England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		14 March 2014

Mr Justice Lindblom:

Introduction

1. This claim for judicial review challenges a planning permission granted in July 2013 for major shopping development on the outskirts of Rugby. The court must consider whether the permission was lawfully granted, and not whether the decision itself was right.
2. The claimant, CBRE Lionbrook (General Partners) Ltd. ("CBRE Lionbrook") owns the Clock Towers Shopping Centre in the town centre. The first interested party, Hammerson (Rugby) Ltd. ("Hammerson"), owns Elliott's Field Retail Park, a large retail park on the Leicester Road, about a mile outside the town centre. The claim challenges the planning permission granted by the defendant, Rugby Borough Council ("the Council") in July 2013 for a redevelopment of the retail park that would greatly increase its floorspace. CBRE Lionbrook objected to that proposal. The second interested party, Cemex UK Properties Ltd. ("Cemex"), owns a site in Rugby town centre, Cemex House; the third interested party, Avenbury Properties Ltd. ("Avenbury"), owns another, off Evreux Way. Those two sites comprise the Evreux Way Development site ("the Evreux Way site"), which is allocated for retail development in the Rugby Borough Core Strategy ("the core strategy"). CBRE Lionbrook, Cemex and Avenbury intend to redevelop the Evreux Way site together with the Clock Towers Shopping Centre. Cemex and Avenbury also oppose the redevelopment of the retail park.
3. There were originally 12 grounds in the claim. Six of them, grounds 7 to 12, were abandoned before the hearing. In the remaining grounds CBRE Lionbrook challenge the Council's decision on Hammerson's application, in three main respects – an alleged failure to comply with the requirements for screening under the regime for environmental impact assessment ("EIA"), alleged failures in the application of development plan and national policy for retail development, and an allegedly unlawful failure to reconsider the proposal in the light of a letter sent to Council by CBRE Lionbrook after the Planning Committee had resolved to approve it.

Background

4. Elliott's Field Retail Park has been trading since 1988. Today it has nine retail units arranged in three terraces, which provide 15,640 square metres of comparison goods shopping floorspace in Class A1, and one unit with 255 square metres of floorspace for the sale of food and drink, in Class A3. Next to the retail park, to its south, is a Tesco superstore. Another retail park, the Junction One Retail Park, adjoins the Tesco site.
5. Hammerson's application for planning permission was submitted to the Council on 22 February 2013. Its proposed redevelopment of the retail park would provide a total of 29,675 square metres of Class A retail floorspace for the sale of comparison goods: 16,138 square metres on the ground floor and 13,537 square metres on mezzanine floors. The existing Class A1 floorspace is 15,640 square metres – 12,051 square metres on the ground floor and 3,589 square metres in mezzanine floors. A new anchor store is proposed, with 2,815 square metres at ground floor and a mezzanine of 2,787 square metres. Hammerson intend that this will be occupied by Debenhams. The development would add two small catering units, each of 140 square metres. An increase in number of car parking spaces is also proposed, from 569 to 721. The Council's committee considered and resolved to approve this proposal on 22 May 2013. The Council issued its decision notice granting planning permission for the development on 1 July 2013, after the Secretary of State for Communities and Local Government ("the Secretary of State") had confirmed that he was not going to call in the application for his own determination.
6. The Evreux Way site comprises about a hectare of land and buildings in the town centre. It adjoins the Clock Towers Shopping Centre. Avenbury's site was once a theatre and then a cinema and later a bingo hall, run by Gala Bingo. It is now vacant and is used as a temporary car park. Cemex's site has a large office building on it, occupied by the staff of Cemex UK Operations Ltd. After discussions with the Council in 2010 and 2011 Peacock & Smith Ltd., on behalf of JMKA (Rugby) Ltd. and Cemex UK Operations Ltd. made an application for outline planning permission for the redevelopment of the Evreux Way site by the demolition of the existing buildings and the erection of a retail foodstore, with a maximum of 6,255 square metres of Class A1 floorspace, and other units in Classes A1, A2, A3, A4 and A5, with a maximum floorspace of 785 square metres. That application has not yet been determined. In November 2011 the Council was notified of the intended demolition of the building once occupied by Gala Bingo on Avenbury's site. It decided that approval for this was not required. The building was later demolished. On 25 July 2012 the Council granted planning permission for the change of use of this part of the Evreux Way site to use as a temporary car park.

The issues for the court

7. I have already referred to three broad allegations advanced in the claim (in paragraph 3 above). As the parties agree, these divide into six main issues:

(1) whether the Council, having issued a negative screening opinion for Hammerson's proposal in September 2011, breached the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 2011 ("the 2011 EIA regulations") by deciding it was not required to issue a further screening opinion for the revised proposal in November 2012; and, if so, whether, in the exercise of its discretion, the court should quash the planning permission;

(2) whether the Council erred in law in not concluding that the proposed development was contrary to Policies CS1, CS8 and CS13 of the core strategy, or any of those policies; whether it erred in concluding that the development plan was silent on the question of how retail development outside the town centre was to be judged; and whether it failed to perform its duty under section 38(6) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") to determine Hammerson's application for planning permission in accordance with the development plan unless material considerations indicated otherwise;

(3) whether the Council erred in law in concluding that the proposed development met the sequential test for proposed retail development, as was required by paragraph 24 of the National Planning Policy Framework ("the NPPF");

(4) whether the Council erred in law in concluding that the proposed development complied with policy for the assessment of the impact of proposed retail development, in paragraph 26 of the NPPF;

(5) whether the Council erred in law in failing to take the application for planning permission back to the committee after it received CBRE Lionbrook's letter of 17 June 2013; and

(6) whether the approach taken by the Council to the determination of Hammerson's proposal was unlawful.

8. Mr Paul Tucker Q.C., who appeared for CBRE Lionbrook, accepted that issue (6) is subsumed in the other five, and he made no separate submissions upon it.

Issue (1) – EIA screening

The EIA regime

9. Regulation 3(4) of 2011 EIA regulations prohibits the granting of planning permission for "EIA development" unless the decision-maker has first taken into consideration the "environmental information". "EIA development" is defined in regulation 2(1) as either "Schedule 1 development" or "Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location". The "environmental information" is defined, also in regulation 2(1), as including an "environmental statement".
10. The development with which this case is concerned is not Schedule 1 development. It is Schedule 2 development.
11. Schedule 2 development includes, in paragraph 10 of Schedule 2, "[infrastructure] projects" where "[the] area of the development exceeds 0.5 hectare". "Infrastructure projects" include, in paragraph 10(b) of column 1, "[urban] development projects". In this case the relevant type of project of this description is "the construction of shopping centres …". Paragraph 13 of column 1 relates to "[changes] and extensions", including "(b) Any change or extension of development of a description listed in paragraphs 1 to 12 of column 1 of this table, where that development is already authorised, executed or in the process of being executed". The relevant thresholds and criteria in column 2 are "(i) [the] development as changed or extended may have significant adverse effects on the environment", or (ii) in relation to development of a description mentioned in column 1 of this table, the thresholds and criteria in the corresponding part of column 2 of this table applied to the change or extension are met or exceeded."
12. Regulation 2(1) defines a "screening opinion" as "a written statement of the opinion of the relevant planning authority as to whether development is EIA development".
13. Part 2 of the 2011 EIA regulations deals with "Screening". Regulation 4 contains "[general] provisions relating to screening". Under regulation 4(1) and (2) "the adoption by the relevant planning authority of a screening opinion to the effect that the development is EIA development" will determine that development is EIA development. Regulation 4(6) provides:

"Where a local planning authority … has to decide under these Regulations whether Schedule 2 development is EIA development the authority … shall take into account in making that decision such of the selection criteria set out in Schedule 3 as are relevant to the development."

Regulation 4(7) provides:

"Where a local planning authority adopts a screening opinion under regulation 5(5) … –

(a) that opinion … shall be accompanied by a written statement giving clearly and precisely the full reasons for that conclusion; and

(b) the authority … shall send a copy of the opinion … and a copy of the written statement required by sub-paragraph (a) to the person who proposes to carry out … the development in question."

Regulation 5 provides for "[requests] for screening opinions of the local planning authority":

"(1) A person who is minded to carry out development may request the relevant planning authority to adopt a screening opinion.

(2) A request for a screening opinion in relation to an application for planning permission shall be accompanied by –

(a) a plan sufficient to identify the land;

(b) a brief description of the nature and purpose of the development and its possible effects on the environment; and

(c) such other information or representations as the person making the request may wish to provide or make.

…

(4) An authority receiving a request for a screening opinion shall, if they consider that they have not been provided with sufficient information to adopt an opinion, notify in writing the person making the request of the points on which they require additional information.

(5) An authority shall adopt a screening opinion within 3 weeks beginning with the date of receipt of a request made pursuant to paragraph (1) or such longer period as may be agreed in writing with the person making the request.

…".

14. In Part 3 of the 2011 EIA regulations ("Procedures Concerning Applications for Planning Permission") regulation 7 deals with "[applications] which appear to require screening opinion". It provides:

"Where it appears to the relevant planning authority that –

(a) an application which is before them for determination is a Schedule 1 application or a Schedule 2 application; and

(b) the development in question has not been the subject of a screening opinion or screening direction; and

(c) the application is not accompanied by a statement referred to by the applicant as an environmental statement for the purposes of these Regulations,

paragraphs (4) and (5) of regulation 5 shall apply as if the receipt or lodging of the application were a request made under regulation 5(1)."

Relevant jurisprudence

15. There is ample jurisprudence on EIA screening. The relevant principles are well established and there is no dispute about them in these proceedings.
16. In R. (on the application of Loader) v Secretary of State for Communities and Local Government [2013] Env LR 7 Pill L.J., with whom Toulson and Sullivan L.JJ. agreed, said (in paragraph 43 of his judgment) that the question for the decision-maker to face in a screening process is whether the development is "likely to have significant effects on the environment". It has to answer that question "focusing on the circumstances of the particular case" (ibid.).
17. In R.(on the application of Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157 Moore-Bick L.J. said (in paragraph 20 of his judgment), that a screening opinion involves only a decision, "almost inevitably on the basis of less than complete information", on the question of "whether an EIA needs to be undertaken at all". So the court "should not impose too high a burden on planning authorities in relation to what is no more than a procedure intended to identify the relatively small number of cases in which the development is likely to have significant effects on the environment, hence the term "screening opinion"". An authority adopting a screening opinion "must provide sufficient information to enable anyone interested in the decision to see that proper consideration has been given to the possible environmental effects of the development and to understand the reasons for the decision" (paragraph 21). A screening opinion is to be read in the context of the request made for it (paragraph 22).
18. In R. (on the application of Jones) v Mansfield District Council [2004] Env. L.R. 21 Dyson L.J., with whom Carnwath and Laws L.JJ. agreed, said (in paragraph 17 of his judgment) that the question of whether a proposed development is likely to have significant effects on the environment involves "an exercise of judgment or opinion", that this is not a question of hard fact to which there can be only one possible answer, and that the supervisory role of the court "should be limited to one of review on Wednesbury grounds" (see also the judgment of Laws L.J. in R. (on the application of Bowen-West) v Secretary of State for Communities and Local Government [2012] Env LR 22, at paragraphs 27 and 28; and the judgment of Beatson L.J. in R. (on the application of Evans) v Secretary of State for Communities and Local Government [2013] EWCA Civ 114, at paragraph 22).
19. In Jones Dyson L.J. said (at paragraph 39) that an authority undertaking a screening process "must have sufficient information about the impact of the project to be able to make an informed judgment as to whether it is likely to have a significant effect on the environment". But this "does not mean that all uncertainties have to be resolved or that a decision that an EIA is not required can only be made after a detailed and comprehensive assessment has been made of every aspect of the matter". Sometimes it will be "impossible reasonably to conclude that there is no likelihood of significant environmental effect". In other cases it will be "possible … to have sufficient information to enable a decision reasonably to be made as to the likelihood of significant environmental effects even if certain details are not known and further surveys are to be undertaken" (see also the judgment of Pill L.J. in R. (on the application of Catt) v Brighton and Hove Council [2007] EWCA Civ 298, at paragraphs 33 to 37).
20. As Lord Hoffmann stressed in his speech in Berkeley v Secretary of State for the Environment [2001] 2 AC 603 (at p.616), the court is "not entitled retrospectively to dispense with the requirement of an EIA on the ground that the outcome would have been the same or that the local planning authority or the Secretary of State had all the information necessary to enable them to reach a proper decision on the environmental issues".
21. In R. (on the application of Lebus) v South Cambridgeshire District Council [2002] EWHC 2009 (Admin), it was agreed that all three of the requirements in regulation 7 of the Town and Country Planning (Environmental Impact Assessment) Regulations 1999 were met. Those requirements were in the same terms as those of regulation 7 of the 2011 EIA regulations (see paragraphs 30 and 31 of the judgment of Sullivan J., as he then was). In paragraph 37 of his judgment Sullivan J. noted that the local planning authority's officer had considered whether the proposed development was EIA development but had not recorded his conclusion in writing. The facts were these (ibid.):

"This is not a case of a document which is capable of being a screening opinion not being placed upon the planning register due to some error. There simply is no screening opinion in terms of the Regulations at all. Such documentation as there is, that is to say the summary screening table, was not placed in the register; it was placed in the planning file, it does not matter whether in July or September. And, it is accepted by [counsel], on behalf of [the local planning authority], that the applicant for planning permission was not given a copy of the screening opinion, no doubt for the simple reason that there was none. The applicant for planning permission was simply told informally that an environmental statement would not be required."

Sullivan J. rejected the idea that it was appropriate "to engage in a paperchase" by looking at relevant correspondence, the screening summary and various reports to committee "to assemble documents which collectively might be said to be a composite screening opinion" (paragraph 38). He went on to say that "it was no answer to the need for an EIA to say the information would be supplied in some form in any event, and it was not right to approach the matter on the basis that the significant adverse effects could be rendered insignificant if suitable conditions were imposed" (paragraph 51).

22. Where there has been a defect in an authority's procedures under the EIA regulations, the court retains its discretion not to quash the grant of planning permission, provided that the rights conferred by EU law have not been denied and no substantial prejudice has arisen. In Walton v. Scottish Ministers [2013] Env LR 16 Lord Carnwath said (in paragraphs 138 and 139 of his judgment):

"138. It would be a mistake in my view to read these cases as requiring automatic "nullification" or quashing of any schemes or orders adopted under the 1984 Act where there has been some shortfall in the SEA procedure at an earlier stage, regardless of whether it has caused any prejudice to anyone in practice, and regardless of the consequences for wider public interests. As Wells makes clear, the basic requirement of European law is that the remedies should be "effective" and "not less favourable" than those governing similar domestic situations. Effectiveness means no more than that the exercise of the rights granted by the Directive should not be rendered "impossible in practice or excessively difficult". Proportionality is also an important principle of European law.

139. Where the court is satisfied that the applicant has been able in practice to enjoy the rights conferred by the European legislation, and where a procedural challenge would fail under domestic law because the breach has caused no substantial prejudice, I see nothing in principle or authority to require the courts to adopt a different approach merely because the procedural requirement arises from a European rather than a domestic source."

The September 2011 screening opinion

23. On 16 September 2011 Waterman Energy, Environment & Design Ltd. ("Waterman"), submitted to the Council Hammerson's request for a screening opinion on the proposed redevelopment of the retail park. The letter in which the screening request was made described the site, its surroundings and the proposed development, and explained why it was contended that there was no need for an EIA, and two annexes – the first of which included drawings showing the existing layout and the layout of the site as proposed, the second a detailed consideration of the selection criteria in Schedule 3, which ran to eight and a half pages of text.
24. The proposal for the redevelopment of the retail park at that time was described in the letter as the "retention and refurbishment of some existing units on the Site, the partial demolition and rebuild of the remaining existing units, and construction of new anchor store". The letter compared the existing and proposed floorspace in this way:

"Presently on the Site there is 15,788m² of Class A1 (retail) floor space of which the proposals include retaining 7,783m² and demolishing 8,005m² of the existing floor space. An additional 19,043m² of Class A1 floor space would be provided resulting in an increase of 11,038m². The total proposed Class A1 floor space would therefore be approximately 26,826m². The proposals also include an increase in Class A3 (restaurant) floor space from 255m² to approximately 831m², an increase of 576m². …".

The letter also referred to the proposed "[reconfiguration] of the car park to provide an increase in the number of car parking spaces, from the existing 567 spaces to 707, an uplift of 140 spaces".

25. Waterman acknowledged that the proposed development could be classified an "urban development project" under paragraph 10(b) in Schedule 2 to the 2011 EIA regulations. They pointed out that the site of the retail park was "not located wholly or in part within a 'sensitive area' as defined in regulation 2(1)". However, they said that "the River Swift (SNCI and pLWS)" was within the site, and this had been "a key consideration in the design" of the proposed development". They referred to the "Oxford Canal (SNCI and pLWS)", which ran along the northern boundary of the retail park. There were no other statutory or non-statutory designations nearby.
26. Because the area of the retail park, 6.38 hectares, was above the 0.5 hectare threshold in Schedule 2, Waterman accepted that it was necessary to consider whether the development was likely to have any significant effects on the environment "by virtue of its nature, size or location, with reference to the selection criteria in Schedule 3 of the [2011 EIA Regulations]". They then said this:

"The fundamental test to be applied is whether this particular type of development and its specific effects, in this particular location, are likely to result in significant effects on the environment. Commentary on potential effects of the proposed Development on the environment is provided in Annex 2. Taking into account the present use of the Site and environmental enhancements proposed, it is expected that the overall effects of the proposed development would be minimal during the construction and operational phase of the Development. The proposals are for the redevelopment of an existing retail park for retail and associated uses which are wholly consistent with the existing type of development on the Site and in the surrounding area. The proposals only result in an additional circa 3,700m² Class A1 Retail at ground floor level, with the remaining net additional increase provided at mezzanine level (circa 7,300m²). As such, it is considered that the nature of the Development is unlikely to give rise to significant environmental effects. The Site is also located in a flood risk area and an Air Quality Management Area (AQMA). However, given the existing uses on the Site and the scale of the proposals, it is considered that those aspects of the environment would be adequately addressed by existing planning policy requirements and legislative controls such that significant environmental effects would be avoided. For instance, flood risk will need to be managed in line with Planning Policy 25 [sic] and the Environment Agency's requirements. In light of the above and particularly the commentary in Annex 2, it is our view that the development will not result in significant environmental effects, and thus an EIA is not required."

The letter promised several "environmental studies to support the planning application", including an "Ecological Appraisal Report and Protected Species Survey Report", an "Air Quality Assessment" and a "Flood Risk Assessment".

27. On 21 September 2011 the Council issued its screening opinion. It said it had concluded that "the proposed development is not EIA development". It added that the Council "reserves the right to reach a different view if, upon receipt of any new information it subsequently becomes evident that it is EIA development". In the pro forma section of the screening opinion the Council acknowledged that the proposed development was Schedule 2 development, as an urban development project within paragraph 10(b) (question 4). It noted that the development was not proposed in a "sensitive area" (question 7). But the area of the site exceeded 0.5 hectare (question 8), and the development was therefore "above Circular 02/99 'indicative' thresholds/criteria" (question 9). To question 10 "Is the proposal likely to have significant effects on the environment?" the Council gave the answer "NO (Development not likely to have significant effects on the environment – EIA not required) …". It went on to set out its "[relevant] reasons, justification and additional comments":

"Although it is the opinion of the Council that the redevelopment of the retail park would be significantly greater in its scale than that of the existing and therefore be above the circular 02/99 thresholds/criteria, the development is to remain within the existing confines of the site to which such development in this location is accepted. The main characteristics of the development against which consideration of whether or not a EIA is justified are considered to be the impact of the increased retail floorspace particularly regarding increased noise and the effect on air quality due to increased traffic and the impact on the River Swift which runs through the site and Oxford Canal sited adjacent. With regards to these considerations the fact that the site is previously developed by retail units has been taken into account. The River Swift has been incorporated into the existing layout and from the indicative layout shown of the new proposal it is seen that some existing buildings and infrastructure close to the river are to be kept which would minimise any further impact on this natural feature. It has been indicated that surveys such as an ecological survey, air quality assessment, environmental risk assessment and flood risk assessment are to be submitted with an application … which would enable an assessment to be made on the potential impact of the development without the submission of an EIA. Having regard to the criteria in Schedule 3, it is considered that it would not be likely to have significant effects on the environment by virtue of factors such as the characteristics of the development, the environmental sensitivity of the location and the characteristics of the potential impact. In the circumstances an EIA is not required."

The screening opinion was signed on behalf of the Council by its Head of Planning and Culture, who said:

"In my view the proposed development is not an EIA development under [the 2011 EIA regulations]."

28. On 12 November 2012 Mr Philip Murphy of Quod, who were Hammerson's planning consultants, sent an e-mail letter to a Senior Planning Officer of the Council, Mr Owain Williams. Mr Williams had also been involved in the discussions and EIA screening opinion in September 2011. Mr Murphy reminded Mr Williams of the screening request made by Waterman on 16 September 2011 and the screening opinion issued by the Council in response to that request on 21 September 2011. Mr Murphy described the revised proposal and compared it to the scheme as it had been in September 2011. The proposal had then "comprised a net increase in Class A1 floorspace of approximately 11,038sq m GIA and a net increase in Class A3 of 575sq m". Mr Murphy then said this:

"The current proposals are essentially the same scheme as that detailed above and which was previously considered by the Council. …

The current proposals give rise to a net increase in Class A1 floorspace of 13,852sq m (GIA) and Class A3 floorspace of 464sq m, in addition to an uplift of 143 car parking spaces. Therefore, the current proposals give rise to a reduction in the Class A3 floorspace proposed from the previous scheme, and a slight increase in Class A1 floorspace. This increase in Class A1 floorspace is not considered enough to alter the Council's previous conclusions re EIA. Furthermore, the environmental conditions on site are the same as that previously considered. As a result, it is our view that the Council's EIA Screening Opinion remains valid and we do not propose to seek a fresh EIA Screening Opinion."

29. Mr Williams replied to Mr Murphy in an e-mail letter of 20 November 2012, saying:

"With regards to the EIA screening I have considered the matter and the differences in the proposed developments and I have concluded as you have that I don't think it's necessary … for you to submit a fresh EIA Screening Opinion."

30. The Council's position is explained by Mr Williams in his witness statement of 11 November 2013:

"14. On 12^th November 2012, an email was received from Philip Murphy of Quod outlining changes to the proposal and requesting confirmation from the Council that a further EIA screening opinion was not required on the basis that the proposal was not materially different to that which had been … proposed before.

15. The changes identified from that previous proposal were described/depicted as:

An increase in A1 floorspace from 11,038sqm to 13,852sqm

Reduction in A3 floorspace from 575sqm to 464sqm

Increase in car parking spaces by 143.

16. As set out in my email dated 20^th November 2012, on examining the proposals I concluded that there was indeed no material difference which required a further screening opinion as the relevant reasons, justification and additional comments of the original screening opinion of the 21^st September 2011 [as] to why an EIA was not required, were still valid.

17. The process of consideration that I undertook consisted of a full examination of the plans and details submitted to enable a detailed comparison to be made. Issues such [as] the increase in overall floorspace and increase in parking spaces were taken into consideration as to whether the revised proposal would give rise to significant effects on the environment and therefore require an EIA to be undertaken.

18. I should point out that I was the case officer involved in the initial pre application discussions and EIA screening opinion back in 2011.

19. In my professional judgment the increase in floorsapce did not result in significant further land take nor impose upon the natural physical features of the site, particularly in the light of the previously developed nature of the site as a whole, as made clear in the 2011 screening opinion. I concluded as previously that the submission of the supporting technical documents would enable an assessment to be made on the potential impact of the development without the submission of an EIA.

20. In short, I considered the potential environmental effects of the revised proposal and came to the conclusion that [the] reasoning in the 2011 screening opinion still stood and that it was sufficient for me to refer back to it.

21. Furthermore, I note that [CBRE Lionbrook] has not explained what environmental effects would have required an Environmental Statement nor how it has been affected by the alleged failure to carry out an EIA. This is perhaps unsurprising given that it made no mention of this issue in its extensive submissions to the Council throughout the course of the application. … ".

The planning permission and the section 106 obligation

31. Condition 13 on the planning permission granted for Hammerson's development states:

"Prior to any development commencing, the applicant shall submit to and have approved in writing by the Local Planning Authority, an assessment from a competent person to accurately assess the potential impact from the accumulative effect of noise emitted from vehicle movements, unloading/loading activities and fixed plant (including air handling plant) associated with the redevelopment[,]"

This condition reflected the advice given in the officer's report to the Council's Planning Committee when it met on 22 May 2013:

"The Oxford Canal is located to the rear of the site and a Premier Inn is located to the north east of the application site. Whilst it is accepted that the existing service yard backs onto the identified receptors … , it has been considered by the Environmental Protection Team that the proposals could give rise to increased levels of noise arising from increased HGV movements, unloading/loading activities, reversing bleepers and plant typically used in service yards like compactors/bailers. Therefore, it has been proposed that a condition requesting that a noise survey is undertaken prior to development commencing to assess the potential impact from the accumulative effect of noise emitted from vehicle movements, unloading/loading activities and fixed plant (including air handling plant) associated with the redevelopment should be attached to any proposal. …".

32. On 3 September 2013 Hammerson entered into a unilateral undertaking under section 106 of the Town and Country Planning Act 1990 ("the 1990 Act"), in which it covenanted, among other things, in clause 5.2:

"not to carry out any development pursuant to the Permission without submitting to the Council a noise assessment from a competent person to accurately assess the potential noise impact of the Development and identify any necessary mitigation from the accumulative effect of noise emitted from vehicle movements, unloading/loading activities and fixed plant (including air handling plant) associated with the Development so that such noise complies with the Noise Levels and such noise assessment as having been approved by the Council".

The "Noise Levels" were defined in the unilateral undertaking as "internal noise levels to be achieved in all habitable areas" for the period between 7 a.m. and 11 p.m. (30dB LAeq 16 hour), and between 11 p.m. and 7 a.m. (30dB LAeq), and for "individual noise events" in bedrooms at night (45dB LAmax).

Submissions

33. Mr Tucker submitted:

(1) Hammerson's revised proposal was not subject to a screening process. It should have been. The Council could not lawfully grant planning permission without having first dealt with the request – or deemed request – for a screening opinion for that revised proposal. It failed to do that. The correspondence between Quod and the Council in November 2012 did not generate a screening opinion (see paragraphs 37 and 38 of Sullivan J.'s judgment in Lebus and Lord Hoffmann's speech in Berkeley, at pp.615 to 618). The Council cannot rely on the screening opinion of 21 September 2011, which was for a different proposal.

(2) The screening opinion of 21 September 2011 was in any event defective and unlawful. The screening opinion identified several matters – noise, the effect on air quality and the impact on the River Swift – on which various surveys would enable the Council to assess the potential impacts of the development, without the need for an EIA. This was, in effect, to avoid making the judgment that had to be made in the screening process, and was unlawful (as was so in Lebus). As for noise, in particular, the Council failed to require any proper assessment before granting planning permission, and deferred this by applying condition 13. The requirement for a noise assessment in that condition, and in section 106 obligation entered into after permission was granted, was an inadequate substitute for EIA.

(3) The decision of the Supreme Court in Walton does not help the Council here. That decision did not overrule the House of Lords' decision in Berkeley. And in any event in this case CBRE Lionbrook has been denied the benefits conferred by the EIA Directive, because the Council failed to undertake a lawful and effective screening process for the proposed development.

34. Mr Richard Kimblin for the Council and Mr David Elvin Q.C. for Hammerson submitted:

(1) The Council's screening opinion of 21 September 2011 was a lawful screening opinion. In it the Council reached a clear and unequivocal screening decision, having followed the relevant statutory procedure in the 2011 EIA Regulations, and having reached a reasonable judgment that the proposal was not EIA development. The screening opinion is not the subject of any direct challenge in these proceedings. Nor could any challenge to it be sustained. The Council clearly concluded that the development was not likely to have significant effects on the environment because of its nature, size and location. The screening opinion was clearly reasoned. And the screening judgment itself was reasonable.

(2) The fact that further work was to be done in the preparation of studies in the application for planning permission did not mean that the Council was deferring the screening judgment. It is clear from the screening opinion that the Council took into account the relevant considerations in Schedule 3. This is not one of those cases where an authority has avoided the screening process by putting off its assessment to its decision-making on the proposal itself. On its facts this is a very different case from Lebus.

(3) The Council did not act in breach of the 2011 EIA regulations, nor did it offend any principle in the relevant case law. It has not failed to undertake a formal screening process for the development. It was entitled under regulation 7 of the 2011 EIA Regulations to rely on the screening opinion of 21 September 2011 as an effective screening opinion for the revised proposal. The screening judgment in that screening opinion was sufficient for the proposed development in its revised form. The Council's decision not to undertake a further screening process was lawful.

(4) If need be, the court could and should exercise its discretion to withhold relief. Neither CBRE Lionbrook nor anybody else has suffered any prejudice through any failure on the part of the Council to follow the procedure under the 2011 EIA Regulations. Nobody has been denied any right conferred under the EIA regime. And it is inconceivable that if the screening proposal had been repeated for the revised proposal the outcome would have been any different.

Discussion

35. I see nothing wrong in law with the screening process undertaken by the Council in 2011. As Mr Kimblin and Mr Elvin submitted, it complied fully with the requirements of the 2011 EIA regulations and with the principles in the jurisprudence to which I have referred (in paragraphs 15 to 22 above).
36. The screening opinion of 21 September 2011 should be read together with the screening request to which it responded and on which it was based – the screening request in Waterman's letter of 16 September 2011. In my view that screening request was sufficiently detailed and clear to enable the Council to judge whether the proposed redevelopment of the retail park was likely to have any significant effects on the environment.
37. The Council saw that the proposed development was Schedule 2 development, within the category defined as "urban development projects" in paragraph 10(b). It knew that the site was not in a "sensitive area". It asked itself the crucial question, which was whether the development was likely to have significant effects on the environment. It acknowledged the increase in "scale" of the retail park. But it recognized that this was a redevelopment, on the same site. It identified the "main characteristics" of the development relevant to the screening judgment, including "increased noise and the effect on air quality due to increased traffic and the impact on the River Swift which runs through the site and [the] Oxford Canal". It noted that the river had been "incorporated into the existing layout", and that the proposed arrangement of buildings in the redevelopment of the site had been designed to "minimise any further impact on this natural feature". It understood that further work, including work on the implications of the proposal for wildlife, air quality and flood risk, was to be done and reported in documents submitted with the planning application. But, having applied the criteria in Schedule 3, it concluded that the project "would not be likely to have significant effects on the environment by virtue of factors such as the characteristics of the development, the environmental sensitivity of the location and the characteristics of the potential impact", and that "[in] the circumstances an EIA is not required".
38. That conclusion is clear and unqualified. And in my view it is legally impeccable. It is not the subject of any direct challenge in these proceedings. Even if it had been, any criticism of it as a matter of law would have been hopeless. The Council did not ignore any relevant consideration arising under the selection criteria in Schedule 3. And the suggestion that it put off making a screening judgment until further assessments had emerged in documents submitted with the planning application is misconceived, as the screening opinion itself makes plain. Such uncertainties as there were did not prevent the making of a complete and sound screening assessment. The screening opinion was clearly reasoned. And the Council's screening judgment could not conceivably be described as unreasonable in the Wednesbury sense. There is nothing by way of evidence or submissions before the court to lead it to conclude otherwise.
39. As Mr Kimblin and Mr Elvin submitted, the facts of this case bear no similarity to those of Lebus, where the authority avoided making a screening judgment. That did not happen here.
40. The Council did not regard the further assessments it envisaged as a substitute for an EIA. The fact that when it eventually granted planning permission it imposed a condition requiring a noise assessment, and that this requirement was later strengthened by the section 106 obligation, does not mean that its screening process was inadequate or unsound. When it formed its screening judgment in September 2011 it acknowledged that there might be "increased noise", as well other consequences for the local environment. But it was able to conclude that the development would not be likely to have "significant effects" on the environment, and therefore would not require assessment under the EIA regime in addition to the assessment it would receive in the normal way through the planning process. For the Council to require a noise assessment to be submitted by imposing a condition on the planning permission was not to negate its screening judgment, or to betray a deficiency in the screening process. It was not inconsistent with the view reached in that process that none of the effects of the development on the environment was likely to be significant.
41. In my view, therefore, there is no force in the argument that the Council's screening opinion is legally flawed.
42. Nor do I see any merit in Mr Tucker's main submission on this ground, which is that in any event the Council was compelled to screen the amended proposal under the 2011 EIA regulations, and that it ought therefore to have sought from Hammerson a further screening request, or to have treated Mr Murphy's letter of 12 November 2012 as if it was such a request. I do not think these submissions withstand a true analysis of what happened in November 2012. Mr Murphy's letter was not a request for a screening opinion. It was an enquiry as to whether such a request ought to be made. As Quod plainly understood, it would have been pointless to submit another screening request if the revised proposal did not call for a further screening process. This is plain from the sentence in which they said that in their view the screening opinion of 21 September 2011 was still "valid" and that therefore they did not intend to submit a further screening request.
43. This understanding of Mr Murphy's letter is reinforced by the Council's response. The letter of 20 November 2012 from Mr Williams to Mr Murphy was not, and did not purport to be, a screening opinion. It was the Council's decision that a further screening process was not required for the proposal in its revised form. It is clear that Mr Williams had considered the differences between the proposal as it had been and the proposal as it now was, and had concluded that a further screening process would have been superfluous and was not required under the 2011 EIA regulations. He was satisfied that the adjustments made to the proposal after it had been through the statutory screening process were not such as to change it in any material way. I think he was entitled to take that view.
44. In the circumstances the Council could be sure that the outcome of a further screening process would inevitably be the same as the outcome of the screening process undertaken in September 2011 – that the development was not likely to have any significant effect on the environment, and that it did not need an EIA.
45. There is, I believe, no basis for holding the Council's position unlawful.
46. Mr Kimblin and Mr Elvin were in my view right to submit that there was no breach of any relevant provision of the 2011 EIA regulations, and, in particular, no breach of regulation 7. They focused on the opening clause of regulation 7 – "Where it appears to the relevant authority that …". They submitted, and I agree, that implicit in those words there is more than merely a question of fact. Parliament has deliberately provided an element of discretionary judgment for an authority deciding whether a screening process is required. The discretion relates to all three of the matters referred to in paragraphs 7(a), (b) and (c), including the question raised in paragraph 7(b) – whether "the development in question has not been the subject of a screening opinion …". It follows, submitted Mr Kimblin and Mr Elvin, that the Council could properly conclude, as it did, that the development had been the subject of a screening opinion. I agree.
47. The thrust of this submission, which I accept, is that the concept of a development having been the subject of a screening opinion is broad enough to include a previous screening process for an earlier version of the proposal, so long as the nature and extent of any subsequent changes to the proposal do not give rise to a realistic prospect of a different outcome if another formal screening process were to be gone through. This is classically a matter of judgment for "the relevant planning authority". It will always turn on the facts of the particular case.
48. The essential point is that regulation 7 allows the authority to judge whether any changes to a proposal are such as to cast doubt on the continuing validity of the screening opinion for the proposal in its previous form. In principle, and subject to review by the court on Wednesbury grounds, it is open to an authority to conclude that in the screening process it has already conducted the essential characteristics of the site and proposal bearing on the crucial question – whether the development is likely to have any significant effects on the environment – have been taken into account and the relevant screening thresholds and criteria applied.
49. If the result of that process was a screening opinion determining that the project was not EIA development, and if the result of a further screening process for the revised proposal would inevitably be the same, the authority will be able to conclude that its screening opinion is competent for the proposed development in its modified form. The judgment embodied in that screening opinion will be no less valid and effective for the proposal as revised than it was for the proposal as originally conceived. The potential effects of the development will already have been dealt with in a formal screening process. The development will have been "the subject of a screening opinion" – the concept in regulation 7(b). The provisions of paragraphs (4) and (5) of regulation 5 will not be engaged. The screening process will not have to be repeated. If it were repeated it would be of no benefit to the authority, no benefit to anyone likely to be affected by the outcome, and no benefit to the public interest in the EIA regime being operated with the rigour required.
50. Mr Elvin and Mr Kimblin submitted that that is the situation here. I think they were right. In my view the interpretation of regulation 7 for which they contended, which reflects not only the words of the provision but also its obvious purpose, is correct. It is clearly to be preferred to the more restrictive construction urged by Mr Tucker: that, in every relevant case, "the development" referred to in regulation 7(b) had to be taken to mean the development in precisely the same form as had been considered in the prior screening process, without even the smallest change. If that construction were right, the authority would have no discretion in deciding whether the development had already been the subject of a screening opinion. The most modest alteration to the scheme, the slightest increase or reduction in the proposed floorspace in one use class or another, or the addition or removal of a single car parking space, would make another screening process inevitable. I cannot believe this is what Parliament intended.
51. Nothing in the Council's screening opinion for the proposal in its original form indicated that the particular amounts of proposed floorspace in Class A1 or Class A3, or the particular number of car parking spaces proposed, was important, let alone critical, in the screening judgment, or that the screening judgment might be vulnerable to the kind of adjustments in floorspace and parking provision that were made when the proposal was revised. And Mr Tucker did not persuade me that if the Council had revisited its screening judgment in the light of the changes made to the proposal it might have come to a different view about the likelihood of there being any significant effects on the environment. I do not think that in a proposal for the redevelopment of a retail park on a main road within the urban area of Rugby, the adjustments in the composition of the scheme, including the increase in retail floorspace and in the number of parking spaces proposed, could have made any difference to the Council's screening judgment.
52. This is not a case of an authority retrospectively dispensing with the requirement for an EIA, the mischief to which Lord Hoffmann referred in Berkeley. And Mr Tucker's argument gains no support from Sullivan J.'s judgment, on very different facts, in Lebus. Hammerson's development was properly screened in accordance with the provisions of the 2011 EIA regulations, and was found not to be EIA development. The Council did not act at any stage in breach of the 2011 EIA regulations, and its grant of planning permission was not vitiated in that way.
53. However, if I were wrong about that and had to confront the breach of the 2011 EIA regulations asserted in this ground of the claim – and assuming that the Council's grant of planning permission was otherwise lawful – I would have no hesitation in exercising my discretion to withhold relief. In view of the Supreme Court's decision in Walton I am in no doubt that this is a case in which the court should not quash the planning permission. Nor am I persuaded that it would be necessary or appropriate in those circumstances to grant a declaration, or any other form of relief.
54. As Mr Elvin submitted, no one who is affected by the Council's screening process under the EIA regime, or by its decision on the application for planning permission, has suffered any real prejudice as a result of the alleged breach of the 2011 EIA regulations. And there been no harm to any wider public interest. The redevelopment of the retail park, as originally proposed, did not escape a screening process under the 2011 EIA regulations. The result of that process was a negative screening opinion. There is no chance of a different outcome if a second screening process, for the revised proposal, were now to be carried out. Putting this in the words of Lord Carnwath in paragraph 139 of his judgment in Walton, the court can be satisfied that CBRE Lionbrook, everybody else with an interest in the outcome of Hammerson's proposal and the public as a whole have been "able in practice to enjoy the rights conferred" by the EIA directive and the 2011 EIA regulations. There has been no prejudice, let alone "substantial prejudice", either to CBRE Lionbrook or to anyone else. I therefore accept the submissions made on discretion by Mr Kimblin and Mr Elvin. In the circumstances of this case it would be neither necessary nor proportionate for the court to quash an otherwise lawful planning permission, or to grant relief of any other kind.
55. This ground of the claim therefore fails.

Issue (2) – the development plan

Relevant law

56. A local planning authority determining an application for planning permission must have regard to the development plan (as section 70(2) of the 1990 Act requires), and must make its decision in accordance with the plan unless material considerations indicate otherwise (as section 38(6) of the 2004 Act requires). The authority's task of making the decision in accordance with the development plan unless material considerations indicate otherwise has been considered by the courts many times, the leading case being City of Edinburgh Council v Secretary of State for Scotland [1997] 1 W.L.R, 1447, where Lord Clyde referred (at p.1458G-H) to the "requirement with which the decision-maker must comply, namely the recognition of the priority to be given to the development plan", which, however, "still leaves the assessment of the facts and the weighing of the considerations in the hands of the decision-maker". The weight to be given to material considerations is for the authority making the decision in the exercise of its planning judgment, subject to review by the court on Wednesbury grounds (see the speech of Lord Keith of Kinkel in Tesco Stores Ltd. v Secretary of State for the Environment [1995] 1 WLR 759 at p.764, and the speech of Lord Hoffmann at p.780). The authority must proceed on a proper understanding of the relevant provisions of the development plan. Where the court is called upon to interpret such provisions of policy it must do so objectively, construing the language used in its proper context (see the speech of Lord Reed in Tesco Stores Ltd. v Dundee City Council [2012] 2 P. & C.R. 162 at paragraphs 17 to 21).
57. As Baroness Hale said in R. (on the application of Morge) v. Hampshire County Council [2011] 1 WLR 268 (at paragraph 36), the process of making decisions on planning applications involves advice being given by professional advisers to "democratically elected councillors, responsible to, and sensitive to the concerns of, their local communities". Reports prepared by those professional advisers must be "clear and full enough" to enable members to understand the issues they have to consider in making their decisions, but the court "should not impose too demanding a standard on such reports, for otherwise their whole purpose will be defeated: the councillors either will not read them or will not have a clear enough grasp of the issues to make a decision for themselves". It is the members' job, not the court's "to weigh the competing public and private interests involved" (ibid.). Officers' reports are not to be read with the kind of rigour required in the interpretation of statute or contract.
58. In R. v Selby District Council, ex parte Oxton Farms [1997] EG 60 (C.S) (C.A., 18 April 1997) Judge L.J., as he then was, said that in proceedings for judicial review and grounds of challenge criticising a planning officer's report to committee "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". In R. v Mendip District Council, ex parte Fabre (2000) 80 P. & C.R. 500 Sullivan J., as he then was, said (at pp. 509 and 510) the purpose of a planning officer's report to committee is "to inform the members of the relevant considerations relating to the application", and the members who receive such reports "may be expected to have substantial local and background knowledge", including knowledge of the relevant development plan policies.

The development plan

59. When Hammerson's application for planning application was determined by the Council the development plan comprised the core strategy, which was adopted by the Council in June 2011, and the saved policies of the Rugby Borough Local Plan of 2006.
60. The Rugby Borough Council Retail and Leisure Study prepared for the Council by Drivers Jonas in 2008 was used in the preparation of the policies for the town centre in the core strategy. It was undertaken in accordance with the requirements of PPS6: Planning for Town Centres, later superseded by PPS4 – Planning for Town Centres, which in turn was superseded by the NPPF in March 2012.
61. The Rugby Town Centre Background Paper was produced by the Council in April 2010 after the public examination of the core strategy was suspended. Its purpose was to outline the background to the draft of the chapter in the core strategy relating to the town centre, the supporting evidence base, the consultation material and the sustainability appraisal.
62. The inspector who conducted the examination in public of the core strategy reported to the Council on 11 May 2011. On the policies for Rugby town centre the inspector said this (in paragraph 79 of his report):

"As recommended to be changed, the town centre policies (CS6 to CS9 inclusive) would be justified, effective and in accordance with national policy. The strategic retail allocations are in principle suitable and commensurate with the evidence, and there are no major impediments in terms of implementation of infrastructure. They would provide a clear, strong and soundly based strategic framework for the development of the town centre which would enhance Rugby's sub-regional status, as well as providing facilities for the Borough's planned new residents."

The core strategy

63. As is explained in Chapter 1 of the core strategy, the introductory chapter, its purpose is to "deliver the spatial elements of the Rugby Sustainable Community Strategy ,… and of other relevant strategies" and it "contains strategic policies which will guide the future development of the Borough up to 2026 …" (paragraph 1.2).
64. Paragraph 1.5, under the heading "National Planning Guidance", says this:

"The Core Strategy works within, and takes account of, the national policy framework. This is largely provided through Planning Policy Statements (PPSs), or Planning Policy Guidance notes (PPGs) and Government Circulars which set out the Government's policies on different aspects of planning. A key principle of this Strategy is that if an issue or subject is adequately covered in higher level guidance then this Strategy does not seek to repeat it. This does not mean that other such policies and guidance will not be rigorously applied in the determination of planning applications."

65. Policy CS1, which is entitled "Development Strategy", states:

"The location and scale of development must comply with the settlement hierarchy. It must be demonstrated that the most sustainable locations are considered ahead of those further down the hierarchy".

At the top of the hierarchy is "Rugby Town Centre", which is said to be the "[primary] focus for services and facilities". The second tier in the hierarchy is the "Rugby Urban Area", which is said to be the "[primary] focus for meeting strategic growth targets". Below that there are four further tiers: "Main Rural Settlements", "Local Needs Settlements", "Countryside" and "Green Belt". The supporting text in paragraph 2.4 explains that the town centre is "[the] most sustainable location" in the borough and "[provides] the best access to a range of services and facilities". It points to Chapter 4 of the core strategy, which, it says, "sets out the importance and the strategic role of the town centre". It goes on to say this:

"Proposals for new services and facilities that aim to serve more than a local community or neighbourhood must demonstrate that they cannot be located within or on the edge of the town centre before alternative locations will be considered."

Paragraph 2.5 says that the "urban area of Rugby outside of the town centre is the primary focus for new residential and employment development".

66. Chapter 4 of the core strategy deals with "Rugby Town Centre". Paragraph 4.1 says that the town centre "represents a significant opportunity, the realisation of which is fundamental to this planning strategy". Paragraph 4.3 says that Chapter 4 "sets out the policy mechanisms to enhance the vitality of the centre to ensure that Rugby Town Centre is revitalised and becomes the shopping, leisure and arts centre of choice for all sectors of the community". It adds that "[this] objective is supported by all parties who have an interest in the town centre …". Paragraphs 4.4 says that "the town centre policies include the promotion of high quality design and the creation of designated areas through which a sequential test will be applied to the location of town centre land uses". Paragraph 4.5 says that "[this] long-term, growth led vision will be embodied in the Town Centre Area Action Plan Development Plan Document."
67. Policy CS6 relates to "Development in Rugby Town Centre". It says that "[all] development proposals within or on the edge of Rugby Town Centre should demonstrate how they have taken account of the Town Centre Area Action Plan Development Plan Document", which, it says, "will also identify and allocate land for the development of town centre uses". Paragraph 4.6 says that the area action plan "will be used to support and, where appropriate expand upon, the principles and policies in this strategy in order to revitalise the centre, retain existing expenditure and "claw back" patterns of expenditure "leakage" that have taken place in the past." The area action plan has not yet been produced.
68. Policy CS8 contains the "Town Centre Retail Allocations". Two sites are allocated for retail development: the Evreux Way site and another site, at North Street ("the North Street site"). The policy says that these two sites "will meet the 20,100 m² need for comparison goods identified by the Rugby Retail and Leisure Study up to 2026". The policy says that the development of the North Street site will provide about 10,100 square metres of Class A1 "comparison retail floorspace". On the "Evreux Way Development" it says this:

"The Evreux Way Development site is allocated for a retail led scheme where planning permission will be granted for a scheme that includes:

1. Approximate gross provision of 10,000m² A1 use class comparison retail floorspace.

2. Any application for redevelopment includes a masterplan for the site and is consistent with the Council's Town Centre Area Action Plan DPD.

3. The proposals relate to the whole allocated site or if less do not in any way prejudice the implementation of the whole development."

The policy goes on to say that, once developed, these two sites "will be incorporated within the Primary Shopping Area". The "Explanation" for Policy CS8 is set out in paragraphs 4.11 to 4.13:

"4.11. The Rugby Retail and Leisure Study 2008 tested the comparison floorspace provision for the whole of the Core Strategy plan period and indicated that there is a need for 20,100m² by 2026. …

4.12. The two above mentioned allocated sites were identified within the Retail and Leisure Study as priority locations for retail development. The proposals are retail led allocations and benefit from being centrally located, highly sustainable, sequentially preferable and well connected to the existing core of the town centre. It is anticipated that the North Street site is likely to be capable of accommodating between 7,000 to 10,000 square metres of gross comparison retail floorspace whereas the Evreux Way site is likely to be capable of accommodating up to 13,000 square metres gross. The detailed capabilities of each site will be dealt with through the Town Centre Area Action Plan Development Plan Document and the relevant planning applications.

4.13. This strategy allows for further comparison retail development later in the plan period to meet the remaining strategic requirements through the Town Centre Area Action Development Plan Document. Any further retail development should be focused within or adjoining the Primary Shopping Area to further strengthen the retail core of the town centre and be in conformity with the Town Centre Area Action Plan Development Plan Document."

69. Policy CS13 is concerned with "Local Services and Community Facilities". It says that "[existing] local services and community facilities should be retained" unless it can be demonstrated that the existing use is unlikely to continue, the site has been actively marketed for a similar or alternative type of facility that would benefit the local community, and the existing service or facility can be provided in another way or in a different site in the local area. The policy also says that new local services and community facilities "to meet the needs of local communities" will be permitted in specified locations, subject to certain provisos. One of those provisos is that "the development would not adversely affect the vitality and viability of the Town Centre or any planned town centre development".

The NPPF

70. The NPPF was published on 27 March 2012. It contains the Government's planning policy for England. It superseded many of the national policy documents current until its publication, including PPS4. As it acknowledges, it does not change the statutory status accorded to the development plan by section 38(6) of the 2004 Act (paragraph 12). It stresses the requirement that applications for planning permission are determined in accordance with the development plan unless material considerations indicate otherwise (paragraph 2). It "[reinforces] the importance of up to date plans" (paragraph 209 in Annex 1). It also states (in paragraphs 211 and 212):

"211. For the purposes of decision-taking, the policies in the Local Plan … should not be considered out-of-date simply because they were adopted prior to the publication of this Framework.

212. However, the policies contained in this Framework are material considerations which local planning authorities should take into account from the day of its publication. The Framework must also be taken into account in the preparation of plans."

71. Paragraph 14 of the NPPF explains that the presumption in favour of sustainable development is at the heart of its policies. For development control decision-making it says that this means approving development proposals that accord with the development plan without delay, and in cases where the development plan is "absent, silent or relevant policies are out-of-date" granting permission unless:

"

• any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or

• specific policies in this Framework indicate development should be restricted."

It is recognized (in footnote 10) that this requirement is subject to the qualification that material considerations may indicate otherwise.

Deloitte's advice to the Council

72. Deloitte were appointed by the Council to review Quod's sequential and impact assessments in their Revised Retail Statement in April 2013. On 25 April 2013 Deloitte sent the Council a draft of their report. The final report was sent on 3 May 2013. CBRE Lionbrook were given a copy of the report before it was published, with the caveat that the advice it contained might change. In their report Deloitte summarized relevant national and local policy (in paragraphs 1.6 to 1.19). They said that the core strategy policies for Rugby town centre – Policy CS6, Policy CS7 and Policy CS8 – "are notably silent in regard to the application of the impact and sequential tests", and that "the guidance contained within [the] NPPF should [therefore] take precedence in the consideration of the EFRP proposals" (paragraph 1.17).

The advice of the Council's Development Strategy Manager

73. On 10 May 2013 the Council's Development Strategy Manager, Ms Sarah Fisher, sent a memorandum to Mr Williams, who was the officer responsible for preparing the report to the Council's Planning Committee. In the "Conclusion", in section 5 of her memorandum Ms Fisher said that the development would result in four further benefits – the creation of new jobs, the enhancement of "Rugby's wider retail offer", "[improved] retail choice", and "[significant] financial investment from Hammerson, as well as other retailer benefit". Ms Fisher concluded that the proposal complied with Policy CS1 of the core strategy, and with the Government's policy for retail development in the NPPF (paragraph 5.3).

The officer's report for the meeting of the Council's Planning Committee on 22 May 2013

74. Hammerson's application for planning permission was considered by the Council's Planning Committee on 22 May 2013. The officer's report, which was presented to the committee by Mr Williams, reflected the views expressed by Ms Fisher in her memorandum on the proposal's compliance with local and national planning policy for retail development.
75. In the report Mr Williams summarized the responses the Council had received from statutory consultees and the representations made by third parties, including CBRE Lionbrook, the nub of whose objection was this:

"Proposals for the redevelopment of the Clock Towers Shopping Centre incorporating the Evreux Way allocated site have been put on hold given the fact that the EFRP [proposal] is going to be determined, as it would have obvious implications for the opportunity to deliver further investment in the site."

76. Mr Williams referred to the relevant planning policies and guidance, including the relevant policies of the core strategy. He said that the proposal complied with Policy CS1, Policy CS6 and Policy CS8, as well as with other relevant policies of the core strategy, and also with the NPPF. He reminded the members of the settlement hierarchy in Policy CS1, and the strategy for Rugby town centre in Policy CS6, Policy CS7 and Policy CS8, including "the allocation of two sites for the development of up to 21,000sqm of comparison retail; Evreux Way and North Street.". He quoted paragraph 2.4.1 of the supporting text to Policy CS1. And he then said this:

"The policies of the Core Strategy are silent as to how retail development proposals outside of the town centre will be judged however. It is therefore necessary to refer to the content of the NPPF when considering this application."

77. Mr Williams went on to deal with the relevant parts of the NPPF. He repeated the advice that "Core Strategy policies are silent as to how retail development outside the town centre will be judged". He said that paragraph 14 of the NPPF "provides a framework for decision making where a local development plan is silent or out of date". The relevant advice was that "[the] presumption in favour of sustainable development is outlined; planning applications should be approved unless any adverse impact of doing so would significantly and demonstrably outweigh the benefit".
78. After providing his advice on the sequential test and the impact assessment – to which I shall refer below – Mr Williams concluded that the proposal would not have "a significant adverse impact particularly when considered with [its] positive benefits", that it complied with Policy CS1 of the core strategy and with the NPPF, and that it was "therefore acceptable in principle and subject to the consideration of more detailed matters, should be approved". The remainder of the report dealt with a number of other matters, which are not contentious in these proceedings.
79. The officer's recommendation was that, "[subject] to the referral of the application to the National Planning Casework Unit", the proposed development be approved.

CBRE Lionbrook's objection

80. Several letters of objection were sent to the Council on behalf of CBRE Lionbrook. Three of them – from Red Property Services, Croft Transport Solutions and ID Planning – were sent on 7 May 2013.
81. On 20 May 2013, after the officer's report to committee had been published, Red Property Services wrote two further letters on behalf of CBRE Lionbrook. One of these went directly to all of the members on the Council's committee. The other was sent to Mr Williams, who had prepared the committee report. The two letters were in similar, though not identical terms.
82. The letter to councillors expressed several concerns about the assessment of Hammerson's proposal in the committee report. In particular, it disputed the conclusion that Hammerson had shown there were no suitable or available sequentially preferable sites capable of accommodating the proposed development, and that neither the Evreux Way site nor the North Street site was an available sequentially preferable site. It then said this:

"We have submitted detailed representations that quite clearly confirm that the [Evreux] Way Development Site is suitable, available and viable for development, and we have made the same points and presented our emerging plans in recent meetings with Senior Officers. Discussions have taken place with the other two parties involved in the Evreux Way site and all parties are looking to work together to bring forward a planning application for this site.

Our representations have noted the speed at which the Council are looking to effectively ignore elements of their own Core Strategy … and the two large retail allocations it identifies within the Town Centre. …".

83. The letter to Mr Williams said this:

"… We have … challenged the [officer's] comments that 'neither the Evreux Way or North Street sites are available sequentially preferable sites'[,] and we disagree with the repeated reference to the Evreux Way allocation being a 'large complex site', 'significant restrictions' as a result of 'land assembly/ownership' and other unspecified 'complexities'. Our representations have confirmed that the Evreux Way Development Site is suitable, available and viable for development, and we have made the same points and presented our emerging plans in recent meetings with Senior Officers. Discussions have taken place with the other two parties who have interests in the Evreux Way site and all parties are keen to work together to bring forward a planning application for this site."

The officer's advice at the committee meeting

84. At the committee meeting Mr Williams refined the advice he had written in his report. A transcript of what he said is before the court. He referred to the representations submitted by third parties after the committee report had been prepared, including those made on behalf of CBRE Lionbrook by Red Property Services in their letters of 20 May 2013.
85. In his advice on the approach the committee should take to the assessment of the proposed development Mr Williams said this:

"The starting point for consideration of the application is the adopted Core Strategy. The Core Strategy remains up to date. Policy CS1 confirms that the Rugby Urban Area is to be the primary focus for meeting strategic growth targets, whilst policies CS6 through to CS8 outline the strategy for the town centre. This includes the allocation of two sites for retail development over the plan period. However, the Core Strategy does not have specific policies which set tests for out of centre development, although explanatory text of the policy confirms that proposals for new retail and other development must demonstrate that they cannot be located within or on the edge of the town centre before other locations will be considered.

The NPPF is also an important material consideration, particularly in those areas where the Core Strategy does not have specific policies, such as on applications for out of centre retail development. Paragraph 14 of the NPPF advises for decision taking where there is an absence of relevant local policies that the presumption in favour of sustainable development means that planning permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits. Out of centre development can be approved consistent with the Core Strategy, if it meets the sequential and other tests therefore, particularly where it complies with the guidance in the NPPF. This is the approach taken in the committee report[.]"

86. Having considered the sequential and impact assessments in the light of the objectors' representations, the further work that had been done by Quod and the advice of Deloitte, Mr Williams adhered to the conclusion and recommendation in the committee report. He repeated the advice that the proposal complied with Policy CS1 of the core strategy and with the relevant national policy in the NPPF.
87. The committee accepted that recommendation and resolved to approve the development.

The Local Plan Discussion Document

88. In August 2012 the Council's Cabinet approved the publication of the Council's Local Development Scheme. The Local Development Scheme set out a timetable for the production of the Rugby Borough Local Plan. An essential purpose of this exercise was to produce a single Development Plan Document to replace any current development plan policies that were out of date or in conflict with the NPPF.
89. On 3 June 2013, about two weeks after the Planning Committee had resolved to approve Hammerson's proposal, the Council's Cabinet met to consider a report prepared by the Economy, Development and Culture Portfolio Holder on the emerging Rugby Borough Local Plan. The report recommended that the Rugby Borough Local Plan Discussion Document ("the Local Plan Discussion Document") be approved for consultation. In the report the officer told the members that the Local Plan Discussion Document was the first stage in the local plan process. He said the Council's "Development Strategy Team are satisfied that the Core Strategy is compliant with the NPPF". But he added that "there are requirements contained within the NPPF relating to the content of local planning policy that are not met by the adopted Core Strategy". The local plan was "therefore intended to provide the policies required to fill the gaps", not to replace the core strategy but to "provide more detailed policies that supplement the strategic approach to development outlined within [it]".
90. The officer said that the purpose of the Local Plan Discussion Document was "to ascertain the opinions of various statutory consultees to ensure the Local Plan contains all the policies required to deliver a robust framework of local policies that are compliant with the NPPF". On 29 April 2013 a draft of the Local Plan Discussion Document was presented to the Planning Services Working Party, which endorsed it. The officer told the Cabinet that changes had since been made to Chapter 5 "that explain it may be necessary for retail allocations made within the Core Strategy to be reconsidered". He said that "[the] requirement for this [had] become apparent as part of the determination process of the Elliott's Field Retail Park planning application but this was not reported to the Working Party". There were no detailed proposals in the Local Plan Discussion Document. It was only suggested that further work might be required.
91. The Cabinet followed the officer's recommendation and resolved to approve the Local Plan Discussion Document for consultation.
92. The version of the Local Plan Discussion Document published in July 2013 said that each policy of the core strategy had been considered against the NPPF and was "considered to be in general conformity with the NPPF, with no conflict identified", and that the policies of the core strategy "therefore retain their full weight by decision makers of planning applications" (paragraph 1.2.1). However, it went on to say that it was "apparent that there are policy gaps at the local level which need to be addressed" and that it would "suggest the additional policy areas necessary for Rugby to have a comprehensive up to date local development plan, as required by the NPPF" (paragraph 1.4.1).
93. Chapter 5 dealt with Rugby town centre. It identified as one of the "new policy areas" to be included in the local plan "Locating main town centre uses" (paragraph 5.0.1). It said that the policies of the core strategy relating to development in the town centre or of town centre uses, including Policy CS6, Policy CS7 and Policy CS8, were "considered to be in general conformity with the approach set out in the NPPF", but that "[additional] policies are required to ensure that there are no policy gaps and also as a result of the changing circumstances town centres are operating within" (paragraph 5.0.3). It acknowledged that since the adoption of the core strategy in June 2011 "the context in which the town centre operates has changed dramatically because of both the current economic climate and changes in how we shop" (paragraph 5.1.1). It recognized that "as part of the review of the town centre strategy, it may also be necessary to reconsider the status of the retail allocations at Evreux Way and North Street …" (paragraph 5.1.2). The Town Centre Area Action Plan Development Plan Document envisaged in Policy CS6 was not going to be produced. Instead, the local plan would "provide more detailed policies" (paragraph 5.1.3). Because "the preferred location for [retail, leisure, office and other main town centre uses] is expressed within the NPPF to be the town centre, an assessment of the need to expand the current town centre boundary is … necessary in order to ensure a sufficient supply of suitable sites" (paragraph 5.2.1).

Submissions

94. Mr Tucker submitted:

(1) The core strategy identifies the need for new shopping development in the period to 2026, to meet the need for about 20,000 square metres of additional comparison goods floorspace. Most of the need would arise in the later part of this period. The core strategy also directs retail development to the town centre, on the two allocated sites in Policy CS8. Hammerson's proposal, even if the existing floorspace of the retail park is ignored, would provide considerably more floorspace than the need identified for the period to 2026. It would remove the capacity for developments on the two allocated sites. Therefore Hammerson's proposal is plainly contrary to the Council's strategy for retail development, and for the town centre – contrary to Policy CS1, Policy CS8 and Policy CS13, which, taken together, do not allow for out of centre development such as this. The Council failed to understand that the development was contrary to the core strategy, and failed to consider the significance of that conflict.

(2) The Council was wrong to think that the core strategy is "silent" on the question of how proposals for retail development outside the town centre are to be judged. There was enough in the core strategy to show how the Council was likely to react to proposals for development that might frustrate investment in the two allocated sites.

(3) The Council failed to interpret and apply the policies of the core strategy as it should have done. It failed to determine the application as section 38(6) of the 2004 Act required.

95. Mr Kimblin and Mr Elvin submitted:

(1) All of the relevant policies of the core strategy were considered and properly applied by the Council's committee, in the light of the work that had been done by Quod and Deloitte and the officers' written and oral advice. The committee would have been familiar with those policies.

(2) Hammerson's proposal was not in conflict with the development plan. Paragraph 1.5 of the core strategy acknowledges the principle that government policy – now the NPPF – would complement its policies. Because the core strategy is, in truth, silent on the way in which proposals for retail development outside the town centre are to be judged, the relevant policy in the NPPF, in paragraphs 24 and 26, has to be applied to such proposals. That is what the development plan itself contemplates. The Council understood that. It followed the approach indicated in the core strategy. The hierarchy of locations for development in Policy CS1 is consistent with the sequential approach. Hammerson provided a sequential assessment, which was accepted by the officers, by Deloitte and by the Council's committee. The proposal was consistent with Policy CS1, as the officers advised. It did not clash with Policy CS6, which is specifically about development in or on the edge of Rugby town centre, or with Policy CS8, which is about the two allocations in the town centre. Neither Policy CS8 nor its explanatory text imposes an embargo on proposals in locations other than the two allocated sites. Had it done so it would have been at odds not only with national planning policy but also with Policy CS1. It looks to the preparation of an area action plan to refine the Council's strategy for the town centre. That area action plan has not been produced, and is not going to be. Policy CS13, which is concerned with local services, does not preclude development such as Hammerson's.

(3) The Council did not fail to follow the requirements of section 38(6) of the 2004 Act. Its decision to grant planning permission was made in accordance with the development plan, and other material considerations, including national planning policy in the NPPF, did not indicate refusal.

Discussion

96. This part of the claim alleges three errors in the Council's approach to the relevant provisions of the development plan and its application of those provisions to Hammerson's proposal. The three allegations are these: first, that the Council failed to see that the proposed development was contrary to three policies of its core strategy, namely Policy CS1, Policy CS8 and Policy CS13; secondly, that it was wrong to conclude that the development plan was "silent" on the approach to be taken to deciding applications for planning permission for retail development outside Rugby town centre; and thirdly, that it failed to discharge its duty under section 38(6) of the 2004 Act to determine Hammerson's application for planning permission in accordance with the development plan unless material considerations indicated otherwise.
97. In Tesco v Dundee City Council the Supreme Court emphasized that policies in development plans are often expressed in terms that permit the exercise of planning judgment, and indeed require it. When a local planning authority exercises such judgment the result of its doing so is not open to challenge in the court on the ground that it was wrong, or on the ground that another authority might have come to a different view, but only on the ground that it was unreasonable in the Wednesbury sense (see the judgment of Lord Reed at paragraph 19). Mr Tucker accepted that. But I think his submissions on this issue go perilously close to an attempt to reargue the planning merits. The court will not entertain a challenge on that basis. This has been made plain on many occasions. Matters of planning judgment are exclusively for the planning decision-maker, and have nothing to do with the task facing the court in adjudicating on a claim for judicial review. I approach this issue with that caution in mind.
98. When the core strategy policies in question are properly understood I do not think Mr Tucker's argument is tenable. In my view the submissions made by Mr Kimblin and Mr Elvin are accurate, and I accept them.
99. It is necessary to see the policies in their proper context. The core strategy operates at a strategic level. And its policies are meant to be used in a reasonably flexible way. This flexibility can be seen in paragraph 1.5 of the core strategy (see paragraph 65 above). The principle stated there – that if a matter is adequately covered in national policy and guidance the core strategy does not seek to repeat it – is important. It means that the core strategy must be read in the light of relevant national policy and guidance. It also means that the core strategy will remain up to date as national planning policy is changed or refined over time. When the NPPF was published in March 2012 the policies of the core strategy had to be read together with the corresponding provisions of this new "higher level guidance". Under paragraph 1.5 the provisions of the NPPF for decision-making on proposals for retail development became the relevant part of the national policy framework within which the relevant policies of the core strategy, including Policy CS1, Policy CS8 and Policy CS13, were to be applied.
100. This is not to say that the NPPF became part of the development plan – which, of course, it did not – or that it was treated by the Council as if it had. The Council was not advised that the NPPF had the status of the development plan. But, as both officers and members understood, the relevant parts of the NPPF were material considerations to which the Council had to have regard in making its decision, giving them such weight as it thought it should. There is nothing in the officer's report or in the oral advice given by Mr Williams at the committee meeting to suggest any misunderstanding about that.
101. The relevant passages in the NPPF are in paragraphs 24 and 26. I shall come to those two paragraphs in my discussion of the next two main issues. But, in summary, paragraph 24 requires unplanned proposals for retail development on out of centre sites to be subjected to a sequential test, and paragraph 26 requires such proposals to be subjected to impact assessment. These requirements reflect the previous national planning policy in PPS4, which was current when the core strategy was adopted.
102. I do not accept that the Council took its decision to grant planning permission for Hammerson's development without a correct understanding of policy at both local and national level. The relevant provisions of policy were applied in the officer's advice to the committee, against the background of the sequential and impact assessments provided by Quod on behalf of Hammerson and the work undertaken for the Council by Deloitte.
103. The basic strategy for development in the borough is outlined in Policy CS1. That policy adopts a broad sequential approach for the hierarchy of locations it sets out. It requires the decision-maker to consider "the most sustainable locations … ahead of those further down the hierarchy". Paragraph 2.4 expands on this approach, requiring developers to show that proposals for facilities serving more than a local community or neighbourhood cannot be located within or on the edge of Rugby town centre. In very general terms this indicates the need for proposals on sites outside the town centre to be subjected to a sequential test. How this is to be done, however, is not explained. To find the explanation one has to go to the relevant national policy and guidance, as paragraph 1.5 of the core strategy envisages. But the important point here is that the core strategy does not rule out development outside the town centre. It contemplates such development, provided the developer can show that there is no site for it "within or on the edge of the town centre". One must read the following policies of the core strategy and their explanatory text in that light.
104. In this case the Council had before it a proposal for the redevelopment of an existing out of centre retail park within the Rugby urban area, on a site at the second tier of the hierarchy in Policy CS1. The Council's committee was advised that the development could not be accommodated in the town centre. It was advised that the proposal complied with Policy CS1, and with the relevant parts of government policy in the NPPF. I do not believe this can be said to be unreasonable advice.
105. Policy CS8 is a policy of allocation, not a policy of prevention. It does not say that retail development of any scale on sites other than the two allocations it contains should not be permitted during the period of the core strategy. Nor does it displace the approach required in Policy CS1 and paragraph 2.4. It refers to the need for an additional 21,000 square metres of comparison goods floorspace, which had been identified in the Rugby Borough Council Retail and Leisure Study of 2008. It sees the two allocated sites as capable of accommodating that need. It expects an area action plan for the town centre to guide their development. And its explanatory text, in paragraph 4.13, indicates that the area action plan may provide for "further comparison retail development later in the plan period to meet the remaining strategic requirement", which it says "should be focused within or adjoining the Primary Shopping Area". Neither the policy nor the text excludes the basic principles of Policy CS1 and the NPPF for decision-making on retail development proposed outside the town centre. Policy CS8 does not prevent such development being approved if it satisfies the sequential test and if the other requirements of national policy for retail development, including that the development should not harm the town centre, are also met.
106. I do not see how it can be contended that Hammerson's proposal was necessarily in conflict with Policy CS8, or that the Council ought to have come to that view. The proposal had to satisfy the appropriate tests for out of centre retail development, including the sequential test and the several tests entailed in the assessment of its likely impact on the town centre. The Council applied those tests to the proposal and found it acceptable. In doing so it did not ignore the potential effects of the development on investment in the town centre, including investment in schemes for the two sites allocated in Policy CS8. The officer's conclusion, supported by Deloitte and evidently shared by the committee, was that the proposed development would not stifle such investment. Again, I cannot see how any of these conclusions can be impugned in a claim for judicial review. They all fell well within the range of a reasonable planning judgment.
107. A similar analysis applies to Policy CS6. This is a policy for development within or on the edge of Rugby town centre. Hammerson's scheme was not for such development. It was for development on an out of centre site. Policy CS6 did not apply to it. But again, this did not mean that the proposal could avoid the application of the relevant policy tests for such development. It could not and it did not. It was found to be an acceptable out of centre development. Policy at both national and local level allows for that.
108. Policy CS13 applies to proposals for new local services and facilities to meet local needs. Hammerson's proposal was not for development of that kind. The suggestion that the Council was at fault in not finding a conflict with that policy is misconceived.
109. I come now to Mr Tucker's criticism of the advice given to the Council's committee in the officer's report that the core strategy was "silent" on "how retail development proposals outside … the town centre will be judged", and it was therefore necessary to rely on relevant policy in the NPPF. In my view there is nothing in this point. None of the core strategy policies to which I have referred indicates how a proposal for retail development outside Rugby town centre is to be judged. The core strategy has a policy setting a hierarchy of locations for development – Policy CS1. It has a policy for development in the town centre – Policy CS6. It has a policy for development on two allocated sites in the town centre – Policy CS8. And it has a policy for local services and community facilities – Policy CS13. But there is no policy in the core strategy spelling out how proposals for out of centre shopping development will be assessed. As I have said, paragraph 2.4 of the core strategy introduces the basic concept of the sequential test for such development. Beyond this, however, the core strategy has nothing to say about the sequential approach or about the assessment of the likely impacts of proposed out of centre development on the economic health of the town centre. To that extent one can say that the core strategy is silent. This need not be seen as a shortcoming. As paragraph 1.5 makes clear, if a matter is adequately covered in national policy and guidance the core strategy does not repeat what that policy or guidance says (see paragraph 65 above).
110. The way in which the Council applied policy for retail development in the NPPF is the subject of the next two main issues raised by the claim. At this stage I need only say that the advice given to the committee, which it followed, was that the proposal complied with the Government's policy for retail development in the NPPF. The officer expressed his view that neither of the two sites allocated under Policy CS8 was available as a sequentially preferable site for the development proposed, that investment in the town centre would not be compromised by the development, and that there would be no other unacceptable impacts on the town centre. The members agreed.
111. As Mr Kimblin and Mr Elvin submitted, none of the core strategy policies overrides national policy for retail development in the NPPF. None of those policies says that retail needs may not be met on sites outside the town centre within the urban area of Rugby when no sequentially preferable site is available or suitable for development that would meet those needs. If the Council had adopted such a policy in its core strategy it would have created a conflict with national policy. Government policy for the sequential test and for impact assessment starts from the premise that there will be circumstances in which retail development outside town centres can and should be accepted.
112. Whether the sequential test was met in this case, and whether the outcome of the impact assessment was satisfactory, was for the Council's committee to judge. The reasonableness of its conclusions on those two matters is the subject of the next two main issues, and I shall not tackle that question here. On this issue, however, I agree with Mr Kimblin and Mr Elvin that the Council's committee was properly advised on the approach it should take under the relevant provisions of the development plan. It was entitled to conclude that the proposal was not in conflict with any relevant policy in the core strategy, or with government policy for retail development in the NPPF, which augments those policies as "higher level guidance". The members did not, in my view, misconstrue or misapply any relevant policy of the development plan, or of the NPPF. The approach they took to the relevant development plan policies and to the other material considerations bearing on their decision was, I think, right. In my view their performance of the decision-maker's duty under section 38(6) of the 2004 Act cannot be faulted. Their decision to grant planning permission was made in accordance with the development plan, and other material considerations did not indicate a different decision.
113. I therefore reject this ground of the claim.

Issues (3) and (4) – the sequential test and the impact assessment

Government policy and guidance on retail development

114. Under the heading "Ensuring the vitality of town centres" paragraph 23 of the NPPF says that planning policies should "promote competitive town centre environments and set out policies for the management and growth of centres over the plan period".
115. Paragraph 24 maintains the sequential test for proposals for "main town centre uses" outside existing centres when such proposals do not accord with up-to-date development plans. It states:

"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."

116. Paragraph 26 relates to the assessment of the impact of out of centre retail development. It says:

"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 floorspace threshold (if there is no locally set threshold, the default threshold is 2,500 sq m). 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 will not be realised in five years, the impact should also be assessed up to ten years from the time the application is made."

117. Paragraph 27 says that where an application "fails to satisfy the sequential test" or "is likely to have significant adverse impact" on one or more of the factors identified in paragraph 26, it should be refused.
118. In December 2009 the Government published a document entitled "Planning for Town Centres – Practice guidance on need, impact and the sequential approach". The original purpose of this document was to support PPS4. But it was not withdrawn when PPS4 was superseded by the NPPF in March 2012, and was still extant when the Council considered and approved Hammerson's proposal.
119. In its foreword the practice guidance document says that it "does not constitute a statement of Government policy" but is "guidance to help those involved in preparing or reviewing need, impact assessments and sequential site assessments, and to help the interpretation of town centre policies set out in [PPS4]." Paragraph 1.7 says this:

"This practice guidance is not intended to be prescriptive or stifle innovation. Rather, it explains an approach that LPAs could take to develop town centre strategies and identify appropriate sites; the role and scope of need and impact assessments and the key data inputs, and how to use these to help guide and inform policy and decision making."

120. Part 6 of the guidance document is entitled "Sequential site assessments". Paragraph 6.36 refers to the requirement in national policy that "those promoting development, where it is argued that no other sequentially preferable sites are appropriate, … demonstrate why such sites are not practical alternatives in terms of their availability, suitability and viability". The concepts of "availability", "suitability" and "viability" are defined in this way (in paragraph 6.37):

"…

• 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). Where sites become available unexpectedly after receipt of an application, the local planning authority should take this into account in their assessment of the application.

• 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.

• Viability – whether there is a reasonable prospect that development will occur on the site at a particular point in time. Again the importance of demonstrating the viability of alternatives depends in part on the nature of the need and the timescale over which it is to be met."

121. On "Availability" paragraph 6.38 says that a site is "considered available for development, when, on the best information available, there is confidence that there are no insurmountable legal or ownership problems, such as multiple ownerships, ransom strips, tenancies or operational requirements of landowners". It says that consideration should be given to the "ownership of the site, and any evidence of whether the owner(s) of the site appear willing to bring forward the site for development in question within a reasonable timescale (or alternatively the progress made by the authority on site assembly through compulsory purchase where relevant)". Paragraph 6.39 says that "the issue of availability and the sequential approach have to be considered together with the impact of development occurring in edge or out of centre locations, and the long term consequences for town centres". Whether it is appropriate to assess availability "over three to five years, or a longer time period, will depend upon local circumstances". Paragraph 6.40 acknowledges that some major town centre schemes can take 10 to 15 years to deliver, and can require the use of compulsory purchase powers. Paragraph 6.41 says that "[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".
122. As for "Suitability", paragraph 6.42 says that "[when] judging the suitability of a site it is necessary to have a proper understanding of the scale and form of development needed …". Paragraph 6.44 says that "the question of the suitability of alternative sites requires a balanced judgment based on the specific circumstances of the case [and] the site in question". Paragraph 6.45 says that "[those] promoting less central sites should not discount more central locations as unsuitable unless they are able to clearly demonstrate that a development on the site in question would be unable to satisfactorily meet the need/demand their proposal is intended to serve", and that they "should not reject sites based on self imposed requirements or preferences of a single operator, or without demonstrating a serious attempt to overcome any identified constraints".
123. Part 7 of the guidance document is entitled "Assessing impact". One aspect of this is the "Effect on planned investment". Paragraph 7.21 says this:

"In any case, the significance of the proposed development … should be balanced against any adverse effects on planned investment in nearby centres. The policy status of the planned investment, progress made towards securing the investment, and the degree of risk to that investment will all be relevant considerations. Like many aspects of the assessment of impact, the effect of a proposal on planned investment in nearby centres is a subjective matter …".

Several "relevant considerations" are suggested, including what stage the planned investment has reached – for example, whether it is "contractually committed" – whether it is "a key provision of the development plan", whether it is "competing for the same market opportunity", and "whether there is evidence that retailers/investors/developers are concerned …".

124. In the guidance on assessing the effects of new development on the vitality and viability of a town centre paragraph 7.25 says that "where there is a clearly defined strategy to promote the expansion of a centre through new development, the potential impact on operator demand or investor confidence, and the risk to the development plan strategy are likely to be the overriding concerns. …". One of the points made here is that "[any] adverse impact on planned investment is likely to be of particular significance, particularly if it forms part of the development plan strategy".

Quod's Revised Retail Statement

125. Hammerson's application for planning permission was supported by Quod's Retail Statement, dated February 2013. In April 2013 Quod produced their Revised Retail Statement, in which they revised and expanded both the sequential assessment and the impact assessment in the Retail Statement.
126. The sequential assessment in section 5 of the Revised Retail Statement began by referring to relevant government policy and guidance, including paragraph 24 of the NPPF and the Government's practice guidance document on need, impact and the sequential approach. In paragraph 5.21 Quod referred to the two sites allocated in Policy CS8 in the core strategy, both of which they had considered in the sequential assessment. They said:

"… The two edge of centre sites allocated in the Core Strategy represent large complex sites, both of which have existing buildings that are currently occupied. In particular Cemex House on the Evreux Way site comprises an office building of 9 storeys, providing in excess of 3,550m² of office accommodation. The [Rugby Borough Council Retail and Leisure Study] describes the building as "… one of the [centre's] main office buildings with longstanding tenants", and indeed the building continues to be well occupied today. As a result land assembly/ownership and availability is a significant restriction to the site's ability to be fully vacated and redeveloped in a timescale necessary to support the requirements of the proposed development. The Core Strategy and its evidence base document, the [Rugby Borough Council Retail and Leisure Study], acknowledged these difficulties, and they have previously been accepted by the Council in a number of instances, specifically during the determination of the DIY store on the former Tribune Trading Estate in April 2008 and its extension of time in May 2011; the erection of 3 comparison retail units on the former Tribune Trading Estate in November 2011; and the redevelopment of the Tesco foodstore in July 2010".

The conclusion of the sequential assessment, in paragraph 5.22, was that "in applying a flexible approach to the sequential assessment no sequentially preferable alternative sites exist", and that "compliance with the requirements of the sequential approach as set out in the NPPF has been robustly and comprehensively demonstrated".

127. In the impact assessment, in section 6, Quod considered the potential effect of the redeveloped retail park on the chances of the Evreux Way site being developed in accordance with the allocation in Policy CS8. They noted, in paragraph 6.13, that "[in] light of the multiple ownerships of the Evreux Way site and the continued occupation of the Cemex House office building, there are significant complexities in bringing the site forward for redevelopment". The site was "not being "actively progressed" as set out in paragraph 7.17 of the PPS4 Practice Guidance".
128. In paragraph 6.14 Quod said Rugby town centre was "losing out to competing destinations in terms of the main comparison goods retail spend" and "as a result is also losing out on the associated indirect benefits of comparison retail shopping (i.e. spending on other goods and services such as banks and financial services, independent shops, food retail, leisure, food and drink, etc), an element of which will be undertaken in those competing destinations". They went on to say (in paragraph 6.15) that the proposed redevelopment of the retail park would "provide premises to attract national comparison retail tenants", and that "advanced discussions are on-going with Debenhams, as the prospective anchor tenant, and Next". The redeveloped retail park would "therefore encourage a proportion of those individuals who currently leave the catchment area to [undertake] comparison retail purchases, to stay within the Borough". The result of this would be to "retain a greater level of economic spending within Rugby Borough". The retail park, once redeveloped, would "not satisfy an individual's full shopping needs". Rugby town centre might "benefit from the indirect associated retail spending on other goods and services as a result of people being retained within the Borough – instead of the current situation where an element of an individual's associated spending will be undertaken in competing destinations such as Coventry, Leamington Spa or Fosse Park".
129. In paragraph 6.16 Quod said this:

"The retention of a greater level of retail spending in the Borough, combined with the introduction of prominent national retailers such as Debenhams, will increase the profile and investor confidence in Rugby generally, and may in due course assist complex sites such as Evreux Way to come forward. The town centre does not currently have the premises necessary to accommodate such modern retailers, but attracting retailers to the application site is likely to lead to a greater retention of retail spend in the local area, negating the need to undertake long distance journeys to competing centres, which is more sustainable."

And in paragraph 6.18 they concluded:

"Overall, the Evreux Way site has a number of complex land ownerships and site occupier constraints, and thus the site does not appear to be being actively progressed for redevelopment. It is therefore unlikely the site will come forward for redevelopment in the short term, regardless of proposals at EFRP. As a result, the application proposals are not considered to impact on investment at the site."

130. Similar conclusions applied to the North Street site (paragraphs 6.20 to 6.23).
131. Quod concluded that the proposed development would not "detrimentally impact on the vitality and viability of Rugby town centre" (paragraph 6.46), and that it would "significantly benefit, rather than impact upon, local consumer choice" (paragraph 6.53). They provided a detailed analysis of the likely effects on trade in the town centre. They estimated an impact of 6.9% on the town centre's comparison goods turnover (paragraph 6.94). They said this was "within acceptable levels" (paragraph 6.95). They pointed out that this only reflected the impact on comparison goods turnover of the town centre, and that because of the town centre's "strong convenience, service and food/drink role" the impact was "not considered significantly detrimental" (ibid.). The redeveloped retail park would "retain a higher proportion of retail spending within the Borough, and hence provide more opportunities for the town centre to benefit from the associated elements of comparison retail spending, which has not been reflected in the quantitative modelling in this assessment" (ibid.).
132. Quod concluded that the proposal "satisfies the impact test required by paragraph 26 of the NPPF" (paragraph 6.110), and that the development would "not give rise to any significant adverse impacts, and indeed, [would generate] a significant number of benefits" (paragraph 6.112).

Deloitte's advice

133. In their report Deloitte considered the need for additional comparison goods shopping floorspace in the borough. They referred to the Rugby Borough Council Retail and Leisure Study. This, they said, "identifies sufficient available comparison goods expenditure to support a significant amount of new comparison retailing in … Rugby Borough over the period up to 2026" (paragraph 1.21). They said there was "still likely to be a requirement for additional comparison goods retailing within the Borough …" (paragraph 1.22). They acknowledged that the Evreux Way and North Street sites had been identified in the core strategy as "priority locations to accommodate this need" (paragraph 1.24).
134. Deloitte reviewed the sequential assessment undertaken by Quod (paragraphs 1.29 to 1.39). They noted that a total of 47 sites had been considered, 39 of which had been discounted because of their size, the other eight having been assessed in detail (paragraph 1.36). Those eight included the allocated sites at North Street and Evreux Way. Deloitte were "broadly satisfied" with the approach Quod had taken to the assessment of these eight sites, but they deferred to the Council's officers "to confirm their views on availability and suitability given their in-depth local knowledge" (paragraph 1.37). They said they understood that the North Street and Evreux Way sites were "unavailable within the timescales for the proposed development (or some time after) due to complex land ownerships and multiple occupancies" (paragraph 1.38).
135. Deloitte considered Quod's assessment of the likely effects of Hammerson's proposed development on the allocations at North Street and Evreux Way, on Rugby town centre, on local consumer choice, and on comparison goods trading (paragraphs 1.40 to 1.67). They said they were "inclined to share [Quod's] view" that Hammerson's development "will not impact on investment at Evreux Way" (paragraph 1.42). They did not expect the comprehensive redevelopment of the site "in line with the Core Strategy allocation … [to] be realised within the short to medium term by the landowner" (ibid.). They did not think that sites such as Evreux Way would be seen as "compatible with modern retailer requirements, thus rendering the redevelopment of the site for comparison goods retail purposes … unviable for the foreseeable future" (ibid.). They suggested that the Council could "revisit this allocation" in the forthcoming local plan process (paragraphs 1.43 and 1.44). And they said they broadly agreed with Quod that Hammerson's development was "unlikely to undermine or prejudice" the redevelopment of the site at North Street. They doubted that this was a site that "can realistically and viably come forward within a reasonable timescale against a backdrop of sluggish demand for such sites …" (paragraph 1.45).
136. In paragraph 1.47 of their report Deloitte said Quod's assertion that Hammerson's development would "retain retail expenditure currently lost beyond the Borough boundary" was "not without merit". They saw that this could have "positive indirect benefits for the town centre in terms of associated retail spend". They acknowledged that this was "largely speculation and should be treated with caution". However, they advised the Council that "this associated retail spend may serve to increase investor confidence in Rugby and over time assist complex sites such as Evreux Way and North Street to come forward".
137. As for the impact on Rugby town centre's vitality and viability, Deloitte referred to "the notable decline in Rugby Town Centre's market share since 2008 …" (paragraphs 1.28 and 1.51). They said they assumed that this would have had "implications for the health of the town centre, specifically, its vitality and viability" (paragraph 1.51). They said that, contrary to what Quod had asserted, the health of Rugby town centre was "at a tipping point", largely because of "the closure of stores within the centre's primary shopping areas and the declining quality in the overall comparison offer" (paragraph 1.56). They thought the current strategy for the town centre was "not fit for purpose in light of [Hammerson's] proposal" (paragraph 1.57). They said they were concerned about "the town centre's ability to withstand a further decrease in market share as a result of improved out of centre provision such as that proposed at EFRP" (ibid.). They thought that the "flight of additional national multiples to EFRP in the future is not something that [can] easily be controlled via the planning system …" (paragraph 1.59). But they went on to say that if Hammerson's proposal were to be approved, there would be "a considerable opportunity … to address this issue via a refreshed strategy for the town centre which recognises its changing role in the face of shifting consumer behaviour and in conjunction with the substantial investment at EFRP" (ibid.).
138. As to the likely impact on local consumer choice, Deloitte said they "largely [concurred]" with Quod's contention that Hammerson's development would be of significant benefit (paragraph 1.61). They said the presence of a Debenhams store in the development and the availability of "modern-flexible units" at the retail park would "doubtless encourage a number of new entrants to the town, which in the absence of the EFRP refurbishment may not have considered investing in Rugby" (ibid.).
139. On the question of comparison goods trading impacts Deloitte made a number of detailed comments on the work Quod had done. They said they were "not entirely convinced that the 6.9% impact figure anticipated by [Quod] is an accurate reflection of the impacts on town centre trade", largely because Quod had "only tested the impact of the proposal based upon the uplift in retail floorspace that is proposed" (paragraph 1.66). They acknowledged Quod's reasons for taking that approach. The "fallback position", they said, was "a retail park comprising circa 15,640 [square metres] of Class A1 comparison floorspace which could be updated without an increase to retail floorspace". But they said they were "concerned that the assessment did not take into account that the development "in its entirety will substantially enhance the attractiveness of the [retail park]" (ibid.). They therefore suggested a "sensitivity test" to allow for "the uplift in the scheme's turnover as a result of the proposal … " (ibid.).

The advice of the Council's Development Strategy Manager

140. In her memorandum of 10 May 2013 Ms Fisher referred to Quod's response to the report prepared for the Council by Deloitte. She said she was satisfied that "neither the Evreux Way or North Street sites are available sequentially preferable sites for this development proposal" (paragraph 3.6). Quod's sequential assessment had "demonstrated that the Evreux Way and North Street retail allocation sites are not going to deliver comparison retail development in the short to medium term" (paragraph 4.3). This conclusion was supported by Deloitte, who had "explained that they do not expect the delivery of either of these sites for comparison good to be viable in the foreseeable future" (ibid.). Ms Fisher added (in paragraph 4.4):

"I am satisfied that the applicant has demonstrated there will not be a significant adverse impact upon investment within the catchment area as a result of these proposals; more specifically, the North Street and Evreux Way sites are not currently deliverable and this situation is not impacted by the proposed extension of Elliott's Field."

141. Ms Fisher concluded that the impact of the redeveloped retail park on the vitality and viability of the town centre would "not be significantly adverse", and the Council would "continue to develop a new strategy for the town centre that takes account of this change in circumstances" (paragraph 5.1). The impacts had to be "balanced against the potential benefits of the proposal" (paragraph 5.2). An "important benefit" of the development was that it could act against the increasing "leakage of comparison goods expenditure from the Borough" (ibid.).

The officer's advice in the committee report

142. In this report Mr Williams referred to paragraphs 23, 24 and 26 of the NPPF, which he described as "the sections that relate to ensuring the vitality and viability of town centres". He acknowledged that both a sequential and an impact assessment were required for the proposal. He said that the Council's officers "agree with the applicant's assessment that the full impact of this scheme will be realised within five years and the assessment therefore relates to this time frame". He referred to the Government's practice guidance document. And he then set out his advice on the sequential test, the impact assessment, the impact on investment within the catchment area, the impact on town centre vitality and viability and the impact on local consumer choice. On each of those aspects of assessment he found the proposal acceptable.
143. On the sequential test Mr Williams gave this advice in his report:

"The applicant has undertaken a sequential assessment. In assessing the suitability of alternative sites, [the Council] must have regard to the type of development that is being proposed by the applicant and the suitability of a site for this. The NPPF is clear however that the application of the sequential approach requires flexibility from developer, retailers and planning authorities.

A total of 47 alternative sites were assessed to consider whether they were suitable and available to accommodate the proposed development within the required timeframe and whether there were any financial viability constraints present upon these sites. The assessment has been independently reviewed by Deloitte … who, together with officers, are satisfied that the approach taken to the assessment has been sufficiently flexible and that there are no suitable or available sequentially preferable sites within the town centre. None of the alternative sites subject to assessment could accommodate the type and quantum of development proposed within the required timeframe. This includes the two sites allocated for retail uses in the town centre which … have been given specific focus[:] Evreux Way and North Street.

The applicant has argued that due to complex land ownership arrangements and existing active uses on both of these sites they will not become available within the timescales required for this proposal. Independent advice provided by Deloitte … has explained that comprehensive redevelopment of these sites, in line with the allocations made within the Core Strategy, will not be realised within the short to medium term by the land owners of these sites. The sites are not expected to be compatible with the demands of modern retailer requirements and this damages the likelihood of their development in the foreseeable future. Whilst there have been initial expressions of interest relating to the redevelopment of Evreux Way in recent weeks these proposals have not been put forward with the support of the current landowners. Officers remain satisfied that neither the Evreux Way [nor] North Street sites are available sequentially preferable sites for this development proposal.

In accordance with paragraph 26 of the NPPF the applicant has demonstrated that there are no suitable or available sequentially preferable sites that can accommodate the proposed development. If this type of retail development is to take place in Rugby in the short to medium term, it will need to be located outside the town centre."

144. On the impact assessment the first part of the advice in the report was this:

"It is important to highlight the fact that EFRP already has the potential to compete with the town centre. It is an existing retail park which has an open non-food retail use. This means that at present any comparison goods retailer could locate to the retail park if a unit became vacant and this could include any retailer from the town centre or even Debenhams. This existing use will not be lost through the redevelopment as the A1 use stays with the land and not the buildings. The existing site holds 15,640m² of floorspace so it is only the addition of extra 14,035 m² that has to be considered."

145. As to the likely impact on investment in the catchment area Mr Williams told the members:

" …

Both Deloitte … and officers are satisfied that the applicant has demonstrated there will not be a significant adverse impact upon investment within the catchment area as a result of these proposals. More specifically, investment in … North Street and Evreux Way will not be compromised. This is because, at outlined above, these sites are not currently deliverable and this situation is not impacted by the proposed extension of Elliott's Field Retail Park."

146. Dealing with the likely impact on the vitality and viability of the town centre Mr Williams said:

"The Rugby Borough Council Retail and Leisure Study, undertaken by the Council in 2008, identified that at that time significant retail expenditure was lost to other locations outside the Borough. More recent research undertaken by the applicant demonstrates that only a limited proportion of people within the catchment area undertake main comparison goods shopping within Rugby Town Centre; the number of people that leave Rugby has increased since 2008. …

It is anticipated by the applicant that the proposals at EFRP will claw back an element of the comparison retail expenditure lost beyond the catchment. Deloitte … agree that this argument is not without merit. It is therefore argued by the applicant that any trade draw from the Town Centre will not have a significantly adverse impact given the limited proportion of people that undertake such shopping activities in the town centre.

The applicant has concluded that the proposed development will result in an impact figure of between 6.9% and 8% on town centre trade. Deloitte … has confirmed that the methodology utilised is satisfactory and officers are therefore satisfied that the impact upon comparison trade in the town centre has been appropriately tested. It has been demonstrated therefore that whilst there will be trade draw from the town centre there will not be a significantly adverse impact upon town centre comparison trade as a result of these proposals.

Deloitte … have advised that there is reason to be concerned about the impact upon town centre vitality and viability but have referred to the significant opportunities available to the Council to recognise the changing role of the town centre and revise its town centre policies as part of the emerging Local Plan. Whilst this can only be given very limited weight as part of this decision making process it is a point that is worthy of note.

It is inevitable that the proposals for development at EFRP will have an impact on the vitality and viability of Rugby town centre. However, given the reduction in the number of people that use Rugby Town Centre to meet their needs for comparison shopping and the fact that retailers and shoppers have moved away from the town centre in any event, it is not considered that this impact will be significantly adverse."

147. Finally, as to the likely impact on local consumer choice, Mr Williams said that the proposed development and "the introduction of Debenhams in Rugby" would "undoubtedly have a positive impact upon consumer choice". He said:

"The proposed development at Elliott's Field and the introduction of Debenhams in Rugby would undoubtedly have a positive impact upon consumer choice. A department store does not exist in the Borough at present and … it is unlikely that this type of development would come forward on allocated sites within the town centre in [the] short to medium term, The refurbishment and redevelopment of other units on EFRP is also likely to attract retailers that have previously not been present in the Borough.

These positive impacts upon local consumer choice must be balanced against the potential for retailers that are currently located within the town centre to relocate to EFRP. However in recent months two long standing occupants of the town centre, Wallis and Evans, have left and relocated to the Warwickshire Retail Park which is located outside the Borough.

… [The] applicant places a lot of emphasis upon the potential of the proposed development to claw back expenditure that is currently leaking from the Borough to other locations such as Coventry, Leamington Spa, Leicester and Fosse Park. Whilst some current occupiers of units in the town centre may relocate to Elliott's Field the continuing loss of retailers from the Borough [altogether] would have a negative impact upon consumer choice and perpetuate the leaking of expenditure from Rugby.

On balance, it is considered that the proposed development will have a positive impact upon local consumer choice."

148. In his "Conclusion" Mr Williams said that, in his view, the development was "not anticipated to have a significant adverse impact particularly when considered with [its] positive benefits".

Quod's letter of 9 May 2013

149. In a letter dated 9 May 2013 Quod responded to the observations made by Deloitte in their report, and the points made on behalf of CBRE Lionbrook by ID Planning.
150. Dealing first with the sequential assessment, Quod pointed out that Hammerson's "contractual position" with the "anchor tenant" for the redeveloped retail park "requires the unit to be handed over in late 2014/early 2015" and that this "dictates the build programme of the proposed development". In the circumstances the timescale assumed for the delivery of the development was "reasonable". Quod went on to say, in the light of the Government's practice guidance, that the proposal for the Evreux Way site "has not been progressed for a considerable period", that one could not be confident that "the ownership constraints of the site" could be overcome, and that it was not clear that the owners were willing to bring the site forward for development. The sequential assessment had to be undertaken in the "real world" and, that in the circumstances, it was clear that the Evreux Way site "is not an alternative to the application site."
151. As for the likely impact of the redeveloped retail park on the vitality and viability of Rugby town centre, Quod explained the sensitivity test they had now applied:

"It would not be appropriate to consider the turnover of the proposal in its entirety as this approach would ignore the fact that EFRP exists as a primarily open non-food retail facility that influences the market share characteristics of the catchment area. However, as a sensitivity test we have increased the uplift in turnover of the proposed development at 2018 by 10% to £48.4m and by 20% to £52.8m. Applying the same market share apportionments utilised in the Revised Retail Statement this would increase the forecast trade draw from Rugby town centre to £9.7m and £10.5m, which would increase the level of comparison goods impact against the estimated turnover of the town centre to 7.4% or 8.0% respectively. This results in [a] worst case set of assumptions, including that all mezzanine space is utilised (which may not all … be required subject to operator requirements), and the fact that the recently published Mintel Report (2013) forecasts reduced benchmark turnover rates to those set out in the 2012 report that were utilised in the Revised Retail Statement."

Quod stressed that the retail park was "an existing non-food retail facility offering a range of bulky and non bulky comparison retail goods". They said it was therefore "appropriate to consider the net increase in turnover as a result of the proposals". Then they said this:

"However, applying the above sensitivity test has shown that assuming an increase in the turnover uplift of 10% (£4.4m) and 20% ([£]8.8m) the level of impact increases to 7.4% and 8% respectively based on a series of worst case assumptions which in reality are unlikely to materialise. This impact needs to be considered in the context of the town [centre] as a whole, as the assessment only reflects the comparison turnover of the centre – Rugby has a strong convenience, service and restaurant/café role, and thus when viewed in the context of the town centre as a whole the impact is not considered to be significantly adverse."

The redeveloped retail park would "primarily claw back an element of the comparison retail expenditure lost beyond the catchment area to other town centres or retail destinations …". It would therefore "retain a higher proportion of retail spending within the Borough". Unless the development went ahead "this would not occur and the leakage of expenditure to surrounding destinations would continue". The opportunities the development would provide "for the town centre to benefit from the associated elements of comparison goods spending" had not been considered in the quantitative assessment.

152. Quod's conclusion was this:

"Overall, even after applying a sensitivity test on the development turnover, the proposal is not anticipated to have a significant adverse impact, particularly when considered in the context of the forthcoming revised town centre strategy and the positive benefits arising from the proposals …"

The officer's advice at the committee meeting

153. In his oral advice at the committee meeting Mr Williams pointed out that Deloitte had themselves raised some of the points mentioned by objectors. These had been dealt with by Quod, and had been taken into account in the preparation of the committee report. One of them was the "sensitivity test which concluded that the trade draw from the town centre will be between 6.9% and 8% …".
154. Having reconsidered his advice on the sequential assessment in the light of the representations made by Red Property Services on 20 May 2013, Mr Williams amplified it in this way:

"Both the Core Strategy and the NPPF set a sequential test for retail development. In undertaking that assessment, it is important to understand the nature of the application proposals and what they are trying to achieve.

A total of 47 alternative sites were assessed to consider whether they are suitable, available and deliverable to accommodate the proposed development within the required timeframe.

In this case, the proposals respond to an acknowledged and evidenced outflow of expenditure from Rugby. The Council's consultants Deloitte agree that a critical mass of retailing is necessary to claw back expenditure to Rugby and to secure the commitment of an anchor tenant[. So] in this context would the alternative sites be large enough to provide that critical mass, sufficiently attractive to the market and available within a reasonable period of time?

It is in this context that Deloitte have advised on the suitability of the allocated town centre sites. The advice to the Council is that they do not expect those sites to be compatible with the demands of modern retailer requirements or to be developed within a suitable timescale to be sequentially preferable to the application site.

Referring to the representations from Red Property Services consideration has been given to their points raised [sic] but there is nothing which causes officers to doubt the advice given by Deloitte.

In accordance with paragraph 26 of the NPPF the applicant has demonstrated that there are no suitable or available sequentially preferable sites that can accommodate the proposed development. If this type of retail development is to take place in rugby in the short to medium term, it will need to be located outside the town centre."

155. Turning to the likely impact of the redeveloped retail park on the town centre's vitality and viability, Mr Williams said the committee report had been "finalised … taking full account of the advice from Deloitte …". He added this to the advice given in the report on the impact on the vitality and viability of the town centre:

"Deloitte do advise that there are reasons to be concerned about the vitality and viability of the town centre, particularly in the light of its apparently declining share of spending. However, they advise that this is a product of wider changes in consumer behaviour, the relatively limited nature of the comparison goods offer in the town compared to higher order competitors and the absence of any real prospect of large scale comparison goods development in the short to medium term. They suggest that, if the application is approved, there would be considerable opportunity to address the issue of a revised town centre strategy which recognises its changing role as part of the local plan process.

Deloitte also advise "it is not without merit Quod's assertion that the EFRP proposal will retain retail expenditure currently lost beyond the Borough boundary as this may have positive indirect benefits for the town centre in terms of associated retail spend. Whilst this statement is largely speculation and should be treated with caution, this associated retail spend may serve to increase investor confidence in Rugby and over time assist complex sites such as Evreux Way and North Street to come forward."

156. Mr Williams reiterated his advice in the committee report that the development would have a "positive impact upon local consumer choice".
157. His conclusion, as in the report, was that the development was "not anticipated to have a significant adverse impact" on the town centre.

Submissions on the sequential test

158. Mr Tucker submitted:

(1) Government policy for the sequential approach in paragraph 24 of the NPPF and the advice given in the practice guidance document require flexibility, and acknowledge that development on town centre sites may take longer to come forward than development elsewhere. Developers cannot dismiss sites more central than theirs on the basis of self-imposed requirements or preferences.

(2) The Evreux Way site is sequentially preferable to Elliott's Field Retail Park. It could take much of the comparison goods retail development needed in the core strategy period, including a department store. But it was dismissed as a sequentially preferable site because it could not accommodate Hammerson's proposed development within the required timescale. The required timescale was self-serving, imposed by Hammerson to suit themselves – though even their proposal might fail to meet it. And it was also inappropriate, given that most of the identified need was not going to arise until later in the core strategy period.

(3) The Council failed to apply the sequential approach consistently with its own strategy for retail development in the borough. The Evreux Way site had emerged from the core strategy process as a suitable town centre allocation as recently as 2011. It could hardly now be said to be unsuitable for modern retailers. And it ought not to have been dismissed because of the perceived complexities of its ownership. Both landowners – Cemex and Avenbury – had said they were willing to bring the site forward for development. If there had been any difficulty the Council could have used compulsory purchase.

159. Mr Kimblin and Mr Elvin submitted:

(1) The application of the sequential test will always involve a planning judgment for the decision-maker. This is clear both in the NPPF and in the government's practice guidance document.

(2) The context in which the sequential assessment had to be applied in this case was the problem identified in the Rugby Borough Council Retail and Leisure Study, and by Deloitte – the loss of retail spending from the borough of Rugby to shopping facilities elsewhere. The Council saw that something needed to be done about this, and that it needed to be done soon.

(3) The Council's judgment in applying the sequential test in that context was a reasonable one. It accepted the approach taken on behalf of Hammerson by Quod. It did not do so uncritically. It had the benefit of Deloitte's independent view. An important factor in the judgment it made was the timescale for the delivery of Hammerson's development, and its ability to reduce the loss of retail spending from the borough without delay. The period set by the Council for the sequential test was not a developer's "self-imposed" requirement for a particular form of retail development. It was an appropriate period for the assessment of other sites' availability to meet an identified need. And the Council's judgment on the availability of the Evreux Way site in the relevant period was entirely reasonable. It was supported in Deloitte's advice. The Council could reasonably conclude that the redevelopment of the retail park could be delivered within that period, that there was no available sequentially preferable site, and, therefore, that Hammerson's proposal passed the sequential test.

Submissions on the impact assessment

160. Mr Tucker submitted:

(1) When considering the likely impact of the redeveloped retail park on the town centre, the Council did not apply the relevant policy and guidance as it should have done in the circumstances of this case. And its conclusions were not rational. The officers' advice that the vitality and viability of the town centre would not be "significantly adverse", which the committee accepted, was irrational. The Council failed to understand the advice it was given by Deloitte. It failed to see that by absorbing the capacity identified in the local plan, which the allocated sites were supposed to take up, the proposed development would harm investment in the town centre. It failed to consider the effects on retailers trading in the town centre. And it failed to consider the implications of the development for the Council's recently adopted strategy for the town centre. Far from mitigating the effects of retailers leaving the town centre, which both the Council's officers and Deloitte recognized, the development would worsen those effects.

(2) The likely effect of the development on the town centre was not acknowledged by the Council's committee when it was considering Hammerson's proposal, but it was apparent in the decision of the Council's Cabinet on 3 June 2013 to adopt the Local Plan Discussion Document, which contemplated an entirely new strategy for the town centre and the removal of the allocations for the Evreux Way site and the North Street site.

161. Mr Kimblin and Mr Elvin submitted:

(1) Again, the Council's approach was reasonable and its conclusion rational. The committee was entitled to rely on the analysis presented by Quod, which had been reviewed by Deloitte and refined with a sensitivity analysis. Deloitte supported the conclusions of Quod. Once Quod had applied the sensitivity test there were no outstanding issues that needed to be dealt with. The officers did not misrepresent Deloitte's advice. The advice given to the members on the likely effects of the development on the town centre is unimpeachable.

(2) The Council's approach to the assessment of impact was consistent with its approach to the sequential assessment. It could reasonably conclude that a development on the Evreux Way site was "not currently deliverable", as the officer advised. It was therefore reasonable to conclude that there were no unacceptable potential effects upon investment in that site, and that the approval of Hammerson's proposal would accord with the advice on this question in section 7 of the Government's practice guidance document.

(3) The Local Plan Discussion Document, which the Council's Cabinet decided to publish for consultation at its meeting on 3 June 2013, did not rely on Hammerson's proposal as the justification for a new strategic policy for Rugby town centre and for the reconsideration of the allocations in core strategy Policy CS8. And in any event the Cabinet's decision was consistent with the committee's conclusion that the likely effects of the development on the town centre and on future investment in it did not justify the refusal of planning permission.

Discussion

162. As all three counsel agreed, these two issues are best taken together.
163. I cannot accept Mr Tucker's argument on either of them. I think it tempts the court to venture into the planning merits, which is not something the court will do. And it falls well short of establishing any error of law.
164. The sequential test, which now appears in paragraph 24 of the NPPF, is not new. It has been an essential part of government policy for retail development for a long time. The sequence is familiar: town centres first, edge of centre sites second, and out of centre sites third. Out of centre sites can be considered only if "suitable sites" in the town centre or on the edge of a centre are "not available". Suitability and availability are matters of planning judgment. They are not matters on which the court will substitute its own view for that of the decision-maker. The decision-maker's exercise of judgment upon them will not be vulnerable to challenge except on Wednesbury grounds.
165. As Mr Kimblin and Mr Elvin submitted, the Government's practice guidance document is not prescriptive in what it says about the sequential test, or in what it says about assessing the effects of development on town centres and planned or potential investment in them. In publishing that guidance the Government did not intend to impose on local planning authorities a uniform and inflexible approach. In Telford and Wrekin Borough Council v Secretary of State for Communities and Local Government [2013] EWHC 1638 (Admin), Turner J. said (in paragraph 20 of his judgment) that a local planning authority is not expected to interpret the guidance in "a rigid, mechanistic fashion". I agree. As Turner J. went on to say (at paragraph 35), the guidance "informs the process but does not dictate the result".
166. This leaves Mr Tucker with a difficult task, as I think he acknowledged.
167. Because Hammerson's proposal was for the redevelopment of a site outside the town centre, the crucial question for the Council in applying the sequential test was whether there were sites in or on the edge of the town centre that were both suitable and available for comparison goods shopping development of an appropriate kind and scale. If such a site was both suitable and available, it would have priority over the application site. But if the only suitable sites were unavailable, or the only available sites unsuitable, that would not be so.
168. In my view the Council applied the sequential test correctly.
169. As is plain in the committee report, an important factor bearing on the sequential approach in this case was the need to stem the leakage of retail spending to shopping facilities outside the borough of Rugby. The Rugby Borough Council's Retail and Leisure Study of 2008 had referred to this as a significant concern even then. The problem had apparently got worse. Two major retailers who had long been in Rugby town centre, Wallis and Evans, had left and gone to the Warwickshire Retail Park, which is in another borough. A benefit of Hammerson's proposed development was that it would attract some of the expenditure that was going elsewhere. Deloitte seem to have accepted this. And the Council's officers obviously did. The point stands out in the advice they gave to the members.
170. This concern about the loss of retail spending from the borough and the need to get it back lent a degree of urgency to the Council's application of the sequential test in this case. The officer recognized that Hammerson's development would have its full effect on retail spending within five years. He had this in mind when he spoke of "the required timeframe" for the availability of other sites. Contrary to Mr Tucker's submission, this was not to accede to Hammerson's "self-imposed requirements or preferences". As Mr Elvin pointed out, that concept is referred to in paragraph 6.45 of the practice guidance document in the advice given there on the suitability of alternative sites – as opposed to the appropriate timescale within which to assess the availability of such sites. The context in which it is used is the need for the developer to show flexibility in the scale and form of his development.
171. The appropriate timescale for the sequential test was for the Council to judge. It was not dictated by any relevant statement of policy or guidance – in the development plan, in the NPPF, or in the practice guidance document. In the advice it gives in paragraph 6.37 on the availability of alternative sites and the viability of development upon them the guidance document reminds authorities to think about the urgency of the need the proposal is intended to meet. Paragraph 6.39 leaves it to the authority to decide over what period the availability of sites should be assessed. A normal timescale seems to be "three to five years". But whether it is this or some longer period will depend on "local circumstances". The guidance does not fix it. And paragraph 6.40 refers to the very much longer time that some major town centre schemes can take to deliver (see paragraph 123 above).
172. In this case the Council took a period of five years as the basis for its assessment. This was the period within which the redeveloped retail park was expected to act against the leakage of retail spending from the borough. The Council was entitled to take the view that this was a pressing need, which Hammerson's proposal could address and no other development on a more central site could. It did not ignore the possibility that development might eventually come forward on the allocated sites at Evreux Way and North Street. It knew that CBRE Lionbrook had objected to Hammerson's proposal on the grounds that the Evreux Way site was suitable and available and could be viably developed. But it concluded, as the officer advised, that neither of the two allocated sites was capable of being developed soon enough to be regarded as an "available sequentially preferable" site.
173. There is no error of law in that conclusion. It does not go against the preference in national planning policy for new retail development to be put on a town centre or edge of centre site if such a site is both suitable and available. Nor is it inconsistent with the allocation of the Evreux Way and North Street sites in Policy CS8. It shows the pragmatism called for in the application of the sequential test in paragraph 24 of the NPPF, and apparent also in the Government's practice guidance. The Council did not merely look at the location of the other sites it considered and their suitability for development. It looked also at the possibility of those sites being available within a reasonable period – the period of five years. This was consistent with the practice guidance. The Council did this to ensure that the need to bring back retail spending to shopping facilities in the borough of Rugby would be met as soon as it could be. This did not mean that it was ignoring or abandoning its allocations in Policy CS8. Those allocations stood.
174. In the committee report and in his remarks at the meeting the officer referred to the 47 other sites that had been considered in the sequential test. He did not simply accept the conclusions reached by Quod. He came to his own view. That view was supported by Deloitte. The officer focused on both the suitability and availability of alternative sites. In doing so, he recognized the need for flexibility. He saw that any potentially suitable site would have to be available within a reasonable time and free from constraints that might prevent development going ahead. His advice was that none of the sites raised as hypothetical alternatives to the retail park "could accommodate the type and quantum of development proposed within the required timeframe". He specifically included in this advice the two sites allocated under Policy CS8.
175. In his report the officer mentioned three reasons for rejecting those two sites as "available sequentially preferable sites": first, that the landownership of each site was "complex" and that there were "active uses" on both, which would prevent their being available as soon as was necessary; secondly, therefore, that the owners of these sites would not be able to achieve the "comprehensive redevelopment" for which they had been allocated in "the short to medium term"; and thirdly, that they might prove unattractive to retailers and, if so, this could mean that they would not be developed "in the foreseeable future". The officer noted in the report that the there had been "recent expressions of interest" in the Evreux Way site, but he was sceptical about them because at that stage they did not seem to have the backing of the landowners themselves.
176. When the committee met both the officers and the members were aware that the three landowners whose land would have to be assembled if the Evreux Way site was to be redeveloped were intending to pursue a scheme for that site. Red Property Services' representations on behalf of CBRE Lionbrook had made this clear (see paragraphs 82 and 84 above). But this did not mean the committee had to accept that the Evreux Way site would developed soon enough to meet the need identified by Quod and acknowledged both by the officers and by Deloitte. In his oral advice to the committee Mr Williams referred to the representations that had been made by Red Property Services. But he stuck to the crucial point, with which Deloitte had agreed, that the Council could not expect either of the allocated sites to be "developed within a suitable timescale to be sequentially preferable to the application site".
177. I do not accept that that judgment was based on a misunderstanding of the relevant facts, or that it was irrational. I cannot see how it can be said to have been unreasonable for the members to accept the advice they received, both from the officers and from Deloitte that the relevant need could only be met as soon as it had to be met through the proposed redevelopment of the retail park. The committee did not have to accept the representations made on behalf of CBRE Lionbrook urging it to refuse planning permission and await the arrival of a scheme at Evreux Way. It was entitled to conclude, as plainly it did, that the loss of retail spending from the borough and the risk of harm to investment in shopping facilities within it ought to be faced and dealt with now.
178. The relevant facts are clear. They are set out in the evidence of Mr Thomas Cochrane, an Asset and Development Manager employed by Hammerson, in his witness statement of 14 November 2013. At the time of the Council's grant of planning permission for Hammerson's proposal the ownership of the Evreux Way site was split. Part of it was owned by Cemex, and the rest by Avenbury. CBRE Lionbrook had no legal or equitable interest in it. The part of it owned by Cemex had a large office building on it – Cemex House – which was still occupied and in use. No application for planning permission had been submitted. There was, apparently, no development agreement in place between the parties who held interests in the site. No likely tenants for a scheme of the kind envisaged in Policy CS8 had been mentioned to the Council. No "anchor tenant" for the department store had been secured. Debenhams were already committed to Hammerson's development. There was no indication that any of the tenants who might take up the new units on the retail park were interested in the floorspace that might one day be provided in a shopping development at Evreux Way. In these circumstances it was hardly surprising that when it made its decision on Hammerson's application the Council should doubt the feasibility of any retail development on the Evreux Way site for the foreseeable future. There was nothing to show that such a proposal was likely to be both viable and deliverable within a reasonable time.
179. Was the Council's sequential assessment contrary to any relevant policy or guidance? I think not. It was in line with the approach indicated in the NPPF and in the Government's practice guidance document, an approach sensitive to the local circumstances in which the national policy for retail development falls to be applied in a particular case.
180. In short, I can find nothing unlawful in the Council's application of the sequential test in this case.
181. Ground 3 of the claim therefore fails.
182. I turn now to Mr Tucker's submissions on ground 4, which concern the Council's consideration of the effects the proposed development was likely to have on Rugby town centre.
183. There are three complaints here. The first is that the Council assessed the impact of the proposed development on the wrong basis, taking into account only the net increase in retail floorspace rather than the total amount of floorspace that would result. The second is that the Council went wrong in its consideration of the likely impact of the development on planned or potential investment in Rugby town centre. The third is that the Council misunderstood or misapplied the advice it was given by Deloitte.
184. I do not think any of those points is sound. I accept what Mr Kimblin and Mr Elvin said about them.
185. The first point seems to lie well beyond the scope of a claim for judicial review. The proposal the Council had before it was not for the creation of retail development on a site where there was none. It was for the redevelopment of an existing retail park to provide a substantial increase in the floorspace on the site. The existing retail park has about 15,600 square metres of Class A1. The proposed development would add about 14,000 square metres, much of which would be in the form of mezzanine floors inserted into existing shops. The Council's decision did not present it with a choice between a retail park of the size proposed and a vacant site with no active retail development upon it. There was no suggestion, either by Hammerson or by anybody else, that if planning permission was refused the existing retail park would fail, or that some other proposal for development of a different kind, such as housing or offices, would be pursued.
186. In the advice they gave the Council Deloitte acknowledged that the retail park in its existing configuration, with its existing amount of Class A1 floorspace, would continue to trade if the proposed redevelopment was rejected. They said as much in paragraph 1.66 of their report (see paragraph 141 above). They therefore accepted that the impact assessment should start with that assumption. However, they did not ignore the possibility that the development would both increase the amount of retail floorspace on the site and make the retail park more attractive as a destination for comparison goods shopping. It was because they had recognized this that they prompted Quod to undertake a sensitivity test. The way in which Quod did that, which was endorsed by Deloitte, was to assume an increase in the rate of turnover of between 10% and 20% for the existing floorspace. This was to allow for the greater commercial strength of retailers occupying the new shops created by the development. When this increase in turnover was brought into the impact assessment the conclusion was still that the effects of the redeveloped retail park on the town centre would be acceptable.
187. As Mr Elvin pointed out, Quod did not make any reduction for the likely lower rate of turnover in the mezzanine floorspace. Had the assessment been refined in that way, he submitted, the estimated levels of impact would necessarily have been lower. This may well be right. But I am not reviewing the technique for impact assessment adopted by Quod, only the decision taken by the Council in the light of that assessment. The relevance of the point is simply this. It supports the view that the impact assessment on which the officers and the members based their own conclusions, with the benefit of the expert view given them by Deloitte, was plainly robust.
188. In their letter to the Council of 9 May 2013 Quod answered each of the points raised by Deloitte (see paragraphs 151 to 154 above). And this response was taken into account by the officer in his final advice to the members, in which he concluded, as he had done in his report, that the development would not have a "significant adverse impact" on the town centre (see paragraph 159 above).
189. I do not think it is possible to regard the advice the members were given on the impact assessment as unreasonable. Both the assessment and the advice were rational and intelligible, and the members were thus able to reach, and did, a legally sound conclusion.
190. The second complaint, which concerns the advice given to the members on the effect the development might have on investment in the town centre, is based on the concern that the members were misled into thinking that the Evreux Way site was not "currently deliverable", when in fact it was. Because they were misled into thinking this, it is said, they failed to grapple with the possible effects of the proposed development on what might otherwise be a viable development on that site.
191. The answer to this point, in my view, is the same as it was for the sequential test. The officers did not accept that the Evreux Way site was available to meet the need they had identified for a large amount of new comparison goods shopping floorspace to be provided in Rugby to stem the loss of spending on comparison goods from the borough. CBRE Lionbrook was seeking to impress on the Council that, together with the other two owners of the land and buildings making up the Evreux Way site, it was going to put forward a scheme. The officers knew this. But they also knew that the scheme itself was inchoate, the commitment to invest in it uncertain, the source of its funding unclear, and the date when it might become a real proposal unknown. They could reasonably conclude, and so could the members, that the spectre of delay or prejudice to that future project did not justify the refusal of permission for the redevelopment of the retail park, which was funded and ready to go ahead.
192. Mr Elvin submitted that the only reasonable conclusion open to the Council in these circumstances was that there would be no significant impact on planned investment in the town centre. I do not have to go that far. Mr Elvin may be right. But I need only conclude that the advice given to the members on this point and the conclusions they reached in the light of that advice were reasonable. And that is my view.
193. The third complaint is that the officer's report was misleading in its treatment of the advice given by Deloitte about the likely impact of the redeveloped retail park on comparison goods trading in the town centre and on the town centre as a whole.
194. I cannot accept that. Deloitte did not contest the methodology used by Quod in examining patterns of comparison goods spending and identifying the impact of the redeveloped retail park on comparison goods trade in the town centre. In his report to committee Mr Williams told the members this, and said that the Council's officers were therefore satisfied that the impact on comparison goods trade in the town centre had been "appropriately tested". Though trade would be drawn from the town centre to the retail park, Quod had shown that there would "not be a significantly adverse impact upon the town centre comparison trade …". The officer accepted that some occupiers of shops in the town centre might leave the town centre and go to the retail park. But they balanced this against the problem of the "continuing loss of retailers" from the borough and the need for something to be done to encourage them to stay. The "continuing loss of retailers" was seen as harmful to "consumer choice" and likely to "perpetuate the leakage of expenditure from Rugby" (see paragraph 149 above). Mr Williams made this point again when he addressed the members at the meeting (see paragraph 157 above).
195. It cannot be said, therefore, that the officers overlooked the risk of retailers leaving the town centre to come to the retail park. They acknowledged it. Both they and the members would have been well aware of the economic health of the town centre and how well it was likely to compete with new retail development elsewhere. In the committee report, and again in the advice he gave at the meeting, Mr Williams referred to the changes that were occurring in the town centre and the opportunity to create a new strategy for it in the forthcoming local plan process (see paragraphs 146 and 155 above).
196. I see nothing legally wrong with the advice given to the members on the impact assessment, or with the conclusions they reached. Assessing the likely implications of major new retail development on an out of centre site for the town centre closest to it will always be largely a matter of judgment. That judgment will usually be informed by forecast levels of trade draw and turnover based on available data and sensible assumptions. In this case the Council's committee made a series of planning judgments on each aspect of the impact assessment. The members came to their own conclusions on the effects the redeveloped retail park would have on Rugby town centre, on the existing strategy for it and on future investment in it. They did so with the benefit of the impact assessment presented on behalf of Hammerson by Quod, including the sensitivity test, Deloitte's review of that work, the carefully structured advice of the officers, and their own knowledge of the existing retail facilities in the borough and the need for those facilities to be enhanced. The committee was well able to make a reasonable judgment on every aspect of the impact assessment. And in my view it did so.
197. I also reject the submissions made by Mr Tucker about the decision of the Council's Cabinet on 3 June 2013 to canvass a new strategy for the town centre when it published the Local Plan Discussion Document. Mr Tucker suggested that this decision showed the Cabinet could see the effects Hammerson's development was likely to have on the allocations in Policy CS8 of the core strategy, whereas the Planning Committee did not.
198. I disagree. As Mr Kimblin and Mr Elvin submitted, the advice given to the Cabinet matched the advice given to the committee when it determined the application for planning permission. The committee was aware that a new strategy for the town centre might emerge in the forthcoming local plan process. But it was not making a decision on that. It was determining an application for planning permission. It made its decision on the merits of that application on the basis of the Council's policies for retail development, and for the town centre, as they were in the core strategy, and not as they might become once the local plan was adopted. The officer's report on Hammerson's proposal referred to the comment made by Deloitte that there might be "significant opportunities available to the Council to recognise the changing role of the town centre and revise its town centre policies as part of the emerging Local Plan", but said this could only be given "very limited weight as part of this decision making process …". The Cabinet's decision in the sphere of plan-making was, as I see it, entirely consistent with the committee's in the sphere of development control. The Cabinet did not question the committee's conclusion in the development control process that the likely effects of Hammerson's development on the town centre and on future investment in it did not justify the refusal of planning permission. There was no inconsistency, and no error of law.
199. For the reasons I have given ground 4 of the claim must fail.

Issue (5) – alleged unlawful failure to reconsider the application

Relevant principles of law

200. In several cases, and on widely differing facts, the Court of Appeal has considered the circumstances in which a local planning authority that has resolved to approve a proposed development ought to reconsider its decision in the light of some new factor that might affect the decision it has made. In Kides v South Cambridgeshire District Council [2002] 1 P. & C.R. 19 Jonathan Parker L.J. said (at paragraph 126 of his judgment):

"In practical terms … where since the passing of the resolution some new factor has arisen of which the delegated officer is aware, and which might rationally be regarded as a "material consideration" for the purposes of section 70(2), it must be a counsel of prudence for the delegated officer to err on the side of caution and refer the application back to the authority for specific reconsideration in the light of that new factor. In such circumstances the delegated officer can only safely proceed to issue the decision notice if he is satisfied (a) that the authority is aware of the new factor, (b) that it has considered it with the application in mind, and (c) that on a reconsideration the authority would reach (not might reach) the same decision."

Jonathan Parker L.J. said (at paragraph 121) that a consideration is ""material" in this context" if it is a factor that "when placed in the decision-maker's scales, would tip the balance to some extent, one way or the other", and that "has some weight in the decision-making process, although plainly it may not be determinative". The guiding principle has been expressed in various ways and applied in various circumstances, for example, in R. (on the application of Dry) v West Oxfordshire District Council [2010] EWCA Civ 1143 (in the judgment of Carnwath L.J., as he then was, at paragraph 20), in R. (on the application of Hinds) v Blackpool Borough Council [2012] J.P.L. 1365 (in the judgment of Pitchford L.J. at paragraph 45), and in R. (on the application of Watson) v Richmond upon Thames London Borough Council [2013] EWCA Civ 513 (in the judgment of Richards L.J. at paragraphs 28, 39 and 40). In Dry Carnwath L.J. said this (at paragraph 16):

"Without seeking to detract from the authority of the guidance in Kides, I would emphasise that it is only guidance as to what is advisable, "erring on the side of caution". … The guidance must be applied with common sense, and with regard to the facts of the particular case".

The Cabinet's decision of 3 June 2013

201. In her witness statement of 11 November 2013 Ms Fisher deals with the suggestion that the Council ought to have reconsidered its decision to grant planning permission for Hammerson's proposal in the light of the Cabinet's decision of 3 June 2013. She says this:

"105. I … do not consider that the Cabinet Report of the 3^rd June 2013 relating to the Local Plan Discussion Document and its approval for public consultation constitutes a new material matter. The Cabinet Report was the result of a plan making process that was entirely separate to the determination of the EFRP planning application. This report indicates the intentions of the Council to amend local level planning policy, subject to the responses received following public consultation. The existence of the Local Plan Discussion Document will not be material in every case but was worthy of note as part of this application. The application was determined in accordance with the Development Plan applicable at the time and it would not be correct for that decision to give weight to emerging Local Plan policy that is at the very early stages of the plan making process. It is for this reason that the report to the Planning Committee states that whilst the opportunity presented by the Local Plan is worthy of note, it could only be given limited weight as part of the decision making process.

106. It is my view that the publication of this Cabinet Report does not constitute a material change in circumstances that required further consideration as part of the determination of the EFRP application. If this had constituted a material change I am not of the view that, when considered against the decision made by the Planning Committee, it is a change that is so material it would have altered that decision."

CBRE Lionbrook's request for a call-in

202. On 10 June 2013 CBRE Lionbrook's solicitors wrote to the National Planning Casework Unit requesting the Secretary of State to call in Hammerson's application for his own determination. One of the assertions they made was that the proposal was in conflict with Government policy in the NPPF and with the policies for retail development in the core strategy. They said the Council's officers had ignored what the Government's practice guidance document says about the availability of sites considered in a sequential assessment. They pointed out that CBRE Lionbrook "has in any event confirmed its intention and willingness to bring forward the Evreux Way Development". They then said this:

"On any interpretation or application, the site at Evreux Way meets this test of "availability" and [the Council's and Hammerson's] position is not robust or justified. [The Council's] approach puts the test too high and has effectively called time on the [core strategy] allocation within 24 months of its adoption. There is no coverage or mention by Officers of discussions that have taken place with representatives of [CBRE Lionbrook] in relation to its proposals for Evreux Way."

203. On 18 June 2013 the National Planning Casework Unit replied to CBRE Lionbrook's solicitors, telling them that the Secretary of State was going not to call in Hammerson's application. It said that the Secretary of State had "carefully considered the impact of the proposal, and the key policy issues of delivering sustainable development, building a strong, competitive economy, ensuring the vitality of town centres and promoting sustainable transport which this case raises", and that "[in] his opinion, the proposals do not … involve a conflict with national policies on important matters …". He had decided that the application "should be determined at local level …".

CBRE Lionbrook's letter of 17 June 2013

204. On 17 June 2013 – about four weeks after the planning committee had approved Hammerson's proposal and about two weeks before the planning permission was issued – CBRE Global Investors, on behalf of CBRE Lionbrook, Cemex and Avenbury wrote to the Council to explain what they intended to do on the Evreux Way site. The letter mentioned the representations on Hammerson's proposal that had "made reference to intentions to deliver development proposals at Evreux Way". Its purpose was said to be "to inform the Council that [CBRE Lionbrook] intends to continue to progress those plans in conjunction with the owners of the Evreux Way site". It said this:

"We can confirm that [CBRE Lionbrook, Cemex and Avenbury] have had ongoing discussions the result of which is that the parties intend to submit an application for the Evreux Way Site in the very near future, supported by all three parties and consistent with the CS Allocation. For the avoidance of doubt, this letter has been signed by appropriate representatives of [CBRE Lionbrook, Cemex and Avenbury] to demonstrate this firm intention. This represents a material development since the last discussion with Officers.

The scheme proposal will be broadly the same as that which we have already discussed with you and your colleagues although we are in the process of revisiting it to incorporate office accommodation to retain [Cemex], an important existing employer for Rugby, in modern accommodation within the Town Centre. The scheme will also provide space for an anchor store and will provide additional benefits in terms of increased connectivity with the existing Town Centre and access to the existing car parking provision within Clock Towers.

Having reached this point, we therefore request that arrangements are made for formal pre application discussions with Officers …".

The letter was signed on behalf of CBRE Lionbrook, Cemex and Avenbury.

205. In his witness statement of 11 November 2013 Mr Ian Davis, a Director of the Council, says this about the letter of 17 June 2013:

"18. On 17^th June 2013 a letter was received bearing the signatories [sic] of all 3 parties, including Avenbury and Cemex. This arrived after the Planning Committee had resolved to grant permission for the Hammerson scheme. It is a relatively short letter and is short on any detail. It talks of making progress but there is no evidence of any concrete agreement between the parties. In fact, I spoke to Jeremy Knight-Adams (one of the signatories) who confirmed that no formal agreement existed and that he would respond to any proposals when they were put to him.

19. Beyond providing evidence that the situation had moved on since late April in that the landowners were now aware of [CBRE Lionbrook's] intentions the letter was not considered to provide any new information. The letter contained little or no hard information relating to concrete proposals and how they would be brought forward relying instead on vague expressions of intent."

206. In his statement of 11 November 2013 Mr Williams says (in paragraph 22) that he discussed the letter of 17 June 2013 with Ms Fisher on 18 June 2013. He then says this:

"Following on from these conversations and taking on board the comments from [Mr Davis] which were passed on through [Ms Fisher], it was concluded that nothing in the letter impacted on the assessment of whether this alternative site was likely to become "available" within a reasonable timescale. The comments made by [Mr Davis] are explained in his evidence. Accordingly, no reason was identified for taking the application back to committee for reassessment."

207. In her witness statement Ms Fisher says (in paragraph 104) that in her "professional judgement, the receipt of [the letter of 17 June 2013] did not result in [the Council] having any new material information to consider", and that she agrees with Mr Davis's conclusions on this matter.

CBRE Lionbrook's application for planning permission

208. On 11 November 2013 CBRE Lionbrook submitted to the Council an application for planning permission for the development of the Evreux Way site. The proposal is to demolish the existing buildings and to extend the Clock Towers Shopping Centre by constructing a retail development, including a department store of 5,667 square metres, a further 6,949 square metres of floorspace in Classes A1, A3, A4, A4 and A5, a six screen cinema, and Class B1 office space of 3,958 square metres.
209. In his witness statement of 14 November 2013 Mr Cochrane says that in his view CBRE Lionbrook's proposal is "reactive, in a bid to frustrate Hammerson's redevelopment of [Elliott's Field Retail Park]" (paragraph 12), "a late attempt to prevent the redevelopment of [the retail park]" (paragraph 19), and "put forward solely in an attempt to bolster [the claim] and … not a serious attempt to secure planning permission for a scheme that would actually come forward" (paragraph 57). Mr Cochrane explains at length why he doubts the viability and deliverability of CBRE Lionbrook's development (paragraphs 21 to 58). He says it was not "a realistic possibility" that Debenhams would occupy the "anchor department store" because they "have a contractual relationship with Hammerson at Elliott's Field and have made it clear in a letter dated 26 September 2013 [to the Council] that Evreux Way is not suitable for [their] requirements". Summarizing his evidence he says this (in paragraph 55):

"… [At] the date when planning permission was granted in respect of the Elliott's Field scheme, no evidence had been provided establishing that a scheme would actually come forward at Evreux Way. At that date and now, the Evreux Way site was in two separate ownerships, no anchor tenant had been identified or secured, no details of how car parking would be provided at a level attractive to the market were available and no evidence was provided to establish that an Evreux Way scheme was financially viable and would come forward."

Submissions

210. Mr Tucker submitted:

(1) The broader strategic issues considered by the Council's Cabinet on 3 June 2013, and especially its decision to review the Council's strategy for the town centre, amounted to a new material consideration that ought to have been taken into account before the Council issued its decision on Hammerson's proposal. The Cabinet's conclusion that the core strategy accords with the NPPF was another factor that ought to have been brought into that reconsideration. It contradicted the advice the committee had been given that the core strategy was silent on the approach to proposed out of centre development such as this.

(2) When Hammerson's proposal was considered by the Council's committee neither the officers nor the members accepted that the development of the Evreux Way site was supported by the owners of the land required for it. The letter of 17 June 2013, signed on behalf of CBRE Lionbrook, Cemex and Avenbury, made it clear that the development of the Evreux Way site was supported by the landowners. This overcame any doubt or concern on that score. As this had weighed with the committee when it concluded that the Evreux Way site was not available, there was here a significant change in the circumstances relevant to the sequential and impact assessments carried out for Hammerson's proposal. The Council ought therefore to have reconsidered Hammerson's application in the light of this change of circumstances. It failed to do so. That was unlawful.

211. Mr Kimblin and Mr Elvin submitted:

(1) There was no need for the Council to revisit the committee's decision on the application for any of the reasons submitted by Mr Tucker. None of those matters was, in truth, a new material consideration bearing on the committee's decision. Applying the relevant Court of Appeal jurisprudence to these matters, one can see that none of them was a new factor that might have made any difference to the decision.

(2) There is nothing in the submissions on the decision made by the Cabinet on 3 June 2013. The Cabinet was considering the first stage of the local plan process. The idea that the Council's strategy for Rugby town centre might be changed, which is mentioned in the Local Plan Discussion Document endorsed by the Cabinet, had been acknowledged in the committee report on Hammerson's proposal and in the oral advice given by the officer at the meeting. It had been noted by Deloitte. Again, therefore, there was no change in circumstances bearing on the planning merits of Hammerson's proposal. There was no new material consideration. Had the Council reconsidered the application in the light of the Cabinet's decision and the report on which it was based it is inconceivable that its decision might have been different.

(3) The letter of 17 June 2013 did not materially change the factual picture as it was at the time of the committee meeting. The members were well aware that CBRE Lionbrook was seeking to reassure the Council that a scheme would be brought forward for the Evreux Way site with the active support of the landowners. The letter of 17 June 2013 ostensibly confirmed this. The promise of an application being made "in the very near future", with the support of the landowners, did not, however, go to the basic question. That was whether development could and would actually be brought forward on the Evreux Way site within the relevant timescale to address the need identified in the committee report – a need that Deloitte had acknowledged. The letter of 17 June 2013 could not have affected the committee's conclusion on that question. If the application had been taken back to the committee for reconsideration in the light of the letter its decision could not conceivably have been any different. This conclusion is supported in the evidence of Mr Davies, Mr Williams and Ms Fisher.

Discussion

212. I cannot accept Mr Tucker's argument on this issue. The Council was not obliged to reconsider Hammerson's application again in the light of the Cabinet's decision of 3 June 2013 or in the light of CBRE Global Solutions' letter of 17 June 2013. Mr Kimblin's and Mr Elvin's submissions are, in my view, correct.
213. The relevant principles in the case law are clear. The court must establish whether some new factor had arisen after the resolution to grant planning permission that amounted to a material consideration not taken into account when the application was formally considered.
214. In this case there was no new factor of that kind.
215. Mr Tucker's first point seems wrong on the facts. As I have already said (in paragraph 198 above), the process on which the Cabinet was engaged when it met on 3 June 2013 was plan-making, not development control. When the Planning Committee had met on 22 May 2013 to make its decision on Hammerson's proposal it was told of the opportunity the Council would have in the plan-making process to alter its strategy for Rugby town centre. As the members were told, Deloitte has referred to this in their advice on the planning application (see paragraph 147 above). It was a material consideration before the committee. The weight to be given to it was a matter for the members. The Cabinet's decision, some two weeks later, to approve the Local Plan Discussion Document for consultation, did not create a new factor of which the Planning Committee was unaware when it decided to approve Hammerson's proposal. The fact that the Cabinet recognized the same opportunity as the officers and Deloitte had mentioned in their advice on the proposed development could not realistically have made a difference to the decision to grant planning permission.
216. I do not accept that the Council ought to have reconsidered the application in the light of the advice given to the Cabinet by the Economy, Development and Culture Portfolio Holder that the core strategy was "compliant with the NPPF" but that there were gaps to be filled with "more detailed policies that supplement the strategic approach to development outlined within it" (see paragraph 90 above). This did not contradict the officer's advice in his report to the Planning Committee that the policies of the core strategy "are silent as to how development proposals outside the town centre will be judged". At the committee meeting the officer added that the core strategy "remains up to date" but "does not have specific policies which set tests for out of centre development", that the NPPF was an "important consideration, particularly in those areas where the Core Strategy does not have specific policies, such as on applications for out of centre retail development", and that "[both] the Core Strategy and the NPPF set a sequential test for retail development" (see paragraphs 102, 104, 117 and 156 above). If one compares the advice in the Cabinet report with that given to the Planning Committee I do not think one can see any disparity. The words were not the same, but the gist of the advice undoubtedly was. There was no new material consideration here.
217. I do not think Mr Tucker's second point is any more convincing. In view of the history of the Council's consideration of Hammerson's proposal and the objections made to it I do not believe that CBRE Global Investors' letter of 17 June 2013 can be seen as a new factor that ought to have put before the committee. The aim of that letter was to assure the Council that it was the "firm intention" of CBRE Lionbrook to go ahead with a scheme for the Evreux Way site in co-operation with Cemex and Avenbury, and that an application for planning permission would be submitted "in the very near future". If the letter is taken at face value, it did not in my view add a new material consideration to the objections that were before the Council's committee when it met on 22 May 2013. The letter effectively says this itself. It refers to the "representations" that had already been made, in which CBRE Lionbrook's "intentions to deliver development proposals at Evreux Way" had been declared. Those representations included Red Property Services' letters to Mr Williams and to councillors dated 20 May 2013 (see paragraphs 81 to 83 above). The letter to Mr Williams said that "[discussions] had taken place with the other two parties who have interests in the Evreux Way site and all parties are keen to work together to bring forward a planning application for this site". The letter to councillors was to the same effect. It said that "[discussions] had taken place with the other two parties involved in the Evreux Way site and all parties are looking to work together to bring forward a planning application for this site". It was thus made clear before the committee meeting, to officers and members alike, that the three landowners were co-operating and were intent upon making an application for planning permission.
218. I do not accept Mr Tucker's submission that because the letter of 17 June 2013 was signed by all three landowners – CBRE Lionbrook, Cemex and Avenbury – and because it said that they intended to co-operate in producing a scheme for the Evreux Way site, the essential facts had changed. To say that the three parties involved were going to do what they had already told the Council they intended to do was only to confirm the basis on which CBRE Lionbrook's objection to Hammerson's proposal had been made and considered. Reminding the Council of a material consideration it had already taken into account was not the same thing as generating a new one.
219. Promises of a planning application being brought forward, or submitted "in the very near future", did not amount to a real proposal. Even if one assumed that such an application was imminent, there was nothing to show that the scheme could and would be delivered, let alone delivered within the timescale the Council thought was appropriate. There was no indication of when and where the occupants of the offices in Cemex House would be relocated. There was nothing to demonstrate that the project was viable. There was no evidence of retailers having shown any interest in it. And there was, it seems, no development agreement. In truth, the letter did not create any real change in the circumstances as they were at the time when the committee had met.
220. One can test the point by asking oneself whether the advice the officer gave at the committee meeting would have had to be changed if the letter of 17 June 2013 had been sent to the Council before Hammerson's application was considered rather than after the event. I do not think it would.
221. In the officer's view, evidently shared by the members, neither of the two allocated sites was going to be available soon enough to be a contender for the investment proposed at the retail park. The officer advised the committee that the Evreux Way site – in common with all of the others considered in the sequential assessment – could not "accommodate the proposed development within the required timeframe". In the light of Deloitte's advice he doubted the attractiveness of the allocated sites to retailers, and the likelihood of their being "developed within a suitable timescale to be sequentially preferable to the application site". In his report he had referred to the "initial expressions of interest relating to the redevelopment of Evreux Way in recent weeks", but had said that "these proposals have not been put forward with the support of the current landowners". Now, however, he referred to the recent correspondence from Red Property Services. He specifically advised the committee that the points raised by Red Property Services had been considered. And with those points in mind he said there was "nothing which causes the officers to doubt the advice given by Deloitte". He went on to say that Hammerson had "demonstrated that there are no suitable or available sequentially preferable sites that can accommodate the proposed development", and that "[if] this type of retail development is to take place in Rugby in the short to medium term, it will need to be located outside the town centre" (see paragraph 156 above). Thus he confirmed the conclusion to his advice on the sequential test in the committee report (see paragraph 145 above). His advice on the impact assessment, again with the support of Deloitte, was also in substance unchanged (see paragraph 157 above).
222. It is clear then that Red Property Services' representations, including what they had said about the intentions of the landowners at Evreux Way, did not cause the Council's officers to depart from their conclusions on the merits of Hammerson's proposal. And there is no reason to think that the letter of 17 June 2013 might have done so either.
223. In my view that letter was not a new material consideration in the sense of the relevant authorities. Applying the approach taken by the Court of Appeal in Kides, Dry, Hinds and Watson, I cannot conclude that the letter might realistically have made any difference to the Council's decision to grant planning permission. I do not think it can be said that the contents of the letter were, to borrow Jonathan Parker L.J.'s words in Kides (at paragraph 121), a factor that, "when placed in the decision-maker's scales, would tip the balance to some extent, one way or the other"; or, as it was put by Carnwath L.J. in Dry (at paragraph 20), a consideration that could have caused "a rational planning committee to change its mind"; or, as Pitchford L.J. said in Hinds (at paragraph 45), a matter that "could … have affected the merits of the decision"; or again, as Richards L.J. said in Watson (at paragraph 40), something that gives rise to a "real possibility that the … committee would have reached a different conclusion if [it] had been taken into account".
224. The simple point is this. The letter of 17 June 2013 could not have affected the officers' conclusions – which the committee adopted – on the sequential test or on any aspect of the impact assessment. It could not have caused the members to change their mind on the question of whether or not the Evreux Way site was truly available to meet the pressing need for additional comparison goods retail floorspace in Rugby. Their answer to that question was "No". This was their view in the light of the advice given to them by the officers and by Deloitte, and notwithstanding the representations CBRE Lionbrook had chosen to make before the committee meeting. I cannot see how the letter of 17 June 2013 could conceivably have changed that view.
225. I do not accept, therefore, that the Council failed to have regard to any new material consideration arising after the Planning Committee had resolved to approve Hammerson's proposal at its meeting on 22 May 2013. It was not obliged to take the proposal back to the committee either after the Cabinet's decision of 3 June 2013 or after it had received the letter of 17 June 2013. It was not unlawful for it to grant planning permission under the Planning Committee's resolution without considering the proposal afresh.
226. I would have reached that conclusion without the aid of any evidence submitted by the Council. But it is strengthened by what Mr Davis, Mr Williams and Ms Fisher have said in their witness statements (see paragraphs 201 and 205 to 207 above). Their evidence puts the matter beyond doubt.
227. Ground 5 of the claim therefore fails.

Issue (6) – the Council's approach

228. As I have said (in paragraph 7 above), Mr Tucker recognized that if the claim did not succeed on any of the first five issues it could not succeed on this one. There is nothing I need add to what I have already said about the way in which the Council approached its decision on Hammerson's proposal. I am satisfied that its approach was entirely lawful. It follows that on this issue too the claim must fail.

Conclusion

229. For the reasons I have given the claim is dismissed.