Court of Appeal in Northern Ireland Decisions

1. This appeal is brought by the appellants, Aquis Estates Ltd, Anglia and General Developments Ltd and Belfast Harbour Commissioners, who were notice parties to the application in the court below, against an order made on 1 September 2000 in the Queen’s Bench Division by Coghlin J. The judge ordered that a decision of the Minister for the Environment for Northern Ireland (the Minister) be quashed. The decision was announced by the Minister in a press statement on 21 March 2000, whereby he stated that outline planning permission would be granted to the appellants for a proposed retail development on an area of land at Airport Road West within Belfast Harbour Estate known as D5. That area comprises some 22 hectares or 52.4 acres of derelict scrubland, to the west of the main Belfast-Bangor road on the Holywood side of Tillysburn roundabout. The proposal, as amended in May 1996, consisted of a retail food superstore having a gross area of 65,425 square feet and a net sales area of 40,000 square feet, a retail warehouse park (including a garden centre) of 250,000 square feet, a leisure building, including a multiplex cinema, fast food units, adventure playground, petrol filling station, rail halt and associated car parks, service yard and landscaping. The proposed operator of the food superstore is J Sainsbury Ltd (Sainsbury). The site is on land identified for industrial and commercial purposes by the Belfast Urban Area Plan 2001 and the Belfast Harbour Local Plan 1990-2005.

2. Planning Legislation and Policy

3. Application for planning permission for the development of land is by Article 20 of the Planning (Northern Ireland) Order 1991 to be made to the Department of the Environment (the Department). It may grant planning permission, either unconditionally or subject to such conditions as it thinks fit, or refuse permission. If it decides to grant outline planning permission, that permission will be granted subject to the conditions specified in Article 35, and approval has to be obtained in due course for the particulars of the proposed development, termed reserved matters. Planning applications are considered in the first instance by the Planning Service, an agency within the Department, and most are granted or refused by it, with a right of appeal to the Planning Appeals Commission (PAC). A special procedure is laid down by Article 31 for major planning applications, as therein defined, in respect of which the Department may cause a public local inquiry to be held by the PAC. Such major planning applications are considered and determined by the Department, whose decision is final (ie not subject to appeal to the PAC), and in appropriate cases, where the matter could give rise to “significant public or parliamentary concern”, the final decision is taken by the Minister responsible for the Department.

4. In 1996 the Department issued a planning policy statement entitled Planning Policy Statement 5, Retailing and Town Centres, referred to throughout this case as PPS5. Policy statements of this nature are regularly issued in performance of the Department’s function, prescribed in Article 3 of the 1991 Order, to formulate and co-ordinate policy for securing the orderly and consistent development of land and the planning of that development. They are not mandatory requirements which must be construed like legislation nor must every single item in such a statement be observed like a statutory condition: see Re FA Wellworth & Co Ltd’s Application [1996] NI 509 at 537, per Kerr J. They are, as the judge in the present case correctly recognised, guides for planning officers and others concerned with planning decisions. As he observed at page 15 of his judgment –

5. The Department in making planning decisions is accordingly not obliged to adhere to each point of the statement, and is entitled to override or depart from any part if it considers it justified. That, as Lord Hoffmann observed in Tesco Stores Ltd v Secretary of State for the Environment [1995] 2 All ER 636 at 657, is a question of planning judgment entirely for the planning authority. The authority may, as Coghlin J observed in his judgment, have to have regard to complex problems produced by competing policies and/or conflicting interests. Planning policy statements nevertheless form material considerations to which the Department must have regard in reaching decisions on planning applications. If it takes the contents of the statement into account, interpreting them correctly (bearing in mind the appropriate approach to their construction), the weight which it gives to any factor specified in the statement is a matter for the judgment of the Department as planning authority.

6. Paragraphs 5 and 6 of PPS5 set out the Government’s policy objectives for town centres and retail developments and its approach to the issues:

7. Paragraphs 14 to 34 deal in some detail with the needs of town centres. It is stated in paragraph 15 that the Government is committed to protecting the vitality and viability of town centres (defined in paragraph 18), and in paragraph 17 reference is made to the particular vulnerability to the centres of smaller towns to the impact of out-of-centre retail development.

8. The following segment of PPS5 deals with regional shopping centres (not directly in point in this case) and major retail developments, defined as retail development with over 1000 square metres of retail floorspace. Various other terms are defined in the glossary. “Comparison shopping” is defined as referring to shops selling comparison goods. Comparison goods are goods not classified as convenience goods, which may be broadly described as the type of goods one finds in a supermarket. A superstore is essentially a large supermarket, with over 2500 square metres gross retail floorspace and car parking. A retail warehouse is defined as a -

9. A retail warehouse park is an agglomeration of at least three retail warehouses.

10. Paragraph 39 was at the centre of much of the debate in the present case:

11. Paragraph 41 deals with food superstores, acknowledging that they often play an anchor role in maintaining the quality and range of shopping in existing centres, but that because of their need for car parking town centre sites may not be appropriate. It went on to provide:

12. The effect of these paragraphs is that the proposed development as a whole must satisfy all the criteria in paragraph 39 and the food superstore forming part of it must also separately satisfy those criteria. By virtue of paragraph 43 the same applies to retail warehouses.

13. The Planning History

14. The project has a long, complex and somewhat unhappy planning history, some of which reflects little credit on the Department. In order to deal properly with all the issues which were argued before us, it necessary for us to set it out in some detail.

15. The appellants originally lodged the application for planning permission in November 1995 and amended it in May 1996, at which time an environmental statement was furnished. The Department decided to apply Article 31 to the application and referred it to the PAC to hold a public local inquiry. The inquiry was conducted by one of the Planning Appeals Commissioners, Mrs M Campbell, appointed for the purpose, and was held by her over a period of fourteen sitting days between 3 December 1996 and 14 January 1997.

16. Another major planning inquiry had been held by the same Commissioner between 21 May and 18 June 1996 into an application by Tesco Stores Ltd (Tesco) for planning permission for a food superstore at Knocknagoney, adjacent to the Tillysburn roundabout, but on the other side of the Belfast-Bangor road, and not far from the D5 site. The PAC decided that it would hear evidence relating to traffic generation and retail impact for both Tesco and D5 developments at the same time, and this was heard as part of the D5 inquiry.

17. The appointed Commissioner prepared a separate report for each development, each dated 22 May 1997 and furnished both to the PAC. The PAC recommended to the Department that outline planning permission should be granted in respect of each application, subject to a number of conditions. In his relatively brief covering report dated 29 July 1997 in the D5 case, with which the appointed Commissioner’s report was enclosed, the Chief Commissioner stated that the PAC endorsed and fully accepted her approach, policy analysis, assessment and analysis of evidence and conclusions.

18. In considering the food superstore component of the proposal, Mrs Campbell stated at paragraph 13.3.3 of her D5 report that she found that it “would, in qualitative terms, complement or meet existing deficiencies in overall shopping provision.” She had expressed a similar conclusion at paragraph 19.14 of her Tesco report, in which she said that the deficiencies referred to in the first criterion set out in paragraph 39 of PPS5 could include deficiencies in the range of foodstore facilities and the level of competition available. Having come to this conclusion, she did not express any opinion on whether the foodstore would complement the overall shopping provision, though she recorded at paragraph 7.1.1 the Department’s expressed view that “the proposal could, in principle, complement the existing shopping provision by increasing choice and competition.” She looked at estimates of retail impact, which she said in the Tesco report at paragraph 19.30 had to be treated with extreme caution. She expressed the opinion at paragraph 13.3.7 of the D5 report that the effect of the proposal on Holywood was of greatest concern. Her conclusion on the evidence before her, set out in the same paragraph was:

19. In paragraph 9.38 of the Tesco report she expressed the opinion that –

20. She set out her conclusion in respect of the foodstore in the D5 proposal at paragraph 13.9.2(a) of her report:

21. She came to her final conclusions in paragraphs 13.9.4 and 13.9.5:

22. The Planning Service then considered the PAC’s reports and on 11 February 1998 its Chief Executive Mr TW Stewart submitted a memorandum to Mr RH Mackenzie, Deputy Secretary of the Department. His recommendation, contained in his concluding paragraph 25.1, was that –

23. At paragraph 10.0 of the memorandum Mr Stewart set out the Planning Service view, disagreeing with the PAC, that “both proposals do not complement or meet existing deficiencies in the overall shopping provision”, by which he appears to have meant that neither satisfied the first criterion in paragraph 39 of PPS5. In paragraph 17.0 he disagreed again with the PAC:

24. In paragraph 21.1 concern is expressed that the proposals appear to be inconsistent with two of the four Government policy objectives as set out in paragraph 5 of PPS5. In spite of the conclusion of the Planning Service that the proposals failed in several respects to meet the policy criteria in PPS5, Mr Stewart recommended, as we have set out above, that planning permission should be granted.

25. Mr Mackenzie followed up this memorandum by sending a submission dated the next day, 12 February 1998, to the then Permanent Secretary Mr Spence and the then Minister, Lord Dubs. He attached copies of the PAC reports and Mr Stewart’s memorandum. He described the views of the Planning Service in paragraph 5.1:

26. He expressed his own opinion in paragraph 6.2 that –

27. On 25 February 1998 the Department issued a press statement that the Minister had announced that planning permission would be granted for both developments, stating that he “fully endorsed” the views of the PAC that planning permission should be granted.

28. The document granting planning permission to Tesco was issued on 20 November 1998, and work on the Tesco store commenced within a very short time thereafter on 7 December. The permission in respect of D5 was not issued until 13 April 1999. Belfast City Council and Belfast Chamber of Trade brought an application on 21 June 1999 for judicial review of the D5 decision. The matter was heard promptly in July 1999, by which time the Department had, following an application for discovery, produced Mr Stewart’s memorandum of 11 February 1998 and Mr Mackenzie’s submission of 12 February 1998, which had not thitherto been seen by the applicants. Kerr J made an order of certiorari on 9 July 1999 quashing the planning permission granted in respect of the D5 development proposal.

29. In his written judgment he was sharply critical of the way in which the material considerations had been put before the Minister via Mr Stewart’s memorandum and Mr Mackenzie’s submission. He said of Mr Stewart’s recommendation that planning permission should be granted:

30. Of Mr Mackenzie’s memorandum Kerr J said that it “could scarcely have been more dismissive of the Planning Service’s views” and that paragraph 5.1 which we have quoted “not only failed to highlight the Planning Service’s views, it misrepresented them.” He went on to say that the memorandum “conspicuously failed to deal with the conclusions of the Planning Service that the proposals were in conflict with PPS5”. Counsel for the Department conceded that the planning permission had not been validly made, and the judge quashed the decision to grant permission, rejecting the submission that he should decline to make an order because of the applicants’ delay.

31. The D5 developers then brought an application for judicial review of the decision to grant planning permission to Tesco for its food superstore at Knocknagoney. This was also heard by Kerr J, who gave a written judgment on 17 September 1999, in which he dismissed the application in the exercise of his discretion, on the ground that by then Tesco had spent a very substantial sum on the works, which were virtually complete and were due to open to the public on 4 October 1999. The Tesco store duly opened and has been trading ever since.

32. It then fell to the Department to go back and reconsider the D5 application, and it was obviously desirable that it should be done with scrupulous care and meticulous adherence to correct procedures. The Planning Service set in progress a re-assessment of the PAC report. Mr Hugh McKay, who became Chief Executive in August 1999, directed that a fresh report should be prepared within the retail unit in Headquarters, which provides specialist advice on retail issues. The officer given charge of preparing the report was Mrs Anne Lockwood, who is described by Mr McKay as having considerable experience of retail planning.

33. Mrs Lockwood prepared a report dated 21 October 1999 and submitted it to the Management Board of the Planning Service, a group of senior officers of the Service, for their consideration. The Board met on 15 November and 14 December 1999 to consider the report. It has become apparent from the production of documents at a late stage of the proceedings that as the result of discussion by the Management Board with Mrs Lockwood she redrafted its contents to a material extent and that the final version differs markedly in a number of key conclusions from the first draft. Mrs Lockwood states in her second affidavit, sworn on 27 June 2000, that at the meeting of 15 November 1999 she was requested “to clarify a number of issues” and “had various suggestions from colleagues within Planning Service by way of comment”, and that as a result of these suggestions she re-drafted her report and eventually produced a final draft for the Planning Management Board. Counsel assured the judge that Mrs Lockwood stood over the final version of the report, which genuinely represented her own views, modified in consequence of discussion with her colleagues, and the judge accepted that this was so.

34. It was nevertheless issued over her name and bore the original date, and the differences between the first draft and the final version are significant:

35. Mrs Lockwood referred in paragraphs 7.11 and 7.12 of her report to the meaning of “complements” in the first criterion of PPS5, as follows:

36. Mr McKay reported the result of the Planning Service’s reconsideration of the D5 application to Mr Mackenzie in a submission dated 25 January 2000. He attached Mrs Lockwood’s report, which he described as “the detailed report of the professional reassessment of the application”. On the several elements to be considered he expressed the following opinions:

37. Mr Mackenzie then made a submission dated 23 February 2000 to the Permanent Secretary and the Minister. His recommendation was that outline planning permission be granted. He set out the history of the matter up to the quashing of the first decision on judicial review. He referred to the legal advice received by the Department that the policy laid down must be followed unless there were countervailing factors, forming good and substantial reasons, for overriding it. He then summarised the views of the Retail Section of the Planning Service and set out the views of the Planning Management Board, as retailed in Mr McKay’s submission, which he described as “moderating” the Retail Section’s conclusions. He stated in paragraph 29 that the Chief Executive draws attention in his submission to a number of countervailing factors, which he set out. He examined the issue of lost investment and expressed the view in paragraph 35:

38. Mr Mackenzie set out his conclusions and recommendations in paragraphs 40 to 44:

39. Mr Mackenzie annexed to the submission a list of matters which he termed countervailing factors. The list included many more than those which had been identified by Mr McKay, and there is an issue, which we shall examine later in this judgment, as to whether they could correctly be regarded as countervailing factors for the purpose of making a policy decision on granting or refusing planning permission for this proposal.

40. The Permanent Secretary Mr Quinn forwarded Mr Mackenzie’s submission and enclosures to the Minister under cover of a memorandum dated 1 March 2000. In paragraphs 2 and 3 he stated succinctly the issues and his recommendation:

41. The Minister Mr Howarth gave very full and careful consideration to his task of deciding on the application. On 6 March 2000 he held a meeting with senior officials to discuss the proposal and receive a briefing from them about the details and the several issues. The minute of the meeting shows that he wished to have a full understanding of each criterion. Mr McKay explained them, and made it clear that those in issue were the first three of paragraph 39 of PPS5 in relation to the food superstore. The minute goes on to state:

42. On 13 March 2000 the Minister, accompanied by several officials, went on a tour of inspection of places material to the planning application and afterwards held a meeting for further discussion of the issues concerned in it. His private secretary sent a memorandum on 20 March 2000 to the Permanent Secretary stating that the Minister was content to accept his recommendation that planning permission should be granted. He went on to state in paragraphs 4 and 5:

43. A press release was issued on 21 March 2000 announcing the decision. The following statement was attributed to the Minister:

44. Proceedings for judicial review of the Minister’s decision were commenced by the present respondents on 13 April 2000. Leave to apply was granted on 19 April and a substantial amount of evidence was filed. The grounds on which the application was brought were set out at considerable length in the applicants’ statement – we pause to say that it is preferable that the grounds of such applications should be stated more succinctly as headings rather than developed arguments. The case mounted by the applicant falls under several heads, not all of which were in issue on the appeal before us. They may be summarised as follows:

45. The application was heard by Coghlin J, who gave his decision in a written judgment on 1 September 2000. He held that the first, second and fifth of the above submissions had not been made out, but found in favour of the applicants on the third and fourth. He therefore made an order of certiorari quashing the Minister’s decision.

46. The appellants appealed to this court by notice dated 21 September 2000, on the ground that the judge’s conclusions on the third and fourth grounds were incorrect. The Department did not appeal against the judge’s finding on the fourth ground, but by notice dated 20 October 2000 sought to reverse the judge’s decision on the third ground. Mr Morgan QC on behalf of the Department submitted that it could take this course, even though it did not contend that the judge’s order of certiorari should be reversed. In so submitting he relied upon R v Lord Saville of Newdigate, ex parte B (1999, unreported), in which the Court of Appeal entertained an appeal against one ground on which the Divisional Court based its finding. The respondent’s counsel in that case submitted that an appeal will not lie when there is no possibility of the order of the court below being varied or reversed. The court held, however, that it could hear the appeal on the ground that decisions on applications for judicial review frequently affect the public as a whole, outside the immediate parties, and that if the tribunal was to receive guidance from the Divisional Court it would be unfortunate if there were an uncorrected error in that court’s decision. We had some reservations about the applicability of this principle to the present case, but decided to receive the submission presented by counsel on behalf of the Department, in which he supported the appellants’ arguments on the third ground and also defended it against the charge of bias. The respondents, the applicants in the court below, sought to uphold the judge’s decision on the fifth ground, that of bias, as well as on the third and fourth grounds. Some argument was devoted at the hearing before us to a further point, not contained in the original Order 53 statement, that the list of countervailing factors contained in the Annex to Mr Mackenzie’s submission of 23 February 2000 included inadmissible items and that the Minister may have been misled by this in reaching his decision.

47. The “Complements” Test

48. It was not in dispute that the word “complements” in the first criterion of paragraph 39 of PPS5 should be construed with the words “the overall shopping provision” rather than with “deficiencies”. In considering a proposed development the planning authority had therefore to ask itself whether it met an existing deficiency, which might be qualitative or quantitative, or complemented the shopping provision. If there was no deficiency, which was the view of the Planning Service, then it had to be considered whether the food superstore complemented the overall shopping provision. That term must in our view mean something different from meeting a deficiency.

49. There was little discussion of the meaning of this concept in the papers submitted to the Minister, and he raised it in his meeting with officials on 6 March 2000. It appears from the minute of this meeting that Mr McKay “explained the position”. The content of the explanation was not recorded in the minute, but Mr McKay says in paragraph 15(i) of his affidavit sworn on 19 May 2000:

50. Mr Deeny QC on behalf of the respondents criticised this as a definition of “complements”, contending that it was meaningless, since any new superstore would provide choice and competition even if it completely duplicated the shopping facilities and lines of goods which the first provided. The judge accepted the validity of Mr Deeny’s criticism and held at pages 20 to 21 of his judgment that the Minister was given defective advice and so misunderstood this aspect of the policy:

51. Mr Lockhart-Mummery QC for the appellants submitted that the judge had in this passage adopted the wrong approach to the interpretation of the term “complements”. He argued that the Department and Minister were entitled to adopt their own interpretation of the term, so long as it was within a reasonable range of meanings, and that that interpretation could not be upset unless it was so inappropriate as to be unreasonable in the Wednesbury sense. The meaning adopted was, he submitted, well within the reasonable range of interpretations of the “complements” test and there was no legal basis for interfering with it.

52. He drew to our attention a series of cases in which the English courts have held that the interpretation of planning policies is a matter for the planning authority and that the courts will not intervene unless the construction adopted in any case is Wednesbury unreasonable. This line of authority stems from the decision of Auld J in Northavon District Council v Secretary of State for the Environment [1993] JPL 761, where the issue was whether a proposed building and adjoining lands could constitute an “institution standing in extensive grounds” when much the greater part of the lands was unconnected with the use of the building. Auld J said at page 763 that –

53. One might regard Auld J’s statement of the principle to be followed as unexceptionable if it is understood as referring to the process of application of a term whose meaning is not in itself in dispute to a fact-situation, which is what in our judgment he was doing in that case, rather than interpretation of the meaning of the term. So understood, the decision does not infringe the basic principle that matters of construction of documents are matters of law, responsibility for which must remain with the courts: see, eg Bahamas International Trust Co Ltd v Threadgold [1974] 3 All ER 881 at 884, per Lord Diplock.

54. Auld J’s statement of the law has, however, been taken further in subsequent cases to an extent which we could not readily accept in its entirety. In R v Derbyshire County Council, ex parte Woods [1997] JPL 958 the Court of Appeal had to determine whether representations by an objector to a development proposal had been “duly made”, when they were made outside the prescribed time. Brooke LJ said at pages 967-8:

55. The Court of Appeal followed this statement of the law in Commission for the New Towns v Horsham District Council (1999) 79 P & CR 443, where the issue was the meaning to be attached to the word “coalescence”. Some decisions at first instance have, however, taken it even further. Perhaps the most extreme example is the decision of Mr George Bartlett QC, sitting as a deputy judge of the Queen’s Bench Division, in Virgin Cinema Properties Ltd v Secretary of State of State for the Environment [1998] PLCR 1. The issue in that case was whether in determining if an area was a “built-up area” one included both existing and proposed developments. The deputy judge stated at pages 7 to 8:

56. In approaching this question we would refer to the observation of Lord Upjohn in Customs & Excise Commissioners v Top Ten Promotions Ltd [1969] 1 WLR 1163 at 1171 on the construction of statutes:

57. The House of Lords repeated the warning in R v Monopolies and Mergers Commission, ex parte South Yorkshire Transport Ltd [1993] 1 WLR 23, where the issue was the meaning of “a substantial part of the United Kingdom”, which seems to us to be a classic instance of a case which requires application rather than interpretation. At page 29 Lord Mustill referred to “the dangers of taking an inherently imprecise word, and by redefining thrusting on it a spurious degree of precision.”

58. We would be in complete agreement with the propositions laid down in the cases to which we have referred if they were confined to application of words or phrases to fact-situations, which appeared to be the issue in many of those cases. In so far as the propositions extend to the process of interpretation, we would doubt their correctness, for while we are conscious that the line between interpretation and application may at times be very difficult to draw, we are not persuaded that the former is anything other than a question of law for the courts.

59. We have reached the conclusion, however, that the issue does not require to be resolved in the present case. The word “complements” is in our opinion a word in such common use that a special definition was not required. We conducted an extensive dictionary search and counsel offered to us more or less elaborate attempted definitions, but in our view the word has a readily understood connotation of fitting in or harmonising with something, which does not require further definition. It seems to us that the phrase used by Mr McKay in his affidavit, to which we have referred, described the reason why the development satisfied the test and did not purport to be a precise definition of the word “complements”. There is no indication in any of the voluminous evidence put before us that the Minister misunderstood the proper meaning of the word.

60. His task was then one of application of the term, taking it in the context of planning, to the fact-situation constituted by the application before him. That was a question of fact and degree and in our opinion his decision fell within the parameters of reasonableness. He was in our judgment entitled to reach the conclusion that the proposed superstore complemented the existing shopping provision. It was argued that it would be a mere duplication of that provision, especially as it was asserted that its range of goods would be closely similar to those sold in the Tesco superstore at Knocknagoney. We consider, however, that it was a tenable conclusion that the provision of another superstore would offer a desirable amount of choice to the shopper and supply an element of competition – different brands of goods and promotions, different facilities and a choice of access routes for people coming from different directions. We would not be prepared to hold that it was an unreasonable conclusion in the Wednesbury sense, and we accordingly hold that the decision should not be set aside on this ground.

61. Countervailing Factors

62. The question of the countervailing factors did not form part of the grounds set out in the original statement grounding the application for judicial review, nor does it appear to have been argued before the judge, for no mention of it appears in his judgment. We raised it in the course of the argument before us and counsel dealt fully with the issue.

63. The annex to Mr Mackenzie’s submission of 23 February 2000 contains a substantial list of factors which the Minister might take into account as countervailing factors, policy considerations that might cause him to override the pure planning grounds, which pointed towards a refusal of permission, and allow the development to proceed. On examination it appears clearly that many of the factors there set out should not properly be classed as such policy factors, but have already come into the equation in determining whether the criteria in paragraph 39 of PPS5 had been satisfied. For example, three factors are set out relating to the Marine Parade site in Holywood. These are, however, material to the second criterion, the question whether the proposal was likely to lead to a significant loss of investment in Holywood town centre. We would question whether it was legitimate to weigh such factors again in the balance as counterweights to those which led the Planning Service to the conclusion that the proposal did not satisfy the criteria in paragraph 39. They might be classed as irrelevant factors, which should not be taken into account, and if the Minister was influenced by them to a material or substantial extent it is at least possible that his decision could be set aside as a wrongful exercise of his discretionary power: see, eg, de Smith, Woolf & Jowell, Principles of Judicial Review, paras 5-083 and 5-085.

64. It is apparent from paragraph 9 of Mr Quinn’s affidavit sworn on 19 May 2000 that the Minister agreed with the advice given by his officials that there were policy failures in respect of two of the criteria in paragraph 39 of PPS5. He therefore weighed the extent of the policy failures against the countervailing factors and came down on the side of granting permission for the development. Mr Quinn states that the factors which he took into account were those set out in the annex to Mr Mackenzie’s submission, but this may be no more than a supposition on his part. We think that we must look at the other material facts and the reasons given by the Minister for his decision to determine whether he has been influenced by irrelevant matters in reaching his determination. We take into account that he also had before him Mr McKay’s submission, in which four legitimate countervailing factors are identified, and that Mr Mackenzie in paragraph 29 repeated them correctly. The Minister’s expressed reasons for allowing the application, as set out in his private secretary’s memorandum of 20 March 2000 and, in particular, in the press statement of 21 March, do not show any sign of his having been wrongly influenced by factors which might be regarded as incorrect, with the possible exception of the reference in the press statement to independent regeneration in Holywood town centre. We accordingly do not consider that it has been established that he took incorrect matters into account to a material extent.

65. Retail Impact Assessment

66. A good deal of attention was devoted during the reassessment of the proposal by the Department to the third criterion in paragraph 39 of PPS5, that the development was unlikely to have an adverse impact on the vitality or viability of an existing centre. Mr McKay said in his submission that there was a policy failure in this respect, but that it was “marginal”, a conclusion on which the Minister relied when deciding whether to grant permission for the development. The judge was critical of the Department and Mr McKay. He took the view, first, that since the Tesco superstore had been constructed and was in operation, it became of vital importance to examine its impact. It is right to point out, however, that it opened only in October 1999, and as Mrs Lockwood produced the first draft of her report on 21 October it would have been impossible for her to obtain evidence about its impact by then. Secondly, he referred to the criticism of the appointed Commissioner in each of her reports that the Department did not furnish the inquiry with its own evidence of health checks. He himself considered that such evidence would have assisted the court in “reconciling the apparently conflicting claims made by Mr McKay and Mr Singleton as to the retail health of Holywood town centre”. The judge concluded at pages 36 to 37 of his judgment:

67. Mr Lockhart-Mummery argued cogently that the judge’s conclusion on this issue was unwarranted, since determination of the need for a health check was a matter of weight, which lay within the purview of the Department and should not be reviewed by the court unless it has erred in the factors which it took into account or its decision was unreasonable in the Wednesbury sense. He encapsulated his submissions in two propositions, that -

68. He cited a series of authorities in support of the proposition that weight is a matter for the planning authority and that matters of planning judgment are within its exclusive province. It is only necessary to refer to one of these, a passage, already well known, from Lord Hoffmann’s speech in Tesco Stores Ltd v Secretary of State for the Environment [1995] 2 All ER 636 at 657:

69. There was considerable force in the strictures of the learned trial judge, and we are far from saying that they were undeserved. It does not require a supernatural degree of hindsight vision to see a number of ways in which the Department should have exercised a higher degree of care and plain self-preservation in reassessing the D5 development proposal. But it is necessary to bear in mind the realities of the issue of obtaining a further health check. In the first place, it had available material from the inquiry on which to form an assessment of the effect on town centres, including estimates of the impact created by the opening of a second superstore. These may have been based on material gathered some time before, but it was a tenable view that they could still give a sufficient basis for the assessment. The possibility that they may have been invalidated by changes such as overtrading at Forestside seems to us rather shadowy; at all events, that is a matter of weight for the Department to assess. Secondly, it is material to take into account that a fresh retail health check could scarcely have been put in train until the impact of Tesco’s trading was being felt, and that its preparation would have been bound to take some time. It was obviously desirable that a decision should not be delayed longer than was necessary. The decision to proceed without carrying a further retail assessment was one of planning judgment which was within the province of the Department. In all the circumstances it was in our opinion within the bounds of Wednesbury reasonableness, and should not be a ground for quashing the Minister’s decision to grant planning permission to the D5 development.

70. The case advanced in the original version of the respondents’ statement grounding the application for judicial review was one of personal bias on the part of Mr Mackenzie, and was decided on that basis by the learned trial judge. That case was broadened on appeal to one of a more generalised bias on the part of the Department or its senior officers directly concerned with the decision to grant planning permission for the D5 development. This change is reflected in the substantial amendments made to the statement, for which we gave leave in order to allow the whole case to be fully developed before the court and ensure in the public interest that the issues in this important matter were properly presented and decided.

71. The basis of the rule against bias is usefully summarised in de Smith, Woolf & Jowell, Principles of Judicial Review, para 11-001:

72. In paragraph 11-002 the learned authors refer to the need for public confidence in the decision-making process and state:

73. The judge dealt correctly with these issues, referring to the test laid down by Lord Goff of Chieveley in R v Gough [1993] AC 646 and the enunciation by Simon Brown LJ in R v Inner West London Coroner, ex parte Dallaglio [1994] 4 All ER 139 at 152 of the proposition:

74. With these principles in mind, we shall deal with the allegations of bias against Mr Mackenzie and the Department separately.

75. Mr Mackenzie was not himself the decision-maker in this case. The matter was referred to the Minister himself for decision and Mr Mackenzie was in the position of making a recommendation as adviser, albeit a very senior and, one would expect, an influential one. No authority was cited to us which decided that if such an adviser is biased the decision made by the decision-maker influenced by him can be set aside. It appears to us, however, that in such a situation the principles by which decisions of biased decision-makers are invalidated would apply, and we are content to approach the case on that basis.

76. In the nature of things a case of bias, like one of discrimination, may often have to be built on inference from a number of straws in the wind. Mr Deeny assiduously gleaned as many straws as he could garner in putting forward this allegation against Mr Mackenzie, but the trial judge, after careful consideration, found that the case had not been established of a real danger of bias on his part. We agree with his conclusion and would add only a few comments of our own:

77. The thesis advanced by Mr Deeny was in essence that the senior officials of the Department had made up their minds that the D5 development should be given planning permission, that they were unpersuadable to the contrary and minimised the contrary opinions and advice or seized upon reasons to reject them. It was accordingly submitted that they had predetermined the result of the reassessment following upon the judicial review, an allegation not uncommonly made but rarely successful: see Wade & Forsyth, Administrative Law, 7^th ed, pp 489-80.

78. Mr Deeny’s main focus was on the sequence of events which commenced with the consideration by the Planning Management Board of the first draft of Mrs Lockwood’s report and ended with Mr Mackenzie and the Permanent Secretary recommending that planning permission be given for the D5 development. He submitted that even if each step may be explicable in itself, when taken together they provided evidence of a process of manipulation of the advice until it favoured the grant of permission.

79. We have examined each step in the sequence with care, and looked at the way in which the shift in emphasis from refusing to granting permission occurred. We do not find that the allegation of bias by predetermination has been made out. We agree that the way in which the existence of successive drafts of Mrs Lockwood’s report came out causes one to look critically at the process, but having done so we are not persuaded that it was improper, though it was hardly transparent to leave it nominally as her report. We do not, however, share the judge’s view that the Planning Management Board should have furnished to the Minister Mrs Lockwood’s original report together with the amendments resulting from the Board’s discussion. We consider that the process of amendment and qualification of views is understandable – indeed, it bears all the marks of the type of amendments which committees are prone to make to draft documents. The points made and incorporated in the amended version have all some apparent validity, and it is understandable that the Board may have wished the document to go forth as a statement of its opinion on the planning considerations rather than a recommendation on granting or refusing permission.

80. When Mr McKay made his submission to Mr Mackenzie, he summarised the terms of the report accurately. We do not consider that his description of the policy failures as “marginal” was unfair or slanted, and in our view he was quite correct to introduce the broader policy factors which had to be placed in the balance by senior management in the Department. Whatever may be said of the quality and balance of Mr Mackenzie’s assessment of the Planning Service’s views in the earlier application, when it came to him on this occasion he prepared a careful submission for the Permanent Secretary and the Minister. Mr Deeny took issue with his attribution of the Lockwood report to the retail unit, not to the Planning Management Board, but we do not think that an adverse inference is to be drawn from that. Similarly we do not regard his use of the word “moderated” – which may have been slightly misused instead of “modified”—as a cause for concern.

81. We accordingly have come to conclusions different from those of the learned judge on the third and fourth issues, the “complements” test and the need for another retail impact assessment, but agree with him about the fifth issue, that of bias. As a result we must allow the appeal and dismiss the application for judicial review.