QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
(on the application of)
SAGAR VISHNUBHAI PATEL
|- and -
|DACORUM BOROUGH COUNCIL
|- and -
Giles Atkinson (instructed by Legal Team Dacorum Borough Council) for the Defendant
Richard Kimblin QC and Christian Hawley (instructed by WGS Solicitors) for the Interested Party
Hearing dates: 10-11 July 2019
Crown Copyright ©
Timothy Mould QC:
"Any shop unit falling within Use Class A1 shall not exceed 105 square metres as shown on the approved plans. This condition shall apply to the original construction and any future re-arrangement of the commercial floorspace within the development hereby permitted."
"In order to maintain the viability of existing retail units within the village in accordance with Policy 43 of the [Dacorum Borough Local Plan]".
"...this application is an opportunity to create a new commercial focus for Markyate that would encourage more residents to use the village for shopping and other services to the benefit of not only the application site, but also the wider High Street.
However, it is also important to acknowledge the success that the independent operator of the local NISA shop... [i.e. the Claimant] ...has had in tailoring his business to the needs of the local community and thus maintaining a thriving small business through the recent economic downturn. It is therefore necessary that the livelihood of this local shop is complemented by the proposed new retail units. This can be addressed by limiting the maximum size of retail outlet by way of condition, in accordance with the aims of Proposal SS2 which seeks small A1 to A4 units".
Units 1 and 2, Richmond Square, Hicks Road, Markyate, AL3 8FL – change of use of unit 1 (Class D1 surgery/health centre use) to Class A1 convenience foodstore, together with change of use of unit 2 (Class A1/A2/A3/A4 and B1) to three residential units (one 1-bed and two 2-bed flats), together with associated external alterations. Landscaping, amendment to Richmond Square and provision of parking.
"...it is considered that the above application should be refused as the current proposal does not accord with the previous permission on the site and it is considered that the retail unit is too large and will have an adverse impact on the character of Markyate and therefore is in contradiction with Policy CS16 and saved Policies 43 and 44 as it would have an adverse impact on the existing retail centre within Markyate and has failed to address the sequential approach to site selection. Furthermore, the proposal also raises significant highway safety issues and does not make appropriate provision for car parking. My client also raises concerns over the impact of the application proposal on Markyate Post Office and the failure to comply with saved Policy 45 of the Dacorum Borough Local Plan".
"...your comments will be taken into account by Planning Officers in making a decision".
The planning officer also wrote that most applications are decided at officer level, however some applications are referred to the Defendant's Development Management Committee ('the Committee') for determination. He drew attention to the Defendant's website for an explanation of the process and how people were able to participate in it.
"Neighbour consultation letters sent on 12 November 2018 erroneously gave 21 days for comment instead of the standard 14. Consequently, it is recommended that the decision is changed from "Grant" to "Delegated with a view to approval" in order to allow time for the consultation period to run its course – i.e. up to 3 December 2018. It is recommended that the application is then determined in accordance with Members' resolution".
"9.2.19 Saved Policy 45 (Scattered Local Shops) of the [DBLP] states that "Small means up to 235 sq. m in area". It is important to note that the proposed net sales area equates to 170 square metres, with the remaining 177 square metres required for back-of-house facilities and plant equipment, which is split over two levels. As such, the whole of the unit (347sqm) is not proposed to be given over to the sale of goods. It is uncommon for convenience stores to operate over two levels; however, for the avoidance of doubt and to allay any potential concerns over the impact of the additional space at first floor level, it has been indicated that the applicant would be amenable to a planning condition limiting the sales area to 170 square metres. The proposal is therefore considered to be a small-scale retail use".
"9.2.21 The Hicks Road Masterplan refers to small-scale retail uses complementing the role and function of the existing High Street, but does not say that competition is inappropriate. Limiting competition is not the role of planning, as acknowledged by the previous case officer. The key issue is the impact on the Markyate local centre as a whole, not the NISA store in isolation. Competition between respective shops can benefit customers (by keeping prices competitive and offering a wider choice of goods), and is an integral part of a free market economy. Whether in a local centre or not, two businesses selling similar products will be in competition with each other."
"9.2.24 The combination of a Doctor's surgery and enhanced retail offerings at Richmond Square was intended to serve the growing needs of Markyate. In recent years there have been a number of new developments in and around the area, as well as increases in density through infilling. The provision of a new A1 shop would be commensurate with the growth in population and density within the local area. The site's proximity to the A5183 (formerly the A5) may also attract passing trade from residents of outlying areas – i.e. Flamstead, Pepperstock, Kensworth – on their way to and from work. It is considered that this could have positive spin-off benefits for the other shops and retail offerings within Markyate. The food store is considered to further the aims and objectives of Policy CS23 of the Dacorum Core Strategy, which states that "Social infrastructure providing services and facilities to the community will be encouraged."."
"The proposal would not conflict with the retail/shopping aims of Policy CS16.
The principle of a retail unit outside of the Markyate Village Centre was established by [the 2012 planning permission].
Small-scale retail is encouraged in the Hicks Road Masterplan, noting previous approval of a Class A1 use (within Unit 2).
The designated local centre comprises a number of active retailers and there do not appear to be any vacant units.
The site is visually and physically connected to the centre – well connected, as required by paragraph 87 of the NPPF (2018).
The centre suffers from a lack of focus.
The application offers the opportunity to provide a convenience store which would be commensurate with the size of Markyate and take into account the recent growth in population."
The grounds of challenge
(1) Ground 4: The Defendant misinterpreted saved policy 45 of the DBLP by considering the net floor space and not the gross floor space when assessing whether the proposed development was a small-scale local shop.
(2) Ground 10: The Defendant failed to take into account that the proposed development would divert customers away from the High Street. This was a material consideration which the Defendant was required to take into account when assessing whether the proposed development complied with saved policy 44 of the DBLP and policy CS16 of the Core Strategy.
(3) Ground 11: The Defendant failed to take into account the impact which the proposed development could have on the continuing availability of the Post Office. This was a material consideration which the Defendant was required to take into account both when assessing the impact of the proposed development on valued facilities under paragraph 92 of the NPPF and when assessing the impact of the proposed development on the vitality and viability of the Village Centre, under saved policy 44 and policy CS16.
(4) Ground 12: The Defendant failed to take into account the impact which the proposed development could have on employment levels in Markyate even though this was a key issue which was raised by numerous objectors.
(5) Ground 13: The Defendant misinterpreted the car parking standards contained in saved appendix 5 of the DBLP, by calculating the requirement for parking spaces with reference to the difference in floor space between the proposed retail unit and the existing, permitted retail unit. The correct approach was to consider the gross floor space of the proposed unit.
(6) Ground 15: The Defendant breached a procedural legitimate expectation by resolving to grant planning permission before the publicly advertised further period of consultation on the amended planning application had come to an end.
(7) Ground 16: The Defendant acted unfairly by consulting at a stage when it had already made up its mind to grant planning permission for the proposed development and was not willing conscientiously to consider consultation responses before it made a final decision.
"Where the line is drawn between an officer's advice that is significantly or seriously misleading – misleading in a material way – and advice that is misleading but not significantly so will always depend on the context and circumstances in which the advice was given, and on the possible consequences of it".
Lindblom LJ gave the following as examples of situations in which the court may conclude that the advice given was misleading in a material way: a case in which the planning officer has plainly misdirected the members as to the meaning of a relevant policy; or a case in which the officer has simply failed to deal with a matter on which the committee ought to receive explicit advice if the local planning authority is to be seen to have performed its decision-making duties in accordance with the law.
Ground 4: Misinterpretation of saved policy 45 of the DBLP
The Claimant's submissions
"45 Scattered Local Shops
The loss of individual local shops outside town centres and local centres to alternative uses will not be permitted unless-
a. There is another shop similar in use available for customers within convenient walking distance, or, in the absence of such an alternative, all reasonable attempts to sell or let the premises for shop purposes have failed; and
b. The alternative use complements the function and character of the area.
Additional small shops may be permitted in exceptional circumstances where there is a proven need".
"45.2 Small means up to 235 sq. m in area. Local shops in this context will usually be newsagents, sub-post office and grocer but could include others in the list of local shops..."
Ground 10: Failure to consider diversion of trade
The Claimant's submissions
(1) There are currently no vacant units in the existing Village Centre.
(2) As a small-scale retail use in Richmond Square, the proposed convenience store would complement the role and function of the existing Village Centre, which currently lacks retail focus.
(3) The proposed convenience store was likely to compete with the existing Nisa Local store, but retail planning policy does not seek to limit competition between individual shops.
(4) On the contrary, such competition can benefit shoppers by keeping prices down and broadening the range and choice of goods available to them.
(5) The proposed convenience store would help to meet the needs of the growing population with the local area, and also to attract passing trade, in each case leading to "spin-off benefits" for other shops and retail activities within Markyate.
Ground 11: Failure to consider impact on the Post Office
The Claimant's submissions
"Any trade diversion from my client's store, which would result in the store's closure, would obviously result in the loss of the Post Office facility. Furthermore, any significant trade diversion from my client's store prejudices its ability to underpin the existing Post Office counter".
"As part of the officer's assessment of all relevant material considerations, a view of the likelihood of Markyate Post Office closing must be reached".
Submissions on behalf of the Defendant and the Interested Party
(1) When considering an allegation that a local planning authority has failed to take account of a material consideration, the Court should assess the totality of the information that was before the committee that resolved to grant planning permission.
(2) That information is by no means confined to the contents of the planning officer's report. It will (for example) extend to representations received from consultees, members of the public, and professional persons submitting comments on behalf of neighbours and other interested parties. It will also include the local knowledge and experience of the members of the committee, particularly in a case where the material consideration is the potential impact of the proposed development upon a local community facility.
(3) Members of a local planning authority are to be taken to be familiar with the policies both of that authority's development plan and to have a working knowledge of the NPPF. They are also to be taken to be reasonably familiar with the recent planning history of the site to which the planning application relates.
(4) The approach that the planning officer chooses to take to the presentation and analysis of the planning considerations that arise in any given case is a matter for the planning officer. The task of the Court is to read the report fairly and as a whole: see Mansell's case (paragraph 37 above).
(1) There was no doubt but that Defendant was well aware of the concern raised both on behalf of the Claimant and by others, that the proposed development put at risk the continuing viability of the Post Office counter as part of the Nisa Local store. The planning officer had set out verbatim in appendix 2 to the report both the contents of Mr Sutton's letter of 26 June 2018 and other written representations received in relation to the proposed development. Members of the Committee had the petition drawn to their attention. Moreover, Mr Sutton had written directly to the Chair of the Committee on 28 November 2018 repeating the Claimant's concerns in relation to the Post Office.
(2) Policy CS23 of the Core Strategy is the development plan policy that gives effect locally to paragraph 92 of the NPPF. Policy CS23 states that existing social infrastructure providing services and facilities to the community will be protected. Members of the Committee will have been aware of that policy.
(3) Moreover the planning officer drew the Committee's attention to policy CS23 as a relevant policy and discussed the performance of the proposed development against that policy in paragraph 9.2.24 of the report. The planning officer's assessment in that paragraph was that the proposed development "could have positive spin-off benefits for the other shops and retail offerings within Markyate" and that the proposed convenience store "is considered to further the aims and objectives" of policy CS23. When that assessment is set in the context of his assessment in paragraph 9.2.21 of the potential impact of the proposed development on both the Nisa Local store in isolation and the existing Village Centre as a whole, it cannot justifiably be concluded that the Defendant failed to take into account the asserted impact on the Post Office facility.
(4) It is also the case that the Claimant's and others' asserted concerns about the potential risk to the Post Office facility were not quantified. It was said that the viability of the existing Post Office counter was marginal and that any significant trade diversion from the Nisa Local store would place the Post Office facility in jeopardy. However, the point was put no more scientifically than that. In response, in paragraph 9.2.21 of the report, the planning officer had acknowledged that the Nisa Local store was likely to face competition from the proposed convenience store, but that the latter would complement the existing Village Centre as a whole.
(5) In summary and for these reasons, there was no good reason to infer that the Committee had failed to consider the Claimant's and others' concerns about the potential impact of the proposed development on the Post Office facility. Insofar as those concerns added materially to the assessment of the impact of the proposed development on the existing Village Centre, the Committee had considered them in resolving as it did to grant the planning permission.
"Social infrastructure providing services and facilities to the community will be encouraged.
Existing social infrastructure will be protected...
All new development will be expected to contribute towards the provision of social infrastructure...".
Paragraph 92 of the NPPF states –
"To provide the social, recreational and cultural facilities and services the community needs, planning policies and decisions should:
a) plan positively for the provision and use of shared spaces, community facilities (such as local shops...) and other local services to enhance the sustainability of communities and residential environments;
b) guard against the unnecessary loss of valued facilities and services, particularly where this would reduce the community's ability to meet its day-to-day needs;
Ground 12: Failure to consider impact on employment levels
The Claimant's submissions
Ground 13: Misrepresentation of car parking standards
The Claimant's submissions
"It must however be acknowledged that a retail permission exists at Richmond Square for 191m2, of which 105m2 could be used for retail sales. A Convenience Store retailer could therefore occupy one of the existing units and trade with no alterations to parking or improvements to the benefit of the area. This application seeks to provide a number of parking spaces commensurate with the uplift in gross floor area; namely 191m2 to 347m2. A difference of 156m2 would give rise to a parking requirement of between 3.9 (75%) and 5.2 spaces (100%)".
"9.3.11 Saved Appendix 5 of the [DBLP] requires 1 off-road parking space per 30m2 of gross floor area for A1 shops. Consequently, the proposed shop would give rise to a maximum parking standard of 11.56 spaces – essentially 12 spaces as it is not feasible, nor desirable, to provide 0.56 of a parking space".
Ground 15: Breach of procedural legitimate expectation
The Claimant's submissions
The Defendant's evidence
"9. I have seen the minutes from the meeting of 29 November 2018 and have noticed that they incorrectly state that permission was granted by the committee. This was not the case. The minutes are wrong in that regard".
"64. Save in exceptional circumstances, a public authority should not be permitted to adduce evidence which directly contradicts its own official records of what it decided and how its decisions were reached. In the present case the officer's report, the minutes of the Planning Committee meeting and the stated reasons for the grant of planning permission all indicate a misunderstanding of policy H20. These are official documents upon which members of the public are entitled to rely. Mr Findlay's submission that this is not a "reasons" case like Ermakov misses the point. The Council should not have been permitted to rely upon evidence which contradicted those official documents. Alternatively, the judge should not have accepted such evidence in preference to the Council's own official records".
"25. As no new material planning considerations were raised following the committee meeting, in line with the resolution of the committee, the application was subsequently granted on 5 December 2018".
Ground 15 - discussion
Ground 16: Unfair consultation
The Claimant's submissions