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 April 2012

1. MR JUSTICE LLOYD JONES: This is an application by the London Borough of Hillingdon ("the council"), pursuant to Section 288 of the Town and Country Planning Act 1990 and Section 63 of the Planning (Listed Buildings and Conservation Areas) Act 1990. It concerns the decision of the Secretary of State by his Inspector to allow the appeals of Tesco Stores Ltd against the council's refusal of planning permission, conservation area and listed buildings consent for the re-development of the former King's Arms Garage site on Rickmansworth Road, Harefield, Hillingdon. Those appeals were allowed by a decision letter dated 19 May 2011.
2. The council seeks an order quashing the decision letter.
3. The background to the matter is that the interested party, Tesco, proposes to develop the site to provide a class A1 food shop with ancillary storage, residential units, parking and servicing. The council refused the application on the basis of its concern that the constraints of the site meant that the arrangements for deliveries would not be satisfactory and could impact on the safe operation of the adjoining highway. The appeals were heard at a public inquiry on 6 and 7 April 2011, and the inspector had the advantage of visiting the site on the second day of the inquiry.
4. There were a number of disputes between the parties. The only matters relevant on this application are the following. First, there was a dispute about the likelihood of there being two delivery vehicles on the site at the same time. The council's position was that there was a real prospect of this happening. It pointed to the effect this would have in blocking in the three residential car spaces and the disabled parking space as a consequence of there being two vehicles on the site at the same time. Tesco discounted that possibility, submitting that it was a completely academic scenario. If it arose at all, it was said, it would be with extreme rarity and, in any event, two vehicles could be safely accommodated on the site.
5. Secondly, the parties disagreed about the adequacy of the access for delivery vehicles. The council suggested that accessing the site would require precision driving and expressed a concern about the lack of a margin for error. Tesco submitted that the movements would be perfectly acceptable.
6. In allowing the appeal, the Inspector, Miss Wenda Fabian, addressed both of these issues:

"12 The current dual entrance and exit points to the site would be closed off and a new single access formed. The proposed store would be set back from the road behind a forecourt, laid out to enable an 8.4m delivery vehicle to access the site in forward gear, turn within it, reverse into a loading bay on it and leave the site in forward gear. There would be sufficient space to enable use of a tailgate lift without obstructing the pedestrian approach to both the store and the residential entrance at this point. In the event that a second delivery vehicle were to arrive while one was already on site, the swept path drawings within the appellant's evidence to the inquiry show that this could drive into the site and, with the aid of store staff to move bollards protecting the footway, manoeuvre to allow the first vehicle to finish unloading and leave in forward gear. It would then use the loading bay and leave in forward gear also.

13 Four deliveries per day are currently planned; three, by independent suppliers, would last between 5–15 minutes (newspapers, bread and frozen food/cigarettes). There would be one delivery of fresh food, lasting up to 45 minutes, by Tesco's own 'consolidated' lorry (designed to deliver to a single store only, rather than as part of a circuit delivery). They would be spread throughout the day, with newspapers, bread and fresh foods anticipated in the morning at timed slots finishing at 10.45. The final delivery lasting 15 minutes would be between 14.00 and 17.00 in the afternoon. Thus on-site delivery presence is not anticipated to exceed around an hour and a half in total. Whilst I accept that a second delivery vehicle may arrive when one is already on site, as envisaged above, the likelihood is not so great that the need to remove bollards for the vehicle to manoeuvre is a sufficient objection to the proposal to merit dismissal.

14 In a previous scheme, also for a Tesco store on the site, which was dismissed at appeal, the level of management intervention necessary to secure delivery arrangements was found to be too high. However, management intervention was needed for every delivery on a daily basis, to ensure empty parking bays – a wholly different proposition to the occasional event likely in this case. I realise that in this appeal proposal, were a second delivery vehicle to arrive on site, it would block residents' parking bays, in the worst case scenario for up to 45 minutes. However, as set out above I consider this likelihood not great and, moreover, the location of the parking bays within a busy shop forecourt would be a matter for potential occupants of the flats to take into account before committing to a purchase or lease. Whilst the parking for a disabled customer would also be blocked, the likelihood of customer inconvenience is also low and would be for the operator to manage appropriately.

15 The Council has pointed to the small margins within which the swept path diagram shows the delivery vehicles (with the additional width of wing mirrors) would need to manoeuvre, close to parked cars on Rickmansworth Road and the parking bays on site. However, I am not convinced by this point; the swept path data, no doubt, includes a tolerance margin and it is reasonable to expect that experienced HGV drivers can manoeuvre within them successfully.

16 Delivery vehicles accessing the site would be required to arrive from the north and leave to the south to enable these manoeuvres to take place. This requirement, the size of lorry and details of the delivery schedule can be secured by means of the suggested conditions stipulating the vehicle size and delivery arrangements and requiring submission of a Service Management Plan. I am aware that the Council doubts the enforceability of these details. However, none of these are unusual servicing arrangements in busy urban locations and I note that the type and size of consolidated delivery vehicle proposed is already in use in some central London locations."

7. The Inspector concluded that -

"18 ..... the arrangements proposed for delivery vehicles loading and unloading would not be significantly likely to prejudice the free flow of traffic or the conditions of the general highway or pedestrian safety and could operate without an undue level of management. The proposal would not materially harm highway or pedestrian safety and would comply with UDP policy AM7."

In addition, the inspector considered that -

"24 The proposal as a whole is acceptable in design terms. The proposed access, delivery and unloading arrangements would operate successfully without regular management intervention and these aspects could reasonably be secured in the long term by conditions, consequently the proposal would not harm highway or pedestrian safety ..... "

Taking all these considerations together, she concluded that the appeals should be allowed.

8. The Inspector included in her decision letter certain paragraphs in relation to conditions. She considered that -

"27 To ensure highway safety in this busy location, the parking and delivery arrangements should be constructed prior to operation and occupation of the development ..... "

She considered that -

" ..... To prevent traffic congestion a restriction on the size of delivery vehicle used and a requirement for a Service Management Plan (SMP) [would be] reasonable."

She also noted that -

"28 Control of opening hours and the times for delivery and collection as well as the hours of construction [would be] reasonable to safeguard residential amenity."

9. In the Schedule the Inspector set out the following conditions:

"14) No development shall take place until a Servicing Management Plan (SMP) for the retail premises has been submitted to and approved in writing by the Local Planning Authority. Once the premises is brought into use, it shall thereafter be operated in accordance with the SMP.

.....

17) Deliveries and collections to and from the site shall be carried out only within the site curtilage and only by vehicles not exceeding 8.4m in length.

18) No deliveries shall be taken at or despatched from the site outside the following hours:

0700 to 1800 Mondays - Saturdays; and

0800 to 1600 Sundays, Bank and Public Holidays."

10. A challenge under Section 63 or Section 288 to an inspector's decision may be made only upon the grounds that the inspector's decision is either not within the power of the Act or that any of the "requirements" have not been complied with in relation to the decision. Miss Melissa Murphy, in her helpful skeleton argument on behalf of the council, accepts that these provisions do not provide an opportunity to review or reconsider the merits of the decision. She accepts that she has to meet a high standard on this challenge - that of perversity - save in relation to her challenge based on mistake of fact and in relation to her challenge based on failure to provide reasons.
11. The general approach is made very clear by Sullivan J (as he then was) in R (Newsmith Stainless Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74:

"6 An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision. An allegation that an Inspector's conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits.

7 In any case, where an expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments. For example: is a building in keeping with its surroundings? Could its impact on the landscape be sufficiently ameliorated by landscaping? Is the site sufficiently accessible by public transport? et cetera. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable.

8 Moreover, the Inspector's conclusions will invariably be based not merely upon the evidence heard at an inquiry or an informal hearing, or contained in written representations but, and this will often be of crucial importance, upon the impressions received on the site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment, faces a particularly daunting task. It might be thought that the basic principles set out above are so well known that they do not need restating. But the claimant's challenge in the present case, although couched in terms of Wednesbury unreasonableness, is, in truth, a frontal assault upon the Inspector's conclusions on the planning merits of this Green Belt case."

12. I turn to the grounds advanced by Miss Murphy.
13. Ground 1: It is said that it was perverse for the Inspector to accept and grant the consents which she did for an application which created a foreseeable conflict between two uses, contrary to one of the pillars of the planning system which is to ensure good design in new development. Here, the claimant submits that the Inspector did not rule out the possibility of there being two delivery vehicles on site at any one time. She remarked that she thought the likelihood of that happening was "not great". Miss Murphy suggested that it is not clear what that might mean in practical terms. She submits that given that the Inspector accepted that two vehicles might be on site at any one time then the constraints of the site meant that - when it occurred - parking spaces for the residential units and a single disabled parking space for customers would be blocked in for up to forty-five minutes. She submits that it is no answer for the Inspector to say, as she did, that the location of the parking bays within a busy shopping forecourt would be a matter for potential occupants of the flats to take into account before committing to purchase or lease.
14. In this regard, Miss Murphy drew particular attention to the then extant Planning Policy Statement 1: Delivering Sustainable Development, which sets out over-arching planning policies on the delivery of sustainable development through the planning system. She relies in particular on paragraph 13 which provides:

"13 The following key principles should be applied to ensure that development plans and decisions taken in planning applications contribute to the delivery of sustainable development -

.....

(iv) Planning policies should promote high quality inclusive design in the layout of the developments and individual buildings in terms of function and impact, not just for the short term but over the lifetime of the development. Design which fails to take the opportunities available for improving the character and quality of an area should not be accepted ..... "

She also draws attention to paragraph 33 which states:

"33 Good design ensures attractive usable, durable and adaptable places and is a key element in achieving sustainable development. Good design is indivisible from good planning."

15. There was evidence before the Inspector as to the arrangements which would be made for delivery. In particular Mr Lyons gave expert evidence about transport planning, traffic engineering and design. His evidence was to the effect that the likelihood of two delivery vehicles arriving on site at the same time was a "once in a blue moon scenario" because it would entail a delivery being four hours late or four hours early in circumstances where the journey times from the depots were only one-hour-and-ten minutes and thirty-eight minutes respectively.
16. The Inspector, having considered the evidence and the competing submissions, came to the conclusion that while the feared event might happen the likelihood of its happening was not great. The consequences of its happening were not a sufficient objection to merit dismissal of the proposal. She, in effect, accepted the submission of Tesco that it was likely to happen extremely infrequently.
17. I do not consider that there is anything even arguably perverse in this conclusion. It is a matter of planning judgment. Furthermore the Inspector assessed the impact of the coincidence of two vehicles and found that this did not give rise to material harm in terms of highway or pedestrian safety. She considered that the need to remove bollards for the vehicles to manoeuvre was not a sufficient objection to the proposal to merit dismissal. She considered that management intervention would be needed only occasionally in contrast to the previous scheme. The worst case scenario was blocking the residents parking bays for up to forty-five minutes during delivery times.
18. In addition, it seems to me that the conditions which have been or may be imposed have an important bearing on this issue before the Inspector.
19. Condition 14 provides that -

"14) No development shall take place until a Servicing Management Plan ..... has been submitted to and approved in writing by the [council] -

and the operation of the premises must be in accordance with it.

20. There was placed before the Inspector, by way of an example, a servicing management plan agreed between another local authority and Tesco Stores Ltd in respect of a similar Tesco Express store at Eastcote, Pinner. I note that one of the terms of that plan is a requirement that only one vehicle is to deliver to the site at one time and that should a second vehicle arrive the driver would be instructed by the store manager to continue past the site to find a safe and legal place to wait and to return to the site at such time as the area is available.
21. Condition 17 would require delivery drivers not to unload on the Rickmansworth Road or, indeed, to utilise vehicles in excess of 8.4 metres long.
22. Condition 18 prevents conflict between delivery vehicles and residential parking for thirteen hours of the day on Mondays to Saturdays and for sixteen hours of the day on Sundays and Bank Holidays.
23. It seems to me that the Inspector here weighed up the advantages and disadvantages of the proposal and found that the balance of the competing factors favoured the grant of consent, in particular having regard to the infrequency with which the event was likely to occur. She was entitled to do that. In my judgment this was not the approval of a dysfunctional design.
24. Ground 2: It is said that the Inspector gave no or no adequate reasons for granting the consents notwithstanding the foreseeable conflict of uses. This is a reasons challenge. The standard to be met in the provision of reasons in planning decisions is set out by Lord Browne in South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953:

"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues forming the decision. The reasoning must not give rise to a substantial doubt as to whether a decision-maker erred in law, for example by misunderstanding its irrelevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

25. The parties here were well aware of the issues. They are fairly addressed in the decision. The decision decides the principal issues and makes readily intelligible the reasons for the decision. It cannot be said that the decision leaves the council in the dark as to the reasons for the decision. In particular and contrary to the submission of the council, this was not a case in which the Inspector thought it appropriate to grant permission for a development which in certain circumstances was not going to be properly functional and which therefore required justification. Rather, this was a case in which the Inspector concluded that the proposal was manageable and functional even in the unlikely event of two vehicles coinciding.
26. Ground 3: It is said that the Inspector gave no or no adequate reasons to explain why it was reasonable to assume that only experienced HGV drivers would be making deliveries to the site, or what difference the Inspector thought that experience would make to drivers' ability to manoeuvre within the tight space available. This ground is founded on the statement of the Inspector at paragraph 15 of the decision letter. Having referred to the council's submission in relation to what is said were "the small margins within which the swept path diagram shows the delivery vehicles ..... would need to manoeuvre", the Inspector said that she was not convinced on this point. She said:

" ..... the swept path data, no doubt, includes a tolerance margin and it is reasonable to expect that experienced HGV drivers can manoeuvre within them successfully."

27. Here, the council submits that the Inspector was differentiating between the ability of ordinary or reasonably competent HGV drivers to navigate the site access and the ability of experienced HGV drivers to do so. It is not clear whether she thought that only experienced HGV drivers would be able successfully to navigate the access. It is pointed out that there is nothing in the conditions requiring the operator or the company from which it receives its deliveries to use only experienced HGV drivers. It is said that the Inspector was here relying on a standard of HGV driving which cannot be assured and was therefore basic. However I do not understand the Inspector to be drawing any distinction here between HGV drivers and experienced HGV drivers.
28. To my mind, the council here simply seeks to read too much into the statement of the Inspector. All HGV drivers have to attain a standard of proficiency which is greater than that of the average motorist. They have to pass a higher level of driving test. As Mr Whale puts it on behalf of the Secretary of State, they are inherently qualified and experienced. I am told that there was no evidence before the Inspector that only experienced HGV drivers would undertake delivery manoeuvres, and no such submission was made. I do not understand the Inspector to have been drawing any such distinction.
29. Ground 4 asserts that there was a material mistake of fact in relation to whether AutoTrack swept path analysis includes a margin of tolerance relied upon by the Inspector to conclude that the servicing arrangements were adequate. This ground is founded on the same passage in paragraph 15 of the decision which has been set out earlier in this judgment. The council submits that the swept path drawings produced by the use of AutoTrack do not include a tolerance margin and that the Inspector was wrong to rely on this erroneous belief to reject the council's concern about the narrowness of the access for the service vehicles. It is common ground that the AutoTrack computer programme did not include a tolerance margin. There was no reference to the AutoTrack manual before the Inspector. However there was evidence below in relation to a tolerance margin. It was the council's case below that deliveries would require precision driving and that there was a lack of margin for error. Tesco submitted that the idea that service operations would be tight or difficult was simply not made out on the evidence and that the operation would be comfortable.
30. Mr Lyons, an expert in transportation planning and engineering, was called by Tesco, and gave evidence that -

"Entry to and exit from the appeal proposal by the 8.39 metre service vehicle can be undertaken within the extent of the proposed site access arrangement and that there is sufficient manoeuvre in this case within the appeal proposal to accommodate the swept path of the vehicle with tolerance."

31. In support of that they relied on his plan RL3. I am told this is the only evidence before the Inspector in relation to tolerance. I consider that the Inspector in this passage, in referring to swept path data was accepting the evidence of Mr Lyons. He was simply preferring his view to that put forward by the council.
32. Accordingly I do not consider that there has been a mistake of fact on the part of the Inspector. In any event, I do not consider that such a mistake would have been material in the particular circumstances of this case for two reasons. First, there was no evidence before the Inspector to suggest that the manoeuvres could not be carried out within the swept path or that a tolerance margin was necessary in the interests of safety. Secondly, the swept path drawing - in particular RL3 - shows that the proposed layout incorporates room for manoeuvre wider than the area traversed by the swept path body of the vehicle shown on the swept path drawings.
33. I consider there would be no real prospect of a different decision if this matter were sent back for reconsideration. Furthermore I consider that there was no substantial unfairness here.
34. Ground 5 is that there was procedural unfairness in failing to raise a point which was then erroneously relied upon in allowing the appeal. This ground is founded on the Inspector's alleged mistake about what the swept path drawings showed. It is said that the parties should have been given an opportunity to address these matters if they were to be relied upon by the Inspector. In the light of my conclusions on grounds 4, this question does not arise.
35. For these reasons I refuse the application.
36. MR WHALE: I am grateful. I have an application for costs on behalf of the Secretary of State. I do not know if a statement has reached your Lordship.
37. MR JUSTICE LLOYD JONES: It has not.
38. MR WHALE: I hand this up. (Same handed) I do not know if there is any issue; I sincerely hope not. I might be mistaken. The principle that the Secretary of State be awarded his costs, that the claimant must bear them, I imagine cannot possibly be in dispute. But the quantum comes in at a much smaller figure than the claimant's own quantum. As to whether there is any issue there, I give way to Miss Murphy.
39. MR JUSTICE LLOYD JONES: Yes. I have received a bill of costs from the claimant.
40. MR WHALE: £7,024.90 is the claimant's grand total.
41. MR JUSTICE LLOYD JONES: In fact it is yours - - I have not received. You will tell me how modest yours is by comparison.
42. MR WHALE: Mine is a very modest £4,442. Hillingdon's is £7,024.90. I would ask that it be summarily assessed in the sum claimed. I do give way to Miss Murphy.
43. MR JUSTICE LLOYD JONES: I will hear Miss Murphy in a moment. Mr White, do you have any application?
44. MR WHITE: I do. I hand up the seminal case in this matter which is the decision of the House of Lords on such costs in Section 288 matters. I do not know if you are familiar with this decision.
45. MR JUSTICE LLOYD JONES: I am not so you will have to help me.
46. MR WHITE: I ask you to go to page 1178 where Lord Lloyd set out the principles that apply in some cases and clearly a duty at (i) at paragraph (g). Clearly that applies to my friend Mr Whale. My position is dealt with by (ii) which is -

"the developer would not normally be entitled to his costs unless he can show that there is likely to be a separate issue on which he was entitled to be heard, that is to say an issue not covered by counsel for the Secretary of State or unless he has an interest which requires separate representation."

47. In this matter I make my application on the basis that we have an interest which requires separate representation. The basis on which I make that application is clearly the assistance you have derived. There is clearly a judgment from you. I say in this case the evidence of Mr Lyons and his witness statement and your ability to reach a judgment, greatly assisted by the evidence of what actually happened. Clearly, I think Mr Lyons' witness statement is of great assistance in helping you reach a decision today. Obviously that will be a matter purely for you. But in my submission, under the terms of the Bolton decision, I say we have in this case - patently do have - a right to separate representation and an interest which is separate to the Secretary of State because of our fundamental involvement. And effectively all five grounds claimed that formed the basis of the claimant's grounds related to detailed matters of evidence that Mr Lyons clearly played a material seminal part in at the inquiry. On that basis I say we do fall within the exception and seek full costs of the interested party in this matter.
48. MR JUSTICE LLOYD JONES: I am against you on that. I do not think there is any separate interest here requiring separate representation. While I am grateful to Mr Lyons for his evidence below which has assisted me, it does seem to me that all the matters which should be addressed were fairly addressed on behalf of the Secretary of State.
49. MR WHITE: I am grateful.
50. MR JUSTICE LLOYD JONES: I will hear Miss Murphy in relation to the principle of costs and then in relation to any points of detail you may want to make so far as the application of the Secretary of State is concerned.
51. MISS MURPHY: So far as the application by the Secretary of State is concerned, I do not dispute the principle and I do not dispute the quantum. I would have said something about it to the interested party but I do not think it is necessary.
52. MR JUSTICE LLOYD JONES: I do not need to call on you in relation to that.
53. MISS MURPHY: I am grateful.
54. MR JUSTICE LLOYD JONES: I will make an order: costs in favour of the Secretary of State summarily assessed in the sum of £4,442.