QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF MIDCOUNTIES CO-OPERATIVE LIMITED||Claimant|
|WYRE FOREST DISTRICT COUNCIL||Defendant|
|TESCO STORES LIMITED AND SANTON GROUP DEVELOPMENTS LIMITED||Interested Party|
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Mr H Richards appeared on behalf of the Defendant
Mr R Harris QC and Mr R Taylor appeared on behalf of the Interested Party
Crown Copyright ©
Was more granted than applied for?
"Construction of a new class A1 supermarket ... new road and bridge ... highways and other works ... in accordance with the application received by the Council on 31 October 2007 and as subsequently amended subject to the following conditions ..."
"The food store hereby approved shall not exceed the following floor space allocations (maxima);
Gross external -- up to 4209 sq. metres measured externally
Nett retail sales -- up to 2919 sq. metres,
unless otherwise agreed in writing with the Local Planning Authority.
In the interest of clarity, in order to define the permission and to ensure that it accords with Policies RT.1 and RT.4 of the Adopted Wyre Forest District Local Plan."
I believe no irony is intended in the first part of the reason.
"Total floor space of all buildings [in] proposed new floor space 4209 sq metres."
referred to the gross external measurement of the proposed store.
What is the scope of the floorspace limit in condition 6?
"(with the exception of the food store building itself, the siting of which is hereby approved in accordance with plan ... revision J."
amounted to approval of the internal layout of the store so far as it could be discerned from that plan.
Was more permitted than was assessed?
"The likely turnover of the store has been identified by multiplying a turnover per sq metre with the net floorspace of the proposed store, being the area used for the sale and display of goods and including the checkouts and customer counters, but excluding lobbies, customer services and circulation areas.
7.32 In this instance, the net floor area amounts to 2401 sq.m. The proposed sales area of the store will comprise some 1527 sq.m of food floorspace and some 874 sq.m of non-food floorspace."
"... since WYG conclude that the proposal passes the sequential test in any event, providing the pedestrian linkages to the town centre are as strong as possible, since this has a bearing on the potential impact on the town centre. There is also a requirement to demonstrate need. WYG accept that there is a qualitative need for the development; whilst they do not wholly accept the applicants' arguments about quantitative need, they do, significantly, accept that the proposal would not on balance cause significant harm to the vitality and viability of the town centre. WYG have also considered all the third party representations concerning the retail issues, but remain of the opinions as summarised in this report. In essence, WYG do not consider that there exists a strong case for refusing the application on retail grounds."
"9. It is commonly accepted among those involved in retail planning and in particular the preparation and critiquing of retail studies, retail capacity and retail impact work that sales area is that which comprises the internal area to which the public have access, which is used for the sale and display of goods. It is a matter of phraseology and general interchangeability of terms that descriptions such as floorspace for retail trading, net sales area and sales area are applied. There is no commonly applied or standard term relating to the naming of a selling area.
10. The distinction between these two 'sales areas' becomes important when assessing the proposal against retail planning policy tests (PPS6), as it is the smaller net retail area which generates the store's retail turnover. The non-retail sales floorspace does not generate turnover and is therefore ancillary to the retailing area."
"The store will include 2403 sq.m (25,865 sq ft) net sales area, providing the wide range of food and non-food goods and services expected in a modern supermarket, together with staff catering facilities and offices and storage areas. Staff accommodation is to be located at mezzanine level. Details of the floorspace distribution and the customer offer are provided in the Retail Assessment."
"The store will have a sales area of 2403 m2 (25,865 ft2) with petrol filling station and associated landscape works. The sales area will provide a range of food, non-food goods and services, along with a cafe and storage areas and associated landscaping."
"The store will comprise 2403 sq.m (25,865 sq ft) net sales area, offering both food and non-food goods and services in a modern supermarket setting. The building will include staff catering facilities, ancillary offices and storage areas."
Discretion and the section 106 obligations
The tailpiece to condition 6
Condition 4: the tailpiece
"The development hereby approved shall be carried out strictly in accordance with the following plans/drawings:
6046-P07-J dated 22 February 2008
6046-P10C dated 22 February 2008
stamped 'Approved' unless other minor variations are agreed in writing after the date of this permission and before implementation with the Local Planning Authority."
consultation on the section 106 agreement
"Part 1 of the register shall contain in respect of each such application ...
(b) a copy ... of any planning obligation or section 278 agreement proposed or entered into in connection with the application."
"41. The process of setting planning obligations policies and negotiating planning obligations should be conducted as openly, fairly and reasonably as possible and members of the public should be given every reasonable assistance in locating and examining proposed and agreed planing obligations which are of interest to them.
43. With respect to the requirements to include details of planning obligations in Part 1 of the register, it is recognised that the terms and content of agreements can change frequently during negotiations and that having to update the register every time there is a change could be unduly onerous for authorities. Individual authorities are best placed to judge when to update the register, bearing mind its purpose in ensuring the transparency of the process, but as a guide, local planning authorities should expect to record agreed heads of terms at the start of the process, followed by any significant changes to draft agreements."
"The appellant has first to show that his position was such that he had, in principle, a right to make representations before a decision against him was taken. But to show this is not necessarily enough, unless he can also show that if admitted to state his case he had a case of substance to make. A breach of procedure, whether called a failure of natural justice, or an essential administrative fault, cannot give him a remedy in the courts, unless behind it there is something of substance which has been lost by the failure."
"22. We have no difficulty in accepting that LDC's failure to bring LSL and Williams into a single process of consultation, however brief, about the best formula for apportioning the road infrastructure costs was unjustified and was potentially unfair, in the circumstances, to LSL. But potential unfairness is not enough. It has been authoritatively said that there is no such thing as a technical breach of natural justice: R v Chief Constable of the Thames Valley Police, ex parte Cotton  IRLR 344 per Stocker LJ at para. 53 Before treating this as a universal axiom, however, it is necessary to have regard to what Bingham LJ said at para. 60: "This is a field in which appearances are generally thought to matter"; and to consider how the two propositions would fit together in a case where, say, a defendant has been denied a chance to speak in mitigation before being sentenced, even though he cannot show that he would have had anything useful to say. What can be more confidently said is that in the field of public administration, absent some mandatory procedural scheme, it is the combination of process and impact which must be shown to have been unfair if a public law challenge is to succeed.
24. Coming back to the question of substantive unfairness, in our view LDC have failed entirely to show that the formula favouring Williams was the only feasible outcome of an open consultation process. ...
25. But that does not conclude the question of fairness. Mr Mole and Mr Lowe submitted that, even if LDC's conduct is open to the criticism that it was poor public administration, it did not cross the legal boundary between the fair and the unfair. We do not agree. ... The only remaining question is whether LSL, expertly advised and represented as they were, had sufficient information, advice and resources to make up the leeway and to submit anything they wished to the planning committee at its decisive meeting on 1 April: in other words, whether there was in the end any substantive unfairness to them."
"In the exercise, with respect to any buildings or other land in a conservation area, of any [functions under or by virtue of] any of the provisions mentioned in subsection (2), special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area."
"There has long been widespread concern over the impact of high levels of traffic on the historic core of Stourport-on-Severn. It is considered that the existing access arrangements to the site are inadequate for the scale of development envisaged and that access is a major constraint on the major development of the area. Therefore, major redevelopment will necessitate considerable alterations and improvements to the existing access arrangements and the surrounding transport infrastructure."
"The various highway improvements to connect the store with the town centre are supported by the Highway Authority. A new pedestrian link between the residential development on the west bank of the Stour to the site, and the town centre beyond, is a clear benefit, as are the proposals to improve local bus services, and the provision of the new road link, which also forms a short section of the proposed Relief Road. Generally speaking, this link will improve traffic flows and conditions in the town. Given the constraints discussed above, it is considered that the applicant has demonstrated improved pedestrian and other linkage between the site and the town centre such that this no longer represents a reason to refuse the application."
"4.4 Importantly, in the context of the objections set out 4.2 above, the highway improvements inter alia include the provision of a new access link from Severn Road over the River Stour to Discovery Road which will assist in the dispersal of traffic from the town centre. Further, investigations are proposed to junctions around the town centre which might be impacted upon by the development, with a view to improving the flow of traffic. The York Street/Bridge Street/High Street junction is one previously identified.
4.5 The objections set out in respect of traffic congestion which underpin the consequential argument that air quality will deteriorate are not founded on a professional critique of the Transport Assessment but rather more on personal and anecdotal experiences of the objector. On this basis, your officers are of the view that prima facie there is no evidence provided by the objector with regard to traffic congestion that outweighs the technical assessment carried out through the Transport Assessment and the position adopted by the Highway Authority. This element of the objection should, therefore, be afforded little weight.
4.7 ... The package of measures contained in the proposed S106 obligation, together with the road link over the River Stour will alter the pattern of vehicle movements around Stourport, including reducing the need to travel by providing a more sustainable option in the enhanced public transport proposal."
Road Safety Audit
"The safety audit will require updating to the revised drawings."
"They advise that they do not agree with the case and objections put forward by the Co-op."
It made no reference to what had previously been said about a further safety audit from the developer.
"The applicant has produced a safety audit that does not raise the objectors' concerns and the points made are difficult to substantiate as well. They do not present a strong case and have made statements that we disagree with. In summary, the Highway Authority is satisfied that subject to the conditions and signing of an appropriate section 106 agreement the public will not be adversely impacted upon and that the requirements of the Highway Authority will be met. It would be unreasonable and unjustifiable to recommend refusal."
"The claimant has produced a safety audit that does not raise the objector's concerns."
"1.70 Local authorities have to designate those parts of their areas, where the prescribed Air Quality Objectives are not likely to be met by, or at any point beyond the relevant deadline, as AQMAs. This applies only to those locations where members of the public might reasonably be exposed. ...
1.72 Local authorities should aim to designate their AQMAs as soon as possible after they have formally identified the need for them ..."
"113 Where the Updating and Screening Assessment has identified a risk that an air quality objective will be exceeded at a location with relevant public exposure, the authority will be required to undertake a Detailed Assessment following the guidance set out in this document. The aim of this Detailed Assessment should be to identify with reasonable certainty whether or not a likely exceedence will occur. Where a likely exceedence is identified, then the assessment should be sufficiently detailed to determine both its magnitude and geographical extent. Local authorities should not declare an Air Quality Management Area (AQMA) unless a Detailed Assessment has been completed."
"1G.1 Any air quality consideration that relates to land use and its development is capable of being a material planning consideration. Wherever a proposed development is likely to have significant air quality impacts, close co-operation between LPAs and those with some responsibilities for air quality and pollution control will be essential. The impact on ambient air quality is likely to be particularly important:
-- where the development could in itself result in the designation of an AQMA;
1G.2 It is not the case that all planning applications for developments inside or adjacent to AQMAs should be refused if the developments would result in a deterioration of local air quality. Such an approach could sterilise development, particularly where authorities have designated their entire areas as AQMAs. LPAs, transport authorities and pollution control authorities should work together to ensure development has a beneficial impact on the environment, for example by exploring the possibility of securing mitigation measures that would allow the proposal to proceed. Road transport is recognised as a significant contribution to poor local air quality, particularly in urban areas. LPAs can play a key role by ensuring that developments reduce the need to travel and encouraging more sustainable travel choices."
"However location HS(S) has been subjected to continuous road works since April 2006 to date following improvement works and repairs to the bridge in Stourport over the Severn. It is anticipated that current data for 2006-2007 is overestimating the normal levels of NO2 for this location due to issues with standing traffic at Bridge Street. It is therefore anticipated that a detailed assessment is required to verify accurately the current air quality climate in this location.
... In addition to this location HS(S) needs further detailed studies conducted between now and the next round of updating and screening assessments."
"4.97 '... Once operational, the effect of the development on local air quality will be negligible. All national objectives and EU limit values are predicted to be met.'
4.98 At pre-application stage, officers within Environmental Health advised that further work was necessary to consider the impact of the development on air quality, particularly in view of the amount of traffic likely to be generated by the development. Having viewed the Air Quality Assessment submitted with the application the further work requested by Environmental Health has now been carried out. The Report has been re-assessed in terms of traffic predictions based once the store is open, [sic] is confident as to its prediction that there will be no impact on local air quality.
4.99 Environmental Health have now confirmed that they have no objections to the proposal in this respect."
"The vehicle movements suggested are not reflected in the applicants' TA and our own analysis suggests that the assumptions made by the applicant to be reasonable. Consequently I do not believe the numbers suggested by the objectors' consultants can be substantiated."
"One of these letters is from a local resident who is also an air pollution expert and states that he has assessed the information provided by the applicants in this respect. He states that he can demonstrate that it is 'deeply flawed', and that a sampling site in High Street already exceeds the national nitrogen dioxide objectives. He considers that the development will cause a substantial increase in traffic on Mitton Street, High Street and The Gilgal which is highly inappropriate.
Principal Pollution Officer response -- There is no evidence to suggest that the applicants' report is incorrect and as such there is no evidence to indicate that there will be a detrimental impact on local air quality. The objector has not provided the Council with any of his own evidence to support his contention and the Council is therefore unable to consider and objectively analyse what he says."
"As consultees to Development Control we have assessed Tesco's air quality assessments, and based on their conclusions and findings they are satisfied that there will not be an air quality problem in Stourport. I cannot challenge their statement as we do not have the knowledge, modelling tools or ability to review the integrity of the conclusions drawn by Arup Group.
On the contrary Professor Harrison is in a better position to question these conclusions, as he has greater knowledge and resources to hand. He is a Luminary within the field of air quality and his professional opinions are highly regarded by his peers and the government.
Our role in the process is that of consultation to the planning document, we have assessed the work of Arup. If Professor Harrison wishes to question their work then we are in no position to contest his view on the matter, and will consequently not stand in his way or contest his opinion."
"The new issues raised by the objector can be summarised as follows:
1. That traffic congestion at the junction of York Street with High Street/Bridge Street and the Hartlebury Road/Worcester Road roundabout will exacerbate the deteriorating air quality of the areas affected due to the poor dispersion of traffic pollution.
2. That the applicants' air quality assessment in support of the planning application fails to properly assess the impact of increased congestion on the air quality.
3. That the Council's adjusted air quality data is unreliable.
4. That, due to 3 above, the data for High Street, Stourport exceeds national air quality objectives and that concentrations measured in Mitton Street and Gilgal are within a few micrograms per m2 of the objective.
5. That the applicants' consultants significantly under-estimate the measured concentration.
6. That the development will increase traffic volumes and decrease traffic speeds both of which will exacerbate NOx (nitric oxide and nitrogen dioxide) to the detriment of the air quality in the area."
"4.5 The objections set out in respect of traffic congestion which underpin the consequential argument that air quality will deteriorate are not founded on a professional critique of the Transport Assessment but rather more on personal and anecdotal experiences of the objector. On this basis, your officers are of the view that prima facie there is no evidence provided by the objector with regard to traffic congestion that outweighs the technical assessment carried out through the Transport Assessment and the position adopted by the Highway Authority. This element of the objection should, therefore, be afforded little weight."
"The conclusion reached is that the AQA can be relied upon. The consultants concluded that, 'the AQA has demonstrated that the proposed development will not have a significant adverse effect upon air quality and that nitrogen dioxide levels in particular are well within the threshold air quality objective limits."
"4.9 Turning to the issue of air quality monitoring, the Council monitors air quality at the three locations in Gilgal, Mitton Street and the York Street/High Street junction referred to by the objector using diffusion tubes. This is not a precise science and a confidence factor or +/- 15 percent needs to be taken into account when considering results. The Council's nationally validated diffusion tube results for 2006 and 2007 indicate Mitton Street and Gilgal to be well below the 40 mg/m3 nitrogen dioxide levels. The High Street figures are much nearer to the National Objective threshold however. The significance of these figures at the High Street location though needs to be treated with some caution as they are likely to be distorted by the effects of the roadworks which began in August 2006 with the bridge repair works, which were followed by Severn Trent works and are currently subject to the Bridge Street improvement works. These continuous disruptions to the normal passage of traffic have to be taken into account in the potential for elevated readings at the High Street location.
4.10 During April 2006 a district wide air quality update and screening assessment was conducted. Locations of concern identified in the objector's comments were considered in this piece of work, but were not considered at the time to be at risk of exceeding the air quality objectives.
4.11 Further to this approved assessment the Council is currently preparing its progress report to Defra on air quality matters based on 2006 and 2007 monitoring results. Considering the High Street/York Street junction readings, the draft report currently recommends that consideration be given to undertaking a detailed air quality assessment which will enable a more accurate assessment of the situation."
"For this reason, the Council stands by the reliability of its air quality monitoring data. Therefore in the absence of further detailed investigation work officers are reticent [sic] to accept that nitrogen dioxide levels exceed the National Objective threshold levels at High Street without further corroborative work being undertaken."
"However, the Council is satisfied with the veracity of its air quality monitoring data and with the report submitted by the applicants' consultants.
... Further, no direct correlation has been demonstrated between increased traffic from the development and the degree of impact at the High Street junction. The proposed development includes a package of highway improvements that will alter the pattern of traffic movement in Stourport such that it cannot be concluded that the development will increase traffic volumes and reduce traffic speeds at the key locations where air quality might be significantly reduced.
Members are asked to consider whether the new information changes the weight they would give to air quality issues and if so, whether the weight they would now attach to it would change the balance to such a degree that it would change the decision taken by committee on 4 March to one of refusal."
The Council affirmed its decision.
"Article 22(1) requires a summary of the policies. That is not the same as a list of the policies. The purpose behind the requirement for a summary is I believe to enable the reader to see the relevance of the policy. All that is needed is an indication of what the policy deals with insofar as it is material to the permission in question."