England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		19th September 2012

His Honour Judge Jeremy Richardson QC:

Introduction

1. This is an important case for the residents of Peterlee in County Durham. It is equally important for the developers of three proposed large retail outlets and the proprietor of the existing town centre supermarket. One fundamental issue that courses through the whole of this case is encapsulated by posing this question: can the town of Peterlee truly accommodate and sustain four large retail stores? One already exists in the town centre (ASDA). The other three are proposed developments and have been the subject of planning applications which were concurrently considered by the planning committee. That question is undoubtedly one that could only be answered by the planning committee. It is not a question of law. It is a question of planning judgment. Consequently, it is not a question I can, or should, answer. There is a strong portcullis dividing questions of law and the exercise of planning judgment. I have no intention of trying to breach it. The committee has, however, answered the question of planning judgment.
2. Durham County Council (Durham CC) [which is a unitary authority] by their planning committee (composed of elected members) appear to feel that Peterlee can sustain all four outlets by reason of their decision to grant planning consent for three large retail stores in and around the town. There is now a challenge, by way of judicial review, by the developer of one of the sites against the decision to grant planning consent to one of the others. My task is to adjudge the lawfulness (or otherwise) of the decision sought to be impugned. I most certainly am not concerned with the factual merits of any or all of the relevant planning applications before the planning authority.
3. It is inevitable that planning decisions by local authorities relating to large retail developments stir-up much controversy in a community from residents, fellow traders and competitors. Those who have the responsibility to make those decisions and those who advise them have a plain duty to apply the law scrupulously. It is the responsibility of this court to ensure compliance with the law. This court will only interfere when it is demonstrated the decision is unlawful. It is very important for all to appreciate I do not sit as an appellate court reviewing the entire factual and legal scene. The limits and the extent of judicial review must (and I am sure will) be understood by all parties and others. My task is not to judge the merits of the decision (the elected members of the planning committee must face that burden); my task is to ensure that the decision taken by the committee is lawful and, if it is not, to quash it. Whether I feel the decision is right or wrong is immaterial; whether I think the decision is good or bad is immaterial; and, whether I would have made that decision (had the decision been mine to make) is immaterial. Providing the decision maker reached a decision that is lawful, this court has no power to interfere. In the context of this case, the elected members of the planning committee (and thereby the elected members of the county council as a whole) have to answer to the public for their decision. This court is concerned with whether the decision is in accordance with the law and not whether it was a good or bad decision for Peterlee or the commercial enterprises that made the various planning applications in this case.
4. On 7^th June 2011 Durham CC resolved to grant planning permission for three large retail developments in and around Peterlee. The individual permissions were actually issued by Durham CC on the following dates: Castle Dene Site on 27^th June 2011; Tesco Site on 7^th October 2011; and, Dalton Park Site on 26^th March 2012. Nothing turns on these dates as the decisions in principle were taken at the planning committee meeting on 7^th June 2011. Although this case is about three closely connected planning decisions, these proceedings relate to only one decision (Tesco Site). Reference must, however, be made to all three in order to make this judgment and, indeed, the case, intelligible. It would be artificial to view the single decision which is the subject of challenge.

The First Judicial Review Application: the challenge to the Tesco Site

5. The application for judicial review before the court is brought by Salford Estates (No 2) Limited (SE2) against a decision of Durham CC to grant planning consent to Tesco Stores Limited (Tesco) to build a food superstore on land at the site of the former East Durham and Houghall Community College at Burnhope Way in Peterlee (the Tesco Site). Permission to apply was granted by Mr Justice Sales on 24^th February 2012. Tesco and Dalton Park Limited (Dalton) were joined as interested parties (Tesco was named as an interested party by SE2; whereas Dalton was added by the court when permission to apply was granted).
6. There is a second judicial review application.

The Second Judicial Review Application: the challenge to the Dalton Park Site

7. SE2 have also commenced judicial review proceedings against Durham CC in respect of their concurrent decision to grant planning consent to Dalton to build a retail superstore at Dalton Park near Peterlee. That claim was commenced on 8^th May 2012 and has not yet reached the permission stage. It would have been convenient to hear all the claims together, but it is imperative a decision is reached as soon as possible upon this main claim. Dalton has elected not to participate in this case in any meaningful sense. Although counsel was present at the hearing, he had no instructions to make any submissions and did not do so. All other parties have made submissions and I am grateful to all counsel for the helpful way in which this case has been presented to me. Although it has not made my task easier, the erudite and succinct arguments of leading counsel has enabled me to marshal my thoughts the better. I felt it important to reflect with some care upon the cogent arguments that were advanced by Mr Tucker QC, Mr Clarkson QC and Mr Katkowski QC on behalf of their respective clients. In the end I have reached clear and unequivocal conclusions. I trust I shall be able to reach equally clear conclusions about the Second Judicial Review Application. My decision in this case may well inform the outcome of the second case.

Case Management of the Second Judicial Review Application

8. I shall today give directions in the related case brought by SE2 against Durham CC in respect of their decision of 7^th June 2011 where it was minded to grant planning permission to Dalton to build a retail outlet and other buildings (hotel and cinema) at the Dalton Park Site. I shall reserve that case to myself so that there is judicial continuity concerning all the judicial review decisions of all the inter-related planning applications. Subject to any submissions today, I shall determine the application for permission to apply for judicial review as a paper exercise as soon as practicable hereafter. If refused, I will hear a renewal application as soon as practicable (if the application is renewed). If there is to be a substantive hearing, that too will be heard as soon as practicable. I shall welcome any submissions on the future conduct of that related case today.
9. I shall now return to the circumstances of this case.

The Background and Setting the Scene

10. Peterlee is a new town which was built in 1948 under the provisions of the New Towns Act 1946. It is on the north-east coast in County Durham just to the south of Sunderland and well north of Teesside. Durham CC is the planning authority for the area as a unitary local authority. Within Peterlee town centre there is only one large retail shopping complex at Castle Dene Shopping Centre which is owned by Salford. The only large supermarket in the town centre is ASDA which is very close to the Castle Dene site. Durham CC has been desirous of expanding retail led regeneration schemes in the area for some while. It is part of the local plan (see District of Easington Local Plan 2001 which was adopted by the predecessor local authority prior to the creation of the county council as a unitary authority) [I shall call this "the local plan" hereafter]. By June 2011 Durham CC had to decide upon, inter alia, three planning applications for major retail development in and around Peterlee. Those applications were:

(1) The Castle Dene Site: this application was made by SE2 as part of the redevelopment of the Castle Dene Shopping Centre in the town centre. The plan was to construct a food superstore (12,802 square metres). No retail operator has been identified for this site. This application was made on 13^th September 2010.

(2) The Tesco Site: this application was made by Tesco to construct a Tesco Extra food superstore (10,815 square metres) at the periphery of the town centre although it is separated from it by a main road called Burnhope Way (which is also the B1320). This is the site of the former college. This application was made on 23^rd December 2009. Tesco was additionally required to enter in to a Section 106 Agreement to provide underpass and other environmental advantages to Peterlee.

(3) The Dalton Park Site: this application was made by Dalton to construct a food superstore (8,452 square metres) on an out of town factory outlet site called Dalton Park. The site is over 5 miles from Peterlee town centre and abuts the A19 arterial road. This application embraced a 90 room hotel, a cinema, food and drink outlets (including a drive-through arrangement) and a fuel filling station. This application was made on 29^th December 2009.

(4) The North Blunts Site: this application was made by North Blunts Limited and related to a former school site on the edge of the town centre. This was refused by Durham CC. I shall make further reference to this aspect of the case at paragraph 16 (infra).

11. On 7^th June 2011 Durham CC resolved to grant planning consent to the first three applications at the meeting of the County Planning Committee held at the County Hall in Durham. In respect of the Tesco site it was conditional upon a Section 106 Agreement being made (see section 106 of the Town and Country Planning Act 1990). The Secretary of State for Communities and Local Government (Secretary of State) has decided, through the National Planning Casework Unit, not to call-in the decisions in relation to the Tesco and Dalton Park Sites. The decisions of the Secretary of State in respect of the Tesco site and the Dalton Park site were not made concurrently and that has caused the judicial review application about the Dalton Park site to be considerably delayed. Hence, it has not been possible to have a single hearing to consider both cases.

The Basis of the First Judicial Review Application

12. It is asserted by SE2 (who have been granted permission to develop the Castle Dene site) that Durham CC acted unlawfully when they granted planning consent to Tesco to develop the Tesco site on the periphery of Peterlee town centre. There are 5 grounds to support the challenge:

(1) The Retail Capacity Challenge: it is asserted Durham CC failed to properly assess the retail capacity of the area when it granted permission.

(2) Durham CC misapplied the Sequential Test within Planning Policy Statement 4 issued by the Secretary of State (PPS4).

(3) Durham CC failed to take account of what is asserted to be a material consideration namely the impact upon planned investment in the Castle Dene redevelopment if the Tesco site was approved.

(4) Durham CC ignored the assessments that there was room for only one extra store within Peterlee and was thus perverse.

(5) In deciding that the Tesco Site should be subject to a Section 106 Agreement Durham CC failed to apply regulations applicable to such decisions (and such provisions were not even alerted to committee members).

13. When the argument was developed by Mr Paul G Tucker QC on behalf of SE2 he helpfully made it clear that (1), (3) and (4) were really all part and parcel of one theme – that Durham CC acted unlawfully and irrationally by not seeking further evidence from the experts before determining the applications; and, by deciding as they did, reached an unlawful conclusion. During submissions this was inelegantly called the adjournment point (I called it that rather inaptly) as Mr Tucker accepted that if the committee were contemplating granting all three planning applications against the advice of officials, they should have adjourned the meeting to obtain more information. Having taken time for reflection the three conjoined points may much better be labelled the Retail Capacity Point. That is a rather more appropriate title for the three grounds of challenge, subject to the inevitable constraints of any short title not doing full justice to the fully developed argument.
14. Consequently, there are three points in this case which I shall address later in this judgment: (1) The Retail Capacity Point [Grounds 1, 3 and 4 supra]; (2) The Sequential Test Point [Ground 2 supra]; and, (3) The Section 106 Point [Ground 5 supra].
15. The Section 106 point was accepted by Mr Tucker as being answered by the decision of the Court of Appeal in Derwent Holdings Limited v Trafford Borough Council and others [2011] EWCA Civ 832. My attention was called in particular to paragraph 15 of the judgment of Lord Justice Carnwath (as he then was), with whom Lord Justice Sullivan and Lord Justice Tomlinson agreed, where this was said:

"There is nothing objectionable in principle in a council and a developer entering into an agreement to secure objectives which are regarded as desirable for an area, whether or not they are necessary to strengthen the planning case for a particular development."

That dictum is binding upon me. No one sought to say it was not. Mr Tucker expressly reserved his position in relation to that case so that he might argue that it was wrong elsewhere. Mr Clarkson QC for Durham CC and Mr Katkowski QC for Tesco both aver that Derwent is good law and binding upon me. For reasons which I shall develop briefly at a later stage of this judgment I accept without reservation that Derwent is binding upon me and I say, with great respect, I happen to agree with it.

16. It is important to record that there was a 4^th similar planning application for a large retail development by North Blunts Limited at a former school site to the west of the town centre. This was refused by Durham CC at the same committee meeting at which the other three applications were given the green signal for future planning permission. I will only refer to it further when necessary. In reality nothing of great significance turns on that decision.
17. In summary form the planning authority granted permission to the separate developers of three large retail sites in and around Peterlee thereby increasing the retail space within the town by a substantial margin. The first is in the town centre (the Castle Dene site owned by SE2); the second is on the periphery of the town centre (the Tesco site owned by Tesco); and, the third is just over 5 miles from the town centre (the Dalton Park Site owned by Dalton). SE2 seek to challenge the decision of Durham CC to grant permission to Tesco for their site on the outskirts of the town centre based upon the above 5 grounds.

Four Important Facts

18. It is pertinent to note four important factual points before going further:

(1) All members of the planning committee of Durham CC were experienced and had received training in determining planning applications. They were not noviciates in the ways of planning.

(2) The planning committee expressly decided to consider the applications together as the implications were far reaching. The committee resolved "the normal procedure of hearing and determining applications individually, be departed from in order to consider the applications together to allow applicants, objectors and supporters a full and fair opportunity to put their views forward" [see minutes of the meeting].

(3) When it came to vote at the end of an extensive meeting the members of the planning committee "proceeded to vote on the applications in order of sequential merit" (emphasis mine) [see minutes of the meeting].

(4) The committee proceeded to vote upon the applications in the following order:

(i) Castle Dene Site (in the town centre) – Approved.

(ii) Tesco Site (on the edge of the town centre) – Approved.

(iii) North Blunts Primary School Site (on the edge of the town centre) – Refused.

(iv) Dalton Park Site (over 5 miles from the town centre – out of town site) – Approved.

19. It will be helpful if I summarise certain important legal principles that underpin my consideration of this case. I need to call attention to the relevant Planning Policy Statements which were applicable at the time the decision in this case was made. I shall then set out the facts in a little more detail (including reference to the local plan, the advice of officials and the course of the planning committee meeting) before returning to the 3 points said to amount to an unlawful decision being reached by Durham CC on 7^th June 2011.

The Legal Framework

20. There can be no doubt it is for the planning committee to exercise its own judgment upon planning applications. In this regard it is, I feel, worth referring to the case of Tesco Stores Limited v Secretary of State for the Environment and others [1995] 1 WLR 759 where Lord Hoffman sets out the core principle extremely well:

"Provided that the planning authority has regard to all material considerations, it is at liberty (provided it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all."

The exercise of planning judgment is within the sole province of the planning authority (subject to appeal to the Secretary of State). The role of the court is simply to judge the legality of the planning process. The Administrative Court is not an appellate court in respect of the planning merits and will not countenance rehearsal and review of the planning arguments advanced before the planning committee. The arena for arguments upon planning merits is the planning committee and not the court. I am very mindful that I must not stray into the arena of planning merits; for to do so would exceed my powers. Albeit in a different context the following passage in the judgment of the Lord Chief Justice (Lord Bingham of Cornhill CJ) in R v Secretary of State for the Home Department ex parte Hindley [1998 QB 751 at page 777A is apposite:

"The threshold of irrationality for purposes of judicial review is a high one. This is because responsibility for making the relevant decision rests with another party and not with the court. It is not enough that [the court] might, if the responsibility for making the relevant decision rested with [it], make a decision different form the appointed decision-maker. To justify intervention by the court, the decision under challenge must fall outside the bounds of any decision open to a reasonable decision-maker."

21. It is also a paradigm of the system of planning control in England and Wales that the exercise of planning judgment is that of the planning committee and not its officers. It is the members who are answerable to the public and derive their authority from the public as elected members. Once in place they are obliged to adhere to the law, but the exercise of their planning judgment is theirs and theirs alone. It is also a requirement that in the exercise of their judgment the committee must take into account all relevant ministerial guidance, local plans (and analogous documents), expert evaluations and the advice of their officials. The weight they attach to the relevant considerations is a matter for the exercise of their planning judgment. The exercise of that judgment must be based upon relevant considerations and not a matter of whim or chance. The primacy of the elected members' planning judgment must be respected by the court. Provided they act lawfully and not irrationally (as defined in law) they are entitled to form their own judgment. They must not be slavish adherents to the views or advice of their officials. If they accept the recommendations of their officials – all well and good; but if they, exercising their own judgment, and not for an irrational reason, depart from the advice tendered, they are entitled so to act. As was engagingly pointed out by Mr Clarkson QC is submissions – members are politicians and know their own patch. Moreover, they are democratically accountable to their electors and to the wider public on whose behalf they act. This is not pompous rhetoric, but a core feature of the planning system in England and Wales.
22. In simple terms there is a framework within which a planning committee must operate and exercise their judgment based upon information that is relevant and properly analysed. It is perfectly proper in certain circumstances for the planning committee to ask for more information before it exercises its judgment. This might be particularly so if they were minded to disregard their officers' recommendation, but whether they do, or do not, is a matter for the judgment of the committee.

Planning Policy Statements

23. Planning Policy Statements (PPS) set out national policies on different aspects of land use planning in England and Wales. They are not statutes or to be read as such, but they may be material to decisions in individual planning applications. The planning scene has been modified recently, but at the time the decisions in this case were made the following PPS was relevant. PPS4 (Planning for Sustainable Growth) was issued by the Department of Communities and Local Government in 2009. Guidance as to how to apply the policy is contained in PPS4 (Practice Guidance on Need, Impact, and the Sequential Approach). This was issued in 2009 and was stated not to be a statement of government policy, but simply guidance to those who need to utilise PPS4.
24. I do not intend to set out the provisions of PPS4 any more than is necessary to make this judgment intelligible.
25. I turn to first to Policy EC17 where it is very clearly set out that any planning application for development outside the town centre, but normally associated with town centres, should be refused by a planning authority unless a sequential approach has been applied (see EC15: paragraph 84 of this judgment [infra]). Additionally, it is made clear if the proposal is likely to lead to significant adverse impact in terms of economic development (EC10.2) and other existing or proposed developments affecting the vitality and viability of the town centre (EC16.1) then the application should be refused. Within EC15 the sequential test is emphasized; and it is clearly stated that all in-centre options must be thoroughly assessed before less central sites are considered.
26. It is vital to appreciate the importance of the sequential test. This simply means a preferred sequence of locations for development. In the context of this case the planning committee should give weight to developments in a town centre; but if that is not possible the next preferred option is development on the edge of centre; and, then, elsewhere (by implication). The whole concept is to favour development in town centres. The sequential test means a planning authority should not grant planning permission for any development (usually associated with town centres) unless it has been demonstrated that other town centre sites, which could accommodate the proposed development, are not available. In that event the next preferred solution is an edge of centre development which is well connected to the centre.
27. The planning authority when considering any proposed major shopping development is required to prioritise development in a town centre and evaluate the impact on the viability and vitality of the town centre as set out in EC16. There is a requirement to weigh a series of factors in what appears to be a complex matrix of policy guidance within the PPS, but in reality once it is appreciated that preference is to be given to town centre development and the viability and vibrancy of the centre must be weighed, the judgment-call of the elected members on the planning committee is for them to make. They are required to look at all these competing (sometimes complementary) factors and reach a judgment based upon all the information they possess and their local knowledge as elected members of the local authority. The concept of local members knowing their own patch is pivotal; providing always they act rationally and base their judgment on a sure foundation taking into account all relevant factors. The weight they attach (or no weight at all) to factors is for the elected members and not for others. It is the elected members who must answer for their decisions and the exercise of their judgment.
28. With these matters well in mind it is now important for me to return to the facts of the case.

The Facts

29. The Castle Dene Shopping Centre in the centre of Peterlee opened in 1963. It comprises several shops. There is at present only one large supermarket in Peterlee: ASDA. Durham CC have been desirous for some while in promoting major retail led regeneration in Peterlee which furthers the Local Plan and national ministerial guidance contained in PPS4 where town centre redevelopment is prioritised.
30. The three applications in this case were made between December 2009 and September 2010.

The Local Plan

31. No useful purpose would be served by extensive recitation of the local plan which, by the time of the decision of the planning committee, was a rather antique document (it was by then 10 years old). It was devised by the predecessor local authority responsible for Peterlee prior to the formation of the unitary authority. Durham CC acquired those responsibilities in April 2009 when the new authority was formed. The protection and promotion of town centres was regarded as of critical importance (see paragraph 8.9). Policy 101 is of importance which makes it clear: "where sites within the defined town centre (of Peterlee) are unavailable (shopping developments) on the edge of the town centre may be approved." This is reinforced by Policy 104 which provides:

"Where there is an identified need for a major new retail development, proposals should be located within the defined town centre of Peterlee ----. If it can be demonstrated that suitable sites are unlikely to be made available within a reasonable period, then proposals may be located on the (edge of the centre), followed at local shopping centres within those towns and finally by sites elsewhere within those built up areas, provided that:

(i) the proposal would not, either by itself or cumulatively, undermine the vitality and viability of (Peterlee) centre ----- or prejudice future investment or a planned proposal intended to sustain or enhance the vitality or viability of an existing centre."

32. The local plan plainly envisages the promotion and preservation of town centres and planning permission outside this area would only be granted when there is no alternative.
33. Prior to determination of the applications Durham CC sought advice from expert consultants in respect of retailing: GVA Grimley. The consultants produced 3 reports all of which were made available to the planning committee when they convened to decide upon the applications on 7^th June 2011. It is also of note that each of the developers of the three sites (as well as the developer of the fourth site) provided expert reports for the committee. It is important to appreciate the import of these various reports. I have read them all with some care and extensive reference has been made to them in the course of argument. I shall simply summarise some of the salient points.

Retail and Town Centre Study [GVA Grimley] 2009

34. This report encompassed an assessment of retailing within the Peterlee Catchment Area. It was a thorough report and pointed out the isolated nature of the town centre by reason of the road network. It was described as "looking dated and not meeting modern expectations". The main thrust of the report was to collate a raft of surveys and set out strengths, weaknesses, opportunities and threats to Peterlee (and other related areas) in terms of retailing. This was pithily set out in tabular form on page 149 of the report. The matters I shall refer to must be seen as part of the wider picture reflected in the table, but the lack of comparative mainstream retailers was identified as a problem (whilst appreciating the strength of ASDA). It was seen as important (by way of opportunities) to enhance retailing in the town centre qualitatively and quantitatively. It was also pointed out that competition from Dalton Park was seen as a threat to the town centre. Under the heading "Threats" (to the town centre) was the clear statement that "Development pressure for edge and out-of-town schemes" posed such a threat.
35. Plain it was, the absence of comparable large retailers in the town centre was viewed as an opportunity that needed addressing and the threat posed by edge of centre and out of centre (extant or future) developments had the potential for adverse effect upon Peterlee town centre.
36. I reiterate this was advice from a consultant to Durham CC. It was the result of work undertaken by the consultants. Although I do not need to refer to it in any detail there was a similar conclusion set out in the Housing Growth Retail Assessment prepared by the same consultants in April 2010 (see paragraph 2.34 on page 12).

Report on the Tesco Application [GVA Grimley] May 2010

37. This report was sought by Durham CC on the planning application made by Tesco. The main thrust of this report was adverse to the Tesco application. It was specifically asserted the proposed Tesco store would facilitate a 30% increase in overall town centre turnover and would "primarily distribute expenditure within the catchment": meaning trade would be diverted from ASDA.
38. Tesco responded to this report by modifying the basis of its application for the Tesco site, by revising its own retail impact assessment and taking account of PPS4.
39. It is also right to refer to the expert report prepared for SE2 by Sanderson Weatherall of 23^rd March 2011. It advanced the positive advantages of the Castle Dene Site and argued there had not been compliance with PPS4 by Durham CC. Furthermore is suggested that a thorough assessment of alternatives had not been undertaken (see, inter alia, paragraph 3.40 and 4.2).

Cumulative Impact Note [GVA Grimley] 2011

40. There was no further report sought from GVA Grimley – in particular there was nothing specifically dealing with the revised plan. However, a document entitled Cumulative Impact Note (CIN) was prepared given the view (seemingly expressed by officers of Durham CC) that the Castle Dene and the Tesco sites would be likely to be approved. The central points of the CIN were these:

(1) The trading performance of ASDA would be significantly reduced, but not to the point it would cease trading.

(2) With Castle Dene and Tesco sites operating they would be "cannibalising each other" (drawing trade one from the other, rather than enlarging the overall market).

(3) There would not be "additional dis-benefits" (I am not sure precisely what this unusual word means, but I trust I accurately speculate that it means disadvantages) in terms of a loss of linked trips between the large supermarkets (ASDA and Tesco) to other smaller shops in the town centre.

(4) The report concludes "It is our view that approval of two new food stores in Peterlee would not have an overall significant adverse impact on the town centre in relation to PPS4 policy tests EC16.1b and EC16.1d. The introduction of two new food stores in Peterlee would deliver true competition and choice to local residents with out any material dis-benefit (ie drawing trade away from the town centre)".

(5) There was strong advice that Durham CC would need to carefully balance the benefits of two new stores in its overall planning assessment.

41. There were retail assessments submitted by each of the applicants which do not need to be set out in any detail, but (as I have in part explained already) sought to advance the case of SE2 and Tesco respectively. No useful advantage is served by me reciting tracts from them.
42. I sense a shift in tone from the original line taken by GVA Grimley in their very long reports undertaken in 2009 and 2010 (when they warned of potential dangers from edge of town shopping developments) to the cumulative report in 2011 when they were rather more positive towards such proposals.
43. It is important for me to refer to the advice tendered to the committee by officers of Durham CC. The reports were long and detailed.

The Advice of Officers

44. In summary form the advice to the committee from officials was: (i) the Tesco application for the Tesco Site should be approved; (ii) the SE2 application for the Castle Dene site should be approved; and, (iii) the Dalton Park application for the Dalton Park site should be refused. It is right to say that officials were much more supportive of the Tesco application. The advice was that the North Blunts site should be refused.
45. The recommendation in respect of the Tesco site followed a long report to the planning committee. There can be no doubt that officers addressed the sequential test and described the Tesco site as coming "second in that test". The Castle Dene site came first. I do not intend to quote at length from the report. I shall simply call attention to important passages by reference to paragraphs. It is plain from paragraph 24 that officers viewed the applications as a group for overall consideration by the planning committee. In paragraph 27 the fact that ASDA traded alone as a large shopping outlet revealed a need for another store. It is also plain that officials carefully addressed PPS4 (see, in particular, paragraph 34). The offer of a section 106 agreement by Tesco was also mentioned.
46. It concluded as follows at paragraph 57 and 58:

"57. On the basis of the information currently available doubts remain regarding the deliverability of the Castle Dene scheme to meet the immediate need identified in the Durham County Council Retail and Town Uses Study. There is a current need for a new food store to provide competition for the existing ASDA store and to improve choice for residents, however, regarding the likely timing of the Castle Dene development, that scheme cannot be considered to represent a deliverable option to meet the identified immediate need.

58. This (Tesco) scheme is considered to accord with relevant development plan policies. With regard to sequential assessment, it is considered that there are no sequentially preferable sites in Peterlee town centre, or on the edge of that centre which are available, suitable and viable as alternatives to the (Tesco site) for the development of a food store to meet recognised immediate need. The impact assessment submitted by (Tesco) in support of the Tesco proposal is accepted; this details there will not be a detrimental impact on the current convenience and comparison retailing within the town"

It is beyond doubt officers felt that there were real doubts as to whether the Castle Dene site would be developed in a prompt timescale that met the desire for immediate development. It must be remembered that Castle Dene had no proposed operator for the Castle Dene site.

47. The recommendation in respect of the Castle Dene site was equally clear: it should be approved. The one area of concern was the deliverability of the proposal. Basically, the officers indicated the proposal met all the criteria, but doubted whether it would actually come to fruition (see paragraph 44).
48. The recommendation in respect of the Dalton Park site was as clear as the others; but the advice was to refuse the application. Reference is made to PPS1 and PPS4 where town centre sites are plainly to be favoured. The report advances the proposition that, if granted, there would be a real possibility of town centre business closures and job losses. Indeed the report goes as far as to say that:

"---- there is also the risk of failing town centres within East Durham and the undermining of town centre regeneration objectives and recent successful regeneration projects".

The report also points out possible wider impacts upon neighbouring towns.

49. I should add that there was a negative recommendation in respect of the North Blunts site. It was regarded as the least preferential site in terms of the sequential test of the three applications (absent Dalton Park)
50. A summary report pulling all the various strands together was also prepared by officers. I do not need to refer to this document in great detail as there is one passage that encapsulates the overall advice of officials: paragraph 4.13 which reads:

"--- if more than two new stores were allowed in the catchment area (meaning Peterlee and surrounding towns) there would be substantial adverse impact on the vitality and viability of Peterlee."

That passage – perhaps more than any other in the countless other passages – sets out the overall advice of officials. The advice in simple terms came to this: Peterlee can accommodate two new stores – one sequentially preferable (albeit they had doubts as to when it would be delivered) and another on the edge of town; but not a third either at the North Blunt site or Dalton Park site. If the latter was built there would be serious consequences for the town centre. The advice could not have been clearer. I repeat: it was advice.

51. It is right to observe there was no advice or detailed information from GVA Grimley as to the potential retail consequences in the event the planning committee should be minded to grant all three applications (Tesco, Castle Dene and Dalton Park).

The Planning Committee decision of 7^th June 2011

52. The minutes of the meeting reveal the committee viewed and heard much competing information. They debated the matter at some length. In the result three schemes were approved (Tesco, Castle Dene and Dalton Park). The fourth (North Blunts) was not; and is largely irrelevant for the purposes of this case.
53. The reasons given for the decision to grant the Tesco application acknowledged the edge of town centre site but the committee felt the development would enhance the town centre and draw people to it. The committee concluded:

"The scheme represents significant investment in Peterlee which will widen retail choice and contribute to the regeneration of the area."

Similar reasons for the approval of the Castle Dene site were given. North Blunts was turned down on the basis there were other sequentially preferable sites and the cumulative effect of one more would adversely affect Peterlee.

54. The Tesco site was approved although no specific reference was made to the section 106 agreement. Mention was made of this in the officers' report when the sum of £400,000 was covered as an aspect of the application. There is no suggestion that this was an improper inducement; but the fund would provide useful and much needed environmental improvements for Peterlee. This was an important item of investment for the town given the adverse description of the town centre in the expert reports to the committee and, doubtless, known to members of the committee in any event.
55. In respect of the Dalton Park site (where members went against the advice of their officers) the reasons of the committee were set out with clarity.

"Members considered all relevant policy issues, representations for and against development from interested parties, both detailed in the officer's report and made verbally at the committee meeting and officers' presentations. In addition committee members visited the application site, together with the sites of other retail proposals under consideration, so as to better assess their relevant locational characteristics"

56. Thereafter, the Reasons set out the relevant PPS guidance and policy coupled with references to the local plan. The Reasons continued:

"The application has been approved notwithstanding the policy conflict identified in the Officer's report to Committee because of the weight members attach to the other material planning considerations referred to below."

Thereafter, the Reasons cover:

(i) The creation of jobs and the regional economic advantages by reference the local plan and other government advice in relation to economic growth.

(ii) The need to regenerate the former coalfields in County Durham.

(iii) Enhancing consumer choice and widening leisure and retail facilities.

57. The committee regarded the Dalton Park site as a "stand alone" scheme which met the needs of north east Durham which would result in local citizens going outside the area for such facilities. The decision concluded in this way:

"Having regard to the planning controls imposed via condition and the obligations contained in the legal agreement, the scheme would not cause an unacceptable impact on the vitality and viability of any nearby towns or other centres."

58. It has to be said the reasons given set out the basis of the members' decision with pellucid clarity. No one has sought to describe the reasons as anything but clear. The simple fact is the members felt this "stand alone" scheme several miles from Peterlee and other areas of relevance provided much needed regeneration to a former coal field site and would not produce unacceptable problems.
59. I shall now turn to the Grounds of Challenge

The Grounds of Challenge

60. There are 5 grounds (now combined to 3 points) relied upon by SE2 which have been advanced with skill and panache by Mr Paul Tucker QC. An equally formidable (but measured) riposte has been advanced by Mr Patrick Clarkson QC for Durham CC. He has been aided and abetted by Mr Christopher Katkowski QC who has forcefully advanced Tesco's case as an interested party.
61. I shall take each of the three points in turn. In doing so I remind myself that although I am viewing the planning decisions as whole, I am actually deciding whether one planning consent (the Tesco Site) was unlawfully or irrationally granted. The claim in respect of the Dalton Park site will be resolved later. I trust rather sooner than later.

The Retail Capacity Point

62. It is entirely clear from PPS4 that the requirement to demonstrate need has vanished. Notwithstanding, Mr Tucker QC has submitted that Durham CC has acted unlawfully (perversely) and irrationally in making the decision to grant planning permission for three large retail outlets. His arguments are fully set out in his skeletal argument and I will not elongate this judgment by repetition of them. I trust I do him no injustice if I distil his arguments in this way:

(1) The planning committee have acted irrationally by ignoring the advice of officers.

(2) There was simply no information from any source as to the impact or assessment of the economic, or any other, situation, if the committee granted permission for the Castle Dene site, the Tesco site and the Dalton Park Site. In other words – all three.

(3) He called attention to all the information in the various reports which tended to point against all three being granted permission. The high water mark being there was an acceptance of ASDA + 2 others, but not 3.

(4) Members should have adjourned the meeting to obtain a report on the impact of approving all three applications plus ASDA upon Peterlee.

(5) There was simply no material before the committee upon which it could form a judgment given the complex matrix of PPS material and the local plan the committee was required to digest and apply.

63. In fairness to Mr Tucker QC, he was not simply asserting the decision was irrational; rather more, the committee failed to take into account a material consideration namely the impact of the approval of all three applications. He disavowed any idea that the court is being asked to enter the arena of planning merits. He simply submitted that the committee fell into legal error when they did not seek further information and acted without it particularly when it was against the recommendations of officers. Members had no information and to act as they did meant they could not take into account a material consideration namely the impact of approving all three applications.
64. Mr Clarkson QC submitted that the judgment of members was a matter for them; and, unless they have acted irrationally, their planning judgment stands. He warned me against entering the planning arena and simply asserted that it was for the members of the planning committee to assimilate the enormous amount of information and decide whether a planning judgment could be reached on the information they had; and, in this case, there was no irrationality in declining to adjourn to seek more. He accentuated the catchy phrase – members know their own patch. He submitted that it was perfectly acceptable for members to prioritise the need for regeneration of the former Durham coalfields and the other matters set out in their decision. He described the decision to disagree with the advice of officers and to accentuate other factors as an entirely rational decision open to the planning committee. He reminded me that the members are the ones who have to answer for their decisions.
65. Mr Katkowski QC sought to emphasize that I am only asked to quash the Tesco decision in this case and urged me to decide that it was not in the least perverse for the committee to decide the Tesco application without the additional information. There was more than enough information before the committee to decide the Tesco application and the Dalton judicial review was for another day. The Tesco application was after all, he observed, recommended by officers.
66. I am very conscious I have much abbreviated the submissions of all counsel. I have reviewed all of their submissions made to me with conspicuous ability even though I have provided a pale shadow of their force in this brief summary of them. I apologise for the summary; I make no apology for declining to lengthen this judgment by more comprehensive recitation of what was advanced before me.
67. I am very aware the court must not stray into the forbidden territory of judging planning merits or exercising planning judgment. I reiterate what I said at an earlier part of this judgment about the role of this court in judicial review proceedings and the primacy of the judgment of the elected members of the planning committee. If the members make a bad decision that is not a matter for this court. The electorate may judge them adversely and they may be exposed to all manner of criticism, but in the final analysis the decision is for them to make providing they act lawfully. It is only when they have acted irrationally and reached a decision that no reasonable planning committee member could have reached; or failed to take into account a material consideration (or took into account an immaterial one) that this court becomes involved. It is important to emphasize the primacy of the elected members to make decisions, and for this court to state without equivocation, that providing they evaluate the situation, the weight they attach to information is a matter for them. Indeed, they may attach whatever weight they feel is right (or no weight at all) to a material consideration. The portcullis I mentioned at the outset of this judgment must remain firmly closed to provide the divide between issues of law and the exercise of planning judgment.
68. I use a cricketing metaphor: the captain of the team decides where to place his fielders. The captain may make good or bad decisions about this. He may or he may not have a fielder in place to take account of every batsman. That is a matter for his judgment – for good or bad. The captain might be exposed to all manner of criticism (valid or not) but he has acted within the rules. The umpire could only intervene if the captain brought on 14 players on to the field or otherwise breached the rules of the game.
69. The argument of Mr Tucker QC was very attractive, but I have to say there were times during his enticing submissions that I felt he was asking me to opine as to the location and positioning of the fielders. My analogy to cricket is, of course, not a complete answer and has its limitations. It is, of course, open to this court to say that a planning committee has not taken into account a material consideration and/or has acted irrationally. The court is much more nuanced in its approach to unlawful decision making than a cricket umpire. It was forcefully submitted that the planning committee failed to take into account a critical material consideration. This submission deserves examination.
70. In many respects it might have been wise for the committee to have commissioned further detailed work on the potential impact of approving all three applications (having eliminated the North Blunt application). Was it either: (i) irrational to decline to do that; or, (ii) a legal error to fail to obtain what might have been a material consideration? Mr Tucker's point is that the committee simply did not have any information upon a highly material consideration – the impact of granting all three applications. This was particularly so having regard to the local plan and the assessments needed to implement PPS4 and all that flows from it.
71. I am not persuaded this is a material consideration point at all. It is self evident that officers were against the Dalton Park scheme. Members plainly took that into account and formed their own judgment as set out in their reasons for the decision to grant permission. Members are entitled to form their own views and disregard the advice of officials. They are entitled to place in the decision making matrix their own view of the local situation providing it is a material consideration. The fact is the members knew the risk they were taking by granting approval. They expressly stated in their reasons the impact upon other local areas was acceptable (in their judgment). They are the decision makers; and, it is their judgment that counts. In the context of this case officials are the advisors and the members of the planning committee are the decision makers. Although axiomatic it is worth recording: advisors advise; decision makers decide.
72. I am completely un-persuaded that the committee fell into error by declining to obtain more information. I equally do not feel they failed to take into account any material consideration. Given the nature of the reports before them, they were only too well aware of the risks. The committee also had much information form other sources, all of whom made representations to the committee. One really significant factor was the potential for the creation of jobs in their bailiwick. I do not regard that as an insignificant issue or immaterial. It is highly material.
73. I do not intend to incorporate the entire minutes of the planning meeting in this judgment – but I have read them with some care. It is manifest there were many representations including the local Member of Parliament, a local group seeking to promote tourism and local councillors (including Peterlee Town Council). This was all in addition to the representations from the individual applicants. It is always invidious to refer to one contribution and not others, but there was clearly a very powerful submission made by Ward Councillor Laing who, inter alia, set out the case for more jobs in the locality. It is also clear the members of the planning committee had a vigorous debate about the proposals after submissions from GVA Grimley and officials.
74. I shall say more about the order in which the committee voted upon the proposals when I cover the issues relating to the Sequential Test Point (see paragraphs 81 et sequentia: infra). The planning committee voted upon the four planning applications.
75. I regard it as of importance that the committee took the view the Dalton Park scheme was a "stand alone" proposal. After all it was 5 miles from Peterlee and had many other components to it beyond what was on offer at any of the central or edge of centre sites (extant or proposed).
76. The reasons the committee gave were entirely cogent and, whilst some other committees might have sought more information, I do not regard it as wrong to have declined to seek more. The committee have not artificially restricted their view. They knew the advice and all the factors. They were prepared to accentuate other highly relevant and material considerations and attach less weight to the expert opinion and the advice of officers. They set out their reasoning for so doing with clarity. No one has sought to assert the reasons were inadequate.
77. I have well in mind the contentions of Mr Tucker on behalf of SE2. I feel he was in reality inviting me to stray into the forbidden territory of planning merits. He mounted a perfectly respectable argument, but stripped of much surplusage, the challenge was really about planning merits. I am most certainly not persuaded that the planning committee failed to take account of a material consideration or reached an irrational decision to decline to seek further information if they were minded to approve the three applications they in fact approved. It is plain to me that this experienced group of elected members (and it is accepted they were) were very familiar with the relevant Planning Policy Statements, the local plan and the various other highly material considerations when they reached their conclusions. I am far from persuaded they departed from a lawful course.
78. Whether they were right to decide as they did is a matter out-with the remit of this court. The councillors as elected members will have to answer for that to the electorate of Peterlee. Just because a decision may be wrong does not make it unlawful. I am in no position to say whether it was a wrong decision and could not do so even if I thought it was. That would be to stray – indeed plunge – into forbidden waters. Judges in the Administrative Court do not have a chart or compass for such a voyage. Much as Mr Tucker disavowed any suggestion of such a voyage of discovery, I feel in reality he was inviting me to make such a journey. I decline his offer.
79. If I am wrong about this, it must be remembered that the decision to allow the Tesco application was not against officers' advice, and that is the decision under review in this case. The view of the committee was that Dalton Park stood alone. Consequently, if there is any challenge to that decision, it must await the next case.
80. In the upshot, I reject the claim based upon the retail capacity point based upon either material consideration arguments or irrationality grounds.

The Sequential Test Point

81. PPS4 makes it very clear that town centres are to be favoured and the sequential test must be applied to planning applications such as those in this case. There can be no doubt the members of Durham CC Planning Committee knew this. Mr Tucker has advanced the proposition that (i) officers have erroneously elided two concepts when tendering their advice to the committee in their reports, and (ii) the committee have failed to properly apply the sequential test. In oral argument Mr Tucker expanded upon the points he raised in paragraph 5.2 of his skeletal argument
82. With respect to Mr Tucker, I am not overly attracted to his argument on this aspect of the case and I feel the matter may be resolved in short form. Mr Clarkson accepts there may be certain infelicities of language in the report, but there is absolutely no doubt the committee plainly had in mind the sequential test and applied it to the facts of this case. Mr Katkowski allied himself with the submissions of Durham CC and pointed out that members voted in order of sequential merit thereby demonstrably applying the sequential test.
83. The passage of which complaint is made is contained in the report relating to the Tesco site which has already been referred to and quoted (see paragraph 46 supra). The passages are paragraph 57 and 58 coupled with paragraph 56 (not quoted). The import of those passages is as follows:

(1) There is a need for a mainstream food store in Peterlee comparable to ASDA. The Tesco store will meet this need.

(2) There is doubt regarding the deliverability of the Castle Dene proposal, but there is a current need for such a store. Castle Dene cannot be regarded as an immediately deliverable option.

(3) There are no sequentially deliverable preferable sites in Peterlee town centre or on the edge of centre that are as viable, suitable or available as the Tesco site to meet a recognised immediate need.

84. Policy EC15.1 of PPS4 provides:

"In considering sequential assessments required under Policy EC14.3, local planning authorities should:

a. ensure that sites are assessed for their availability, suitability and viability,

b. ensure that all in centre options have been thoroughly assessed before less central sites are considered.

c. ensure that where it has been demonstrated that there are no town centre sites to accommodate the proposed development, preference is given to edge of centre locations which are well connected to the centre by means of easy pedestrian access"

85. There was no doubt Castle Dene do not have an operator of a shop for their Castle Dene site. I do not feel it can be seriously doubted that officers were entitled to report to the committee the Castle Dene proposal was not immediately available. Furthermore, there was an immediate need for such an outlet. I am entirely satisfied that the "in centre" proposal for the Castle Dene site was thoroughly assessed. I am equally clear that officers made an assessment of availability too. There is no challenge to the fact they assessed suitability and viability.
86. The most that can be said is that officers did not set out the sequential test with as much clarity as they might. I am far from persuaded the members were under any misapprehension as to their approach to the issues before them.
87. It is as plain as plain could be that the members approached this complex and interrelated series of planning applications with two very clear concepts well in focus: (1) they decided to consider all the applications together so that all views could be advanced fairly; and, (2) when the issues fell for a vote (that is to say a decision) the committee expressly voted on the applications in order of their sequential merit. Mr Tucker described this as being singularly unreal. I beg leave to doubt that. It is perfectly permissible to consider matters together and then vote on the individual decision in a particular order. There is nothing inconsistent in that at all. Courts do it all the time (particularly in the Court of Appeal, Criminal Division) where a group of related appeals are heard together and then: either single judgments are given on each case; or a leading judgment with separate judgments on the other cases; or separate sections of one judgment. Joint consideration means the committee viewed the issues arising in all the interrelated applications concurrently, but when it came to the vote to decide the individual applications they were arranged in a sequentially preferred order for voting purposes. It was an eminently sensible approach. The sequential voting order was specifically minuted.
88. It is plain to me the planning committee decided the applications in this way:

(1) Castle Dene Site: this was the sequentially preferred site as it was in the town centre, but there were real doubts about whether it would actually materialise in a sufficiently speedy timeframe to meet an immediately identified need. Notwithstanding, it was approved.

(2) Tesco Site: this was edge of centre and was immediately available, thus it was second choice using the sequential test, but it had many other factors in its favour.

(3) North Blunts site: this was not the preferred edge of centre site (see officers report). The committee plainly felt that one edge of centre development was right, but not two. This application was refused by the committee.

(4) Dalton Park Site: regarded as a "Stand alone" out of town development; and, despite the advice of officers, there were countervailing arguments that won the day as material considerations and it was therefore approved.

89. I am entirely satisfied the planning committee applied its collective mind to the sequential test and that officers addressed the issues (as did the members) in accordance with sequential test in PPS4. They voted upon the issues in their sequential merit.
90. I have not referred to it specifically, but I have had well in mind the Practice Guidance 2009 relating to the sequential test. No useful purpose would be served by extensive or any recitation of the material. I am satisfied there was no legal error for the reasons I have given.
91. I reject the challenge based upon an assertion of the misapplication of the sequential test.

The Section 106 Point

92. Section 106 of the Town and Country Planning Act 1990 permits a planning authority to enter into a planning agreement with a developer. I do not feel it would be useful or productive to elaborate the challenge under this ground as I am bound by the Derwent case to which I referred a little earlier in this judgment (see paragraph 11 supra). I repeat: that decision provides an answer to this point against SE2 and it is a binding authority on this court.
93. I will set out a little of the details, although no useful purpose would be served by elaboration given that I am bound by a Court of Appeal authority that is directly on the point in this case. The argument of SE2 is that the officers did not adequately set out the proposal for the section 106 agreement or call the attention of the members to the relevant law and guidance in relation to it.
94. Durham CC make these points:

(1) The members of the planning committee were experienced and received training on the relevant law which includes section 106. That section is a very familiar provision and it is almost unarguable to suggest the members were ignorant of the approach they must take. The law does not need to be set out in every planning application.

(2) The matter was adequately covered in the officers' reports.

(3) The application by Tesco was considered in terms of section 38(6) of the Town and Country Planning Act 1990 and was assessed as being in accord with the development plan policy. The design was acceptable and passed muster in relation to highways and suchlike matters. A planning obligation was not necessary to make the scheme acceptable but was a contribution to the costs of improving underpass access to the town centre which would bring added benefit to the area.

95. The Derwent case makes it plain that it is open to a planning authority to enter into a Section 106 Agreement regardless of whether it is needed to advance the planning case for a development. Providing it is entered into with a view to securing the objective of improving an area it is lawful. It is my view the approach taken by the Court of Appeal in Derwent is inherently sensible, for to decide otherwise would mean that it is only acceptable to create a Section 106 Agreement when the scheme would otherwise fail. In this case it plainly assisted the planning case albeit it was not central to it. Certain it is the members of the planning committee had it well in mind, as it was specifically mentioned in some detail at paragraph 46 of the officers' report to the committee. The recommendation was accepted.
96. In my judgment the Derwent case is a complete answer to the argument advanced by SE2. That much was graciously accepted by Mr Tucker, but he reserved his position to a later occasion to aver that approach is wrong.
97. This ground of challenge also fails.

Conclusion

98. I have considered this important case with some care and have reached the conclusion that all three basic contentions of SE2 fail. The first ground was rather more arguable than the other two as events turned out, but even the first ground relating to retail capacity was found to be wanting having considered the matter. It is always wise to remember that this court is viewing practical reality. It is important to record that I have viewed all the relevant documentation (reports, minutes, decisions) in a straightforward manner. The decisions in this case were open to the planning committee to make and I cannot detect any error of law on their part.
99. I wish to emphasize the primacy of the planning committee. It is they who make the planning decision. This court will not lightly infer or find an error of law unless one can be clearly demonstrated. That has most certainly not been done in this case despite the attractive arguments of Mr Tucker on behalf of SE2.
100. The decision of Durham CC in relation to the Tesco site was recommended by officers and was lawful in my judgment.
101. It is important to remember I am only deciding the case about the Tesco site. For the reasons I have given in this judgment that claim must fail. However, the decision I have reached in this case (the First Judicial Review Application) has considerable impact upon the case about the Dalton Park site (the Second Judicial Review Application). I propose to determine that case as soon as possible as a paper application for permission to apply for judicial review. In view of the fact that I do not regard the overall decision of Durham CC about this trio of inter-related planning consents to be either unlawful or irrational it may be thought the next case has little chance of success. I await the arguments in that case. However, I have no intention of revisiting what has already been decided by this case, but if there are other matters not canvassed in this case that have specific relevance to the Dalton Park site decision, I will consider them. I will, and must, keep an open mind. I do not intend for there to be a re-match on the fundamental issues resolved by this case.
102. I repeat my deep gratitude to all counsel for their truly helpful submissions.
103. I shall hear any submissions as to the form of order and consequential matters in relation to this case. I shall also hear any submissions as to directions in relation to the related challenge by SE2 to the Dalton Park planning permission granted by Durham CC (The Second Judicial Review Application). I regard it as important for that case to be resolved as soon as practicable.
104. This application for judicial review in respect of the Tesco site is dismissed.