QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BRISTOL
2 Redcliff Street, Bristol, BS1 6GR
B e f o r e :
| THE QUEEN ON THE APPLICATION OF
|- and -
|BRISTOL CITY COUNCIL
|- and -
BRISTOL ROVERS (1883) LIMITED
for the Claimant
James Findlay QC and Richard Ground (instructed by Liam Nevin,
Head of Legal Services, Bristol City Council) for the Defendant
The First Interested Party did not appear and was not represented
Saira Kabir Sheikh (instructed by Burges Salmon LLP) for the Second Interested Party
Hearing date: 13 March 2014
Crown Copyright ©
Mr Justice Hickinbottom:
Ground 1: The Planning Committee approved the application on the basis of a misunderstanding of the evidence and advice of the Council's own retail consultants as to the extent of the impact on the Town Centre, which was a material (indeed, it is said, critical) consideration in the determination of the application.
Ground 2: The Planning Committee approved the application only on the basis that specified measures to mitigate the retail impact of the proposal and ensure required compliance with relevant regulations would be identified, agreed with relevant parties and incorporated into the Section 106 Agreement; and it authorised the Council's officer under delegated powers to grant planning permission only on that basis. The Section 106 Agreement did not contain such specified measures. Consequently, the grant of planning permission was (i) not in compliance with the relevant regulations and (ii) ultra vires the Planning Committee's authorisation.
Ground 3: The Planning Committee's summary reasons incorrectly state that the application complied with the particular policy in the Bristol Local Plan that protects the Site for use as a sports stadium.
Ground 1: Misunderstood Expert Advice and Recommendation
"In terms of the impact test, we consider that on balance none of the negative aspects of the scheme outlined above constitute a significant adverse impact. In reaching this conclusion, particular regard has been paid to current health of [the Town Centre] is good and the predictions of both the Applicant [i.e. Sainburys] and the Council's Advisors included above are that it is set to continue to be good. Even adopting the Advisor's more cautious assessment, the [Town Centre] continues to grow in the periods to 2017 and then on to 2022."
i) Section 70(2) of the Town and Country Planning Act 1990 requires that planning authorities, in dealing with an application for planning permission, must have regard to all "material considerations". What amounts to a material consideration is a question of law. Statements of central government policy are material considerations. Since March 2012, such statements are set out mainly in the National Planning Policy Framework ("the NPPF").
ii) Whereas what amounts to a material consideration is a matter of law the weight to be given to such considerations – the part any particular material consideration should play in the decision-making process, if any – is a question of planning judgment, and is a matter entirely for those to whom Parliament has assigned the task of planning decision-making. They are democratically elected bodies (e.g. a committee of councillors), or persons accountable such a body; and it is an important principle that planning decisions, which inevitably involve the public interest, are made by those who are ultimately democratically accountable (see, e.g. R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions  2 AC 295 at , per Lord Hoffmann; and R (Morge) v Hampshire County Council  UKSC 2 at , per Baroness Hale). Thus, an application for judicial review does not provide an open opportunity for a disappointed party to contest the planning merits of a decision. The court will intervene, and will only intervene, on conventional public law grounds, which focus on process; and, if a challenge is successful, the court will usually quash the decision and send the matter back to the planning decision-maker to redetermine the planning application lawfully.
iii) A local planning authority usually delegates its planning functions to a planning committee of councillors, who act on the basis of information provided by case officers in the form of a report. Such a report usually also includes a recommendation as to how the application should be dealt with. In the absence of contrary evidence, it is a reasonable inference that, where a recommendation is adopted, members of the planning committee follow the reasoning of the report. The officers' report is therefore often a crucial document. It has to be sufficiently clear and full to enable councillors to understand the important issues and the material considerations that bear upon them; and decide those issues within the limits of planning judgment that the law allows them. Whilst the report must be sufficient for those purposes, the courts have stressed the need for reports to be concise and focused, and the dangers of reports being too long, elaborate or defensive:"… [T]he courts should not impose too high a standard upon 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." (Morge at , per Baroness Hale)."The court should focus on the substance of a report by officers given in the present sort of context, to see whether it has sufficiently drawn councillors' attention to the proper approach required by the law and material considerations, rather than to insist upon an elaborate citation of underlying background materials. Otherwise, there will be a danger that officers will draft reports with excessive defensiveness, lengthening them and over-burdening them with quotation of materials, which may have a tendency to undermine the willingness and ability of busy council members to read and digest them effectively." (R (Maxwell) v Wiltshire Council  EWHC 1840 (Admin) at , per Sales J).The assessment of how much and what information should go into a report to enable it to perform its function is itself a matter for the officers, exercising their own expert judgment (R v Mendip District Council ex parte Fabre (2000) 80 P&CR 500 at page 509)
iv) Of course, if the material included is insufficient to enable the Planning Committee to perform its function, or if it is misleading, the decision taken by the Committee on the basis of a report may be challengeable. However:"[A]n application for judicial review based on criticisms of the planning officers' report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken" (Oxton Farms, Samuel Smiths Old Brewery (Tadcaster) v Selby District Council (18 April 1997) 1997 WL 1106106, per Judge LJ).
v) Furthermore, when challenged, officers' reports are not to be subjected to the same exegesis that might be appropriate for the interpretation of a statute: what is required is a fair reading of the report as a whole (R (Zurich Assurance Limited trading as Threadneedle Property Investments) v North Lincolnshire Council  EWHC 3708 (Admin) at ).
vi) In construing reports, it also has to be borne in mind that they are addressed to a "knowledgeable readership", including council members "who, by virtue of that membership, may be expected to have a substantial local and background knowledge" (Fabre at page 509, per Sullivan J as he then was). That background knowledge includes "a working knowledge of the statutory test" for determination of a planning application (Oxton Farms, per Pill LJ). Furthermore, in deciding whether they have got sufficient information to make a properly informed decision or request further information or analysis, again that involves the exercise of judgment on their part. Given the experience and expertise of Planning Committee members is coupled with the fact that they are democratically elected, the judicial approach to challenges to their decisions should be marked by particular prudence and caution (see Bishops Stortford Civic Federation v East Hertfordshire District Council  EWHC 348 (Admin) at - per Cranston J).
"… 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."
Paragraph 27 provides that, where an application is likely to have a significant adverse effect on town centre vitality and viability, it should be refused.
"… [T]he loss of the Co-op store will be a loss to the health of the northern part of the [Town Centre] which will need to be considered alongside any benefits associated with the proposed store" (paragraph 3.37).
GVA also did their own comparison of the likely impact of the large comparison goods element of the proposed store, assessing that at £1.2m, i.e. about double the WYG assessment (paragraph 3.40).
"3.42 Putting the convenience and comparison goods impacts together, we estimate that the proposed Sainsbury's will remove £7.7m of retail expenditure from [the Town Centre] and this is equivalent to a 12% impact on the centre's 2017 turnover levels…. This is considerably higher than the 4.5% impact suggested by WYG, which we consider to be an underestimate of the likely direct effect that the proposal will have on existing traders.
3.51 In relation to the health of [the Town Centre], WYG are in agreement with the findings of the 2007 Bristol Citywide Retail Study, noting that the retail centre as a whole is healthy. We would share this view….
3.52 This review of the health of [the Town Centre] sets the context for assessing the significance of the financial impact of the proposed store. In our view, existing stores across the whole of the centre could lose a combined total of £7.7m of retail expenditure, which would reduce the turnover of the centre by 12%. The majority of this impact will fall on the convenience goods sector which would lose up to 19% of its 2017 turnover levels. At this level of impact we consider that store closure cannot be ruled out, with particular concern over stores such as the Co-op store…, although other local independent retailers across the centre will not be immune. Even where convenience stores do not close, a reduction in trips to both convenience and comparison goods stores may also mean the loss of any benefit that may occur in relation to linked trips with other facilities. This may be particularly important for comparison goods shops which, whilst likely to experience a smaller direct impact of around 4%, may rely on linked trips from convenience goods stores in order to maintain their viability.
3.53 …[W]hilst the opportunities for linked trips will lessen the impact on the health of [the Town Centre] to a certain extent they will certainly not be large enough to mitigate the whole of this impact.
3.55 Taking all of the above factors into account, we consider that the negative aspects of the proposed development are likely to outweigh the positive factors and we consider that it will have a negative adverse impact on the vitality and viability of [the Town Centre], which could be expected to bring about a potential loss of retailers and some decline in footfall.
3.56 In judging whether this is evidence of a significant adverse impact, which is important to how the proposal is considered in the context of paragraphs 26 and 27 of the NPPF, Council officers and members will need to take into account the following factors:
- The current health of [the Town Centre], including current shopping visits to the centre, the changes which have occurred in the centre and fall in vacancies in recent years.
- Significant levels of trade diversion from stores in [the Town Centre], particularly the convenience goods sector, including the potential for store closures and reducing footfall.
- Whether the proposed Sainsbury store can provide a good volume of linked trips with [the Town Centre], bearing in mind the distance to the store, the nature and character of the route and the wide range of convenience and comparison goods to be stocked by the proposed store.
- Whether the role and function of parts of [the Town Centre], particularly its northern section, will be undermined by the proposed store, with the effect of it competing for trade directly with the centre."
"… [E]ven before taking into account potential spin-off benefits arising from linked shopping trips, the impact of the proposal, on the total turnover of [the Town Centre] is assessed to be reduced to just 4.7% at 2017. Adopting GVA's trade draw assumptions and impact assessment, their estimated impact on [the Town Centre] is assessed to be reduced to 10.8% at 2017. Both our and GVA's impact assessments demonstrate that [the Town Centre] is anticipated to experience increase in turnover between 2012 and 2017 (11.8% and 4.6% respectively)."
Those figures were "real" in the sense that they took inflation etc into account.
"Overall, it is demonstrable that there will be no significant adverse impacts on the vitality and viability of [the Town Centre]."
"This is a correct statement, although it is important to explore some of the related issues:
- [The Town Centre] will lose market share over the 2012-2017 period. Using the study area derived from turnovers provided by WYG, the centre's convenience retail sector will lose one fifth (20%) of its market share, falling from 5% to 4%. It will also lose 6% of its market share in the comparison goods sector. Overall, the centre will lose 13% of its retail market share as a consequence of the proposal and commitments. We consider this to be significant loss of market share within the highly competitive retail sector in Bristol.
- Whilst WYG state that growth will occur, it is important to compare the growth in [the Town Centre's] turnover with and without the proposed Sainsbury's. As shown in Table 11 (Appendix 1) of the WYG Retail Statement, '[the Town Centre] would have grown by 17.3% between 2012 and 2017. Instead, with the proposed development, [the Town Centre's] retail turnover will grow by only 4.6% over the same period.
- Set against the total turnover of comparison goods floorspace in [the Town Centre] is the need to assess the trading performance of existing floorspace. WYG have indicated that [the Town Centre] has a gross comparison goods floorspace of 21,000 sq m and they suggest that a net to gross ration of 60% should be applied in order to estimate existing sales floorspace. We consider this ration to be at the lower end of expectations, but it equates to a current density of £2,500/sq m. Whilst it is not possible to compare against published company average turnovers for all retailers within the centre (due to the lack of available information), we consider this to be a relatively low sales density performance. If the net to gross floorspace ratio is 65% or 70% then the sales density is £2,345/sq m or "1,178/sq m respectively, which reinforces our conclusions over the standard of performance. Whilst the performance of the comparison goods sector within [the Town Centre] will rise between 2012 and 2017 it will not rise above £3,000/sq m which indicates a continued constrained performance of the centre. Therefore, alongside the large impact on the convenience goods sector, [the Town Centre's] comparison goods sector will continue to have a relatively low performance level."
"In terms of the retail impact, regard has been paid to the impact on the vitality and viability of [the Town Centre]. The current health of this centre is good and the prediction is that it will continue to be good in the period to 2022. The predictions of both the advisors to the Council [i.e. GVA] and the Applicants [i.e. WYG] are that even with the supermarket in operation, [the Town Centre] will continue to grow (but at a slower rate). In addition, it is predicted that although there will be levels of trade diversions from stores in [the Town Centre], particularly the convenience goods sector, including the potential for store closures and reducing footfall, there will be far greater impact on existing out of town convenience stores (Golden Hill for example), which are located at a further distance from [the Town Centre]. There is a difference of opinion on the level of linked trips that would arise from the proposal, but mindful that there are likely to more linked trips between the proposed store and [the Town Centre] (than from Golden Hill) and mindful that there is mitigation proposed (including secured free parking for three hours), the impact on [the Town Centre] will be further reduced. With a package of measures designed to promote [the Town Centre], it is considered that the application proposal will not have a significantly harmful effect on [the Town Centre]."
"The Advisor's conclusion is that the proposed Sainsbury's store will have 'noticeable negative impact upon the convenience retail sector along Gloucester Road', equivalent to about one-fifth reduction in the centre's convenience goods turnover.
Putting the convenience and comparison impacts together, it is estimated that the proposed Sainsbury's will remove £7.7m of retail expenditure from [the Town Centre] and this is equivalent to a 10% loss of trade on the centre's 2017 turnover levels. It is noted that this is considerably higher than the impact suggested by the applicants."
"In terms of the impact test, we [i.e. the Planning Officers] consider that on balance none of the negative aspects of the scheme outlined above constitute a significant adverse impact. In reaching this conclusion, particular regard has been paid to current health of [the Town Centre] is good and the predictions of both the Applicants and the Council's Advisors included above are that it is set to continue to be good. Even adopting the Advisor's more cautious assessment, the [Town Centre] continues to grow in the period to 2017 and then on to 2022.
It is predicted that there will be levels of trade diversion from stores in [the Town Centre], particularly the convenience goods sector, including the potential for store closures and reducing footfall. However the evidence that has been gathered indicates that the greater impact will be on existing out of town convenience stores, which are located at a further distance from the [Town Centre]. There is a difference of opinion on the level of linked trips that would arise from the proposal. Considering the distance to the store, the nature and character of the route and a requirement for three hour free parking at the proposed store would help to increase linked trips.
Overall there will be an impact on [the Town Centre] and this must be balanced against the other benefits of the proposal (relocation of the stadium, additional housing). On balance, in the light of this assessment and subject to securing retail impact mitigation, your officers do not consider that the proposal would result in significant harm to the vitality and viability of [the Town Centre] and refusal on retail impact grounds cannot be sustained."
The Claimant's Contention
i) The retail impact of the proposed development on the Town Centre was an important issue in the application: it was one of two particular material considerations that were or may have been adverse to the proposal.
ii) The retail advisers to both the applicant (i.e. WYG) and the Council (i.e. GVA) were agreed that the current health of the Town Centre is good and, with or without the development, turnover would continue to grow in real terms over the next five and ten years; although GVA were more cautious, and predicted lower growth rates than WYG.
iii) The growth would be less if the development were to go ahead. The Town Centre was predicted by GVA to lose one-fifth of its convenience goods turnover. The figures calculated by WYG and GVA respectively for aggregate turnover with and without the development were set out in table 3 of the report. The predictions for the shortfall were absolutely clear from the report.
iv) The fall in Town Centre trade, particularly in the convenience goods sector, meant there was a risk of store closures as well as reduced footfall.
v) The effect on linked trips was uncertain, but linked trips could be encouraged by (e.g.) the provision of free parking at the supermarket for the Town Centre, and an attractive route between the two.
vi) With a package of mitigation measures, the officers' opinion was that the adverse impact on the Town Centre would not be significant.
i) Despite its predicted growth rate, the Town Centre would lose 20% of its convenience goods market share. However, as I have indicated, the Officers' Report made it quite clear that that was GVA's prediction.
ii) Whilst there would be continued growth, the rate of growth would be less than that predicted without the supermarket. However, again, the Officers' Report made that abundantly clear, and gave the figures for the WYG and GVA analyses respectively in table 3.
iii) Alongside that impact on convenience goods, the Town Centre's comparison goods sector would continue to have low performance in terms of sales density. The Officers' Report, it is true, only gave express figures and analysis on the basis of the convenience goods sector and then on the basis of aggregated convenience/comparison sectors – but the prediction of some adverse impact on the comparison goods sector (and its approximate level) was apparent from the report, and the report certainly did not suggest that the comparison goods sector would improve in terms of sales density. As I have said, the officers were entitled to exercise judgment as to the information they considered ought to be included in the report, and that which could properly be omitted. The officers did not arguably fall short of setting out fairly and properly the overall evidence of GVA by failing to refer to this particular point.
i) In the GVA Assessment, GVA said that it was unlikely that the impact on the convenience goods sector within the Town Centre would be spread equally across all retailers, and the Co-op foodstore nearest the development would likely be hardest hit. GVA continued"Given the scale of the proposed Sainsbury's and its negative financial impact upon the [Town Centre], we cannot rule out the closure of local independent convenience goods traders although the extent of this risk is difficult to quantify on the basis of the information presented by the applicant.…We consider that the loss of the Co-op store will be a loss to the health of the northern part of the [Town Centre] which will need to be considered alongside any benefits associated with the proposed store";However, the GVA Assessment considered that "the impact will be distributed across a number of retailers across both parts of the [the Town Centre]", and expressly did not attempt a breakdown of how the impact would be distributed across the whole centre. The Officers' Report expressly referred to "the potential for store closures" as a result of the development. It gave the gist of objections which had been made by the Co-op, which indicated the potential adverse impact on vitality and viability of the Town Centre as the Co-op saw it, in somewhat different terms from that relied on by the Claimant. In any event, the officers and Planning Committee would have known the Town Centre area, and, if either had been concerned, they could have asked for more information on this point. They did not do so. They were clearly satisfied that they had sufficient information as to the risk of store closures, and the impact of any closures on the Town Centre, for the purposes of this application. That was a matter for them; but, given the information they did have in the Officers' Report, in my view that conclusion is not surprising.
ii) Mr Kolinsky referred to paragraph 3.52 of the GVA Assessment, which indicated that, whether or not convenience goods stores closed, a reduction in trips to both convenience and comparison stores in the Town Centre would have a knock-on effect, because that may also mean the loss of linked trip benefits. That may be more important for comparison goods stores which may rely more on linked trips from convenience stores. However, that was all part of a discussion by GVA as to the uncertainty of the effect of the development on linked trips – and it was common ground between GVA and WYG that the effect on linked trips was uncertain – a discussion ended with the proper but broad conclusion by GVA that the negative retail aspects of the development on the Town Centre would outweigh the positive aspects. In the circumstances, the manner in which the officers dealt with linked trips as a whole in the report cannot sensibly be criticised.
"In terms of the impact test, we [i.e. the Planning Officers] consider that on balance none of the negative aspects of the scheme outlined above constitute a significant adverse impact. In reaching this conclusion, particular regard has been paid to current health of [the Town Centre] is good and the predictions of both the Applicants and the Council's Advisors included above are that it is set to continue to be good. Even adopting the Advisor's more cautious assessment, the [Town Centre] continues to grow in the period to 2017 and then on to 2022." (emphasis added).
Ground 2: Retail Impact Mitigation Measures
"23. Section 34 of the Town and Country Planning Act 1932 gave local planning authorities the power to enter into planning agreements for the regulation of development and use of land. That survived until section 12(1) of the Planning and Compensation Act 1991 which replaced that power, by then found in section 106 of the 1990 Act, with a power to enter into planning obligations set out in a new, substituted section 106. Such obligations are of course the subject of negotiation between the planning authority and developer, but can be imposed if not agreed.
24. To deter abuse, the Secretary of State issued successive policy guidance in relation to the exercise of this new power, now found in the [NPPF] which was issued in March 2012 in replacement of many earlier policy documents. Paragraphs 203-204 of the NPPF, echoing earlier guidance, state:
'203. Local planning authorities should consider whether otherwise unacceptable development could be made acceptable through the use of… planning obligations….
204. Planning obligations should only be sought where they meet all the following tests:
- necessary to make the development acceptable in planning terms;
- directly related to the development; and
- fairly and reasonably related in scale and in kind to the development.'
25. However, that is not now merely policy; because regulation 122(2) of [the CIL Regulations] provides that, where a determination is made which results in a planning permission being granted for development:
'A planning obligation may only constitute a reason for granting planning permission if the obligation is:
(a) necessary to make the development acceptable in planning terms;
(b) directly related to the development; and
(c) fairly and reasonably related in scale and in kind to the development.'
'Planning obligation' is defined in terms of a section 106 obligation (regulation 122(3))."
The Factual Background
"It is proposed that the potential Retail Impact Risk Management Package would involve a total contribution of £202,500. This contribution would be split between management and project costs over a 3 year period. The split would be subject to agreement with the Council, stakeholders and other community groups.
The potential mitigation measures that could be included within the Retail Impact Risk Management Package are set out in the attached "Retail Impact Risk Management Statement….
These steps are for guidance only and for agreement with the Council and other relevant third parties. It is acknowledged that for a future town centre improvement initiative Action Plan, the priorities and specific projects for the [Town Centre] would need to be determined in full consultation with local businesses, community groups and relevant public service agencies…".
"The WYG statement omits a very important piece of information which is required by the… Council in order to assess whether any of these measures proposed are relevant to [the Town Centre] and whether they are able to go some way to mitigating the impact of the proposed supermarket. For example, the information provided by WYG simply deals with the proposed measures and omits reference to the current conditions surrounding matters such as the physical environment. Without this information it is impossible to judge whether the proposed measures are relevant and have the potential to be effective. Therefore on the basis of the current set of information, the proposed package is not, in our opinion, compliant with part 122 of the CIL regulations. If the applicant wishes the… Council to take the retail impact risk measures into account as a material consideration then we recommend that further information is provided on how the proposed measures will meet the tests as set out in part 122 of the CIL regulations."
"The cost of a town centre manager over a 3 year period is estimated at circa £42,500 per annum (including salary and other expenses). Over a 3 year period this would equate to a cost of £127,500. Alongside the town centre manager a budget of £25,000 per annum is proposed (over a 3 year period) for potential improvement measures. In total this would result in a financial contribution of £202,500 over the three-year period. The £25,000 per annum project budget has been carefully considered in consultation with [the Council] and is of sufficient amount to deliver a range of effective measures for [the Town Centre]. Due regard has been given to the level of impact, size of the town centre and the effectiveness of other town centre improvement schemes in the UK.
Having regard to feedback from the [GRTA], Figure 6.1 below sets out a number of measures/projects which are included in our Indicative Retail Impact Management Package. In order to allow for flexibility a range of costs have been identified for certain projects."
"Step 1: To have further discussions with the Council, traders/businesses, and other public service agencies.
Step 2: To draw up a business plan to set out the preferred measures, costs and timescales."
"The advice received is that the proposed supermarket would have an adverse impact on the vitality and viability of [the Town Centre] in particular and could give rise to the risk of some closures occurring. Therefore it is justifiable to seek mitigation to address this predicted negative impact.
The Applicants have submitted an indicative Retail Impact Risk Management Package for [the Town Centre]. A summary of the proposed mitigation is included at Appendix A. It is intended to be illustrative of the kind of projects that could form part of a broader delivery plan should the opportunity of a town centre improvement initiative be pursued."
Appendix A reproduced the table of indicative measures contained in figure 6.1 of the Risk Management Statement.
"It is essential that any future scheme of mitigation is compliant with Part 122 of the [CIL] Regulations. This states that measures have to be necessary to make the development acceptable in planning terms; directly related to the development and fairly and reasonably related in scale and kind to the development.
Your Officers acknowledge that a variety of different measures could be employed to mitigate for the harm caused and that retailers might be best placed to advise exactly what would work best. However in moving forward with this mitigation, there will be a need to ensure that the CIL regulations are complied with.
Consequently it is recommended that were members minded to approve the application, the applicants should be bound by a legal agreement which contains a specific package of measures which has been determined in advance of completion of the agreement and following consultation with local traders, ward members, the GRTA, the Neighbourhood Partnership and Council officers and the Officers be given delegated authority to assess the compliance of the measures with CIL regulations.
The Legal Agreement should set aside a sum of money and a timescale to secure these works. Appendix A includes indicative costs."
"b)…the completion within six months from the date of this Committee or any other time as may be reasonably agreed with the Service Director Planning and Sustainable Development, at the applicants expense of a Planning agreement made under the terms of Section 106 of the Town and Country Planning Act (as amended) entered into by [the] Council and any relevant owners to cover the matters;
– Retail Impact Mitigation
Contribution of £202,500 to fund a full time town centre manager (including a £42,500 per annum budget) for [the Town Centre] for a 3 year period; and to fund a package of environmental improvements, business support and marketing measures to mitigate retail impacts of the development, the exact package of measures to be agreed in writing with the Bishopston Community Partnership, ward members and other interested parties. Such alternative mitigation measures are to be directly related to the development, as well as necessary to make the development acceptable in planning terms and fairly and reasonable related in scale and kind the development."
"(C) That the Head of Legal Services be authorised to conclude the Planning Agreement to cover matters in (B); and
(D) That on completion of the Section 106 Agreement, Planning permission be granted, subject to conditions"
i) At Paragraph 1.24, "Retail Impact Mitigation Contribution" is defined to mean the index linked sum of £202,500.
ii) At Paragraph 1.4.1 of Schedule 2, Sainsbury's agree to pay to the Council 50% of the Retail Impact Mitigation Contribution prior to the commencement of development and the rest prior to the occupation of the supermarket.
iii) At Paragraph 1 of Schedule 6, the Council agrees to:"… fund a full time town centre manager for [the] Town Centre… for a three year period and to fund a package of: environmental improvements, business support and marketing to mitigate retail impact of the Development on [the] Town Centre and make the Development acceptable."
i) In those responses, the Council confirmed that, although a meeting had been held with the GRTA, "no consultation has taken place with (what should be described as) the Bishopston, Redland and Cotham Neighbourhood Partnership or any other interested parties in respect of the retail mitigation package prior to the grant of planning permission on the 14 June" (paragraph 15(i)).
ii) In response to a request for identification of the analysis the Council had been undertaken prior to the issue of planning permission as to the compliance of the contemplated measures with regulation 122 of the CIL Regulations, the Council said (at paragraph 15(iii)):"In relation to… analysis undertaken by the Council as to the conformity of the measures contained in or anticipated by Schedule 6, paragraph 1 of the Section 106 Agreement with Regulation 122 of the CIL Regulations 2010 the prospective Claimant is referred to page 28 of the [Officers' Report] where he will see half way down the page a heading "Officers assessment of proposed mitigation" where it is acknowledged that there are a variety of different measures that could be employed to mitigate against the harm caused and that retailers might be best placed to advise exactly on what would work best. This led to the recommendation of a variety of options in paragraph 1 of the Sixth Schedule but which were then controlled by the terms already referred to so as to make them comply with the CIL Regulations."
The part of page 28 of the report referred to is set out in paragraph 53 above.
The Claimant's Contention
"The Officers' Report concluded that given the acknowledged adverse impact of the proposed development on [the Town Centre] it was justified to seek IP1's [i.e. Sainsbury's] commitment to a retail impact mitigation package to be provided within the terms of the planning obligation before granting permission." (emphasis added).
That is right. The report, at page 28, refers to a requirement that:
"[T]he applicants [i.e. Sainsbury's] should be bound by a legal agreement which contains a specific package of measures which has been determined in advance of the completion of the agreement and following consultation.... and the Officers be given delegated authority to assess the compliance of the measures with the CIL regulations". (emphasis again added)
Ground 3: Reasons
"The following sites… will be protected from development which would erode the community's opportunity to participate in sport and will be promoted for the use of sports stadia:… (b) Memorial Ground."
"Taking account of Section 38(6) of the Planning and Compulsory Purchase Act 2004, it has been concluded that the development accords with the policies of the Development plan comprising the Joint Replacement Structure Plan adopted September 2002, the Bristol Core Strategy 2011 and the saved adopted Bristol Local Plan, December 1997 so far as material to the application and the National Planning Policy Framework – March 2012 and all other material planning considerations listed below including emerging Development Plan policies:
L8 – Sports Stadia…".
"Ground 3 (which it is accepted could not lead to the quashing of the decision) is makeweight adding nothing of practical consequence. I refuse permission on that ground because it is abundantly clear that an error was made in suggesting policy L8 was complied with, which was immaterial (given the officers' report) and which has now been explained."
Conclusion on the Merits
"However, the reason why public law claims must be brought promptly is not focused on private interests, but rather in the public interest of having development that the relevant democratically-elected decision-makers have determined is itself in the public interest."