QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
VICE PRESIDENT OF THE UPPER TRIBUNAL
(SITTING AS A DEPUTY HIGH COURT JUDGE)
| PERFORMANCE RETAIL LIMITED PARTNERSHIP
|- and -
(1) EASTBOURNE BOROUGH COUNCIL
(2) SECRETARY OF STATE FOR COMMUNITY AND LOCAL GOVERNMENT
Mr R Walton (instructed by DMH Stallard LLP) for the first Defendant
Ms C Patry (instructed by Treasury Solicitors) for the second Defendant
Mr J Pereira (instructed by Stephenson Harwood LLP) for the Interested Party
Hearing dates: 27-28 November 2013
Crown Copyright ©
Mr C M G Ockelton :
The Statutory Background
"19(1) Development plan documents must be prepared in accordance with the local development scheme.
(2) In preparing a development plan document or any other local development document the local planning authority must have regard to –
(a) national policies and advice contained in guidance issued by the Secretary of State;
(5) the local planning authority must also –
(a) carry out an appraisal of the sustainability of the proposals in each development plan document;
(b) prepare a report of the findings of the appraisal"
"20 Independent examination
(1) The local planning authority must submit every development plan document to the Secretary of State for independent examination.
(2) But the authority must not submit such a document unless- (a) they have complied with any relevant requirements contained in regulations under this Part, and
(b) they think the document is ready for independent examination.
(3) The authority must also send to the Secretary of State (in addition to the development plan document) such other documents (or copies of documents) and such information as is prescribed.
(4) The examination must be carried out by a person appointed by the Secretary of State.
(5) The purpose of an independent examination is to determine in respect of the development plan document –
(a) whether it satisfies the requirements of sections 19 and 24(1), regulations under section 17(7) and any regulations under section 36 relating to the preparation of development plan documents;
(b) whether it is sound; and
(c) whether the local planning authority complied with any duty imposed on the authority by section 33A in relation to its preparation.
(6) Any person who makes representations seeking to change a development plan document must (if he so requests) be given the opportunity to appear before and be heard by the person carrying out the examination.
(7) Where the person appointed to carry out the examination –
(a) has carried it out, and
(b) considers that, in all the circumstances, it would be reasonable to conclude-
(i) that the document satisfies the requirements mentioned in subsection (5)(a) and is sound, and
(ii) that the local planning authority complied with any duty imposed on the authority by section 33A in relation to the document's preparation,
the person must recommend that the document is adopted and give reasons for the recommendation.
(7A) Where the person appointed to carry out the examination -
(a) has carried it out, and
(b) is not required by subsection (7) to recommend that the document is adopted,
the person must recommend non-adoption of the document and give reasons for the recommendation
(7B) Subsection (7C) applies where the person appointed to carry out the examination –
(a) does not consider that, in all the circumstances, it would be reasonable to conclude that the document satisfies the requirements mentioned in subsection (5)(a) and is sound, but
(b) does consider that, in all the circumstances, it would be reasonable to conclude that the local planning authority complied with any duty imposed on the authority by section 33A in relation to the document's preparation.
(7C) If asked to do so by the local planning authority, the person appointed to carry out the examination must recommend modifications of the document that would make it one that –
(a) satisfies the requirements mentioned in subsection (5)(a), and
(b) is sound.
23 Adoption of local development documents
(1) The local planning authority may adopt a local development document (other than a development plan document) either as originally prepared or as modified to take account of –
a) any representations made in relation to the document;
b) any other matter they think is relevant.
(2) If the person appointed to carry out the independent examination of a development plan document recommends that it is adopted, the authority may adopt the document-
a) as it is, or
b) with the modifications that (taken together) do not materially affect the policies set out in it.
(2A) Subsection (3) applies if the person appointed to carry out the independent examination of a development plan document –
(a) recommends non-adoption, and
(b) under section 20(7C) recommends modifications ("the main modifications").
(3) The authority may adopt the document –
a) with the main modifications, or
b) with the main modifications and additional modifications if the additional modifications (taken together) do not materially affect the policies that would be set out in the document if it was adopted with the main modifications but no other modifications
(4) The authority must not adopt a development plan document unless they do so in accordance with subsection (2) or (3)."
"Before the person appointed to carry out the independent examination under section 20 of the Act makes a recommendation under section 20(7), (7A) or (7C) of the Act the person must consider any representations made in accordance with Regulation 20."
"We are writing to make a formal request for the Inspector to recommend such modifications as she considers are required to make the Core Strategy sound. We would ask that she considers the submitted major modifications … where it is considered that these would make the Core Strategy sound"
"The consequence under the statutory scheme was that the inspector's recommendation meant that the only Core Strategy the [Council] could lawfully adopt was one that: (a) it had not promoted; (b) it had not consulted upon; (c) it had not considered sound, as required under s 20(2); and (d) had been amended by a Modification that the inspector had not been invited to consider under s 20(7C). To [make this recommendation] was, therefore, in breach of her powers under s 20(7C) and for the [Council] to adopt the document was, accordingly, in breach of s 23(3)."
"62. Sovereign Harbour is designated in Eastbourne Borough Plan (2001 – 2011) as an out of town shopping centre. However inclusion of Sovereign Harbour as a District Shopping Centre (DSC) in the retail hierarchy in Policy D4 is consistent with the Council's neighbourhood and strategic goals for the area. The designation is strongly supported by local residents who regard it as an acknowledgement of the Council's commitment to broaden the range of community facilities and local services at Sovereign Harbour. Furthermore it removes the anomaly of Sovereign Harbour as an area which is a focus for housing growth but remains one the few neighbourhoods that does not contain a designated district, local or neighbourhood shopping centre.
63. Concerns have been raised that the DSC designation will facilitate additional retail floorspace and threaten the viability of retail development in the town centre. Furthermore attention has been drawn to the Council's May 2010 Shopping Assessment, where the shopping centre at Sovereign Harbour is referred to as the Crumbles Retail Park, an out of centre retail warehouse park and its designation as a DSC is not recommended
64. Any future retail development at Sovereign Harbour would need to be considered against Policy D4, which places the town centre at the top of the retail hierarchy and states that the impact of new retail development must not have an unacceptable impact on the vitality and viability of the town centre and other centres. However discussion at the examination hearings revealed that this policy does not provide sufficient clarity in prioritising the town centre for new retail development. For this reason the Council has proposed a main modification to spell out more clearly the sequential approach to site selection, with the town centre clearly placed above DSCs. Subject to this modification (MM11), Policy D4 provides an effective policy tool to control retail uses in other centres in order to protect the town centre. In these circumstances there is no reason why designation of Sovereign Harbour as a DSC should have a harmful impact on the town centre.
65. The sustainability appraisal of Policy D4 makes no specific reference to the designation of Sovereign Harbour as a DSC. However work has been carried out during the examination, by the Council and others, to assess the sustainability outcomes for designation or non-designation of Sovereign Harbour as a DSC. The Council's re appraisal of D4 in core document CS4(B): Addendum to the Eastbourne Plan – Core Strategy Sustainability Appraisal Appendices (April 2012), considers only the omission of Sovereign Harbour from the list of DSCs, which is in fact the status quo. It differs from the submitted SA in that it concludes that not allocating Sovereign Harbour as a DSC would support the growth of the town centre and allow retail opportunities to be focused on the town centre. It could be inferred from this that the opposite, designation as a DSC, would be harmful to town centre growth and vitality. However I am satisfied that this potential outcome of the designation would be mitigated in full by MM11, which clarifies the sequential approach, with the town centre as the priority location for retail development.
66. In conclusion the Plan's designation of Sovereign Harbour as a DSC is consistent with its overall strategy and the goal of securing sustainable neighbourhoods. It would enable the Council to protect community facilities and services at Sovereign Harbour from edge and out of centre development and enable it to function as a sustainable neighbourhood. Subject to MM11 Policy D4 is therefore justified, effective and consistent with paragraph 24 [sic: paragraph 23 is clearly intended] of the NPPF which requires Local Plans to define a network and hierarchy of centres that is resilient to anticipated future economic change."
"The Council will enable the enhancement of consumer choice and strengthening of the vitality, viability and accessibility of the district and local centres by supporting new retail development which:
• complies with the sequential approach to site selection, which prioritises development in existing centres, followed by edge-of-centres, and then out-of-centre sites which are accessible by a choice of transport means; … "
"complies with the sequential approach to site selection, which prioritises development in the following order:
- Eastbourne Town Centre Primary and Secondary Shopping Areas (PSAs and SSAs);
- District Shopping Centres (DSCs);
- Local Shopping Centres (LSCs);
- Neighbourhood Shopping Centres (NSCs);
- Edge-of-centres; and
- Out-of-centre sites, which are accessible by a choice of transport means."
"23. Planning policies should be positive, promote competitive town centre environments and set out policies for the management and growth of centres over the plan period. In drawing up Local Plans, local planning authorities should:
- recognise town centres as the heart of their communities and pursue policies to support their viability and vitality;
- define a network and hierarchy of centres that is resilient to anticipated future economic changes;
- define the extent of town centres and primary shopping areas, based on a clear definition of primary and secondary frontages in designated centres, and set policies that make clear which uses will be permitted in such locations;
- promote competitive town centres that provide customer choice and a diverse retail offer and which reflect the individuality of town centres;
- retain and enhance existing markets and, where appropriate, re-introduce or create new ones, ensuring that markets remain attractive and competitive;
- allocate a range of suitable sites to meet the scale and type of retail, leisure, commercial, office, tourism, cultural, community and residential development needed in town centres. It is important that needs for retail, leisure, office and other main town centre uses are met in full and are not compromised by limited site availability. Local planning authorities should therefore undertake an assessment of the need to expand town centres to ensure a sufficient supply of suitable sites;
- allocate appropriate edge of centre sites for main town centre uses that are well connected to the town centre where suitable and viable town centre sites are not available. If sufficient edge of centre sites cannot be identified, set policies for meeting the identified needs in other accessible locations that are well connected to the town centre;
- set policies for the consideration of proposals for main town centre uses which cannot be accommodated in or adjacent to town centres;
- recognise that residential development can play an important role in ensuring the vitality of centres and set out policies to encourage residential development on appropriate sites; and
- where town centres are in decline, local planning authorities should plan positively for their future to encourage economic activity.
24. Local planning authorities should apply a sequential test to planning applications for main town centre uses that are not in an existing centre and are not in accordance with an up-to-date Local Plan. They should require applications for main town centre uses to be located in town centres, then in edge of centre locations and only if suitable sites are not available should out of centre sites be considered. When considering edge of centre and out of centre proposals, preference should be given to accessible sites that are well connected to the town centre. Applicants and local planning authorities should demonstrate flexibility on issues such as format and scale."
"The SEA process would be absurd if no changes could be made to the plan assessed in the SEA without triggering a further SEA, and doing so because of the fact of change alone, regardless of the promoter's view of its significance, reviewable on Wednesbury grounds. The iterations would be endless or there would come a point at which a consultation process would be pointless since it could lead to no further modifications."
"The January SA was (a) not an SA of the sound CS as submitted by the LPA to the 2nd D; (b) not an SA of the CS as adopted; and (c) was either so 'high level' as to not assess the impact of designation of SHRP on achieving either Objective 3 or option 13 or (d) was simply wrong, as the April SA contradicted it and concluded that it was the exclusion of SHRP which would score positively. Given the terms of the April and June SA – whose findings the Inspector did not dispute – the SA of the CS as adopted must include an express assessment of the impact of including SHRP and the reason for preferring that option. There is no document that does that"
"This policy [D4] should result in an increase of retail provision in the Town Centre, which will support the economic growth of Eastbourne. There will as a result, be the opportunity to improve the public realm and to include the provision of renewable energy technologies in any new developments."