion 2. But in my opinion the separation of A3 and A5 into distinct use classes recognises that these uses are different in character. As only two other existing units are in Class A5, I do not consider that a concentration of those uses would be formed. The appeal site does not adjoin any other existing non-A1 uses, and therefore would not create a continuous non-retail frontage as described in criterion 3. Criteria 1 and 6 are not disputed, neither is criterion 5 except in so far as it relates to residential amenity, which I deal with later in my decision. Whilst these matters do not cause me to depart from my earlier finding that the proposal would conflict with the requirement to meet the SH05 criteria in full, nevertheless I consider that its compliance with these other criteria is a material consideration to be weighed in the overall balance."

In Mr Whale's submission compliance with the five criteria went to the proposal's compliance with the development plan for the purposes of the first limb of section 38(6) of the 2004 Act, taking them into account again, he contends, amounts to double counting.

14. In my judgment the conclusion reached by the Inspector in paragraph 11 of the decision letter, that the compliance of the proposal with the other criteria of SH05 was a material consideration to be weighed in the overall balance, cannot be said to have been erroneous in law.
15. The extent to which a planning application departs from the development plan, or from any policy within it, is plainly a material consideration when considering whether to determine the application otherwise than in accordance with that plan.
16. However, in my judgment Mr Whale's contention is more fundamentally misconceived. It amounts, in substance, to the proposition that section 38(6) of the 2004 Act requires a planning authority to determine an application in accordance with the development plan unless material considerations, which are irrelevant to the application of the development plan, indicate otherwise. That is not what section 38(6) states, as Jack J held in respect of its identically worded predecessor, section 54A of the Town and Country Planning Act 1990, in Council for National Parks v the Pembrokeshire Coast National Park Authority [2004] EWHC 2907 (Admin), [2005] JPL 1362 at 53. His approach was upheld by the Court of Appeal (see [2005] EWCA Civ 888, [2006] JPL 415).
17. Mr Whale sought to distinguish that case on the basis that it was concerned only with the policy there in question and that it did not raise the same issue of law on the facts as he now does. In my judgment that case cannot be so distinguished. The proposition that Mr Whale has advanced in this case is effectively indistinguishable from that advanced on behalf of the claimants in that case by Mr Wolfe (see paragraph 49 of the judgment of Jack J). That general submission was rejected, as I have indicated, as it required words to be read into the relevant statutory provision which are not there. Although the decision of both Jack J and the Court of Appeal related to the policy there in issue, GE4, it was not limited to that policy. Moreover, even if Mr Whale is correct that that case did not in fact raise the relevant legal issue, both the High Court and the Court of Appeal thought that it did and decided it.
18. Moreover, for what it is worth (if anything) in my judgment they were right to do so. The policy in question, GE4, required any development to be in the public interest and to contribute to an overriding national need. The development was permitted, notwithstanding that it did not contribute to an overriding national need and was thus contrary to the development plan, because of the need to provide more employment in Pembrokeshire. That need self-evidently made the development in the public interest and indeed it does not appear to have been suggested that the proposal did not comply with that part of the policy. It was simply that the need, which it would contribute to meet, was not national. Inevitably, therefore, the development's contribution to meeting the need for employment in Pembrokeshire was relevant to determining whether or not it satisfied both requirements of the policy. Both Jack J and the Court of Appeal nonetheless held that it could also be taken into account as another material consideration in determining whether or not to grant planning permission for it.
19. Quite apart from authority, however, in my judgment Mr Whale's submission is unsustainable. The fact that a consideration is one which is relevant to whether or not a proposed development complies with a development plan policy does not, of itself, mean that accordingly it cannot be a material consideration in determining whether or not planning permission should be granted, or that it is deprived of the materiality it might otherwise have had.
20. It is not unknown, for example, for development plan policies to become out of date. Other policies may be adopted both by the Secretary of State and the Local Planning Authority that deal with the same matters as the development plan policy, but indicate a different approach to them. If Mr Whale's submission were correct, the matters with which those policies deal would not be material planning considerations precisely because they are relevant to the development plan policy. Mr Whale sought to suggest that it was because they were dealt with in policies (albeit not in the development plan) that they would be material. But in my judgment a planning policy cannot make a consideration material which is otherwise immaterial.
21. Moreover, in my judgment Mr Whale's submission would have absurd consequences. Take Policy SH05 by way of example. It is concerned to prevent changes of use of shops at ground floor level in non-core shopping areas to other uses which would harm the character, viability and vitality of the centre. A proposal that resulted in 46 per cent of all units in the centre, as a whole, being in non-retail use would not meet criterion four. But why should the fact that the proposed use will complement and contribute to the diversity of the services provided in the centre and accordingly meet criterion one, so that it enhances the character, viability and vitality of the centre as a whole, be immaterial to whether or not it should be permitted? Such a result would, in my judgment, defy common sense.
22. The development plan and other planning policies provide guidance on how to determine planning applications on their merits. They are not devices for depriving material planning considerations of relevance or blinkers to impede a decision-maker taking an informed view of the planning merits.
23. In my judgment the sole ground on which this application is now advanced is contrary to authority and to principle, and the Council's application must therefore be dismissed.
24. MR MAURICI: Thank you. In addition to an order dismissing the application, I do seek an order for the Secretary of State's costs to be summarily assessed. The figure is agreed. If I can just give your Lordship the figure: £6,410.
25. THE DEPUTY JUDGE: That figure is agreed?
26. MR WHALE: I was just taking instructions on a matter. If I heard correctly the attendance is to be two and a half hours and £400 deducted.
27. MR MAURICI: Yes, so £6,410 is the final figure.
28. MR WHALE: We have no quarrel with that at all.
29. THE DEPUTY JUDGE: You do not quarrel with £6,410. Have you anything to say about the application for costs, leaving aside the quantum?
30. MR WHALE: No.
31. THE DEPUTY JUDGE: Mr Neill, do you wish to say anything?
32. MR NEILL: My Lord, the second defendant in these circumstances does make an application for costs. It is accepted that the Bolton guidance indicates that a normal rule is that the second defendant will not be entitled to his costs. However, in these circumstances, at the opening of this hearing, and indeed in the course of Mr Whale's submissions, 75 per cent of the claimant's case was withdrawn. The second defendant will make an application for costs on the basis that that was unreasonable conduct. In the absence of those grounds the second defendant would not be here. If it was only one ground that was being pursued it is highly unlikely that the second defendant would have attended. It is accepted that in normal circumstances costs will not apply in this instance, but given that behaviour by the claimant in withdrawing, at a very late stage, 75 per cent of its case, it is on that basis that I would apply for costs on behalf of the second defendant.
33. THE DEPUTY JUDGE: Mr Whale?
34. MR WHALE: It is a most extraordinary application and I suspect it is against my learned friend's better judgment. Let us just remind ourselves of what has happened here: until yesterday the second defendant played no part in these proceedings whatsoever. Entirely unannounced yesterday afternoon we are provided with a skeleton argument. It takes matters no further forward in the skeleton argument than my learned friend, Mr Maurici. Without wishing to be unkind, my learned friend Mr Neill's contribution today was to say "I endorse what Mr Maurici says "and then he made a bad point about a criterion. That is no warrant for a departure from the firm principle that only very exceptionally are two sets of costs to be awarded.
35. We do not have any idea what those costs are. I do not suggest that you can take at face value the proposition that if it had been ground three alone Mr Arslanboga would not have been represented today. His skeleton argument dealt with all of the grounds. The purpose of skeleton arguments from the Secretary of State is to see what the issues are between the parties, whereupon the claimant can take a view as to where it thinks its best point may lie, as entirely properly the Council did in this particular case. There is no warrant for a second set: a double counting if I may be permitted to say that again, so far as costs are concerned.
Ruling on Costs
36. THE DEPUTY JUDGE: In my judgment this is not a case in which there should be two sets of costs. The Secretary of State will have his costs, which I shall assess at £6,410 to be paid by the Council. I do not consider that the second respondent has shown any sufficient exceptional circumstances to warrant a second order. There is no reason for me to conclude that the second respondent would not have been here had only one of the grounds been maintained. I do not believe that the Council should be penalised for making the judgment not to pursue three grounds, which it did. Accordingly there will be an order dismissing this application and for the Council to pay the Secretary of State's costs in the sum I have mentioned.