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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Estates and Agency Properties Ltd, R (on the application of) v London Borough of Barking and Dagenham & Anor [2012] EWHC 3744 (Admin) (21 December 2012)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/3744.html
Cite as: [2012] EWHC 3744 (Admin)
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
| In the matter of an application for Judicial Review between THE QUEEN (on the application of) ESTATES AND AGENCY PROPERTIES LTD |
Claimant |
|
| - and - |
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| LONDON BOROUGH OF BARKING AND DAGENHAM -and- TESCO STORES LTD |
Defendant Interested Party |
____________________
R Warren QC (Berwin Leighton Painter LLP) for the Interested Party
Hearing dates: 11th & 12th December 2012
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(Transcript of the Handed Down Judgment of
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- The Claimant seeks a Judicial Review of a decision of the Defendant dated 15 September 2011 by which it granted planning permission for an extension of 1,910 square metres to an existing Tesco store at Highbridge Road, Barking. Permission was given by the Single Judge on 24th February 2012.
- The Claimant is the owner of Abbey Retail Park (ARP) which lies to the east of the Tesco store and is the site of a number of retail warehouses and ancillary development.
- Planning permission was granted in 1992 for the Tesco store for 6,039 square metres of gross internal floor space of which 3, 390 square metres was to be net sales space.
- Tesco built out this permission in full but subsequently changed the configuration of the store so that the net sales space fell to 2,768 square metres. Part of the original net sales space was reused as storage and part as a cafe. This store is located to the west of ARP on the other side of the river Roding. In terms of central government's Planning Policy Statement 4 (planning for sustainable economic growth)(PPS4) the Tesco store is "out of centre" whereas the ARP is "edge of centre".
- ARP comprises 3.6 hectares of brownfield land on which are a number of retail warehouse units, some of which are vacant. The Claimant has pursued a policy of securing vacant possession of the site to facilitate its development.
- Section 70(2) of the Town and Country Planning Act 1990 requires a local planning authority to determine an application for planning permission with regard to the provisions of the development plan and any other material considerations.
- Section 38(6) of the Planning and Compulsory Purchase Act 2004 provides that, if the determination is to be made with regard to the development plan then it must be made in accordance with the plan unless material considerations indicate otherwise.
- In Tesco Stores Ltd v Dundee City Council 2012 UKSC13 the Supreme Court held that construction of a planning policy is a matter of law for the court. Lord Reed (with whom Lords Hope, Brown and Dyson agreed) said:
- On the other hand, questions of the weight to be attached to any material considerations are matters which fall with in the jurisdiction of the Local Planning Authority and the exercise of the members' judgment can only be challenged on the ground that it is irrational or perverse (Tesco Stores Ltd v SSE 1995 1WLR 759). At page 780 in the speech of Lord Hoffmann:
- A helpful articulation of this approach to which I have been referred is in R(Salford Estates No 2) Ltd) v Durham County Council 2012 EWHC 2512 Admin at paragraph 20, where His Honour Judge Richardson QC stated:
- The Defendants' officers produced a report for the Defendant to inform its decision. It set out in a schedule the background papers, which included a list of the planning policies relevant to the decision in question. Those policies included:
- Part 1 of the AAP is an introduction. Paragraph 1.6 states amongst other things:
- Part 4 set out key issues for the area AAP, one of which was shopping. It states:
- Part 6 set out the policies of the AAP. Policy BTC1 provides for additional floor space which states:
- The document then sets out the reasoned justification for that policy. It includes the statement that the Council should aim to accommodate up to 9,000 sqm of additional shopping floor space within the town centre up to 2016 (6.1.1). The greatest part of this expansion is proposed to be provided by the large food/non food store of some 4,500 sqm (net) within the London Road/North Street development (PBTCSSA1) and some 2,500 sqm (net) expansion of the Vicarage Fields shopping centre (BTCSSA10). It was likely that the remainder of the additional floor space would be provided within the Barking Station master plan area (BTCSSA3) but much of the retail space there may be delivered after 2016 (6.1.4). It stated that the delivery of the large food/non food store on London Road/North Street development was central to the Council's strategy for shopping in the town centre but it believed that there may be an opportunity to rationalise the existing large scale shopping on the outskirts of the town centre (6.1.5). Paragraph 6.1.6 to 6.1.10 sets out the reasoning in relation to ARP and the Tesco store:
- Policy BTCSSA7 concerned the ARP. It described its existing use as a retail warehouse park with associated car parking and a small office block. Acceptable uses on this site were - new homes, ancillary leisure, and a retail superstore (subject to the linked redevelopment of the existing Tesco site on Highbridge Road for residential use.) Indicative capacity for housing would depend on whether a retail superstore was to be provided. It was to be expected that the site would accommodate 1,000 new homes in a scheme which did not include the superstore. A scheme which did include a superstore would reduce the number of homes on the site itself, but have the potential for some 1400 homes across both sites. Any ancillary local shopping leisure uses would be small scale. In terms of time scale it was anticipated that developments would be phased and would be completed in the period 2013-2017.
- The reasoned justification for this policy was that the current use of the ARP was inefficient and not appropriate within the AAP area. It had the potential to deliver a significant number of new homes in close proximity to the town centre which would benefit from having easy access to local services, facilities and jobs. The number of new homes to be provided would make a significant contribution to meeting the AAP housing target of some 6,000 additional homes (para 7.7.1)
- The Council understood that discussions had been taking place between the landowners who owned ARP and the Tesco site about the possibility of bringing both sites forward as a single or linked development (7.7.5). The Council acknowledged the potential benefit of a linked approach involving the reduction of homes the ARP site but with the replacement of the Tesco store with a larger store, of 7,500 sqm on the ARP. This would only be acceptable as part of a linked development of both sites ensuring that the existing Tesco site was used for residential development. In such circumstances the same residential density and family housing requirements would apply to the Tesco site. It was considered that the linked scheme for both sites could deliver some 1,400 new homes (7.7.6)
- Paragraph 7.7.9 states:
- Policy CE1 within the Core Strategy is entitled – "vibrant and prosperous town centres". It provides that Barking town centre will be enhanced and its status as a major centre will be promoted. It also provides that a sequential approach to the location of new retail and other town centre uses will be followed in line with national policy PPS6 (by the material date PPS4). It also states that the edge of centre retail warehouse park, at Abbey Road, was being considered for redevelopment to accommodate a wider and more sustainable mix of uses. It described the redevelopment of ARP as:
- In the reasoned justification at paragraph 7.1.2 it was stated ….
- Policy BE3 – "retail outside or on the edge of town centres" provides:
- Policy EC10 – "determining planning applications for economic development" which provides:
- Policy EC14 – "supporting evidence for planning applications for main town centre uses" states:
- Policy EC15 concerns sequential assessments. It provides:
- Policy EC16 concerns the impact assessment for such applications. EC16.1 provides that such applications should be assessed against the following impact on town centres including:
- The Policy EC17 concerns consideration of planning applications for such developments. It provides:
- The duplicate applications were registered on 6th November 2008. They were supported by a retail assessment prepared in October 2008 by G L Hearn acting for Tesco. Amongst other things, at paragraph 5.63, the assessment stated:
- The Claimants wrote a letter of objection to the planning officer dated 18 February 2011. They pointed out that they had never been formally notified of the applications and that an earlier draft of the AAP, in October 2010, had indicated that the Council had refused permission for an extension of the store.
- It referred to the AAP reference to ARP that there was merit in the principle of Tesco relocating to the ARP as part of a comprehensive development of both sites.
- It referred to discussions with Tesco who had made clear that, although they had secondary aspirations to extend their store, their preference was to relocate to ARP, but that, in January 2009, Tesco withdrew from the negotiations. The reasons given by Tesco for withdrawing from the negotiations included that they now wanted a smaller store, that they were no longer prepared to carry out a mixed use development on sites such as ARP, that they were concerned about the cost of obtaining vacant possession of the site and that they were not sure whether they owned their own site outright. Following the January 2009 meeting when Tesco withdrew from negotiations an attempt was made by the Claimant to resurrect the discussions but dialogue was nominal.
- The Claimant argued that it had demonstrated that the effect of the current extension proposals would be to prejudice the identified regeneration objectives of the AAP and that Tesco was defending an out of centre location to the detriment of an edge of centre alternative. It stated that ARP was suitable, available and viable and that the Tesco argument that it complied with the sequential approach was flawed. It also stated that the application to extend the store was contrary to PPS4 and the specific objectives of the AAP.
- On 22nd February, the day before the AAP was approved by the Council, the Claimant wrote to the Defendant's Chief Executive objecting to that part of the AAP which concerned the ARP. The claimant stated that the AAP objective of encouraging the redevelopment of the ARP, whilst laudable, would fail for commercial reasons. The AAP gave Tesco the power to dictate the regeneration prospects of a sequentially preferable site (ARP) by suggesting that only Tesco was entitled to occupy the ARP as a retail use. Consequently, were Tesco to decide to remain in situ, which would be more likely should their application to extend their existing store be allowed, the ARP would be blighted. The letter stated that:
- On 9th March 2011 G L Hearn wrote to the planning officer in response to the Claimant's letter of the 18th February. It addresses a number of issues including, in relation to ARP, the issue of viability. In respect of which they say amongst other things:
- Although there is no direct evidence, I assume that the letters of the 18th February and 9th March were placed in the planning application file identified as part of the background papers in the report. I am not in a position to make any similar assumption in relation to the letter of 22nd February to the Chief Executive, which was not directly related to this planning application, but addressed the imminent adoption of the AAP on 22nd February. However, the points made in that letter, whilst made in somewhat different terms, replicate the points made on the 18th February.
- In their rebuttal assessment dated June 2011, the Claimant at Part 6, address the impact upon the AAP and contend that granting the permission would have a significant and detrimental impact up on the implementation of the AAP. It suggested that the assertion by G L Hearn that the grant of the application would not compromise the future relocation of Tesco to the ARP should be given no weight because the consequence of granting the application would be the creation of a modern format Tesco store in an out of centre location which would meet its requirements in situ and would disincentivise Tesco from redeveloping the ARP.
- Part 1 is an introduction and description of the development. Paragraph 1.4 states that the net sales floor area is increased by 48%, but draws attention to the fact that the sales area approved in 1992 was such that the proposed increase compared to that was only 21%. This is the first of a number of references to what has been termed the "fallback" argument.
- Part 3 deals with consultations. It includes a section devoted to the Claimant's objections; the AAP considering that there is merit in allowing the replacement of the existing Tesco store with a larger store on the ARP; highlighting the ARP as sequentially preferable to the existing Tesco site; the ARP being highlighted for redevelopment; and that, for there to be compliance with the sequential approach it would be necessary to demonstrate that ARP is either unavailable, so as to be unlikely to be capable of delivering the increased floor space within the lifetime of the Area Action plan, or incapable of accommodating the desired increase through disaggregation. Finally, the Claimant's objections are said to include that there has been non compliance with PPS4.
- The officers response to these objections is as follows:
- The Claimant's first ground for a judicial review is that the officers have completely failed to understand the point being made by the Claimant and that there is nothing in the remainder of the report which remedies that deficiency.
- The Defendant and the Interested Party contend that, as there was currently no prospect of a linked development on the ARP site involving a food retail outlet and as Tesco stated that it was not precluding relocating to the ARP in the medium to long term, the officers were entitled to advise the Councillors that they were dealing with an application solely for extension to the existing store rather than a new retail store as referred to in the AAP.
- The officers dealt with objections of Asda who intend to embark on a town centre development. Asda objected that an out of centre development would have a significant adverse impact on the regeneration of the Barking town centre including the Asda London Road/North Road site.
- The officers response was:
- The Claimant contends, as ground 2, that the officers misinterpreted the AAP in respect of the redevelopment of the ARP. Reliance is placed on the analysis in the AAP at paragraphs 6.1.8 – 6.1.10, at the end of which it was concluded that a larger Tesco store on the ARP should not have an adverse impact on the viability and vitality of the town centre. This was because a combination of the closure of the Tesco store to relocate to the ARP and the closure of the retail warehouses on the ARP would cancel out the effect of a larger Tesco store on the ARP. Thus, the Claimant argues, it was wrong to suggest that redevelopment of the ARP, as envisaged in the AAP, would potentially have a greater impact on the Asda development than a modest increase in convenience floor space on the existing Tesco store site.
- The Defendant and the Interested Party contend that paragraph 6.1.10 of the AAP was not directed solely at Asda but at the town centre as a whole and that the point being made in the officers' report was open to them and that it should not be subject to a fine textual analysis.
- Part 5 of the Report sets out the officers' analysis. Under the heading "Economic and Physical Regeneration" the report refers to the AAP and, in particular, Policy BTC1. It reminds councillors that the AAP provided that up to 9,000 sqm of additional shopping floor space should be provided in the town centre up to 2016. They were reminded of the Barking Town Centre retail study update in 2009 and at paragraph 5.21 state:
- In paragraph 5.23 reference is made to national policy PPS4 EC17. In this paragraph there is a further reference to what the existing planning permission permits in terms of convenience floor space. This is the third reference to the terms of the existing permission and goes to the "fallback" argument.
- The report then sets out its analysis concerning sequential assessment.
- It refers to PPS4 policies EC14 and EC15. It identifies that this is an out of centre site and that the applicant must demonstrate that there are no more central sites for the development, that there are no unacceptable impacts on existing centres and that the location is accessible. It refers to the fact that EC14 makes clear that the requirement applies to extensions.
- The analysis considers the scope for disaggregating a retail development to separate sequentially preferable sites and reminds members of the policy that planning authorities should not seek arbitrary subdivision of proposals. It reminded the members that the proposed extension would provide an extra 1,320sqm, or 697 sqm if the existing permission were fully utilised, (another reference to the fallback argument). The officers stated that it would be unreasonable to expect Tesco to provide a stand alone store of 1320 sqm even though on a sequentially preferable site.
- The report proceeded to look at three more central sites, including the ARP and records the applicant's comments upon them.
- Of the ARP, Tesco stated it was currently partly occupied and used for retail uses which were viable. There were three vacant units comprising: 3,326, 1,765, and 929 sqm respectively. The report continues:
- The report then goes on:
- The meeting was due to take place on the 27th June 2011. On 15th June 2011 the Claimants wrote to the planning officer seeking a deferral of the meeting. The reason was stated to be that the Claimant was in discussions with Tesco in respect of the future redevelopment of ARP. A meeting had been arranged for the 22nd June. For those discussions to be meaningful the applications should be withdrawn from the 27th June committee meeting.
- The minutes of the meeting record that the application for a deferral was rejected by members. An objector representing the Claimant attended and spoke. He referred to the detailed representations and stated that the applications did not contribute to the Council's stated regeneration objectives for Barking town centre as detailed in the AAP. Although the Claimant had met the applicants and made it clear the ARP was immediately available for redevelopment with retail led scheme, Tesco had confirmed that it had no intention in looking beyond the current proposals. There was no justification for Tesco not considering the ARP as a sequentially preferable site.
- The committee decided to grant permission subject to a series of conditions. The reasons were set out in summary form. The first reason is as follows:
- Although the grounds of claim set out five grounds, the parties were all agreed that ground 5 was parasitic on grounds 1-4, and, accordingly, by agreement, I am not asked to adjudicate on that ground.
- Put shortly the Claimant's case is that the officers failed properly to interpret the local planning policies and/or national policy PPS4 in their relevance and application to this application for planning permission. The Claimant says it directly impacted on: the Core Strategy Policy CE1 which identified redevelopment of ARP as a key component of improvements to Barking town Centre; and on Policy BTC1 of the AAP which envisaged the Council being prepared to allow relocation of Tesco on to ARP as part of a housing and retail led mixed use development linked to the cessation of retail use on the present Tesco site and the use of that site for housing.
- This failure, it is said, is evidenced by the fact that the report failed to refer to the site specific Policy A7 which concerned the redevelopment of the ARP for new homes, ancillary leisure use, and a retail superstore, all subject to the linked redevelopment of the existing Tesco site for residential use.
- The Council is said also to have failed properly to understand or apply the Borough wide development policy BE3 which envisaged that planning permission would only be granted for edge of centre, or out of centre, proposals if they could demonstrate that they would have no adverse impact on or could show that they would fit in with the overall local development framework vision policies and objectives which would include both the AAP and the Core Strategy.
- Furthermore, it is said that the officers' report betrayed a misunderstanding of or misapplication of national policy PPS4. It is said that the Defendant failed fully to consider PPS4, Policy EC17 that such an application should be refused where there is clear evidence that the proposal is likely to lead to significant adverse impacts in terms of, amongst other things the impacts identified in Policy EC16.1(c) - on an allocated site outside of a town centre being developed in accordance in accordance with a development plan – in this case the ARP as envisaged in the core strategy and the AAP.
- The Claimant says that they informed the Council of their perception that granting the permission would make it more likely that the policies in the AAP envisaging redevelopment of the ARP by means of a retail led development would be vitiated by making it less likely that Tesco would have an incentive to come forward as a redevelopment partner as envisaged in AAP policies BTC1 and SSA7.
- The Claimant points out that the only place in the officers' report which directly addresses this argument is in Part 3 where it dismisses their argument solely on the basis that the AAP concerns the provision of a new retail store whereas the planning application was for an extension to an existing one. It is said that this very brief response wholly misses the point of the objection, which was that granting the permission sought would act as a significant disincentive to Tesco to participate in a redevelopment of the ARP which was a key component of the Core Strategy and which Tesco had chosen, at this stage, to opt out of, choosing, rather, to pursue their short term commercial interests by advancing these applications for permission.
- The Claimant says that, even upon the most generous reading of the report as a whole, it fails properly to engage with the significant impact the present application had on the fulfilment of these local planning policies. As a result the members of the committee did not have the opportunity to weigh up the planning merits of the application in the light of that, they say, highly significant consideration.
- It is further pointed out by the Claimant that the only part of the report where the question of Tesco's participation in a redevelopment of the ARP is touched on is at paragraph 5.34. This forms part of the sequential assessment and was primarily focused on the question whether the application should be refused on the grounds that Tesco had available another, prioritised site, namely the ARP which was immediately available but only on the basis that there was a disaggregation of the Tesco business.
- That part of the report compared and contrasted sites which were immediately available for development - a vacant unit on the ARP and the present Tesco site. The officers only drew the attention of the members to the fact that Tesco has expressed an interest in relocating to the ARP to point out that relocation would be a long term project unlikely to provide the new floor space within a period of 5 years so as not to be immediately available.
- The Claimant says that the officers failed to place before the members for their consideration the potential impact of granting the permission upon the achievement of the local planning policies which envisaged the redevelopment of the ARP as a key component.
- The Defendant and the Interested Party contend that the report, if read as a whole does not misapply or misunderstand or misinterpret the relevant planning policies but invites the members to come to a planning judgment on the application which was before them - to extend the existing Tesco store - against the background that, notwithstanding the encouraging words contained in the AAP, there was no immediate prospect of any such proposed redevelopment of the linked sites being brought forward, where Tesco, for commercial short term reasons not attacked by the Claimants as being presented in bad faith, wished to improve, in quantitative and qualitative terms, the shopping available at its present site without, on its view, inhibiting their willingness or ability in future to come forward as a potential co-developer of the ARP.
- In these circumstances they state that there was no linkage between the present application and the possible redevelopment of the ARP, envisaged merely as a possibility in the AAP policies. On that basis it is said that the terms in which the officers' report dealt with the Claimant's objection on AAP based grounds was not a misconstruction of the planning policies or a misapplication of them.
- Furthermore, they say that the arguments of the Claimant, based on the claimed impact of these permissions on the achievement of the AAP policies, were articulated in the documents within the planning file and were further articulated, orally, at the meeting by the Claimant's representative. Accordingly, they say, the members had the issue before them and, in granting planning permission, they were coming to a planning judgment with which this court should be most reluctant to interfere.
- It is trite law that this court should be most reluctant to interfere with what is a matter of planning judgment reached by the members on the basis of a fair and proper setting out of the issues by their officers and after having the opportunity to read and hear the contentions of either side of the argument put by the applicants and the objectors. Ms Lieven accepts that, if the members had their attention drawn to the question whether granting the planning permission would act as a disincentive to Tesco coming forward as a co-developer of the ARP as envisaged in the AAP policies and had come to a planning judgement that, nonetheless, they would grant the planning permission sought, she could not have any ground for complaint. What she complains about is that the officers' report, which contains the main source of guidance for members as to what the relevant issues are to which they should apply their planning judgment, dismissed this argument as not relevant to the application to extend the Tesco site because the application did not involve the provision of a new retail store.
- Furthermore, the only passage where the question whether Tesco have presently or, in the future, may have a desire to come forward as a co-developer of the ARP as envisaged in the AAP, is not directed to that issue at all, but forms part of the separate sequential assessment. The officers indicated that the relevant comparison was between one or other of the immediately vacant units on the ARP, and the immediately available Tesco site the subject of the application. Although the ARP was, sequentially, ranked ahead of the Tesco site, it could only be as a stand alone, disaggregated, store. The planning judgment on that issue, in accordance with the relevant policies, was that sequential assessment should not stand in the way of planning permission being granted.
- In my judgment the Claimant has made out this ground of complaint. The argument which they sought to put forward was a relevant one. There was a question whether, given the positions of the Claimant and Tesco, granting this permission would act as a disincentive to Tesco coming forward as a co-developer of the ARP as envisaged in the AAP policies. That was a matter upon which the members should have been invited to come to a view and, having come to a view one way or the other, then, to determine whether or not, as a matter of planning judgment, planning permission should be granted.
- In my judgment, the officers failed properly or fairly to identify that issue for the members because they misunderstood, or misapplied, the relevant planning policies and their impact upon the application. What was said in the correspondence and at the meeting by the claimant's representative cannot make up for the deficiency of the officers response to the issue in the report which was clear and dismissive of its relevance to the decision the members had to take on the application for permission for the extension of the Tesco store.
- If the officers had placed the issue properly and fairly before the members, and permission had been granted, I agree with Ms Lieven that the Claimant would have had no case under this ground. But the fact is they did not. Accordingly, in my judgment, the application for judicial review succeeds on Ground 1.
- The Claimant's case is that the officers, in their report, regarded as highly relevant the fact that the 1992 permission permitted a larger area of floor space to be used for retail selling than was being used. Tesco used some of the floor space, which could have been used for retail sales, for storage and a café. On that basis the officers, on more than one occasion, informed members that though the application was for extension of the retail floor space by 48% of the floor space currently used, it was, only 21% greater than it would have been if Tesco had reverted to utilising the whole of the floor space for which they had permission in 1992 (the fallback). The criticism made of the report by the Claimant is that it would only be a relevant consideration if there was a real possibility that Tesco would revert to the maximum permitted use but there is no such assessment. Thus, the members have been invited to take into consideration an irrelevant matter.
- The Defendant and Interested Party take slightly different lines of defence. The Defendant says that, because this factor was not referred to in the summary reasons for the decision, there is no evidence that the members took it into account at all. The Interested Party accepts that they may have had some regard to it, though its absence from the summary of the reasons indicates that it was not of the first order of matters they took in to account. The Interested Party also contends that, upon a fair and proper reading of the report, these references are contextual and do not seek to put forward a "fallback" argument. To read them the way the Claimant has is to overstate their importance when reading the report as a whole.
- In my judgment, the inclusion of this point in a number of places in the report was intended to place it before the members as a material consideration. However, there is no attempt to assess whether Tesco ever intended to revert to maximise its permitted use of retail floor space under the 1992 permission. I conclude from that fact that it was not included as a "fallback" consideration. I accept the contention of the Interested Party that it was no more than was required to give the members the context of the application. In my judgment it is not a proper basis for judicially reviewing this decision.
- The Claimant's case is that the officers, in responding to the Asda objection, have failed properly to read the reasoned justifications for the AAP policy BTC1 and to understand why Asda did not object to it. Upon a proper analysis, a redevelopment of the ARP through a retail led development, as envisaged in AAP policy BTC1, would be neutral in its impact on town centre development. The expanded retail superstore on the ARP would replace both the existing Tesco store, which would close and its site used for housing and the existing ARP retail warehouses which would close.
- It is said that the officers' report, in saying that the AAP would have a greater potential impact on the Asda/London Road proposal than the current application, which would result in a modest increase in convenience floor space, was inaccurate in its understanding of and interpretation of the AAP policy. On that basis, it is said, the members were not presented with accurate guidance on which to exercise their planning judgment.
- The Defendant and the Interested Party contend that this is such a marginal matter that it cannot affect the lawfulness of the decisions based on the officers' report read as a whole and applying the cautionary words of the Supreme Court on how such reports are to be approached when criticised in judicial review proceedings.
- In my judgment, as a matter of fine textual analysis of the report, the Claimant has made a good point. However, were this argument to stand on its own, it would not be a sufficient defect to conclude that, thereby, the granting of permission was unlawful. In truth, this passage provides further evidence for the fact that the officers appear to have had little inclination to consider in any detail the relevance of the AAP policies, in particular policy BTC1 and SSA7 to this application. This shortcoming provides further evidential support for the conclusion to which I have come on Ground 1. On its own, however, it would not be sufficient for me to grant a judicial review.
- The Claimant's case is that the sequential assessment was flawed because the guidance given by officers in the report focussed on a dichotomy between an immediately available Tesco site, which would not require disaggregation were the permission granted, and an immediately available vacant unit on the ARP which, by reason of the floor space immediately available, would require a disaggregation of Tesco's commercial activity, were permission to be refused on the basis that the ARP site was ahead of the out of centre Tesco site by way of sequential assessment.
- It is said that to fail to consider the redevelopment of the ARP as preferable by way of sequential assessment, because it would take upwards of 5 years to complete, was a flawed approach because the reason for that timeframe was the self serving decision of Tesco to withdraw from negotiations in 2009.
- The Defendant and the Interested Party contend that the focus of this part of the report was properly upon what was immediately available and, in assessing what was immediately available, the focus was properly upon the question of disaggregation. The officers' report cannot, they say, be criticized either in terms of planning policy or planning merit on that limited issue.
- In my judgment, on the limited issue of sequential assessment and the question of disaggregation, the officers' report cannot be criticised. The statement in the report about what was immediately available on the ARP site, and the assessment of the timeframe for the complete redevelopment of the ARP site was accurate. The comparison was said to be of three sequentially preferable sites which were immediately available. Of those the ARP was immediately available but, on a proper analysis of what was immediately available on that site, it could only be brought into play by means of an arbitrary disaggregation of Tesco's business and the officers correctly advised that to require that would be unreasonable.
- Accordingly, on this issue, in my judgment, the report cannot be criticised and Ground 4 is not made out.
- Accordingly, I find that the claim for judicial review succeeds on Ground 1 but not in respect of grounds 2 or 4. On Ground 3, I find that there was a defect in the report which provides evidence in support of my conclusion on Ground 1 but would not, on its own, be a ground for judicial review.
MR JUSTICE WILKIE:
Introduction
The background
The relevant statutory provisions and planning policies
"18. The development plan is a carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision-making unless there is good reason to depart from it. It is intended to guide the behaviour of developers and planning authorities. As in other areas of administrative law, the policies which it sets out are designed to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained. Those considerations point away from the view that the meaning of the plan is in principle a matter which each planning authority is entitled to determine from time to time as it pleases, within the limits of rationality. ... On the contrary, these considerations suggest that in principle, in this area of public administration … policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context …
22. It is of course true, as counsel for the respondents submitted, that a planning authority might misconstrue part of a policy but nevertheless reach the same conclusion, on the question whether the proposal was in accordance with the policy, as it would have reached if it had construed the policy correctly. That is not, however, a complete answer to a challenge to the planning authority's decision. An error in relation to one part of a policy might affect the overall conclusion as to whether a proposal was in accordance with the development plan even if the question whether the proposal was in conformity with the policy would have been answered in the same way."
"provided the planning authority has regard to all material considerations it is at liberty (provided it does not lapse in to Wednesbury irrationality) to give them what ever weight the planning authority thinks fit or no weight at all"
"It is also a paradigm of the system of planning control in England and Wales that the exercise of the 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 argument 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."
Relevant planning policies
A. The Local Development Framework – Planning for the Future of Barking and Dagenham – Barking Town Centre Area Action Plan, adopted February 2011 (the AAP). (It referred expressly to Policy BTC1 within the AAP but not to policy BTCSSA7)
"The AAP is statutorily required to be;
Consistent with national guidance as set out in planning policy guidance notes, statements and circulars as issued by the government … and in conformity with the council's LDF core strategy"
"4.6 The Barking Town Centre retail study update 2009 found that although Barking is relatively healthy in terms of vitality and viability there is scope to consolidate and improve its retail provision and that it needs to improve its retail offer if it is to prosper … The study concluded that the projected levels of consumer spend in the catchment area suggested that the council should aim to accommodate up to 9,000 square metres net of additional shopping floor space within the town centre up to 2016. Opportunities exist to meet this requirement to meet this scheme at London Road/North Street (BTCSSA1) where the council is advancing a redevelopment scheme which incorporates a superstore of some 4,500 sqm net, through the expansion of Vicarage Fields (BTCSSA10) and through new retail floor space provided within the station master plan area (BTCSSA3) …
4.7 There is also significant retailing outside the primary shopping area principally at the London Road Tesco store and on the edge of centre Abbey Retail Park which the action plan must deal with. BTCSSA7 explains that there is merit in allowing the replacement of the existing Tesco store with a larger store on the Abbey Retail Park as part of a single/linked development of both sites therefore moving it from an out of centre location to an edge of centre location due to the significant comparison floor space which exists on the Abbey Retail Park this proposal would only lead to a limited net increase in convenience floor space. For this reason this should not have any adverse impact on the viability and vitality of the town centre itself …"
"… In line with the conclusions of the Barking Town Centre retail study update 2009 the Council considers that up to 9,000 sqm net of additional shopping floor space should be provided in the town centre in the period up to 2016 …
In addition the Council will be prepared to allow the relocation of the existing Tesco store at the junction of London Road and the A406 to a larger store on the Abbey Retail Park. This replacement store on the Abbey Retail Park will only be acceptable as part of a housing-led mixed use development (BTCSSA7). The cessation of retail use on the present site and its use for housing and subject to the Council being satisfied that it would not adversely impact on the planned town centre retail redevelopment proposed by this policy …"
"6.1.6 The existing Tesco store at the London Road/A406 junction is in an out of centre location which encourages single trip car borne shopping. The Council originally opposed it because of concerns about its impact on the vitality and viability of the town centre although permission was granted on appeal to the Secretary of State
6.1.7 The Abbey Retail Park is an edge of centre site which currently accommodates a low density single storey development including electrical, home furnishing and DIY stores. It appears to be under performing in trading terms with a number of stores closed or closing, …
6.1.8 The Council considers that there is merit in allowing the replacement of the existing Tesco store with a larger store on the Abbey Retail Park as part of a comprehensive development of both sites. The new store will be on an edge of centre site rather than as at present an out of centre site and this better aligns with the provisions of Planning Policy Statement 4.
6.1.9 To be acceptable any scheme will need to ensure that all retailing ceases on the existing Tesco site and that, apart from the possibility of a small local shop to serve the new residential community, the new store is the only retail on the Abbey Retail Park. It is anticipated that there will only be a limited net increase in convenience retail floor space because most of the additional space in the new super store will be for the comparison goods not sold in the existing store and this increase will be out weighed by the removal of the current non food retail warehouses on the Abbey Retail Park.
6.1.10 It is considered that, due to the removal of the comparison goods floor space at Abbey Retail Park and provided the increase in convenience floor space is limited, a larger store at this edge of centre site should not have adverse impacts on the viability and vitality of the town centre itself including the proposed retail developments. However, the Council will expect any planning application to demonstrate this.
6.1.11 The Council acknowledges that the 2009 retail capacity study only provides projections up to 2016 and that these may require reappraisal as retail development in the town centre takes place and the catchment population grows. Consequently the Council will keep the need for additional shopping under review and will update the retail capacity study as necessary but certainly by 2012."
"Although it may not affect the timing of the construction of the school and some of the free standing housing on the Abbey Retail Park part of the site, it is acknowledged that single or linked development of both sites would take longer to implement. Since the provision of the new homes on the existing Tesco site must await the demolition of the existing store, the new homes there are unlikely to be delivered until 2017/18 and 2018/19"
B. The core strategy adopted in July 2010
"a key component of improvements to Barking town centre. This area along with surrounding sites will be improved through the provision of a greater mix of uses including residential development and community facilities whilst retaining some retail provision and other appropriate edge of centre uses. These proposals are being developed in more detail in the Barking Town Centre Area Action Plan."
"The sequential test applies not only to new developments but also to redevelopment or extension of existing edge of centre and out of centre retail stores over 200 sqm including mezzanines"
C. The Borough wide development policies – development plan document adopted in March 2011
"… edge of centre or out of centre proposals will be considered against the sequential test set out in national policy. Planning permission will only be granted for such proposals if, in addition to the sequential test, they can demonstrate that they will have no adverse impacts on the vitality and viability of existing centres and show how the proposed development would benefit our existing community, how it fits in with our overall LDF vision, policies and objectives and what contribution it would make to a sustainable Borough."
The report does not list in the schedule of background papers the Central Government planning policy statement for the planning for sustainable economic growth (Policy PPS4). That omission is not relied upon as a ground by the claimant. That document contains the following policies
"EC10.2 all planning applications for economic development should be assessed against the following impact considerations: …
(d) The impact on economic and physical regeneration in the area including the impact on deprived areas and social inclusion objectives."
"EC14.3 A sequential assessment under EC15 is required under planning applications for main town centre uses that are not in an existing centre and are not in accordance with an up to date development plan. This requirement applies to extensions to retail or leisure uses only where the gross floor space of the proposed extension exceeds 200sqm.
EC14.4 An assessment addressing the impact in policy EC16.1 is required for planning applications for retail and leisure developments over 2,500 sqm gross floor space or any local floor space threshold set under Policy EC3.1.d not in an existing centre and not in accordance with an up to date development plan."
"1 In considering sequential assessments required under Policy EC14.3 local authorities should,
(a) ensure that sites are assessed for their availability suitability and viability …
(c) ensure that where it has been demonstrated that there are no town centre sites to accommodate a proposed development preference is given to edge of centre locations which are well connected to the centre by means of easy pedestrian access …
(d) ensure that in considering the sites in or on the edge of existing centres developers and operators have demonstrated flexibility in terms of …
(iv) the scope for disaggregating specific parts of a retail or leisure development including those which are part of a group of retail or leisure units onto separate, sequentially preferable sites. However, local planning authorities should not seek arbitrary sub division of proposals"
"(a) the impact … on existing committed and planned public and private investment in a centre or centres in the catchment area of the proposal …
(c) the impact of the proposal on the allocated sites outside town centres being developed in accordance with the development plan."
"1. Planning applications for main town centre uses that are not in an existing centre and not in accordance with an up to date development plan should be refused planning permission where
(a) the applicant has not demonstrated compliance with the requirements of the sequential approach (Policy EC15) or,
(b) there is clear evidence that the proposal is likely to lead to significant adverse impacts in terms of any one of impacts set out in Policies EC10.2 and 16.1(the impact assessment) …"
The Report – the planning file
"The popularity of the Tesco store is putting significant pressure upon it and it trades well beyond the level it was designed to. Whilst very popular, the shopping conditions for customers are below a standard which would normally be expected for a modern main food store …"
"There may be many commercial reasons for Tesco wanting to remain in situ … however, it is absolutely inconsistent with all the intentions of the AAP for a store in an out of centre location to be allowed to extend … It is very likely to vitiate all the objectives of the AAP"
The letter goes on:
"I say this because as representatives of EA have previously confirmed to officers of your authority there is little prospect of high density residential led development delivering a viable return for the foreseeable future. Accordingly, any aspiration that your authority has to secure an associated package of benefits, for example, a new primary school, affordable housing, improved integration for Abbey Field and the River Roding, as well as the town centre itself, is reliant on the redevelopment of the site to be food retail led."
"More broadly you have been aware from the outset that Tesco strategy for Barking remains one of addressing the identified and accepted quantative and qualitative need deficiencies in the short term through the modest extension of their existing store. This does not preclude the delivery of their medium to longer term strategy of relocating their operation to the Abbey Retail Park in accordance with the now adopted Barking Town Centre Area Action Plan. As such the supposed "contradiction" in objectives referred to in the (Claimants) letter is erroneous.
The (Claimant's) letter asserts that "were Tesco to proceed with an extension, the prospects of the company wishing to relocate at any point in the future would substantially diminish". Bearing in mind the longer term strategy set out above, we dispute this assertion. As demonstrated in representations made on behalf of our client to the draft stages BTCAAP there is significant unmet capacity within Barking even assuming a committed development on the London North/North Street site. This need cannot be met in the existing store site hence the requirement for off site relocation. However, it is considered that, for the foreseeable future the redevelopment of the retail park to include a relocated and enlarged Tesco store is not viable and would not be delivered in a reasonable 5 year timeframe as set out in PPS4."
The Report
"It should be noted that the BTCAAP discusses the provision of a new retail store and not an extension to an existing one. The issues of compliance with PPS4 including the sequential approach and disaggregation are discussed in the analysis below."
"The preferred strategy of the (AAP) is for a new Tesco store on the edge of centre (ARP) which is closer to the London Road site and the existing out of centre store. Clearly this would have a greater potential impact on the London Road proposal than the extension which results in a modest increase in convenience floor space. ASDA Stores Ltd did not object to the proposal in the area action plan for a new and larger store on the Abbey Retail Park which would potentially have a greater impact on the London Road/North Road development …"
"The relatively modest increase in net retail floor space of 1,320 sqm for the existing Tesco store, which is apparently intended to relieve overcrowding on the existing floor and partly to increase the amount of floor area devoted to comparison goods, would be unlikely to pose a threat to the viability of the development of a major store in the town centre. … In comparison to the existing permission the increase in net retail floor space is only 697 sqm or 20.5%."
This is the second reference to the aspect which has been discussed in terms of "fallback".
"The largest unit has 3,326 sqm of gross floor space which is considerably less than the 6,000 sqm of the existing Tesco store. Such a store would necessitate disaggregation."
"Tesco has expressed an interest in relocating their existing Highbridge Road store on to this site and this is supported by the (AAP). However this would be a long and complex option which based on the latest information provided by the applicant would be unlikely to provide new floor space within a reasonable period, i.e., 5 years. This should be compared to the existing proposal which can be implemented immediately."
This part of the report concluded:
"On balance it is considered there are no sequentially preferable sites without arbitrary disaggregation."
The Committee Meeting
"While the proposal is not in the town centre and is contrary in this respect to local development framework Borough wide development policy BE3 it is considered that the principle of the proposal can be justified on the grounds that there are no more sequentially preferable sites available in a reasonable time frame which would not involve unreasonable disaggregation. There would no significant harm to other town centres to ensure that a condition restricts the amount of convenience floor space provided."
Submissions and conclusions
Ground 1
Conclusions on Ground 1
Ground 2 "the Fallback" argument
Ground 3 - the Asda Ground
Ground 4 – the sequential assessment
Summary