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||Neutral Citation Number:  EWHC 964 (Admin)
||Case No. CO/6918/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
||Royal Courts of Justice
London WC2A 2LL
||27 March 2009
B e f o r e :
MR JUSTICE OUSELEY
||THE QUEEN ON THE APPLICATION OF MIDCOUNTIES CO-OPERATIVE LIMITED
||WYRE FOREST DISTRICT COUNCIL
||TESCO STORES LIMITED AND SANTON GROUP DEVELOPMENTS LIMITED
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Mr D Holgate QC and Mr J Maurici appeared on behalf of the Claimant
Mr H Richards appeared on behalf of the Defendant
Mr R Harris QC and Mr R Taylor appeared on behalf of the Interested Party
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- MR JUSTICE OUSELEY: Midcounties Co-operative Limited, the claimant, operates a supermarket in Stourport town centre. It seeks the quashing of a planning permission granted on 19 May 2008 by Wyre Forest District Council to Tesco Stores Limited and Santon Group Developments Limited for the development of a new supermarket with associated facilities at the former Carpets of Worth site in Stourport at the edge of or just beyond the town centre.
- The principal ground of challenge concerns condition 6 on the permission which restricts the amount of retail floor space. Mr Holgate QC for Midcounties contends in a variety of ways that the floor space permitted exceeds the amount applied for or is greater than that which was assessed when the need for and impact of the store were considered by the Council. The scope of the condition was uncertain. This challenge involves a debate over the meaning of various similar phrases which incorporate the words "net" and "retail", a debate which has been around since the dawn of retail planning.
- The challenge also alleges that the tailpiece to condition (6) is unlawful because it allows the local planning authority to increase the gross external area and the "net retail sales area", whatever that may be, in a manner which side-steps the statutory procedures for the grant of planning permission or variations to conditions. It would enable more than had been applied for or assessed to be developed.
- Midcounties also contends that another condition is bad for a similar reason. It contends that the District Council had been procedurally unfair in the way it dealt with Midcounties over the section 106 agreement proposed between Tesco and the District Council. It is also said to have ignored considerations material to its judgments in respect of the impact of the development on the conservation areas, on road safety and on air quality.
- Finally, it is said that the reasons for the grant of planning permission are legally inadequate.
Was more granted than applied for?
- The outline permission is for:
"Construction of a new class A1 supermarket ... new road and bridge ... highways and other works ... in accordance with the application received by the Council on 31 October 2007 and as subsequently amended subject to the following conditions ..."
- Condition (6) provides:
"The food store hereby approved shall not exceed the following floor space allocations (maxima);
Gross external -- up to 4209 sq. metres measured externally
Nett retail sales -- up to 2919 sq. metres,
unless otherwise agreed in writing with the Local Planning Authority.
In the interest of clarity, in order to define the permission and to ensure that it accords with Policies RT.1 and RT.4 of the Adopted Wyre Forest District Local Plan."
I believe no irony is intended in the first part of the reason.
- It is agreed that the effect of the words of the planning permission was to incorporate the application within it, following the principles of interpretation set out by Keene J in R v Ashford Borough Council ex parte Shepway District Council  JPL 1073 at pages 19 to 20, and routinely applied since.
- Mr Holgate entered a note of qualification. He said the application could not be part of the planning permission or used to interpret the permission if the application itself was uncertain. That is misconceived. The application is not being referred to as extrinsic material in order to interpret a permission of which it is not part. The application, by those words of incorporation, is part of the permission and has to be referred to in order that the permission as a whole is interpreted properly. This may have the effect of introducing an ambiguity, which would not have been there if the application had not been incorporated, but that simply means that the planning permission has an ambiguity when properly read as a whole.
- It is agreed that incorporated in the planning permission therefore are the application form, the industrial questionnaire, and the site layout plan PO7H, later revision J. No floor space of any sort appears in the description of the development on the front of the planning application. Scale but not layout was reserved for future consideration.
- The industrial questionnaire part of the application form which said:
"Total floor space of all buildings [in] proposed new floor space 4209 sq metres."
referred to the gross external measurement of the proposed store.
- The proposed new "floor space for retail trading" in the questionnaire was 2403 sq metres. The layout plan said "nett sales 31,422 sq ft (2919 sq.m)". It also referred to the gross external measurement as 4209 sq metres as shown on the industrial questionnaire.
- I accept Mr Harris QC's argument for Tesco/Santon that the 2919 sq metre figure in the permission in condition 6 and the 2919 sq metres figure on the application layout plan refer to the same physical space used for the same activities, whatever those activities may be. So "nett sales" on the layout plan and "net retail sales" in condition 6 refer to the same physical space used for the same activities. It would be a coincidence too far for so specific a figure to refer to two different but necessarily partly overlapping spaces. It follows that the grant of permission for "nett retail sales up to 2919 sq metres" does not exceed the application for the 2919 sq metres "net sales" shown on the layout plan. They are the same.
- There is, however, no definition of "nett sales", "net retail sales" or of "floor space for retail trading", the phrase used in connection with the figure of 2403 sq metres. I accept that the planning permission could be construed so that a conflict existed in what was being applied for between the 2403 sq metres and 2919 sq metres since those different figures have quite similar descriptive phrases attached to them. It would follow from that that, if 2919 "net retail sales" permitted were equivalent to the 2403 "floor space for retail trading" applied for, the grant exceeded what had been applied for, or that what had been applied for was so uncertain that no lawful planning permission could be granted for it.
- But in my judgment that would not be the right approach. That would be striving to create contradiction, whereas the more obvious reading is that the 2403 and 2919 figures refer to partly different uses or areas, for all the lack of clear differentiation in the language used to describe them. My reasons are these.
- The 2403 sq metres cannot be a separate area additional to the 2919 sq metres in a gross external area of 4209 sq metres. I regard it as obvious that the 2403 sq metre area is subsumed within the 2919 sq metre area rather than partly overlapping the 2919 sq metre area and partly overlapping all or part of the remaining 1290 sq metres in the building. Each of the phrases used in connection with the 2919 and 2403 sq metre areas include "retail" and "trading or sales". If the 2403 area overlapped the 2919 and the 1290 areas, it is difficult to imagine what sensible area or distinct use it could relate to. None was suggested. The grant does not conflict with that part of the application referring to 2403 sq metres "floorspace for retail trading". That is a subset of the 2919 sq metre area.
- The application was therefore not so internally contradictory that no sensible planning permission could be granted on it, nor was the permission void for uncertainty because tainted by uncertainty in the application.
What is the scope of the floorspace limit in condition 6?
- That first conclusion leads into the question of what the phrase "nett retail sales" in condition 6 actually limits, albeit that it is the same as "nett sales" and contrasts with the smaller 2403 sq metre "floor space for retail trading" to be found within the 2919 sq metre area. No definition of "nett retail sales" as used in condition 6 is to be found in the planning permission or in the condition. The reason for the condition and the policies referred to in that reason afford no assistance on the meaning of "nett retail sales". There is no definition of the terms used in the application form.
- It is agreed that the 4209 sq metre figure is the gross external area of the building. It is obvious that the difference of 1290 sq metres between the gross external figure and the 2919 sq metre figure cannot be the difference between the gross external and a mere internal measurement excluding only walls, pillars and such other items as are excluded to arrive at what is known as "valuer's net". Nor was that suggested as an explanation for the 1290 sq metre difference between the gross external area and the area is covered by the 2919 figure.
- That use of the word "net" illustrates Mr Holgate's point: "net" of itself may mean many things and convey little without a context. In context, however, I regard it as plain from the application, its description of the development and the layout plan that the gross external area of the store would encompass the staff facilities, administration offices, storage, food preparation areas and so on, to which the shopping public would not have access but without which the store could not function. It was not in issue but that the store would need those areas and that they would be within the gross external area of 4209 sq metres.
- This clearly, to my mind, explains what the difference between the next largest figure, 2919, and the 4209 figure comprises. These are the two figures in the condition, and it is obvious that they refer to the two critical facets: how big is the building, how much is support or non-public, as opposed to selling and public? The staff and administration side, broadly put, complement with the shopping public side to which the words "retail" or "trading" floor space naturally apply, when used to distinguish an area from the whole gross external floor space of the shop. That makes good sense of the description applied to it in condition 6 and appearing in the layout plan. It is not vague or uncertain; there is nothing odd about it as a concept in retail planning. The condition thus controls the size of the development by reference to the gross external area and the internal area to which the public has access. So 2919 sq metres is the upper limit to the area within the 4209 sq metre gross external to which the shopping public can have access. Neither the condition, nor the planning permission are void for uncertainty. The condition could have controlled the size of the floor space by reference to the figure of 2403 sq metre, whatever that may cover, but the council was not obliged to choose whatever that measured as opposed to the 2919 sq metre figure, which measured the areas to which the shopping public would have access. The 2403 sq metre figure cannot be the limit of the areas to which the public have access without depriving the concept underlying the figure of 2919 of any meaning. No alternative concept was suggested.
- It is not necessary for these purposes to reach a view as to what the 2403 sq metre figure represents, although it is well-known that a distinction exists between the public areas outside the checkout and the public area inside and including the checkouts. If there is a reference to a smaller retail sales area within a layout it is probable that that is the area to which the smaller figure refers.
- If, as Mr Holgate contended, the area on the exit side of the checkouts could be additional to the 2919 sq metres, it would follow that a distinction is drawn in the permission between the areas on either side of the checkouts. But the existence of the smaller area of 2403 sq metres referred to in the application, as incorporated in the permission, shows much more probably that that distinction is what the difference between the 2403 and 2919 figures represents. No suggestion has been forthcoming as to what the difference could otherwise be.
- Indeed, given that a smaller area exists within the 2919 as referred to in the application and incorporated into the permission as some form of trading area, it is very difficult to see how there could be any trading area in addition to the 2919 sq metres. One cannot invoke uncertainties derived from accompanying documents which are not part of the application so as to create an uncertainty in the permission which does not exist without them.
- I have reached this conclusion without recourse to any extrinsic evidence, because I see no need to do so. There needs to be an uncertainty or ambiguity which cannot be resolved by reference to the terms of the planning permission, which here includes the application, before recourse can be had to the aids of extrinsic materials (see Shepway). I would accept that if one focuses exclusively on the words "net retail sales" or "net sales" and tries to apply to them a dictionary definition, there is real uncertainty as to what is meant. But if one focuses on the words together with the figures, in the context of a superstore with the facilities that it has to have, the distinction between the areas to which the shopping public can go, i.e. the retail area netted from the gross area, and the area to which the staff alone can go, is obvious. The attribution to the smaller area of 2403 sq metres of a function within the 2919 sq metre area is also sensible.
- Mr Holgate suggested at one point that condition 2, which reserved layout for subsequent approval:
"(with the exception of the food store building itself, the siting of which is hereby approved in accordance with plan ... revision J."
amounted to approval of the internal layout of the store so far as it could be discerned from that plan.
- I reject that. The layout refers to the site layout and not to the internal layout of the store. The exception to the matters reserved is the siting and not the layout of the store anyway. But that also means that Tesco/Santon cannot rely on the internal layout, so far as shown on that plan, as being fixed by the approval so as to overcome any uncertainty as to the scope of the planning permission.
Was more permitted than was assessed?
- Mr Holgate's alternative point is that the 2919 sq metres is the area which should have been assessed for the purposes of retail capacity, need and impact, rather than the 2403 sq metres which G L Hearn for Tesco/Santon, White Young Green for the Council and DPDS for Midcounties had used in their separate assessments. The difference, he said, represented a possible greater impact and quantitive provision than the District Council had assessed. A material consideration had been ignored. The development had not been controlled to what had been contemplated in the grant of planning permission.
- The crucial component in these studies, which depends on the development applied for, was the turnover of the proposed store. Each of the three consultants predicted turnover for the purposes of need, capacity and impact in precisely the same way: that is by considering the area to which the public had access, including the checkouts, but excluding certain facilities within the shop to which the public had access but which were not enclosed by the checkouts.
- For these purposes, the consultants all used the area of 2403 (or 2401 sq metres) because that was the area from which the sales themselves would be derived. There may be other ways of carrying out such studies and of deriving data streams, but that is the method which all three used and no-one suggested that they had done other than use a wholly conventional method of retail capacity and impact assessment.
- G L Hearn's retail study at paragraph 3.1 introduces the proposal for 4209 sq metres gross external with a "sales area of 2401 sq metres" but this was elaborated on considerably later in the study.
- Paragraphs 7.31 to 7.32 say:
"The likely turnover of the store has been identified by multiplying a turnover per sq metre with the net floorspace of the proposed store, being the area used for the sale and display of goods and including the checkouts and customer counters, but excluding lobbies, customer services and circulation areas.
7.32 In this instance, the net floor area amounts to 2401 sq.m. The proposed sales area of the store will comprise some 1527 sq.m of food floorspace and some 874 sq.m of non-food floorspace."
- The relationship between the 2403 and 2919 is clear, albeit implicit. The former excludes the area on the exit side of the checkouts where the lobbies, customer services and circulation space are; the latter includes it.
- WYG Planning for the District Council produced a retail study in response. It used the same net retail area as had G L Hearn, but it noted a need for clarification over what was the right floor space figure because it thought it saw a difference between the G L Hearn figure of 2401 sq metres and the figure of 2919 sq metres on the plan. However it ought to have appreciated that the G L Hearn figure of 2401, as made explicit in its retail study, excluded the public areas on the exit side of the checkouts. WYG is silent on that point. G L Hearn responded to its study without clarifying the point. The report itself, as I have said, already contained the answer to the point of clarification, which WYG Planning do not appear to have pursued later.
- On 28 February 2008, DPDS for Midcounties produced its report which drew to a great extent on WYG's and which raised the same point about the difference between the figure of 2401 sq metres used by G L Hearn and 2919 sq metres. Like WYG, it used the same figure of 2403/1 sq metres for its critique of the other studies.
- The WYG report was cautiously supportive of the proposal on qualitative grounds, agreed that there would be no harm to the vitality and viability of Stourport town centre, but thought that the quantitative need case had not been proved. The DPDS report was critical of the proposal.
- The report to committee on 4 March 2008 introduced the proposal as having a gross external area of 4209 sq metres and a "net sales area" of 2919 sq metres and repeated those figures when introducing the retail impact studies.
- The WYG/DPDS clarification point over the figures was not mentioned. The WYG report was referred to extensively, and after discussing whether the proposal was in or out of centre, the report accurately summarised WYG's views as follows:
"... since WYG conclude that the proposal passes the sequential test in any event, providing the pedestrian linkages to the town centre are as strong as possible, since this has a bearing on the potential impact on the town centre. There is also a requirement to demonstrate need. WYG accept that there is a qualitative need for the development; whilst they do not wholly accept the applicants' arguments about quantitative need, they do, significantly, accept that the proposal would not on balance cause significant harm to the vitality and viability of the town centre. WYG have also considered all the third party representations concerning the retail issues, but remain of the opinions as summarised in this report. In essence, WYG do not consider that there exists a strong case for refusing the application on retail grounds."
- The report to committee then concluded that WYG was of the view that the quantitative need point was not a strong basis on which to oppose the development, that there was no harm to vitality and viability on balance, that there would be some material benefits in clawing back lost trade and that the proposal accorded with the relevant retail policies. This report appears to have been prepared before the Council received the DPDS report for Midcounties.
- There was an addendum report to the committee which summarised accurately the contents of the DPDS report, but, again, did not refer to the clarification point. It then set out what must have been oral advice from WYG on the DPDS report and, in particular, on what DPDS had to say about WYG's own report.
- The conditional grant of permission was recommended subject to the completion of a section 106 agreement. At the meeting this recommendation was accepted and the actual grant of approval was delegated to the planning officer for issue upon satisfactory completion of a section 106 agreement.
- It is perfectly clear that the figure of 2403 and not 2919 sq metres was used as the floor space figure from which the sales turnover would be obtained in each of the three reports from consultants. The report to committee does not point that out, nor does it refer to the relationship between the two figures (2403 and 2919) set out in the G L Hearn study. But it does not matter what the floor space figure used in the studies was, nor what the members were told about the studies or about the reason for the two figures of 2403 and 2919 unless the effect of the figures as used was that the development permitted was not the development assessed, so that a material consideration was ignored.
- In my judgment Midcounties failed to show that that was so. The proposal was in fact assessed by WYG for the Council on the basis that the area of the store behind and including the checkouts was 2403 sq metres, just as Tesco/Santon said that it was, and that the area to which the public would have access was the 2919 sq metre area, providing 516 sq metres of space for customer facilities, such as lavatories, ATM, cafe, lobbies, circulation with trollies and baskets from checkout to exit as normally found in a store.
- The District Council has controlled the development to that area of 2919 sq metres. The area used in the assessments and the area used in the condition are wholly consistent with each other. Although WYG noted a point for clarification about the proposals, WYG, the planning officers and DPDS for that matter must have appreciated that the 2403/1 figure used in the assessments did not include the area in the store but on the exit side of the checkouts, and that that area was 516 or so sq metres, the difference between 2403 and 2919. No one suggested to the District Council, neither WYG, DPDS nor Midcounties themselves, who are retailers too and understand the layout of stores as well as Tesco, that there would be no such public area on the exit side of the checkouts. Nor did any of those suggest to the Council that any part of that difference of 516 sq metres was readily switched from the exit side of the checkouts to the inner side. No councillor could have supposed that the bare minimum would be provided for shoppers to squeeze out of the store or into the display area behind the checkouts with all the experience of such stores now available. No one suggested to the Council that there was anything at all unusual about a store of 2919 sq metres public area having 516 sq metres on the exit side of the checkouts for the activities commonly found there. There is no reason for the officers or councillors to have supposed otherwise or evidence that they did.
- Mr Holgate submitted then that the store could in fact be built with more than 2403 sq metres behind and including the checkouts and that that could extend to the whole of the 2919 sq metres increasing the assumed turnover. In law, or at least in theory, that is correct. The 2403 figure is not used in the condition to control this aspect of the development. But the full difference of 516 sq metres could not be used for that purpose without making it impossible for the public to enter or leave the store. There is no evidence from Midcounties to show that a store of 2919 sq metres for the public access area would or could be sensibly laid out with so much less than 516 sq metres on the exit side of the checkouts, and with the balance then switched to the inner side of the checkouts, as to create a material difference to the need, capacity and impact assessments or to the Wyre Forest District Council decision. Certainly there is no evidence that that is contemplated by Tesco/Santon. There is no evidence therefore that a material consideration was ignored or that the store is not in reality controlled to what was assessed.
- I am not prepared to assume on the basis of theoretical legal argument that the store was assessed by the District Council on the basis either that only the bare minimum area would be provided, whatever that might be, for an uncertain number of customers at any one time to pass into the area where goods are displayed for sale and to pass out of the store with trollies and baskets, or that that is what would happen. I am not prepared in the absence of evidence, which Midcounties would have been well placed to provide were there any substance in this point, to assume that whatever of the 516 sq metres might then be left for incorporation into the area where goods were on display for sale could make any difference to the retail assessments or conclusion. This legal point as to materiality is utterly hollow unless there is some evidence as to its potential materiality in reality. I am not prepared to assume its real world materiality by taking one unknown figure from 516 sq metres for public access, which inevitably there has to be, and guessing at the potential sales effect of the rest being incorporated behind the checkouts. It is far from self-evident that there would be any effect. Midcounties could have supplied evidence were it a useful point.
- Mr Holgate also said that under condition 6, 2919 sq metres could be used for the retail sales area, including the checkouts instead of 2403 sq metres, with the circulation area on the exit side of the checkouts, to be taken from the 1290 difference between 2919 and 4203. That, he said, would also affect the sales assumption on which the retail impact study had been based out.
- This argument depends on treating the 2919 sq metre figure as referring to the area within and including the checkouts, so that the public could have access consistently with the condition to a yet larger area. However, where a smaller area of 2403 sq metres is identified, and no sensible suggestion was forthcoming as to what that smaller area might be used for, if 2919 sq metres was only the area inside and including the checkouts only, it is not possible in my judgment to interpret the 2919 sq metres as being only part of the area to which the public has access. The meaning of 2919 sq metres "net retail sales area", requires meaning in retail terms still to be given to the smaller area of 2403 sq meters. The only sensible meaning is that the 2403 sq metres is the area within and including the checkouts so that the 2919 sq metres is the limit of the area to which the public have access. The impact assessment has not been carried out on a basis which the development itself could confound. Therefore, the interpretation of the condition, which I regard as correct, does not lead to the conclusion that a material consideration has been ignored.
- Mr Richards for the District Council conceded that condition 6 was ambiguous or uncertain, and submitted that I should look at extrinsic evidence because that made an uncertain position clear. I disagree. The meaning of "net retail sales" in the abstract is vague in the sense that there is no certain or agreed definition, but that is beside the point. What is clear is that the 2919 sq metre figure in this planning permission represents the whole area to which the public have access. Although I disagree with his conclusion, I shall deal with his point on the basis that there is some uncertainty which, following Shepway, permits resort to extrinsic evidence for the determination of the meaning of condition.
- Mr Holgate said that I should not look at the extrinsic evidence because those materials were themselves unclear. That simply shows, if true, that the exercise does not answer the question adequately. It does not go to the legitimacy of looking at extrinsic evidence. However, once resort is had to extrinsic evidence, the court cannot exclude, from its mind, evidence which shows that the picture is unclear, even if other evidence is clear and points only one way. The true answer has to be gained from all the relevant sources. If resort to them all shows that there is no clear meaning, then the meaning of the planning permission remains uncertain with whatever legal consequences flow.
- I have referred already to the language of the G L Hearn retail study, which was followed by WYG and DPDS. The distinction between areas including or excluding the exit side of the checkouts is clear, and the 2403 sq metres was the smaller area of the two, even though nowhere in the documents are the two figures actually put side by side and spelt out in that way. No one has suggested that drawing that distinction for such studies was other than normal. I regard the interpretation of the retail impact study as clear.
- Mr Harris submitted that I should give the greatest weight to the retail study, out of all the extrinsic evidence, which inferentially explains the scope of the 2919 sq metre figure. This, he submits, is far more important than the precise or, more aptly, imprecise terminology used to express those distinctions.
- The problem created by this lack of agreed and precise terminology is not new. Mr Lamb of GL Hearn said in his witness statement:
"9. It is commonly accepted among those involved in retail planning and in particular the preparation and critiquing of retail studies, retail capacity and retail impact work that sales area is that which comprises the internal area to which the public have access, which is used for the sale and display of goods. It is a matter of phraseology and general interchangeability of terms that descriptions such as floorspace for retail trading, net sales area and sales area are applied. There is no commonly applied or standard term relating to the naming of a selling area.
10. The distinction between these two 'sales areas' becomes important when assessing the proposal against retail planning policy tests (PPS6), as it is the smaller net retail area which generates the store's retail turnover. The non-retail sales floorspace does not generate turnover and is therefore ancillary to the retailing area."
- Mr Holgate pointed out that other documents submitted with the application and which similarly were not part of it, used similar language but without any consistency in usage to describe what were or could be similar concepts.
- The planning statement at paragraph 3.5 said:
"The store will include 2403 sq.m (25,865 sq ft) net sales area, providing the wide range of food and non-food goods and services expected in a modern supermarket, together with staff catering facilities and offices and storage areas. Staff accommodation is to be located at mezzanine level. Details of the floorspace distribution and the customer offer are provided in the Retail Assessment."
- Although the term "net sales area" there refers to the area of 2403 sq metres, it could not be supposed that all the facilities referred to in the sentence were to be provided within that 2403 sq metre area, although literally the sentence could be read that way. There is no reference to what the 2919 figure relates to. It directs me to the retail study, however, the meaning of which is clear on this point.
- A fine example of confusion occurs in the design and access study, a document required by statute to accompany the application, where at paragraph 4.6 it says:
"The store will have a sales area of 2403 m2 (25,865 ft2) with petrol filling station and associated landscape works. The sales area will provide a range of food, non-food goods and services, along with a cafe and storage areas and associated landscaping."
- I note also the imprecision of the language of paragraph 2.2 of the environmental statement:
"The store will comprise 2403 sq.m (25,865 sq ft) net sales area, offering both food and non-food goods and services in a modern supermarket setting. The building will include staff catering facilities, ancillary offices and storage areas."
- This leaves it uncertain whether the 2403 sq metre figure covers all the public access areas, and contrasts with the staff areas. That is, in fact, not what was assumed in the assessment. It exemplifies the imprecision in the use of language without providing interpretative assistance as to what the 2919 sq metres related to.
- In my judgment, looking at all this material in the round with the planning application, the same answer as I came to without it emerges. One cannot construe the planning statement, the environmental statement and the design and access statement as statutes. They are obviously rather loosely worded. There is no reference to the 2919 sq metre figure and the only figure referred to, 2403 as net sales area, clearly does not cover all the functions which are sometimes apparently attributed to it, notably in the design and access statement. No one could have supposed that it did. The planning statement and design and access statement differ in the way they describe staff areas. The language of these other documents gets in the way of understanding.
- However, the focus of Mr Holgate's argument is on the parts most apt to confuse: ie.e what does a particular phrase mean? The real question is what area or activity does the 2919 sq metre figure relate to? The answer is not helped by the language of "net retail sales" when these other documents are examined, but the same fundamental point remains. The planning documents as a whole refer to two different but related areas. If they refer to the same area performing the same function there is a conflict. But it takes no great effort of understanding to see from the retail study that the 2403 sq metre area is the area including and within the checkouts, that the other larger area to which the words "net" and "retail" are attributed includes it and lies, in part, beyond it, and that beyond that area of 2919 sq metres are the staff areas. There is really no other sensible meaning that can be given to those areas. So the imprecision of the language of the design and access, planning and enviromental statements provides a means of muddying the waters, that when the mud settles, the answer is clear. The retail study, the likelier source for an accurate breakdown of floorspace inside the store, fits with the planning application and permission. The other statements do not on examination show real uncertainty in the position when read with all the other material; they are just rather loosely worded, focussing on other points. The use of extrinsic material thus leads to the same result as I had already reached.
- However, I have to say that I have real reservations about the scope of the task which I was invited to undertake by reference to this accompanying material. The planning application and the planning permission are public documents. Granted that in the light of Shepway extrinsic evidence is admissible for interpreting a planning permission if it is uncertain, I nonetheless venture that: (1) the court must strive to resolve the issue without recourse to extrinsic materials; (2) that the extrinsic materials should, in the first place, be that which is referred to in the permission, even if not incorporated in it, or expert evidence that a particular phrase is a term of art; and (3) one should be very careful about recourse to any documents which are not publicly available and the existence of which is not apparent from the application or the permission itself.
Discretion and the section 106 obligations
- Finally on this point, Mr Richards and Mr Harris submitted that if I was against them thus far I should in my discretion refuse to quash the planning permission because of a section 106 obligation unilaterally entered into on 17 February 2009 by Tesco/Santon which would confine the development to no more than 2401 sq metres net sales floor area, which was defined in the obligation in effect as the public areas within and including the checkouts but excluding lobbies, circulation areas, services and so on. In other words, it expressly limited the development to that which had been assessed. Its enforcement is not contingent on the outcome of this case.
- Mr Holgate said that that still did not resolve the problem because "circulation" which was excluded from the limit of 2401 sq metres could include the area between the display shelves where shoppers walk and select goods. I am wholly unpersuaded that that is a proper reading of the section 106 obligation.
- In view of the conclusions I have reached it is unnecessary to explore the interesting and not wholly straight forward discretion issues which that obligation could give rise to. It does, however, confirm my view as to what the planning permission meant if recourse to that extrinsic material is allowed. Nonetheless, I reject ground 1.
The tailpiece to condition 6
- Mr Holgate's other point on condition 6 concerned the tailpiece which gives the District Council power to vary the upper limits of gross external and net retail sales floor space in writing. He submits that, on its face, this allows the upper limits of floor space as applied for, assessed and permitted to be varied upwards, and indeed varied upwards without limit, all with no more than an informal request from Tesco/Santon. That is indeed what the condition says. Mr Holgate submits that that condition is, therefore, unlawful for a whole variety of reasons. It makes hopelessly uncertain what is permitted. It enables development not applied for, assessed or permitted to occur. It side-steps the whole of the statutory process for the grant of permission and the variation of conditions: see Henry Boot Homes Limited v Bassetlaw District Council  EWCA Civ 2003,  1 P&CR 23 and in particular between paragraphs 51 and 54.
- The District Council and the developer respond by saying that there is scope, albeit extremely limited, for immaterial variations to be allowed by local planning authorities without the developer being required to make a formal application. It could, for example, enable 2919 sq metres to become 2921 sq metres. The existence of such a power was propounded in Lever (Finance) v Westminster City Council  1QB 222 at page 230B. Lord Denning MR said that a planning permission covered the work specified in the plans and "any immaterial variation therein". Although Lever (Finance) went on to deal with the effect of a decision by the planning officer that a variation was immaterial, in terms of estoppel, which is not now appropriate in the light of decisions such as R (Reprotech (Pebsham) Limited) v East Sussex District Council  UKHL 8,  1WLR 348, the starting point for Lord Denning's analysis was that a planning permission actually covered what was specified in it and immaterial variations. The source of the power to permit immaterial variations was not a private law estoppel but the proper construction of the planning permission itself.
- The existence of some such power, extremely limited in scope, drawing upon the terms of the permission itself properly construed as matter of law, is not excluded by the very cautious language in Henry Boot in the paragraphs to which I have referred.
- I am not concerned with the effect of a recent amendment to the Town and Country Planning Act which provides a statutory basis for a power informally to make immaterial variations because that provision was not in force at the time of the grant of this planning permission. But I do not regard that statutory power as precluding the prior existence of such a power.
- As I shall come to in connection with another condition, I accept the existence of a very limited power to make immaterial variations informally. But while the tailpiece in the condition in question could be applied in that way, it contains no words purporting to limit its application. The tailpiece on its face does enable development to take place which could be very different in scale and impact from that applied for, assessed or permitted and it enables it to be created by means wholly outside any statutory process. It undermines the effect of specifying floorspace limits. I do not consider that a public document such as a planning permission should contain such a provision. It is unreasonable that the public should be expected to know that the plain meaning of the tailpiece was so radically qualified by Henry Boot and Lever (Finance), nor should it be expected to know that giving effect to its apparent scope would be unlawful for the reasons given by Mr Holgate in relation to Henry Boot in particular. The consequence is that unless the tailpiece can be excised and quashed, the condition is unlawful and so too is the planning permission. No question of severing the condition from the planning permission could arise. The floor space limits are of central importance.
- Mr Harris for Tesco/Santon submits, and I accept, that a power of excision or severance and partial quashing exists. It is illustrated by Mouchell Superannuation Fund Trustees v Oxfordshire County Council  1 PLR 97, in particular page 109F to G.
- Although that case concerned the quashing of a condition as a whole, and here it is the tailpiece alone which contains the unlawfulness, I see no reason why the principles which that case acknowledges should not be as capable of application to part of a condition, as they are capable of application to a condition as part of a permission. This tailpiece is linguistically severable, and after severance the condition requires no further amendment nor the insertion of any other words to make linguistic and planning sense. The substance of the condition would not be altered. It retains the floorspace limits which are at the heart of the condition and are what the condition aims to achieve. It reflects exactly what was applied for, assessed and contemplated in the officer's report, by the committee and approved by it. It is not, in my judgment, an important part of the planning condition, let alone of the planning permission. Its excision merely prevents the District Council doing what it would have been unlawful for it to do any way.
- Mr Holgate objects to severance, or partial severance, urging that the tailpiece is unlawful and should lead to the quashing of the whole planning permission because Wyre Forest District Council might have regarded the flexibility which the condition afforded as relevant to the decision and without it might have refused permission or conditioned it differently.
- I regard that as wholly fanciful. In my judgment, severance does not involve substituting a court decision for one not made by the Council, let alone for one that it is possible the Council may not have made if it knew the tailpiece to be unlawful. The condition would have been issued without that tailpiece had attention been paid to its lawfulness by the officer who added it after the report to committee was approved as the basis for the grant. This tailpiece was never referred to in the officer's report or in the debate and only emerged in the final planning permission when the officer under delegated powers issued the permission; it was not itself considered by the Council.
- Accordingly, although I will hear counsel on the precise terms of the remedy, that tailpiece is to be excised from condition 6.
Condition 4: the tailpiece
- It is convenient here to deal with the closely related objection to condition 4 which provides:
"The development hereby approved shall be carried out strictly in accordance with the following plans/drawings:
6046-P07-J dated 22 February 2008
6046-P10C dated 22 February 2008
stamped 'Approved' unless other minor variations are agreed in writing after the date of this permission and before implementation with the Local Planning Authority."
- I note that the language of "minor variations" to something which is otherwise to be carried out "strictly in accordance" with drawings contrasts with that used in condition 6, suggesting that the tailpiece to condition 6 had a wider scope.
- It was originally only with condition 4's tailpiece that Mr Holgate took issue. He had been apparently content with the language of condition 6 until the hearing during which, with permission and without objection, he took the point that he had taken on condition 4 in relation to condition 6. Mr Holgate puts forward the same submissions in relation to the tailpiece to condition 4 and principally relies on the Henry Boot case, while Mr Richards and Mr Harris rely on the limited scope for variations contemplated by Henry Boot, and Mr Harris continues to draw on Lever (Finance) which, as he says, in this respect has never been overruled.
- I do not regard this tailpiece as unlawful. Its clear scope is to enable "minor variations" to an obligation otherwise to develop "in strict accordance" with plans and drawings. Both those parts of the condition operate to limit the flexibility which the tailpiece provides.
- Although there is a marked trend in judicial decisions in planning cases away from private law concepts, and Henry Boot reflects that, the starting point for the analysis in Lever (Finance) and the basis of the decision in Henry Boot means that scope exists, albeit extremely limited, to make immaterial variations, and cannot be regarded as unlawful. Henry Boot recognises the existence of some extremely limited scope to make minor variations without explaining its origin.
- In my judgment, this scope covers at least those circumstances in which the change is immaterial in the sense that no reasonable local planning authority could refuse it, or could take enforcement proceedings lawfully in respect of its implementation. I do not exclude other jurisprudential bases. Mr Harris instances circumstances where the provisions of a 278 Highways Act 1980 agreement might require minor adjustments to permitted road works, but this simply illustrates the usefulness of the existence of such an extremely limited power without providing its jurisprudential source. This, in my judgment, can only lie in the application of public law principles to the actions of the local planning authority or to a proper understanding of what a planning permission means, as found by Lord Denning in the Lever (Finance) case.
- Even if the language of the tailpiece to condition 4 is not precisely the language of Henry Boot, it is sufficiently close for it to be clear that its reach, properly interpreted, is lawful. If unlawful advantage is taken of it by actions which go beyond its lawful reach that itself is remediable. Otherwise it is appropriate to construe the condition so as to save it. No definition of "minor" is necessary, any more than it is of other phrases of perhaps uncertain reach. It is commonplace for words of uncertain reach in the abstract to be made certain through judgment and application in planning, as in public law generally. This tailpiece is not unlawful.
consultation on the section 106 agreement
- Mr Holgate contended that the District Council failed to comply with its statutory obligation to make available to the claimant, as an objecting member of the public, draft and final versions of the section 106 agreement entered into between it and Tesco/Santon. The statutory requirements are contained in the Town and Country Planning (General Development Procedure) Order 1995 SI 1995/419 as amended. Article 25(3) provides:
"Part 1 of the register shall contain in respect of each such application ...
(b) a copy ... of any planning obligation or section 278 agreement proposed or entered into in connection with the application."
- Mr Holgate contended that the District Council had also failed to offer an adequate opportunity for consultation and comment, contrary to the obligations of fairness and the legitimate expectation created by OPDM Circular 05/2005, "Planning Obligations". At paragraph 41 and 43 it says:
"41. The process of setting planning obligations policies and negotiating planning obligations should be conducted as openly, fairly and reasonably as possible and members of the public should be given every reasonable assistance in locating and examining proposed and agreed planing obligations which are of interest to them.
43. With respect to the requirements to include details of planning obligations in Part 1 of the register, it is recognised that the terms and content of agreements can change frequently during negotiations and that having to update the register every time there is a change could be unduly onerous for authorities. Individual authorities are best placed to judge when to update the register, bearing mind its purpose in ensuring the transparency of the process, but as a guide, local planning authorities should expect to record agreed heads of terms at the start of the process, followed by any significant changes to draft agreements."
- The committee report and resolution envisaged that a section 106 agreement would be entered into between Tesco/Santon and the District Council and Worcestershire County Council as highway authority. The heads of terms were set out in the committee report and, in rather more detail, in the addendum report. As is commonplace, the actual grant of approval was delegated to an officer upon execution of a satisfactory section 106 agreement, which it was for the officers to negotiate. It reached its final draft version on 13 May 2008, five weeks after the resolution to grant, and three clear working days before the permission was actually granted on 19 May 2008.
- Midcounties through its solicitor wrote to the District Council on 14 and 21 April 2008 asking for the draft versions of the agreement because it wished to comment on certain aspects. It referred to a payment of £50,000 for junction improvements along bus routes. The District Council told the claimant on 16 and 23 April that it would send a draft of the section 106 agreement at an appropriate moment, following the requirements of the Circular. It said that the £50,000 was referred to in the addendum report and the correspondence repeated what was said about it in that report. In fact, the District Council did not tell Midcounties that draft versions had been prepared on 17, 21, and 29 April 2008 as was subsequently disclosed in this litigation. Nor did it tell it on 13 May 2008 that it only had until 19 May 2008 at the very latest to comment on the terms.
- Mr Richards submitted that the statutory obligation to put "proposed" section 106 agreements on the register only applied to a section 106 agreement in its final version before it was executed in that form. I regard that as implausible in the absence of an express and useful statutory period being required to elapse between the document reaching its final form and its execution so as to enable public consultation to take place on its terms. The language of the Circular which treats a "draft" as a "proposed" section 106 agreement is a correct reflection of the statutory language and its purpose. A purposive interpretation of the statute, such as the Circular provides, enables the statutory language and objectives to be satisfied.
- This submission notwithstanding, Mr Richards contended that the District Council had intended in fact to comply with the Circular obligations, as I conclude they should be construed, and indeed had succeeded. If it intended to do so, its manifest failure to do so is more than a failure of the will. Rather, its responses to Midcounties were a calculated and misleading fobbing off. Even when drafts were in existence, none were put on the register or disclosed. The implication of the District Council's letters was that drafts did not exist. The failure to disclose to Midcounties or put on the register any draft at all is not a consequence of uncertainty over how many exchanges or variations could usefully be disclosed.
- Although it is a question of judgment for the local planning authority, I would accept, as to when a new draft requires such public disclosure, no such judgment was exercised here at all. Whilst I can understand how parties engaged in negotiations may find it irritating to receive comments from an objector on the section 106 agreement which they are endeavouring to negotiate, that does not absolve the District Council from its obligations and is not the spirit in which its statutory obligations should be approached.
- The section 106 agreement is not a private agreement to be revealed only when it is concluded, any more than conditions are a matter exclusively for private negotiation and debate, to the exclusion of the public. I accept there may be room for debate as to whether every draft needs to be registered for the terms and purpose of the legislation to be complied with, although all significant changes should be. I do not rule out that there may be some parts of the draft which may involve negotiations akin to without prejudice negotiations which for a while it may be legitimate not to publicise. I recognise that a new draft does not come into existence with each change made by an officer for his own internal purposes before it is sent out to the other side, where undoubtedly it would become a new draft. Not every proposed change to a clause may create a new draft, but for all that the judgment which the District Council is required to exercise is one which is intended to enable public participation and comment on a draft before it is set and executed. It is a question of judgment which must be exercised with the purpose of the statute in mind.
- It is clear here that compliance with the statutory obligation would have required not just the heads of terms, but at least one draft, as well as the final version of the section 106 agreement, to be placed on the register as a means of making it publicly available. In my judgment, the statutory requirements of the GPDO were not met.
- I also conclude that the time scale for comment by Midcounties, starting on 13 May 2008 with no indication as to how short the timetable actually was, was short by at least a few days of a proper period for it to make any comments on the final version. Although it had consultants instructed and familiar with the proposal and the heads of terms, and it might have been possible for comments to have been made in time for them to be considered by the District Council before planning permission was issued, the claimant was not alerted to how short a time it had in which to comment.
- The legitimate expectation of proper consultation engendered by the Circular, and indeed by the District Council's own correspondence, was breached, applying the well-known Sedley formulation adopted by Hodgson J in R v Brent LBC ex parte Gunning  84 LGR 168 at 189 and R (Lichfield Security Limited) v Lichfield District Council  EWCA Civ 304,  3 PLR 33.
- The question of whether what the District Council did or omitted to do involved any procedural unfairness is however closely bound up with the question of whether there was any actual prejudice to the claimant. In the absence of some prejudice, there is in general no procedural unfairness because there is no such concept as a technical breach of natural justice. This was explained, for example, in Malloch v Aberdeen Corporation  1 WLR 1578 at 1595B to C by Lord Wilberforce. He said:
"The appellant has first to show that his position was such that he had, in principle, a right to make representations before a decision against him was taken. But to show this is not necessarily enough, unless he can also show that if admitted to state his case he had a case of substance to make. A breach of procedure, whether called a failure of natural justice, or an essential administrative fault, cannot give him a remedy in the courts, unless behind it there is something of substance which has been lost by the failure."
- The same point is made in the Lichfield Securities case at paragraphs 22 to 26. I note in particular what Sedley LJ said at paragraphs 22, 24 and 25:
"22. We have no difficulty in accepting that LDC's failure to bring LSL and Williams into a single process of consultation, however brief, about the best formula for apportioning the road infrastructure costs was unjustified and was potentially unfair, in the circumstances, to LSL. But potential unfairness is not enough. It has been authoritatively said that there is no such thing as a technical breach of natural justice: R v Chief Constable of the Thames Valley Police, ex parte Cotton  IRLR 344 per Stocker LJ at para. 53 Before treating this as a universal axiom, however, it is necessary to have regard to what Bingham LJ said at para. 60: "This is a field in which appearances are generally thought to matter"; and to consider how the two propositions would fit together in a case where, say, a defendant has been denied a chance to speak in mitigation before being sentenced, even though he cannot show that he would have had anything useful to say. What can be more confidently said is that in the field of public administration, absent some mandatory procedural scheme, it is the combination of process and impact which must be shown to have been unfair if a public law challenge is to succeed.
24. Coming back to the question of substantive unfairness, in our view LDC have failed entirely to show that the formula favouring Williams was the only feasible outcome of an open consultation process. ...
25. But that does not conclude the question of fairness. Mr Mole and Mr Lowe submitted that, even if LDC's conduct is open to the criticism that it was poor public administration, it did not cross the legal boundary between the fair and the unfair. We do not agree. ... The only remaining question is whether LSL, expertly advised and represented as they were, had sufficient information, advice and resources to make up the leeway and to submit anything they wished to the planning committee at its decisive meeting on 1 April: in other words, whether there was in the end any substantive unfairness to them."
- In my judgment it is for the claimant to show prejudice in relation to a failure in a non-mandatory procedural scheme, here, the legitimate expectation of fairness in consultation created by the Circular.
- The question of whether prejudice or disadvantage is necessary before unfairness can be found rather depends on the nature of the proceedings or process, the role of the parties and the nature of the apparent breach of procedural fairness. In my judgment, here, if there was no prejudice or disadvantage to it, no procedural unfairness was caused to the claimant and there is no reason to quash the planning permission for that procedural defect.
- Insofar as the case is, however, one of a breach of statutory duty rather than simply one of fairness, the defendants say that I should not quash the planning permission in the exercise of my residual discretion. It is for the defendant to establish why relief should not be granted in respect of the unlawfulness in relation to the GPDO.
- I am satisfied that no prejudice at all has been caused to Midcounties by the absence of full consultation on drafts and the shortness of time for consultation on the final version, or by the failure to put the drafts on the register.
- First, the heads of terms on which Midcounties were freely able to comment had not been changed, whether by addition or omission in any significant way, in the fully fledged section 106 agreement when it emerged, such as itself could call for comment. This was agreed by the claimant.
- Second, the claimant had the opportunity, as a result of the addendum report, to comment on whether the heads of terms should be added to or provisions omitted, but made no such representations at all. So its complaints in relation to consultation and negotiation can only relate to the specific detail of the way in which obligations already publicised had been drafted.
- Third, Midcounties remained an objector to the scheme and its objections to the inadequacies of the section 106 agreement in dealing with its objections, for example, on linkages between the town centre and the proposed store, were already part of its objections in principle to the development of this store in this location. Detailed comments on how the proposed section 106 heads of terms agreement would fail to overcome its objections, and why the District Council was wrong to suppose that they would, had been made by it, and had been considered and rejected by the Council. Repetition of an objection of that sort is not the point of this stage of consultation. The essence of the consultation responses at this stage are more that the detail falls short of the principles or short of the expected requirements as outlined in the heads of terms, or contains specific problems of drafting detail. Although I accept that there is not necessarily a hard and fast line to be drawn between principle and detail, the perspectives of a critique of the detail of the section 106 agreement, as opposed to the principles of the heads of terms, are very different.
- Fourth, Midcounties did have lawyers and consultants already familiar with the principles of the section 106 agreement, aware of Midcounties' objections, dealing with something which to them cannot have been a complex document, albeit that it only had a short time in which to deal with it. It did nothing in that short time, nor did it ask how long it had or for more time.
- Fifth, and crucially, as Mr Richards and Mr Harris point out, there is no evidence at all that Midcounties would have said anything on the detail of the drafts, let alone any evidence as to what it would have said. As Mr Holgate conceded, there is no evidence in any of the extensive post-decision evidence before the court that Midcounties says that it would have said something, or what it would have said if it had more time. Notwithstanding that it has now had nearly a year to put in evidence, that remains the position.
- This is not a mere technical point and it is rather different from the Lichfield Securities case on the facts. Midcounties is an experienced retailer. It had lawyers already engaged. There was substantial pre-judicial review application correspondence. This said nothing about whether anything would have been said, or what would have been said. There was nothing in the judicial review claim form which casts any light on the matter. It merely echoes the pre-action correspondence. There is nothing in the array of evidence, mostly irrelevant, filed on its behalf. Its highway consultant filed a witness statement in August 2008 running to 39-pages to which Mr Holgate drew attention, but the highway consultant says nothing to the effect that he would have said something, or what he would have said, in relation to the detail of the section 106.
- All Mr Holgate did was to take me to certain passages in letters to the District Council, the grounds for the application for judicial review and the highway consultant's statement of August 2008 and assert without evidence what the sort of point Midcounties would have made was. None of those documents were in fact objections, either before or after the event, to the detail of the section 106 agreement. In my judgment had evidence been produced to say that its objections would have been what Mr Holgate submitted, it would have illustrated in reality how these objections were objections to the principle of the development, already considered and dealt with.
- Mr Holgate submitted that the claimant was interested in the adequacy or otherwise of the sum of £50,000 proposed for junction improvements on bus routes and had made representations about that. Its correspondence on the section 106 draft referred to that. An examination of the section 106 agreement on this topic showed that there is nothing in it that was not envisaged by the heads of terms as set out in the addendum officer's report. The section 106 is neither more advanced, specific, or clear as to what junctions and what improvements are involved. Mr Holgate said that that is exactly what Midcounties would have objected to. There is no evidence that that is what Midcounties would have objected to, or as to what they would have said about how the draft should have changed. In reality, as the heads of terms was just as vague as the detail, that is a point that goes only to the principle of development and the heads of terms. Nothing was changed in the detail of the draft; no new point of detail arose.
- Mr Holgate next took me to points made in the grounds of application in connection with a quite different point, related to the fairness of the way the highway objections raised by Midcounties had been considered; a ground now reduced to but one point to which I will come. They do not evidence what would have been said about the section 106 agreement drafts.
- The grounds of application said that a number of points in the County Council's original highway objection to the proposed development had not been resolved, including those which the section 106 agreement was said to be addressing but which Midcounties claimed it did not. This included the point that this £50,000 would not resolve the problem which the County Council had identified at the Yale Street, Lion Street, Bridge Street, New Street junction.
- The grounds criticised the County Council for not maintaining its objection to the development but instead removing it in its response to the District Council on 14 February 2008; the claimant had long been well aware of this change of stance. The objection that the section 106 agreement would not solve the problem to which the £50,000 was addressed was available well before February 2008, remained available with the heads of terms agreement and was not changed in one iota by the section 106 agreement's detailed drafting.
- Mr Holgate then took me to the witness statement of the highway consultant served in connection with these proceedings, section 1 of which is a critique for my benefit of the accessibility of the store. It refers to the inadequacy of the £30,000 contribution for a junction improvement and criticises pedestrian routes. This latter criticism is a very long standing criticism of the relationship between the store and the town centre that does not arise from the section 106 details and it was already well known to the committee as an objection. The £30,000 was referred to in the addendum report on the heads of terms greement as being to improve pedestrian linkage to the town centre along Lodge Road. The relevant provision of the section 106 agreement makes exactly the same comment, but it adds two definitions and two clauses, one requiring payment and the other requiring the use of that payment. There is no conceivable new point that could have arisen on the detail; none was identified.
- The references in that witness statement to the £50,000 confirm that the claimant's point on it has nothing to do with the detail of the section 106 agreement. Its point, with one qualification, relates to failures already said to be present in the appraisal contained in the report to committee, about which the Council was entitled to take a different view. This one qualification is that the junction improvement money did not need to be spent on that particular junction, but that, though not in the appraisal, was already a point available to the claimant, as it is plain from the heads of terms and the correspondence.
- Although the response to the details of a section 106 agreement may properly be that it does not do what the heads of terms said it would do, that is not a point which Midcounties seeks to make here. It does, or omits to do, exactly what the heads of terms said it would or would not do.
- The claimant's representations and evidence here really show that its fundamental objection remained despite the section 106 agreement. The section 106 agreement was never intended to deal with those objections as the claimant perceived them. There is nothing in the details of the section 106 agreement which has been shown to be of any concern beyond that which was obvious from the heads of terms as set out in the addendum report.
- Be it noted that the arguments here are some distance from the rather unattractive point which arises sometimes in relation to an unfairness or discretion argument. That is that the answers in consultation would have made no difference to the Council's thinking. Mr Holgate rightly points out that it is not for the court to enter "the forbidden territory of evaluating the substantial merits of the decision": see R (Smith) v North Eastern Derbyshire Primary Care Trust  EWCA Civ 1291,  1 WLR 3315, at paragraph 10 per May LJ. It is not for the court to weigh the prospects of success which a consultee's points might have with an open-minded council and rule that it would have had none as a matter of its own evaluation of the material. But this is not a case in which it is necessary for the court to be on the alert to avoid trespassing beyond its function in evaluating a consultation response that would have been made if the opportunity had been given. I regard it as telling that there is simply no evidence in the circumstances that the claimant would have said anything at all, let alone as to what it would have said. Such evidence as it produces shows that it would have focused on principles upon which it could have commented at any stage. In those circumstances, no question arises of this court evaluating what the claimant might have said or its possible effect on the decision.
- In those circumstances I am satisfied that the claimant has suffered no prejudice at all in the breach of statutory duty and the legitimate expectation created by the Circular, and has suffered no substantive unfairness. Insofar as it becomes a matter of discretion because of the breach of duty rather than an assessment of substantive fairness, I decline in the exercise of my residual discretion to quash the permission. Midcounties has not shown that it would have anything to say on the detail of the agreement for consideration by the Council. Quashing the permission for nothing to be reconsidered would be pointless.
- Midcounties submitted that the consideration given to the effect of the development on the conservation areas was legally defective. Two small parts of the development site fall at the edge of three different conservation areas. Mr Holgate submitted that the effect of those parts of the development on the character of the conservation areas had been ignored because not all the conservation areas involved were referred to. This submission grew fainter with discouraging judicial noises. I have no doubt in the view of the development brief, the extensive committee report and the councillors' own knowledge that they knew exactly where the development was in relation to the conservation areas.
- Mr Holgate's real point was that in the consideration of the effect of the development on the conservation areas, the Council had ignored the effect of traffic going to and from the store passing along roads in the conservation areas. By section 72 of the Town and Country Planning (Listed Building and Conservation Areas) Act 1990, it is provided that:
"In the exercise, with respect to any buildings or other land in a conservation area, of any [functions under or by virtue of] any of the provisions mentioned in subsection (2), special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area."
- These are obligatory and not optional considerations, though, in my judgment, that is not to say that every facet of each possible effect is equally an obligatory consideration as opposed to one capable of being material depending on the circumstances.
- It is unnecessary to set out any part of the committee report on conversation area issues because it is clear that they contain no reference to the effect of traffic, although it concludes generally that the conservation officer supports the proposal and is of a view that there would be no harm to the character and appearance of the conservation areas.
- CEC, Midcounties highway consultant, in a letter of 13 February 2008, dealt with the issue of traffic in the conservation areas by reference to Lichfield Street and Worcester Road. The claimant raised the issue of traffic in relation to the number 2 conservation area, which is the town centre conservation area, as one paragraph in representations made on its behalf by DPDS on 28 February 2008. The representations it made on conservation area issues understandably covered very many other topics. On 29 February 2008 CEC again drew attention to the increase in trips along Lichfield Street within another conservation area. These points were summarised in the addendum report to committee. The first report did not specifically refer to that matter, and, apart from summarising the objector's points, no further reference was made.
- It is wrong in my judgment to suppose that councillors were not fully aware of the current problems of traffic in the conservation areas. Paragraph 9.1 of the Access and Movement Chapter to the Severn Road Development Brief of 2001 deals with this specifically:
"There has long been widespread concern over the impact of high levels of traffic on the historic core of Stourport-on-Severn. It is considered that the existing access arrangements to the site are inadequate for the scale of development envisaged and that access is a major constraint on the major development of the area. Therefore, major redevelopment will necessitate considerable alterations and improvements to the existing access arrangements and the surrounding transport infrastructure."
- Two key road improvements were envisaged as alleviating this. First, the relief road and bridge over the River Severn, which, when complete, would take through traffic away from the town centre; Tesco/Santon would contribute a section. Secondly, a link road from the end of this new section across the River Stour to link up with the roads giving access to the store, to which Tesco/Santon would also contribute. This would link up with Lichfield Street. This background is some importance in understanding the significance of the committee report. The impact of the increased traffic obviously depends on an appraisal of the traffic movements as a result of the development and the implementation of a package of highway improvements, part of which, it was obvious, would not be in place at the opening date of the store.
- The components of the highway improvement package were noted as part of the description of the proposals in the committee report. At the end of it, the heads of terms for the section 106 agreement were listed. The report concluded in paragraph 4.37 as follows:
"The various highway improvements to connect the store with the town centre are supported by the Highway Authority. A new pedestrian link between the residential development on the west bank of the Stour to the site, and the town centre beyond, is a clear benefit, as are the proposals to improve local bus services, and the provision of the new road link, which also forms a short section of the proposed Relief Road. Generally speaking, this link will improve traffic flows and conditions in the town. Given the constraints discussed above, it is considered that the applicant has demonstrated improved pedestrian and other linkage between the site and the town centre such that this no longer represents a reason to refuse the application."
- The addendum report expressed its disagreement with CEC's highway figures, albeit briefly. The officers returned to highways in the context of the later consideration of air quality to which traffic impact was a crucial input. This said at paragraphs 4.4 to 4.7:
"4.4 Importantly, in the context of the objections set out 4.2 above, the highway improvements inter alia include the provision of a new access link from Severn Road over the River Stour to Discovery Road which will assist in the dispersal of traffic from the town centre. Further, investigations are proposed to junctions around the town centre which might be impacted upon by the development, with a view to improving the flow of traffic. The York Street/Bridge Street/High Street junction is one previously identified.
4.5 The objections set out in respect of traffic congestion which underpin the consequential argument that air quality will deteriorate are not founded on a professional critique of the Transport Assessment but rather more on personal and anecdotal experiences of the objector. On this basis, your officers are of the view that prima facie there is no evidence provided by the objector with regard to traffic congestion that outweighs the technical assessment carried out through the Transport Assessment and the position adopted by the Highway Authority. This element of the objection should, therefore, be afforded little weight.
4.7 ... The package of measures contained in the proposed S106 obligation, together with the road link over the River Stour will alter the pattern of vehicle movements around Stourport, including reducing the need to travel by providing a more sustainable option in the enhanced public transport proposal."
- I accept Mr Holgate's submissions that Tesco/Santon's own traffic impact assessment, accepted it seems by the council officers, shows a substantial increase on Lichfield Street and a minor increase on High Street, and that there is a difference between a councillor knowing what the current position is from his own experience and his knowing what the position will be with development and later with a package of road improvements in place. Yet the councillors knew where the store accesses would be and what were the main roads which led to those accesses from the west which would be used by shoppers. Although precise predictions may not have been in their minds, it would have been obvious from the location of the accesses alone that there would be a significant increase on Lichfield Street and on certain other roads passing through the conservation areas. The committee would also have been well aware in general terms of the long term benefits of the proposed relief road. They had the issue of traffic impact on the conservation area drawn to their attention, even if they had not been aware of it beforehand, which I find improbable, given the council's well-known desire to reduce the traffic impact on the historic centre of Stourport. The officer's report contained considerable discussion of the character and appearance of the conservation areas, albeit not from the traffic point of view, but that would have succeeded in drawing all those matters well to the mind of the councillors when considering this point.
- I accept that the effect of the development on the character and appearance of the conservation area is an obligatory consideration and I accept that the impact of traffic on it was in this case a material aspect of that effect. It was, however, but one aspect of the conservation areas to be considered. Although this aspect could have been given a fuller or more explicit consideration in the report, I do not accept that the omission of that shows a legal error. I am not prepared to conclude that this aspect of the impact on the conservation area was ignored rather than being sufficiently present to the mind of the councillors. I do not accept that the absence of a comment by the officers in the report shows of itself that the issue was ignored. For those reasons the claimant has not shown that a material consideration was ignored in relation to traffic in the conservation areas.
Road Safety Audit
- When Worcestershire County Council, the highway authority and statutory consultee on highway matters, made what it described as its "initial comments" in November 2007 at some length on Tesco/Santon's proposed highway changes as set out in the developers' September 2007 TIA and August 2007 Road Safety Audit, the highway authority made many comments critical of the safety aspects as shown on the submitted drawings. One line of these lengthy comments said:
"The safety audit will require updating to the revised drawings."
- These were revisions which Mr Hawley, the relevant officer, expected his initial comments to bring forth. His comments can be seen as initial comments not just from how they were described, but from their loose structure. He also reserved the right to offer further comment when the application had been fully considered. Indeed, on 18 January 2008, he recommended that the District Council refuse planning permission for many reasons, including some highway design aspects, although others could be remedied during the design check required before a section 278 Highways Act 1980 Agreement was entered into. This is the process whereby after the grant of planning permission precise highway drawings are developed for the purposes of works to the public highway.
- Following discussions between the County Council and District Council, Ove Arup and Partners for Tesco/Santon submitted revised drawings on 13 February 2008 which partly superseded drawings in its January 2008 transport assessment. The intention was to take on board and deal with the highway authority's comments.
- On 14 February 2008 Worcestershire County Council recommended planning permission be granted subject to a 106 agreement covering aspects of highway concern. The recommended conditions included a requirement for the provision of further details for approval of a number of changes and an agreement under section 278 governing works to the public highway. No further safety audit was submitted and Worcester County Council did not ask again for a further stage 1 safety audit, which is what its initial comments had suggested would be necessary.
- Midcounties did, however, produce a stage 1 road safety audit of its own, dated 6 February 2008, and submitted it to the District Council as part of its representations with a letter of 13 February 2008. This safety audit made a number of criticisms of the Ove Arup TIA of September 2007 and referred to its location plans and the personal injury accident plot, but without giving any plan or revision numbers.
- The committee report dealt with the discussions which had taken place between the County Council and Tesco/Santon both before and after the lodging by the developer of an appeal against the non-determination by the District Council of an earlier application. The committee report noted the County Council's agreement with the developers' latest TIA and road capacity assessment and that the County Council had no objection to permission being granted subject to conditions and a section 106 agreement. The report recorded simply:
"They advise that they do not agree with the case and objections put forward by the Co-op."
It made no reference to what had previously been said about a further safety audit from the developer.
- The claimant's safety audit and other highway objections in its letter of 13 February 2008 and a later letter of 29 February 2008 were dealt with in the addendum report. This summarised the claimant's highway consultant's concerns. The highway officer responded:
"The applicant has produced a safety audit that does not raise the objectors' concerns and the points made are difficult to substantiate as well. They do not present a strong case and have made statements that we disagree with. In summary, the Highway Authority is satisfied that subject to the conditions and signing of an appropriate section 106 agreement the public will not be adversely impacted upon and that the requirements of the Highway Authority will be met. It would be unreasonable and unjustifiable to recommend refusal."
- It is this comment which is at the heart of the claimant's criticism. So far as I can ascertain, no representations were made by the claimant either to the effect that the County Council had required a safety audit on revised drawings or that it had not explained why one was not necessary any more, or to the effect that a revised safety audit should be provided by Tesco/Santon anyway.
- Mr Holgate submits, however, that the highway officer should have told the committee of his initial comment and explained why a further safety audit had not been obtained or was now seen as not necessary. Further, the impression created was that a rival safety audit from Tesco/Santon did exist which was preferred by the County Council to that of the claimant, when in fact the Tesco/Santon safety audit preceded the claimant's and did not deal with the revised drawings upon which the County Council's recommendation rested.
- I was favoured with evidence explaining why the highway drawings were satisfactory at this stage, why no further safety audit was required and why the Tesco/Santon safety audit was not as good as the claimant's. This all would have gladdened an Inspector's heart. I am not sure they advance my understanding of any error of law. There is no statutory requirement for a safety audit to be produced in order for safety issues to be considered. For my part I can see no reason at all why the highways officer, as a matter of law, should have to point out to the committee what he had said in his initial comments about a safety audit on revised drawings and explain why he thought that was no longer necessary. It is clear as a matter of fact that he no longer thought that a further audit was necessary, from his recommendation that planning permission be granted in the way it was. Mr Holgate is quite wrong to treat that one line from the initial comment as creating a set framework for the highway authority's subsequent consideration which had to be adhered to or explanation given as to why not.
- The fundamental question is, did the highway authority consider safety issues in relation to the proposed road works? It did. The County Council reached the conclusion either that they were safe, or that by the time further improvements required by condition and agreements had been obtained, they would be safe. That was a reasonable conclusion for the highway officer to come to. All parties understood that that process would involve more detailed safety audits known as stages 2 and 3. It was not suggested that I should go through the claimant's safety audit, compare it with the comments of Mr Hawley in his two witness statements and decide whether that decision of his was reasonable. I am glad that was not suggested.
- In the end, Mr Holgate's submissions came down to what he said was the misleading impression of the status of the Tesco/Santon safety audit. The real focus of his submission was the words in the first sentence:
"The claimant has produced a safety audit that does not raise the objector's concerns."
- This is said to give a false impression that the safety audit is up-to-date and dealt with the claimant's safety audit criticisms satisfactorily and that the safety audit showed that the road proposals were safe. As I read the claimant's safety audit and the related correspondence, it considered only the Tesco/Santon TIA and safety audit as submitted in September and August 2007. It did not consider any subsequent revised drawings. The two undated and unnumbered drawings referred to in its safety audit do not take that point further. Accordingly both the Tesco/Santon and the CEC safety audits did in fact consider the same drawings and proposals. They did in fact come to differing conclusions and I see no reason to doubt, therefore, the literal accuracy of the point that the Tesco/Santon safety audit did not raise the safety concerns raised by the claimants. As the report says, it is a question of judgment about how easy the objections raised by the claimants are to sustain. At one level, the report is accurate, so far as it goes but it is incomplete as an account.
- But the undeniable fact is that the Tesco/Santon safety audit drawings were superseded in stages, and in particular following the discussions which led to the 13 February 2008 drawings being submitted. The claimant's safety audit was already out of date when it was produced. The highway authority did consider the revised drawings and did conclude reasonably and lawfully that they were satisfactory from a safety point of view, or could be refined so as to be safe in the further design process, as as the report, conditions and the agreement demonstrate.
- The highway officer, to complete the account, could have said both the TIAs had been superseded and no new one was necessary. The effect of that would be to say that the safety issues were not wholly resolved by them, but that the highway officer's judgment was that the highway changes were or could be made safe in detailed design. That is what he went on to say in substance. I do not read him as saying that the safety audit by itself demonstrated that everything now is safe. No material point was ignored and there was not significant error in presentation, even if there is something to whinge about.
- I have ignored what Mr Hawley says in his witness statement because it is not relevant to this point of law. It would have been useful had he shared his thinking with the councillors in terms of avoiding this particular debate. However, it does not contradict my conclusions as to how the committee report was intended to be or would be read.
- The volume and nature of the evidence here was excessive for the limited point of law which arose. Mr Holgate eventually made this point. He said that the District Council's appraisal of the impact of the development on air quality in the town centre had ignored two material considerations. First, the air quality at High Street south was said to show that nitrogen dioxide (NO2) levels already exceeded 40 micrograms per cubic metre (mg/m3), the level at which an air quality management area (AQMA) would be declared. Second, the District Council had already recognised that detailed consideration would have to be given to declaring one. These points were important, submitted Mr Holgate, because it showed that greater weight should or could have been given to quite small increases in NO2 compared to the weight legitimately given to small increases at much lower levels of NO2.
- He also submitted that the report had dealt in a misleading manner with what the relevant officer had concluded was necessary by way of detailed examination of NO2 levels, treating it as a more tentative conclusion than in fact was the case. He also said that the Council should have instructed an expert, or, alternatively, the report should have drawn to the councillors' attention the limitations of its officers' ability to deal with an issue as complex as this. He did not seek to pursue the argument hitherto advanced that the Council had acted unlawfully in not having declared an AQMA in the town centre already.
- Understanding these submissions involves briefly setting out the statutory framework. Section 82 of the Environment Act 1995 requires a local authority to designate as an AQMA any part of its area in which it appears as a result of an air quality review that any air quality standards or objectives are unlikely to be met. The recommended air quality objective for NO2 in The Air Quality (England) (Regulations) SI 2000/928 is set at 40mg/m3 as an annual mean to be achieved by 31 December 2005.
- Section 88 requires guidance issued by the Secretary of State to be taken into account. He or she has issued policy guidance in the form of LAQMA.P3(03) and technical guidance LAQM.TG(03). The policy guidance in paragraph 1.70 and 1.72 is:
"1.70 Local authorities have to designate those parts of their areas, where the prescribed Air Quality Objectives are not likely to be met by, or at any point beyond the relevant deadline, as AQMAs. This applies only to those locations where members of the public might reasonably be exposed. ...
1.72 Local authorities should aim to designate their AQMAs as soon as possible after they have formally identified the need for them ..."
- The relevant technical guidance is:
"113 Where the Updating and Screening Assessment has identified a risk that an air quality objective will be exceeded at a location with relevant public exposure, the authority will be required to undertake a Detailed Assessment following the guidance set out in this document. The aim of this Detailed Assessment should be to identify with reasonable certainty whether or not a likely exceedence will occur. Where a likely exceedence is identified, then the assessment should be sufficiently detailed to determine both its magnitude and geographical extent. Local authorities should not declare an Air Quality Management Area (AQMA) unless a Detailed Assessment has been completed."
- Planning Policy Statement 23 deals with the materiality of air quality to planning decisions. In appendix 1G to annexe 1 it says:
"1G.1 Any air quality consideration that relates to land use and its development is capable of being a material planning consideration. Wherever a proposed development is likely to have significant air quality impacts, close co-operation between LPAs and those with some responsibilities for air quality and pollution control will be essential. The impact on ambient air quality is likely to be particularly important:
-- where the development could in itself result in the designation of an AQMA;
1G.2 It is not the case that all planning applications for developments inside or adjacent to AQMAs should be refused if the developments would result in a deterioration of local air quality. Such an approach could sterilise development, particularly where authorities have designated their entire areas as AQMAs. LPAs, transport authorities and pollution control authorities should work together to ensure development has a beneficial impact on the environment, for example by exploring the possibility of securing mitigation measures that would allow the proposal to proceed. Road transport is recognised as a significant contribution to poor local air quality, particularly in urban areas. LPAs can play a key role by ensuring that developments reduce the need to travel and encouraging more sustainable travel choices."
- The position as seen by the District Council is this. Every three years it commissions consultants to provide the statutorily required updating and screening assessment. One was produced in 2003 and another in 2006. Between times the District Council itself produces an air quality review and assessment report as required by statute. Between 2003 and 2006, by reference to the figures for the receptor at High Street south, taken from the progress report and the Bureau Veritas consultant's report in 2006, NO2 levels have exceeded seated 40 mg m3, varying between 40.6 to 44.6 mg/m3. There is a debate over the 2007 data. High Street south is described as a facade rather than road side or kerb side receptor. Bureau Veritas, which produced the updating and screening assessment for 2006, did not recommend the designation of an AQMA for the High Street area.
- The reports of this consultancy and the progress reports are submitted to Defra for it to consider. Defra has not suggested that the techniques or conclusions are defective, or that the District Council should be acting otherwise than it was.
- The 2006 report showed an exceedence at High Street south in 2005 at 40.6 mg/m3. It referred to a local bias adjustment factor, and referred to two sites, not in Stourport, where the levels were predicted to exceed 40 mg/m3 and required a detailed assessment to be undertaken to see if an AQMA should be declared. This would examine more closely what the levels actually were and were likely to be. Levels in the report could be wrong by plus or minus 15 per cent. In their letter of 30 June 2006, Defra said that on the basis of this evidence, the conclusions of Bureau Veritas were accepted.
- The April 2008 Council progress report showed "a borderline situation at HS(S)". This would be subject to further investigation in further rounds of review.
- The progress report continued in paragraph 8.7:
"However location HS(S) has been subjected to continuous road works since April 2006 to date following improvement works and repairs to the bridge in Stourport over the Severn. It is anticipated that current data for 2006-2007 is overestimating the normal levels of NO2 for this location due to issues with standing traffic at Bridge Street. It is therefore anticipated that a detailed assessment is required to verify accurately the current air quality climate in this location.
... In addition to this location HS(S) needs further detailed studies conducted between now and the next round of updating and screening assessments."
- A question arose about how the figures for the High Street south facade diffusion tube, which showed exceedences 40 mg/m3, should be treated. In addition to the plus or minus 15 per cent confidence limit, which required a detailed examination of air quality before the necessary reasonable certainty required for the declaration of an AQMA could be achieved, local bias correction factors had to be applied, and a question also arose whether temporary road works really could put the figures in doubt. The application of a correction factor and the effect of temporary road works are not for me to resolve.
- The District Council stated in the second witness statement of Mr Parker of 6 March 2009, the Head of Planning Health and Environment, that the facade measurements themselves also needed to be regressed or discounted back to the nearest residential facade. The 40mg/m3 annual mean standard related to residences, schools, or hospitals. The High Street south receptor was at the facade of a Job Centre to which those objectives should not generally apply. It might, argued Mr Holgate, nonetheless be a place where members of the public were regularly exposed.
- I am wholly unpersuaded that anything in Mr Holgate's critique of the District Council's air quality work shows any error of law in its understanding of the figures and potential exceedences as inputs to the officer's report dealing with this application.
- Exceedences of 40mg/m3 at the relevant residential facades based on the High Street south diffusion tube on an annual mean basis have not yet been established with reasonable certainty. The local planning authority were not obliged to declare an AQMA in the High Street or to treat the air quality levels as if one had or should have been established already. They were aware that the situation called for further detailed studies before the next round of updated and screening assessments, which could lead to the declaration of an AQMA. That is the clearly established position of the District Council. It is a reasonable view on the evidence for it to hold and no error of law has been shown in its so holding.
- Much of the material before me was a response by the District Council to very broad ranging grounds and a skeleton argument from the claimant which Mr Holgate wisely narrowed, endeavouring to identify and argue only points of law. This extensive prior argument had been stimulated by expert evidence to the court relevant to a planning Inspector, but of no obvious relevance to my task, provided by a Professor Harrison, a local resident and a renowned air quality expert.
- I turn to the way in which the air quality issues were considered for the purposes of the planning application before dealing with Mr Holgate's submission. All of this relates to the levels which exist now or would exist in the future with the traffic congestion existing or anticipated in the High Street.
- Ove Arup and Partners for Tesco/Santon provided an air quality assessment as one of many technical reports which accompanied the application. The principal pollution officer's comment, as reported on this, was that he had no adverse comments. He was satisfied that air quality issues had been satisfactorily addressed. The impact was dependent upon traffic generation, but he was satisfied that worst case scenarios had been assessed. I have already summarised what has been said about traffic, a key input in the air quality issues here.
- The officer's report set out the current air quality position in Stourport and in various streets, not specifically including the High Street. They were mentioned as being within air quality objectives for various pollutants, including NO2. The worst location for NO2, the main pollutant of concern associated with road traffic, was at The Gilgal, the nearest residential receptor was at 31 mg/m3 compared to the objective level of 40.
- Having identified the relevant policy, i.e. that developments creating air pollution would not normally be permitted unless adequately mitigated, the officer's report then referred to the OAP air quality assessment:
"4.97 '... Once operational, the effect of the development on local air quality will be negligible. All national objectives and EU limit values are predicted to be met.'
4.98 At pre-application stage, officers within Environmental Health advised that further work was necessary to consider the impact of the development on air quality, particularly in view of the amount of traffic likely to be generated by the development. Having viewed the Air Quality Assessment submitted with the application the further work requested by Environmental Health has now been carried out. The Report has been re-assessed in terms of traffic predictions based once the store is open, [sic] is confident as to its prediction that there will be no impact on local air quality.
4.99 Environmental Health have now confirmed that they have no objections to the proposal in this respect."
- The claimant had not raised any issue of air quality in its representations before the preparation of this main officer's report and only did so very briefly in its representations of 29 February, shortly before the 4 March 2008 meeting. It said that vehicle queueing and delay would significantly worsen air quality in this part of Stourport, and referred to a local resident, Professor Harrison, who had written a letter to the District Council on 26 February 2008. These were all very brief. The addendum report noted this brief comment as part of the claimant's highway objection, for it was a consequence of its appraisal of the traffic increase.
- In addition to the passages which I have already cited, the highway officer responded:
"The vehicle movements suggested are not reflected in the applicants' TA and our own analysis suggests that the assumptions made by the applicant to be reasonable. Consequently I do not believe the numbers suggested by the objectors' consultants can be substantiated."
- The officer then dealt with other letters, including the one from Professor Harrison, saying:
"One of these letters is from a local resident who is also an air pollution expert and states that he has assessed the information provided by the applicants in this respect. He states that he can demonstrate that it is 'deeply flawed', and that a sampling site in High Street already exceeds the national nitrogen dioxide objectives. He considers that the development will cause a substantial increase in traffic on Mitton Street, High Street and The Gilgal which is highly inappropriate.
Principal Pollution Officer response -- There is no evidence to suggest that the applicants' report is incorrect and as such there is no evidence to indicate that there will be a detrimental impact on local air quality. The objector has not provided the Council with any of his own evidence to support his contention and the Council is therefore unable to consider and objectively analyse what he says."
- The letter from Professor Harrison was very short and there is nothing in it of significance beyond the summary. The principal pollution officer's response was also summarised, but since reliance was placed by Mr Holgate on its plaintive terms, I quote the relevant parts:
"As consultees to Development Control we have assessed Tesco's air quality assessments, and based on their conclusions and findings they are satisfied that there will not be an air quality problem in Stourport. I cannot challenge their statement as we do not have the knowledge, modelling tools or ability to review the integrity of the conclusions drawn by Arup Group.
On the contrary Professor Harrison is in a better position to question these conclusions, as he has greater knowledge and resources to hand. He is a Luminary within the field of air quality and his professional opinions are highly regarded by his peers and the government.
Our role in the process is that of consultation to the planning document, we have assessed the work of Arup. If Professor Harrison wishes to question their work then we are in no position to contest his view on the matter, and will consequently not stand in his way or contest his opinion."
- After the committee resolved on 4 March 2008 to delegate the formal grant of approval to an officer, it received further material from Professor Harrison relating to air quality which it had to consider. This was, or at least included, the "draft" proof of evidence he had submitted for the purposes of an inquiry into the non-determination of Tesco's earlier application.
- The planning committee held a further meeting on 15 May exclusively devoted to this issue and its effect on the Tesco/Santon application, because no formal planning permission had yet been issued. Professor Harrison and a representative of OAP also addressed the committee briefly. The report for this meeting summarised Professor Harrison's points:
"The new issues raised by the objector can be summarised as follows:
1. That traffic congestion at the junction of York Street with High Street/Bridge Street and the Hartlebury Road/Worcester Road roundabout will exacerbate the deteriorating air quality of the areas affected due to the poor dispersion of traffic pollution.
2. That the applicants' air quality assessment in support of the planning application fails to properly assess the impact of increased congestion on the air quality.
3. That the Council's adjusted air quality data is unreliable.
4. That, due to 3 above, the data for High Street, Stourport exceeds national air quality objectives and that concentrations measured in Mitton Street and Gilgal are within a few micrograms per m2 of the objective.
5. That the applicants' consultants significantly under-estimate the measured concentration.
6. That the development will increase traffic volumes and decrease traffic speeds both of which will exacerbate NOx (nitric oxide and nitrogen dioxide) to the detriment of the air quality in the area."
- The report then dealt with the objector's assessment of highway congestion which underpinned his concerns. I have already set out part of this from paragraph 4.4:
"4.5 The objections set out in respect of traffic congestion which underpin the consequential argument that air quality will deteriorate are not founded on a professional critique of the Transport Assessment but rather more on personal and anecdotal experiences of the objector. On this basis, your officers are of the view that prima facie there is no evidence provided by the objector with regard to traffic congestion that outweighs the technical assessment carried out through the Transport Assessment and the position adopted by the Highway Authority. This element of the objection should, therefore, be afforded little weight."
- Paragraph 4.6 noted further factors which would lead to a reduction in pollution and which Professor Harrison had overlooked. It noted that the traffic inputs for the air quality assessment were the highest possible flow on each link simultaneously, a conventional way of assessing matters but one that is not actually possible. On that basis the officer said:
"The conclusion reached is that the AQA can be relied upon. The consultants concluded that, 'the AQA has demonstrated that the proposed development will not have a significant adverse effect upon air quality and that nitrogen dioxide levels in particular are well within the threshold air quality objective limits."
- That dealt with the extent of the increase in NO2 and the report then turned to the base or existing level against which the impact of any increase fell to be assessed. This gave rise to issues over the quality and interpretation of the existing air quality data.
- The report set out the background to the figures and the work done, summarising what I have already set out. I note only the following sentences from paragraph 4.9 together with 4.11 in full:
"4.9 Turning to the issue of air quality monitoring, the Council monitors air quality at the three locations in Gilgal, Mitton Street and the York Street/High Street junction referred to by the objector using diffusion tubes. This is not a precise science and a confidence factor or +/- 15 percent needs to be taken into account when considering results. The Council's nationally validated diffusion tube results for 2006 and 2007 indicate Mitton Street and Gilgal to be well below the 40 mg/m3 nitrogen dioxide levels. The High Street figures are much nearer to the National Objective threshold however. The significance of these figures at the High Street location though needs to be treated with some caution as they are likely to be distorted by the effects of the roadworks which began in August 2006 with the bridge repair works, which were followed by Severn Trent works and are currently subject to the Bridge Street improvement works. These continuous disruptions to the normal passage of traffic have to be taken into account in the potential for elevated readings at the High Street location.
4.10 During April 2006 a district wide air quality update and screening assessment was conducted. Locations of concern identified in the objector's comments were considered in this piece of work, but were not considered at the time to be at risk of exceeding the air quality objectives.
4.11 Further to this approved assessment the Council is currently preparing its progress report to Defra on air quality matters based on 2006 and 2007 monitoring results. Considering the High Street/York Street junction readings, the draft report currently recommends that consideration be given to undertaking a detailed air quality assessment which will enable a more accurate assessment of the situation."
- The report concluded that its data sources were accurate within expected tolerances and adjusted properly, and concluded:
"For this reason, the Council stands by the reliability of its air quality monitoring data. Therefore in the absence of further detailed investigation work officers are reticent [sic] to accept that nitrogen dioxide levels exceed the National Objective threshold levels at High Street without further corroborative work being undertaken."
- Finally, the report set out OAP's response to Professor Harrison's criticisms before concluding at 8.1:
"However, the Council is satisfied with the veracity of its air quality monitoring data and with the report submitted by the applicants' consultants.
... Further, no direct correlation has been demonstrated between increased traffic from the development and the degree of impact at the High Street junction. The proposed development includes a package of highway improvements that will alter the pattern of traffic movement in Stourport such that it cannot be concluded that the development will increase traffic volumes and reduce traffic speeds at the key locations where air quality might be significantly reduced.
Members are asked to consider whether the new information changes the weight they would give to air quality issues and if so, whether the weight they would now attach to it would change the balance to such a degree that it would change the decision taken by committee on 4 March to one of refusal."
The Council affirmed its decision.
- It is clear that issues relating to air quality were properly and fully presented to the committee. The addendum report, in the last sentence on this point, had referred sufficiently to the difficulties which the principal pollution officer had in advising between two experts. I reject Mr Holgate's submission that the duty to ask relevant questions and to take reasonable steps to obtain sufficient relevant material to answer those questions as drawn from Secretary of State for Education v Tameside Metropolitan Borough Council  AC 1014 at 1016 required the council to obtain independent expert advice of its own so as to resolve the issues between OAP and Professor Harrison. This is misconceived. It is not for the Council to delegate decision making, in so far as resolving such an issue was necessary, to an independent third party expert. Nor did the Council receive advice that it could not deal with the issue without further information, nor did it decide it on the basis that there was inadequate information on which to decide the issue raised by the objector and decide accordingly that the objector must fail. The principal pollution officer's response, which I have quoted at length above, was to a very short letter.
- By the time of the 15 May report and debate it was plain the Council officers had got to grips with the issue of traffic increase and delays as key inputs to air quality, and had considered the current Council assessment of the existing air quality position. Professor Harrison is not an expert at all on what traffic increases there would be or were, or what effect the increases might have on traffic delay.
- As to the data on the existing position, the officers were entitled to draw attention, first, to the involvement of experts in the 2003 and 2006 updating and screening assessment, to note that there were no exceedences requiring an AQMA in those assessments, and to draw attention to the expert's conclusions in those reports. They were entitled to draw attention to the position in the current progress report and to their conclusions on the integrity of the data and to stand by that.
- In the end, for all the elaborate argument and evidence, Mr Holgate's points came down to the way in which the District Council's own position was summarised. In paragraph 4.9 the reference to High Street figures being much nearer to the national objective thresholds was said to be inaccurate because the figures actually available showed exceedences. Paragraph 4.11 referred to a draft report which recommended consideration be given to a study; Mr Holgate said this was not a draft report, which implies it would change, and there was a positive recommendation that a detailed assessment be undertaken rather than that consideration be given to it. This is pretty small beer for all the material which was presented to the court. No doubt if the author had appreciated how his words would be scrutinised he might have expressed himself in such a way as to preclude this debate.
- However, the underlying legal question to which Mr Holgate's submissions give rise is whether what the officer said caused the committee to ignore a material consideration or to misunderstand the true position. I do not think it did. Mr Holgate's fundamental point is that if exceedences of the annual mean exist, greater weight would be given to the adverse effect of any increase, and nearer the objective level one would still be cautious as a matter of policy about any increase which could lead to an exceedence.
- In reality no exceedences have been shown to exist. The situation before 2006 was dealt with in the Bureau Veritas updated and screening report. There was no suggestion that an air quality management area should have been designated despite its recommendations, nor can it be said Defra misunderstood the position, nor did it recommend detailed analysis of the High Street area.
- After that report there were uncertainties inherent in the data because of confidence levels, temporary traffic effects and if the figures were then still over 40 mg/m3, they had not been regressed at that stage to the nearest residential facade.
- The words in the officer's report "much nearer" the objective level and the need for a detailed study sufficiently alerted the Council to the need for caution about additional increases in air pollutants for policy purposes. In this context it was aware of the OAP view, which it accepted, that there would be no significant increase in NO2 on the accepted traffic assessment. "Draft" may not have been accurate, but whether it is a draft until submission to Defra and approved, or when first published for submission, it is not much of a point. I accept that its recommendation is firmer than conveyed and the words "consideration be given to" are not what it actually says. But in fact it was for the District Council to consider that recommendation and in reality the recommendation that something be done, the decision on which is for the person to whom the recommendation is made, is not so very different from a recommendation that the decision maker consider it. But on the basis that it is weaker, nonetheless the crucial message was that this was a location where increases in NO2 should be viewed with considerable caution and considered in the light of the accepted views of the OAP traffic assessment. I do not consider that any error of law or failure to take into account a material consideration has been shown in relation to the air quality issue.
- Finally, reasons. The local planning authority is under a statutory duty to give a summary of the reasons for the grant of planning permission by virtue of article 22(1) to the Town and Country Planning (GDP) (England) (Amendment) Order SI 2003/2047. It is also required to include a summary of the policies and proposals in the development plan relevant to the grant of planning permission.
- Mr Holgate contends that the summary of reasons given is defective because it does not include any reasons dealing with his points on traffic in conservation areas, the road safety audit and air quality, if he is wrong, as he is, in his submission that those points were ignored. It was necessary, submitted Mr Holgate, for summary reasons to set out the conclusions on the principal issues or objections which had been raised or the main issues considered in the grant of permission. He cited R (Tratt) v Horsham District Council  EWHC 1485 Admin, approved by the Court of Appeal, albeit on a contested permission application only, in R (Smith) v Cotswold District Council  EWCA Civ 1341. It is unnecessary to delve into some of the controversies over this issue.
- I content myself, in view of the extensive litigation which this sensible and beneficial provision has spawned, with dealing with it briefly. What is required is a summary of the conclusions on the principal issues. It is not of the degree required for reasons in a Secretary of State's decision letter. It cannot be intended to cover all the points. One paragraph in the reasons deals briefly and adequately with conservation areas. It contains no reference to traffic. True the impact of the proposal as a whole on the conservation areas was a principal issue. True the effect of traffic on them was a point raised by the objector but it was raised in a limited way. Of itself the traffic impact on the conservation area cannot be characterised as a principal point at issue and it has not become one merely because it is an aspect of a larger issue; otherwise reasons would cease to be summary and would become an obligation to give reasons for the conclusion on every material consideration, which is not even required in the Secretary of State's decision letter.
- Another paragraph in the summary reasons deals with highway matters. It does not refer to the debate about the safety audit. This is a minor point which requires no mention at all.
- Air quality is swept up in the last paragraph of the reasons as being one of a number of environmental issues in respect of which "there were no objections", obviously meaning no sustainable objections. This formulation is not significantly different from that proposed for the 4 March 2008 meeting and before the 15 May 2008 meeting, although that is not Mr Holgate's point.
- There was no specific recommendation in the report for the 15 May meeting as to what the committee should conclude in relation to air quality. But it is not suggested that the local planning authority did not or may not have concluded that there was no sustainable objection on air quality. It is plain from the reasons that that is what it concluded. The argument is essentially that more reasoning is required on what had become a lengthy point of debate. In reality the conclusion is that there was no substance to the objections raised. That is all that needed to be said.
- I accept that the requirement for reasons for a grant of permission does not envisage a clear division between the reasons for the grant and the reasons for the rejection of an objection. This may often be an unrealistic division, although in certain circumstances, and this may be one, the distinction has some force and may go to the degree of elaboration necessary. But the fundamental test is this: can an interested person see why planning permission is granted and what conclusion was reached on the principal issues? Here I am satisfied that that is so and the planning permission was granted in part because there was no substantial air quality objection. That was the conclusion at the end of a lengthy debate and it is necessary to be more elaborate in expressing acceptance of the OAP traffic assessment, the advice about the integrity of the data and the current state of air quality affairs. On that basis that is nothing in this air quality reasons objection.
- Had I concluded that this challenge was made out, I would have not have quashed the planning permission, but I could have required proper reasons by a mandatory order for what interest Midcounties would have had in it. It does not seem to me that the inevitable consequence of a failure to comply with the reasons obligation is a quashing of a planning permission which itself is plainly lawful. It would be different if one could not tell from the reasons or absence of them whether the grant was lawful. Here one can tell whether the grant of a planning permission was lawful and I have so concluded. The alternative would be to say that the claimant suffers no substantial prejudice, as would be the case if there were no substantial prejudice in an ordinary reasons challenge.
- Mr Holgate's final point was that the District Council had not provided a summary of the relevant development plan policies but had nearly provided a list. This, applying Tratt and R (Midcounties Co-operative Limited) v The Forest of Dean District Council  EWHC 1714 Admin,  2 P&CR 30, did not comply with the statutory requirement. Collins J said in the latter at paragraph 30:
"Article 22(1) requires a summary of the policies. That is not the same as a list of the policies. The purpose behind the requirement for a summary is I believe to enable the reader to see the relevance of the policy. All that is needed is an indication of what the policy deals with insofar as it is material to the permission in question."
- The relevant development plan and policies had indeed been listed, and, submitted Mr Richards, this complied with the requirement because beside each policy its heading had been set out from the development plan. This enabled the topic covered to be identified and hence the relevance of the policy could be seen. Thus, for example, "CA1 (Development in Conservation Areas)", "NR10 (Air Quality)", "TR9 (Impacts of Development on the Highway Network)."
- It is possible to see the topic covered by the policy, but it is not possible to see more, so the reader of the list could not see the nature of the policy, what it favoured or inhibited, nor would it be possible to see its relevance from what was provided.
- The question is: is this a summary of policies? I do not think it is. A summary of the substance or point of the policies is required. I appreciate that could be a lengthy exercise for the 40 plus policies but no more than a short single sentence is required in a summary or shortened style. The summary would be such as would enable the reader to see how the policy would or could be relevant. Its particular relevance or role for the case does not need to be described. Still less does any conclusion or reasoning relating to its application have to be provided. Technical terms as to what, for example, is meant by a sequential approach or the Carpets of Worth/Severn Road Phase 2 do not have to be explained.
- I see no basis whatsoever, however, for quashing the planning permission because of this failure to refer to the policies. That does not bear at all on the lawfulness of the planning permission and the failure has caused no prejudice at all. It merely establishes that there has not been compliance with that particular rule. That would be adequately remedied by a mandatory order requiring a very short summary. However, I see no reason in this case to make such an order, to waste the District Council's time and to advance Midcounties not one wit. It is not what it seeks, which is the quashing of the planning permission. It has to show a legal error which it has failed to do. It is sufficient in my judgment if I state the position for the future.
- Accordingly this application is dismissed.
- MR JUSTICE OUSELEY: The only issue is the terms of any order in relation to the excision of the tailpiece to condition (6). If you care to draft that I will sign it. I don't propose to do so myself. If you can agree it, so much the better.
- MR RICHARDS: I am sure we will be able to agree it. I am getting the support.
- MR JUSTICE OUSELEY: Thank you.
- MR RICHARDS: My Lord, do you wish to deal with the question of costs?
- MR JUSTICE OUSELEY: If you can do it in two minutes. I don't intend to spend a lot of time dealing with it.
- MR RICHARDS: My Lord, I seek an order that the claimant should pay the defendant's costs.
- MR JUSTICE OUSELEY: I understand that. Do you make any application?
- MR TAYLOR: My Lord, I am afraid I am.
- MR JUSTICE OUSELEY: I know what you will say. What do you say, Mr Richards?
- MR MAURICI: My Lord, I don't resist the Council's costs.
- MR JUSTICE OUSELEY: Okay. What are you going to say? You know what he is going to say, Mr Maurici?
- MR MAURICI: My Lord, I was going to say, as I suspect you guess, obviously the general rule is not two sets of cost.
- MR JUSTICE OUSELEY: I know the general rule.
- MR MAURICI: No separate interest, in the sense of a conflicting interest, which will be the relevant interest here.
- MR JUSTICE OUSELEY: He has a separate interest but he is not necessarily in conflict. He made some points. He had some issues that were not the same as the council's.
- MR MAURICI: My Lord, in my submission the issues were the same, although, of course, there were some different arguments and different emphasis given by the developer. As I am sure your Lordship will recognise that in other cases, such as the Bedford case, it is inevitable that when the developer comes along and makes submission that there will be some additional points that they make, but, my Lord, that is not sufficient for them to get their costs.
- MR JUSTICE OUSELEY: No. Reply.
- MR TAYLOR: My Lord, we had to submit witness evidence to address some of the points that were raised, in particular the evidence of Mr Lamb that you relied upon in your judgment and the evidence of Mr Riat in relation to traffic matters which were introduced. Of course the issue there was whether there was a matter that they raised that we had to reply to.
- Secondly, we did have additional points to make, in particular the point relating to excision and in relation to ground 1 and ground 7. Of course, we produced the case of Mouchel.
- We also had to address a number other grounds that were raised in the claim originally and which weren't then pursued in the skeleton argument, ground 2 and ground 5.
- MR JUSTICE OUSELEY: Yes.
- MR TAYLOR: Obviously some of those were quite lengthy. Of course the air quality point also changed with the road safety matter. All those matters taken together meant that we were entitled to be here to represent our clients.
- MR JUSTICE OUSELEY: Do you want to come back on anything, Mr Maurici?
- MR MAURICI: My Lord, just briefly. In my submission the witness statements did not advance matters. But, my Lord, even if you were against me on that, that would simply be a submission that he should have the costs of the witness statement.
- My Lord, secondly, on excision, it is one sentence at most.
- MR MAURICI: Fourthly, the other grounds are not pursued. My Lord, I would suggest your Lordship should not have regard to those. They were not pursued. We did get permission for them. But, my Lord, it is a situation like a withdrawal of judicial review, the court having not investigated the merits should not necessarily hold it against the claimant, otherwise it discourages claimants from failing to pursue grounds it wants to abandon.
- MR JUSTICE OUSELEY: I am going to make an order for a part payment of the costs of the interested party. I am going to do a very rough and ready job and assess that as one-third. I do that on this basis. There has been such extensive grounds that they had to incur costs in relation to witness statements. They have taken a different line in a number of ways from the District Council, in particular in relation to condition 6, but in relation to other areas.
- The nature of the case also involved delving into expert evidence in relation to which Tesco/Santon were obviously entitled to and better placed to assist than the District Council.
- I think in the circumstances of this case, therefore, a partial limited award should be made. One-third.
- MR MAURICI: My Lord, I do make an application for permission to appeal. In the light of your Lordship's judgment I don't suppose you will give it to me, but, my Lord, I do make that application. I will make submissions if your Lordship wants me to.
- MR JUSTICE OUSELEY: I don't want you to make submissions. I am not going to grant you permission because I think the issues, in the end, are reasonably clear. What I will do is extend your time, if you want to apply to the Court of Appeal, to two weeks after you have received the approved transcript.
- MR MAURICI: My Lord, I am grateful in advance for that.
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