England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		22 July 2014

Mr Justice Supperstone :

Introduction

1. The Claimant, Warners Retail (Moreton) Ltd, challenges the decision of the Defendant ("the Council") made on 12 December 2013 to grant planning permission to the First Interested Party, Minton Health Care Ltd and Glamar Leisure Ltd, for a new food store at Fosse Way Farm, Stow Road, Moreton-in-Marsh, Gloucestershire ("the Minton site").
2. The Claimant is the owner of an existing food store within Moreton-in-Marsh, trading as Budgens, which will be directly affected by the permitted store if it is brought into operation.
3. The Council is the local planning authority for Cotswold District.
4. On 14 March 2014 Lewis J granted permission to apply for judicial review.

The Factual Background

5. The planning application for the Minton site was placed before the Council's planning committee on 11 September 2013 when it resolved to grant permission. However the application was brought back to the Committee on 11 December 2013 to consider further objections by the Claimant and other persons when the Council again resolved to grant planning permission.
6. Permission was granted on 12 December 2013 for the following development:

"Demolition of existing buildings and erection of food store with associated parking. Landscaping and ancillary works at Fosse Way Farm, Stow Road, Moreton-in-Marsh."

7. The grant of permission was made subject to a number of conditions. Condition 5 imposed floor space restrictions so that the gross internal floor space shall not exceed 2,736 sq m, and the retail sales area shall not exceed 1,742 sq m. Of the total retail floorspace the area for convenience goods shall not exceed 1,394 sq m, and comparison goods 348 sq m. The application included 150 parking spaces.
8. The Minton site extends to 2.3 acres. It lies within the Cotswold Area of Outstanding Natural Beauty. It is outside the settlement boundary for Moreton-in-Marsh as delineated in the Cotswold District Local Plan 2001-2011 ("the Local Plan"), and it is located approximately 490 metres from the town centre (described as the Commercial Centre in the Local Plan).
9. The Budgens store lies at the northern end of the High Street in Moreton-in-Marsh. It is located within the town, albeit not within the designated "town centre" for retail policy purposes. In retail terms the Budgens site is "edge of centre". It lies approximately 125 metres from the northern edge of the Commercial Centre. It has a net floor space of 909 sq m (1458 sq m gross). It also contains a post office. At the date of determination of the relevant planning applications the Claimant had secured planning permission to expand the store to a total of 1541 sq m (an extension of 639 sq m gross).
10. The same Planning Committee on 11 September 2013 considered two other planning applications of relevance, both of which were refused. The first was an application for an alternative form of development on the Minton Site (which included additional land). This was an application for a retirement community including a 48-bed care home and 51 assisted living units.
11. The second was an application by the Second Interested Party, Sainsbury's Supermarkets Ltd ("Sainsbury's"), for a food store of broadly similar size to the Minton permitted development, on land on the opposite side of Stow Road known as "Land Parcel Easting 420527 Northing 231667", Stow Road, Moreton-in-Marsh ("the Sainsbury's site"). The Sainsbury's site is also outside the town settlement boundary, but abuts it (whereas the Minton site is 40-60m from it). The Council considered that two new food stores would harm the vitality and viability of Moreton-in-Marsh town centre and that the Minton application was preferable to the Sainsbury's application.

Relevant Policy Considerations

12. By section 38(6) of the Town and Country Planning Act 2004 ("the 2004 Act") the Council was under a duty to determine the planning application in accordance with the development plan unless other material considerations indicated otherwise.
13. The Local Plan formed part of the adopted development plan. It includes the following two policies of particular relevance which, so far as is material, provide:

"POLICY 19: DEVELOPMENT OUTSIDE DEVELOPMENT BOUNDARIES

Outside Development Boundaries, and subject to Policy GB.1 and policies for site-specific allocations indicated on the Proposals Map and insets, development appropriate to a rural area will be permitted, provided that the proposal relates well to existing development; meets the criteria set out in other relevant policies in the Plan; and would not:

(d) adversely affect the vitality and viability of settlements;"

"POLICY 25: VITALITY AND VIABILITY OF SETTLEMENTS

2. Development that would harm the vitality and viability of the commercial centres will not be permitted. Proposals for development outside the commercial centres will be subject to a sequential test and in the case of retail development must be supported by evidence:

(a) of need;

(b) that it would not harm vitality and viability; and

(c) that it is accessible by a choice of means of transport."

14. The National Planning Policy Framework ("NPPF") includes the following:

"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.

26. When assessing applications for retail, leisure and office development outside of town centres, which are not in accordance with an up-to-date Local Plan, local planning authorities should require an impact assessment if the development is over a proportionate, locally set floor space threshold (if there is no locally set threshold, the default threshold is 2,500 sqm). This should include assessment of

the impact of the proposal on existing, committed and planned public and private investment in a centre or centres in the catchment area of the proposal; and

the impact of the proposal on town centre vitality and viability, including local consumer choice and trade in the town centre and wider area, up to five years from the time the application is made. For major schemes where the full impact would not be realised in five years, the impact should also be assessed up to ten years from the time the application is made.

27. Where an application fails to satisfy the sequential test or is likely to have significant adverse impact on one or more of the above factors, it should be refused."

15. Relevant definitions are set out in Annex 2 of the Framework. These include:

"Out of centre: A location which is not in or on the edge of a centre but not necessarily outside the urban area."

"Out of town: A location out of centre that is outside the existing urban area."

16. National planning guidance in Planning for Town Centres – Practice Guidance on Need, Impact and the Sequential Approach (DCLG, 2009 ("the Guidance")) includes the following:

"6.37 These terms [for the sequential approach] are defined as:

Availability – whether sites are available now or are likely to become available for development within a reasonable period of time (determined on the merits of a particular case, having regard to inter alia, the urgency of the need)...

Suitability – with due regard to the requirements to demonstrate flexibility, whether sites are suitable to accommodate the need or demand which the proposal is intended to meet.

…

i) Availability

6.41 When promoting a proposal on a less sequentially preferable site, it will not be appropriate for a developer or retailer to dismiss a more central location on the basis that it is not available to the developer/retailer in question

ii) Suitability

6.42 When judging the suitability of a site it is necessary to have a proper understanding of scale and form of development needed, and what aspect(s) of the need are intended to be met by the site(s). It is not necessary to demonstrate that a potential town centre or edge of centre site can accommodate precisely the scale and form of development being proposed, but rather to consider what contribution more central sites are able to make, either individually or collectively, to meeting the same requirements."

Legal Principles

17. This case turns largely upon criticisms of the officers' reports to the Council's Planning Committee, viewed in the light of national and local planning policy. The relevant legal principles relating to such reports are not in issue. They were helpfully summarised recently by Hickinbottom J in R (Zurich Assurance Ltd t/a Threadneedle Property Investments) v North Lincolnshire Council [2012] EWHC 3708 (Admin) in the following terms:

"15. Each local planning authority delegates its planning functions to a planning committee, which acts on the basis of information provided by case officers in the form of a report. Such a report usually also includes a recommendation as to how the application should be dealt with. With regard to such reports:

(i) In the absence of contrary evidence, it is a reasonable inference that members of the planning committee follow the reasoning of the report, particularly where a recommendation is adopted.

(ii) When challenged, such reports are not to be subjected to the same exegesis that might be appropriate for the interpretation of a statute: what is required is a fair reading of the report as a whole. Consequently:

'[A]n application for judicial review based on criticisms of the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken' (Oxton Farms, Samuel Smiths Old Brewery (Tadcaster) v Selby District Council (18 April 1997) 1997 WL 1106106, per Judge LJ as he then was).

(iii) In construing reports, it has to be borne in mind that they are addressed to a 'knowledgeable readership', including council members 'who, by virtue of that membership, may be expected to have a substantial local and background knowledge' (R v Mendip District Council ex p Fabre [2000] 80 P&CR 500, per Sullivan J as he then was). That background knowledge includes 'a working knowledge of the statutory test' for determination of a planning application (Oxton Farms, per Pill LJ).

16. The principles relevant to the proper approach to national and local planning policy are equally uncontroversial:

(i) The interpretation of policy is a matter of law, not of planning judgment (Tesco Stores Ltd v Dundee City Council [2012] UKSC 13).

(ii) National planning policy, and any relevant local plan or strategy, are material considerations; but local authorities need not follow such guidance or plan, if other material considerations outweigh them.

(iii) Whereas what amounts to a material consideration is a matter of law, the weight to be given to such considerations is a question of planning judgment: the part any particular material consideration should play in the decision making process, if any, is a matter entirely for the planning committee (Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 at page 780 per Lord Hoffmann)."

Grounds of Challenge

18. Permission to apply for judicial review was granted on all the grounds set out in the claim form. However Mr Rupert Warren QC, for the Claimant, confirmed that the Claimant now only pursues two grounds. He submits that the Council erred in the following respects:

i) The sequential test was erroneously interpreted/applied because (a) the Council failed to have regard to the Guidance on whether the Budgens site was available, and (b) the Council failed to approach the issue of site suitability correctly, because it failed to have regard to the issue of need (including a mistaken reliance on the decision of the Supreme Court in Tesco Stores Ltd v Dundee City Council [2012] UKSC 13). (Ground 1)

ii) The approach to town centre vitality and viability was erroneous because (a) the Council failed to assess the effect on the permitted extension and its underpinning linkages with the town centre, (b) erred in relation to the loss of existing linked trips, which are significant, and (c) failed to take into account the potential for the Minton's scheme to cause the closure of the Budgens store altogether. (Ground 2)

The Parties' Submissions and Discussion

Ground 1: the sequential test was erroneously interpreted/applied

19. Mr Warren submits that the Council failed to have regard to the relevant paragraphs (see para 16 above) in the Guidance. They are not referred to in the officer's reports to the Committee of September or December 2013. Indeed the advice that was given in the September 2013 report is contrary to the terms of paragraph 6.41.
20. Part 8 of the 11 September 2013 report contains the officer's assessment. In the section headed "Planning Policy and Guidance in Relation to Out of Town Centre Retail Development" the report notes that local plan policy 19 is still the relevant policy in respect of new development outside Principal Settlements, and that policy 25 is of particular relevance to the present application. However,

"…the weight that can currently be given to the aforementioned policies is ultimately subject to their degree of consistency with the guidance set out in the National Planning Policy Framework. … (the closer the policies in the plan to the policies in the framework, the greater the weight they can be given)."

21. The report refers to the relevant paragraphs in the NPPF, including paragraph 24, and notes that the NPPF no longer requires applicants to supply evidence of need when bringing forward applications for new retail development outside town centres. Therefore the fact the Applicant is proposing a greater level of floor space than that set out in the Cotswold Economy Study ("CES"), namely the provision of 150 sq m of convenience goods in Moreton-in-Marsh between 2017 and 2031, is not material. Accordingly, as the report notes:

"In essence the Applicant has to demonstrate that there are no other suitable sequentially preferable sites available starting with the town centre, then edge of centre and finally out of centre locations. They then have to demonstrate that their proposal will not have an adverse impact on the vitality and viability of the centre or centres in the catchment area of the proposal."

22. With regard to the sequential approach the report continues as follows:

"In accordance with the requirements set out in the NPPF and the Practice Guide [sic] the Applicant has undertaken a sequential assessment of the town to identify whether any suitable sites are available as an alternative to the current application site. A total of 7 town centre, edge of centre and out of centre sites were considered. In accordance with the aforementioned guidance the applicant sought to be flexible in their approach. Their sequential assessment looked at sites that were capable of accommodating a smaller store than that currently proposed. A minimum net retail sales area of 1,000 square metres (1500 square metres gross) and 80 car parking spaces was used by the applicant as a guide. Such development would require a minimum site area of 0.9 hectares in comparison with the 2.3 hectares covered by the current application site. It is evident that the applicant has considered sites that are noticeably smaller than the current development site. They have therefore not just focussed their search on large development sites comparable to the current application site. It is considered that the applicant has demonstrated a suitable level of flexibility when considering alternative sites. The Supreme Court judgment in the case of Tesco Stores Ltd v Dundee City Council [2012] clarifies that suitability has to be read in the context of 'suitable for the development proposed by the applicant' rather than 'suitable for meeting identified deficiencies in retail provision in the area'. This approach has recently been reiterated in an appeal decision for retail development in Sheffield (APP/J 4423/A/13/2189893). In the case of Moreton-in-Marsh the alternative sites that were considered such as on New Road next to the railway station, the former hospital on Hospital Road, land between Fosse Way Avenue and Jameson Crescent and at the Fire Service College were either too small, suffering from poor accessibility or located further from the town centre than the application site. Land at Budgens already benefits from planning permission for retail development in the form of an extension to the existing store.

Overall, it is considered that there are no other suitable town centre or edge of centre sites that could accommodate a food store of the kind proposed even at a reduced size. In addition there are no other out of centre sites that are more accessible and better connected to the town centre. In this respect the site is considered to accord with the guidance in paragraph 24 of the NPPF."

23. Mr Warren accepts that members were properly advised that the sequential approach was to be adopted, and there is no criticism of the Applicant seeking to be flexible in their approach. The criticism made by Mr Warren is that the sequential test was interpreted and/or applied incorrectly. The sites to which the sequential test was applied did not include the Budgens site (see para 22 above). As stated, the officers were of the view that "Land at Budgens already benefits from planning permission for retail development in the form of an extension to the existing store", and accordingly that land did not fall for consideration when undertaking the sequential assessment. Members would not have appreciated, Mr Warren submits, that paragraph 6.41 of the Guidance required the Budgens site to be taken into account.
24. Further, the report did not refer to paragraph 6.42 of the Guidance, and accordingly members would not have had regard to the fact that the issue of suitability involves a consideration of the needs aimed to be met. The extended Budgens site could, Mr Warren submits, fulfil precisely the function that the Minton was intended to perform. Paragraph 6.37 defines "Suitability" as "whether sites are suitable to accommodate the need or demand which the proposal is intended to meet".
25. Mr Warren further submits that the officer's report wrongly applied the Supreme Court judgment in Tesco Stores Ltd to the present case. That is a case about the meaning of policy in Scotland; it is not, Mr Warren submits, concerned with the approach to be taken in England in September/December 2013 which required the NPPF and the Practice Guidance to be read together.
26. The Council's response to this ground of challenge in paragraph 6 of their summary grounds for contesting the claim is that (1) the Budgens site was not "ruled out of consideration" on the ground of the Claimant's control over it, but (2) it already had permission to be extended and, indeed, could still be extended if the Claimant chose to implement their permission. Accordingly "its suitability did not fall for consideration in the context of the Minton application". However, Mr Meyric Lewis, for the Council, states that whilst the first part of this response is correct, it is not correct that the suitability of the Budgens site "did not fall for consideration". The correct position is as set out in paragraph 6 of the witness statement of Mr Perks, the author of the Officer reports:

"The Retail Impact Assessment ('RIA') indicated that the town could accommodate a further food store of the size proposed in addition to the extant Budgens scheme without having an adverse impact on the vitality and viability of Moreton-in-Marsh commercial centre. The RIA was independently assessed. The Budgens site was not available for further development over and above their approved scheme. Consequently, it could not accommodate the proposed Minton development".

The review by Peter Brett Associates ("PBA"), commissioned by the Council, of Minton's retail impact assessment included the following:

"3.2.4 We would have expected the applicant to have tested the potential to develop a new store adjacent to the existing Budgens. However, whilst the site is sequentially preferable it is not considered to be available as the site has an approval for an extension and therefore there is a clear intention from the existing operator to extend their own store and would not be suitable unless the whole site is made available."

27. Other documents before the committee on 11 September 2013 included a letter from Mr Guy Warner, owner of Warners Budgens, dated 1 September 2013 stating, inter alia, that

"if planning for another supermarket is granted, [Budgens] development would not be financial viable and the extra 20 jobs it would create would be lost. Moreton-in-Marsh simply is not large enough to sustain two large supermarkets."

Further there was a letter dated 10 September 2013 from Antony Aspbury Associates ("AAA"), on behalf of "MASS" (Moreton Against Sainsbury's Superstore), which states that

"the extended Warner Budgens store would be of an overall size comparable to both the proposed superstores and, crucially that size would accommodate a range of convenience goods, including food items, capable of meeting the main weekly shopping needs of shoppers in the normal Moreton-in-Marsh catchment." (page 7)

28. The letters from Mr Warner and Mr Aspbury suggest that Moreton-in-Marsh can only accommodate one food store (i.e. an extended Budgens). However as the Officer report notes the RIA demonstrates that the town can accommodate one additional food store of the size proposed in the Minton application in addition to the approved extension of Budgens, without having an adverse impact on the vitality and viability of Moreton-in-Marsh town centre.
29. Given the conflicting evidence, the Committee was entitled to form its own judgment and prefer the RIA view that the town could accommodate a further food store of the size proposed in addition to the extended Budgens.
30. Mr Lewis observes that the letter from Shoosmiths LLP, solicitors for the Claimant, dated 21 November 2013 contending that the Council's decision of 11 September 2013 was unlawful on four grounds did not allege any failure in the sequential approach, or respond further to the RIA; nor was there before the Committee on 11 December 2013 anything more from AAA or Mr Warner on these issues. The further letter from AAA dated 10 December 2013 focussed on the issue of "linked trips" (see para 43 below).
31. The Officer report dated 19 September 2013 noted at paragraph 13 that:

"Correspondence received on behalf of Budgens during the course of the application was forwarded to the Council's retail consultant. The consultant confirmed that the town could accommodate one additional food store of the size proposed in addition to the approved extension at Budgens, without having an adverse impact on the vitality and viability of the town centre."

32. I am satisfied that the Budgens site was taken into account by the Council when considering the application of the sequential test. It was not suggested on the Claimant's behalf that the Budgens site was a suitable alternative site for the Minton proposal. The contention put forward by Mr Warner and AAA was that the town could not accommodate a food store of the size proposed in the Minton application in addition to the approved extension of Budgens. The Council was entitled to take a different view.
33. Mr Warren acknowledged that the reference in the September Officer report to the Tesco decision was a subsidiary point.
34. The policy statement in Scotland that was under consideration in that case is substantially the same as that in England. To the extent that there is a difference, it is not, in my view, material. What is important is that Lord Reed (with whom Lord Brown, Lord Kerr and Lord Dyson agreed) construed the word "suitable", in the first criterion of Retailing Policy for the structure plan and the corresponding Policy 45 of the Local Plan, as meaning "suitable for the development proposed by the applicant", and not "suitable for meeting identified deficiencies in retail provision in the area" (para 24). Lord Hope (at para 38) added that "the whole exercise" in respect of the issue of suitability "is directed to what the developer is proposing, not some other proposal which the planning authority might seek to substitute for it which is for something less than that sought by the developer".
35. Observing that it is important to note that developers, and planning authorities, work "in the real world", Hickinbottom J in Zurich Assurance cited with approval (at para 61) statements from Lord Reed in Tesco (at para 29) and Lord Hope (at para 38) on the issue of suitability. I reject Mr Warren's submission that the Tesco decision does not apply in England. Both the decision in Zurich Assurance, and decisions of inspectors relating to retail development in Sheffield (at para 35, which was referred to in the Officers' report, see para 22 above), and more recently land at Rushden (EN/12/00010/Ful), suggest it does.
36. Provisions in the Guidance should not be interpreted in a rigid, mechanistic fashion. As this court has emphasised, they are guidelines not tram lines. Further "any decision maker would be entitled (and, indeed well advised) to use the Practice Guidance conscious of the fact that, in some parts of its detail, it is directed towards a differently formulated policy test" (Borough of Telford and Wrekin v Secretary of State for Communities and Local Government [2-13] EWHC 1638 (Admin), per Turner J at para 17). The references in the Guidance at paragraph 6.37 to "need" in relation to availability and sustainability are, as Mr Lewis submits, 'out of step' with national policy that no longer has a requirement of need (albeit, as Mr Warren observes, the guidance was left intact).
37. I consider that the Claimant has failed to establish that the sequential test was erroneously interpreted and/or applied.

Ground 2: the approach to town centre vitality and viability was erroneous

38. Mr Warren accepts that as the Budgens food store lies outside the Commercial Centre it does not benefit from direct policy protection in the NPPF. However national planning policy still required the Council properly to assess loss of trade which the Claimant contends will be the effect of the grant of planning permission for the Minton site; it would preclude the Budgens extension and its benefits and, Mr Warren submits, harm the town centre through a serious loss of linked trips. Further there was, he submits, a failure to advise members properly about the loss of existing linked trips.
39. In summary Mr Warren submits that (1) the Council failed to protect the vitality and viability of the town centre in that it ignored the material role that an edge of centre store such as Budgens may have in contributing to the health of the town centre; (2) notwithstanding this error, the Council erred in attributing weight to the role that an out of centre location, and indeed a location out of the settlement boundary, may have in contributing to the health of the town centre; and (3) the Council entirely failed to assess the likely effect of the grant of permission on the development of the Budgens extension, and the consequential loss of the beneficial linked trips from a main food store on the edge of the centre of Moreton-in-Marsh.
40. Mr Lewis responds that the Council expressly took into account the effect of the Minton proposal on the Budgens store and concluded that the vitality and viability of the town centre would not be adversely affected. The impact on Budgens was a matter of planning judgment for the Council. On the evidence it cannot be said, Mr Lewis submits, that the Council failed to take account of the effect of the Minton proposal on the Claimant's willingness to invest in its own extension.
41. The Officer Report of 11 September 2013 notes that there were 155 letters of objection, and that the main grounds of objection included the following: "significant threat to existing retail businesses in the town"; "proposed supermarket will threaten vitality and viability of town centre"; "Budgens has permission to extend their store and provide 639sqm of additional retail floor space close to town centre"; "Budgens will trade below national company average if application is allowed and it will struggle to survive"; "investment in Budgens approved extension could only be justified on the basis of additional sales. It would not proceed if this could be granted"; "would result in an impact on the Budgens store of 54.3% of its turnover"; "Budgens provides linked trips to town centre. Proposal could result in the centre losing £1.4million from the linked trips that Budgens alone generates with the centre". Objections from Evenlode Parish Council stated that further food retail outlets are not needed in Moreton; and Moreton-in-Marsh Business Association objected on grounds that, inter alia, an out of town supermarket would draw much needed revenue away from the existing High Street businesses.
42. In the section of the Officer Report headed "Impact on Vitality and Viability of Moreton-in-Marsh Town Centre", the following is noted:

"In addition to its potential direct impact on existing commercial centres it is evident that the proposed development could also have an indirect impact by drawing trade away from Budgens and from Tesco in Stow-on-the-Wold. This could in turn reduce linked trips from the aforementioned sites to the respective town centres. The impact assessment undertaken by the applicant indicates that Budgens turnover could be reduced by approximately one third and Tesco's by between 35-41%. It is clear that this represents a sizeable impact on the respective stores. Notwithstanding this, there is no evidence to indicate that there are high levels of linked trips between the stores and their associated town centres. Moreover the proposed store would reduce the number of residents leaving the town to undertake their main food shopping outside the settlement. This has the potential to encourage people who are currently leaving the town to stay within the environs of the town and undertake linked trips between the proposed development and the town centre. …

Whilst it is like that there will be reduction in linked trips between Budgens and Moreton-in-Marsh town centre the proposal has the potential to offset this loss by encouraging greater numbers of people to shop within the town rather than travelling further afield. It must also be noted that Budgens houses the town's post office. As a consequence it is able to offer a service that differentiates it from the applicant's proposal. The siting of the post office within Budgens does therefore offer a service that will continue to attract customers and potential associated linked trips with the town centre.

The approved extension for Budgens has been taken into consideration as part of the retail impact assessment. The potential cumulative impact of the extension and the two stores proposed at Fosse Way Farm and to the east of Stow Road has been considered by PBA. Their assessment is that the town could accommodate one additional food store of the size proposed in addition to the approved extension at Budgens without having an adverse impact on the vitality and viability of Moreton-in-Marsh town centre. …

The proposed store has the potential to create approximately 150 jobs of which 50-100 could be full time. This represents a sizeable level of new employment for the town. It is noted that the proposed store could have an impact on the Budgens store which currently employs 19 full time and 42 part time staff. However, it is also noted that there is a high level of retail expenditure currently leaking from the town. It is considered that the introduction of the proposed store would not simply draw trade from Budgens but from further afield. Consequently, it is considered that there is potential for the two stores to co-exist and the creation of the new jobs would not simply result in a movement of jobs from one side of the town to another. It is considered that the proposal would result in a net employment gain for the town."

43. Before the Committee on 11 September 2013 there was the letter from Mr Warner of 1 September 2013 and the letter from AAA dated 10 September 2013 which make the point that not only would the permitted extension to the Budgens store be put at risk by a grant of planning permission, but also that the viability of the existing store would be seriously prejudiced.
44. Also before the Committee on 11 September 2013 was the PBA report dated July 2013, which estimated that the Minton scheme would result in Budgens potentially losing 35.7% of its convenience sales. It did not agree with the Applicant that this would not put this store at risk (para 4.2.19). However the PBA did not consider "that a reduction in the store's turnover would have a significant impact on the town centre" (para 4.2.20). In its Summary the independent assessment stated: "The Council will need to consider whether the potential loss of jobs or loss of potential linked trips from a reduced turnover at the store is material in their decision making" (para 4.4.4).
45. Following the Council meeting on 11 September 2013, Shoosmiths in their letter of 21 November 2013 alleged (in their fourth proposed ground of challenge) that the Council misdirected itself as to the interpretation of the NPPF in respect of its policies for ensuring the vitality of town centres; that it dismissed as a policy consideration the impact that the proposed development would clearly have on the planned extension to the existing Budgens store; and the Committee was directed by the Officer's Report to consider there to be "no evidence of linked trips between the Budgens store and other town centre users", which assertion ignores evidence submitted to the Council on behalf of the Claimant.
46. This letter together with other material bearing on the issue of linked trips was considered by the Council at their meeting on 11 December 2013. The stated purpose of the Officer Report of 11 December 2013 was "to reconsider the merits of the application in response to the receipt of additional information". Responding to Ground 4 in Shoosmiths' letter of 21 November 2013 (see para 45 above), the Report stated:

"12. …the [September] Officer Report addressed the issue of the planned extension to Budgens, as well as linked trips. The second paragraph of that report, under the heading 'Impact on Vitality and Viability of Moreton-in-Marsh Town Centre' makes specific reference to the size of Budgens, its approved extension, and the distance of the store from the town's commercial centre. In addition, the location of Budgens in relation to the town centre and the proposed development at Fosse Way Farm were pointed out on the screen during the consideration and determination. A plan showing these locations is attached at Appendix 'F'.

…

14. The Officer Report does not state that there is 'no evidence of linked trips between Budgens store and other town centre uses'. However, for the avoidance of doubt, the information provided on behalf of Budgens in a letter dated 18^th June 2013 states 'market research undertaken by Phoenix Bishop on behalf of my clients in March 2013 (which involved interviews of 400 customers over 4 days) confirmed that 53% combined their shop at Budgens with other shopping in the centre'. The letter does not specify whether a market day was covered by the survey period.

15. The Officer Report identifies that there is likely to be a loss of linked trips between Budgens and Moreton-in-Marsh town centre. It also explains the reasoning why, in the context of the planning balance, this is not considered to be sufficient to outweigh the other benefits arising from the proposed development."

47. Mr Warren submits that the Officer Report of 11 December 2013, in particular at paragraphs 14 and 15, fails to grapple with the Claimant's point that in excess of 50% of Budgen shoppers go on linked trips to the town centre. No advice, Mr Warren comments, is given about the consequences of it. In the September Officer Report there is an acknowledgement that it is likely that there will be reduction in linked trips between Budgens and Moreton-in-Marsh town centre, but it is suggested that this will be offset "by encouraging greater numbers of people to shop within the town rather than travelling further afield". Mr Warren submits that this is misleading advice to members. The loss to Budgens will, on the basis of what is said, be offset by something very different, namely by more people driving to the Minton food store than travelling further afield. There is no evidence, Mr Warren submits, that shopping at Minton would lead persons to shop in the centre of town.
48. In my view it is clear from the documents that the Committee was made fully aware both at the September and December 2013 meetings of the likely adverse financial impact of the Minton proposal on the existing Budgens business and on its decision as to whether to expand. Further, evidence as to "linked trips" was before the Committee on both occasions. The September Officer Report said was that there was no evidence to indicate that there are "high levels" of linked trips between the stores and their associated town centres. The report noted the impact assessment which "shows a convenience trade draw from Moreton-in-Marsh commercial centre of approximately 10% (11.5% including Budgens extension)". The Claimant provided no response to the point raised in the December Officer Report as to whether the survey period covered a market day. Nevertheless the evidence certainly suggests that if there is a Minton's store there will be a reduction in trips to Budgens and therefore of linked trips.
49. However Mr Lewis submits there is nothing irrational about the "offset" point made in the September Officer Report (see para 42 above). There will, he suggests, be offsets because a store on the Minton site is likely to encourage persons who shop there to shop in town rather than going elsewhere. It does not follow from the fact that the Minton site is located 490m from the Commercial Centre that people will not walk from a food store at that site into Moreton-in-Marsh town centre to do some other shopping. At the same time the presence of the post office at Budgens will provide a continuing attraction for customers and the likelihood that linked trips to the town centre will continue.
50. In my view the Claimant has failed to make out that the Council's approach to town centre vitality and viability was erroneous for any of the reasons put forward. I do not accept that the overall effect of the September and December Officer Reports misled the Committee about the impact of the Minton proposal on Budgens' existing business or any decision to extend the business, or on the linked trips issue. The relevant material was before the Council so that it could properly exercise its own judgment, which it did. There is, in my view, no basis for interfering with that judgment.

Conclusion

51. For the reasons that I have given this application fails.