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||Neutral Citation Number:  EWHC 3775 (Admin)
||Case Nos: CO/1874/2013 & CO/11012/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BRISTOL
||Bristol Civil Justice Centre,
2 Redcliff Street, Bristol, BS1 6GR
B e f o r e :
MR JUSTICE HICKINBOTTOM
|| THE QUEEN on the application of
MIDCOUNTIES CO-OPERATIVE LIMITED
||- and -
||SWINDON BOROUGH COUNCIL
||- and -
OPTIMISATION DEVELOPMENTS LIMITED
David Holgate QC and Scott Lyness (instructed by Hewitsons LLP) for the Claimant
Timothy Jones and Victoria Hutton (instructed by Kehinde M Awojobi, Solicitor,
Swindon Borough Council) for the Defendant
James Maurici QC (instructed by Gordons LLP) for the Interested Party
Hearing date: 18 November 2013
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Hickinbottom:
- These claims concern a proposed development on 1.95 hectares of land between Dorcan Way and Eldene Drive, Swindon ("the Site").
- Until the 1970s, the Site was owned by the Defendant ("the Council"), but, to enable it to be developed with offices, most was then sold with a restrictive covenant prohibiting any use other than for offices except with the written consent of the Council. Three linked office blocks, together known as Dorcan House, were built on the Site, providing over 100,000 sq m of office space.
- However, with the decline in the market, the offices were unoccupied from 2002. The owner decided to demolish the blocks, and pursue alternative development options. It entered into negotiations with the Interested Party, the development arm of William Morrison Supermarkets ("Morrisons"), to build a new supermarket on the site; and contracts for sale were exchanged, conditional upon the release of the restrictive covenant and planning permission being granted.
- On 11 June 2012, the Council's Cabinet resolved to authorise a collaboration agreement to facilitate that development, which granted permission under the restrictive covenant to allow retail use and agreed to transfer the remainder of the Site (a strip of land at the west of the Site, which the Council had retained), in return for Morrisons building, in addition to the supermarket, three additional retail units which were to be transferred to the Council.
- The Claimant is an independent co-operative society, operating various stores and services in the Midlands and South of England. It has a food store in a local centre, Eldene, which is about 200m west of the Site. That local centre also includes a parade of shops (one, Martins, incorporating a newsagent and post office), a public house, a health centre (with a medical surgery, a dental surgery, and pharmacy), a community centre and seven flats above the shopping parade. At this early stage, the proposal was for the new development to replace the existing Eldene Centre (paragraphs 1.2, 2.6 and 2.8 of the Report to Cabinet by the Cabinet Member for Regeneration/Group Director for Regeneration dated 21 March 2012); and, in the collaboration agreement, it was proposed that the three additional units in the proposed development would replace "the Eldene shops".
- That collaboration agreement was subject to planning permission being obtained for the development. On 13 June 2012, two days after the collaboration agreement, an application for planning permission for the demolition of the existing buildings and construction of an A1 food store, three additional retail units, and associated access, car parking and landscaping etc was submitted to the Council as the local planning authority (Application No S/12/0831, "the 2012 Application").
- That application was supported by various documents including a planning and retail assessment prepared by GVA Grimley Ltd ("GVA"). That assessment assumed that the proposed development would replace the Eldene centre (see, e.g., paragraph 7.16); but, nevertheless, on the basis of available data and a household survey, it gave an analysis of the impact of the development if Eldene were to remain, assessing the draw from the Claimant's store there would be 27.7% on a turnover of £0.7m.
- On 30 July and 17 September 2012, on behalf of the Claimant, DPDS Consulting ("DPDS") submitted detailed objections to that assessment, and to the development proposal as a whole. They made clear that the Claimant "would support a scheme that provided for the relocation of the Eldene shopping centre to accommodate modern facilities"; and it wished to be part of any such scheme because the Claimant "could comfortably trade from a larger store" (DPDS 30 July 2012 submission, paragraph 1.2).
- However, they had a number of objections to the proposed development. One objection to the assessment was that the turnover for the Claimant's Eldene shop was massively underestimated at £0.7m. That was accepted and corrected by GVA in their August 2012 addendum, which re-estimated the turnover at £1.6m (Table 5) with an estimated adverse impact on turnover at 23.8% (Table 19). Other objections included, amongst others, the following contentions:
i) the application of "the sequential approach", to which I shall return shortly, was flawed;
ii) the proposal was for out-of-centre development which had been designed to meet the main food shopping needs of the wider population of south-east Swindon, and was inappropriate to the scale and function of the local centre; and
iii) the likely adverse impact was not properly supported but, even at that level of draw (then 27.7%), in the event that the development went ahead, it was DPDS's opinion it was "highly likely that the [Eldene] units would close…" (30 July 2012 submission, paragraph 5.8).
- The planning officers passed onto GVA the concerns they considered required a response, which did not include the point that the draw figures were not properly supported. GVA addressed those concerns in addenda to the assessment in August and September 2012, although, the Claimant contends, inadequately.
- In any event, following (i) the decision of the Secretary of State on 8 November 2012 not to call in the application and (ii) advice from the Council's own officers in reports dated 9 October and 11 December 2012 recommending approval, the application for planning permission was granted by the Council on 19 December 2012 ("the 2012 Permission").
- On 6 February 2013, the Claimant lodged judicial review proceedings in London challenging that grant (Claim No CO/1874/2013, "the First Claim"). On 8 May 2013, I adjourned the application for permission to a rolled-up hearing, and transferred the claim to Cardiff Administrative Court Office, which administers Administrative Court claims for the Western Circuit, so that it could be heard in Bristol.
- However, in the face of those proceedings, a second application for planning permission for the same development was lodged on 11 February 2013 (Application No S/13/0187/RM, "the 2013 Application"). It was accompanied by a new planning and retail assessment by GVA, which, again, both assumed that the new development would replace Eldene (see, e.g., paragraph 7.19) and gave an analysis of the impact if Eldene were to remain. Again on the basis of available data and a household survey, it estimated the Claimant's Eldene turnover for 2011 at £1.89m and for 2016 at £1.75m without and £1.36m with the proposed development; and a draw by the proposed development of 22.7%. On 28 March, the Claimant through DPDS lodged objections, including, with regard to impact, criticism that there was again no explanation of the principles underlying the draw assumptions and that, so far as these figures were concerned, their comments in relation to the earlier assessment still applied; but, in any event, an impact of 22.7% was significant. DPDS did not suggest in that letter that, if the proposed development proceeded, the Claimant's store at Eldene would close.
- The determination of this application was delegated to planning officers, who, in a delegated report dated 1 July 2013, recommended approval. Planning permission for the same development was granted on this duplicate application the following day, 2 July ("the 2013 Permission").
- A second judicial review was commenced by the Claimant on 12 August 2013, again in London, seeking to challenge the 2013 Permission (Claim No CO/11012/2013, "the Second Claim"). On 18 September, whilst expressing doubts as to the strengths of the claim, Collins J adjourned the application for permission to a rolled-up hearing, directed that it be heard with the hearing in the First Claim, and transferred the Second Claim to Cardiff so that the two applications could be together heard in Bristol.
- At the hearing of those applications, David Holgate QC and Scott Lyness appeared for the Claimant; Timothy Jones and Victoria Hutton for the Council; and James Maurici QC for the Interested Party Morrisons. I thank them at the outset for their assistance which was, as ever, considerable.
- Briefly to complete the chronology, Morrisons have now bought the Site, and have commenced construction, having spent over £15m of a total cost of £21m. The supermarket is due to open in February 2014. If and when it opens, it will provide 250 jobs in an area of higher than average unemployment. Given even those briefest of commercial and social facts, the resoluteness with which both the Council and Morrisons oppose this claim to quash the two decisions to grant planning permission for the development is understandable.
- The Claimant seeks to challenge the Council's decisions in respect of both grants of permission. However, if the 2013 Permission is lawful, Mr Holgate conceded that the 2012 Permission would have no substantive relevance, in the sense that the development could of course quite properly proceed under that later grant. Whilst neither Mr Jones nor Mr Maurici made any concessions with regard to the legality of the 2012 Permission – far from it – they each submitted that the Claimant's grounds in relation to the 2013 Permission were not only unarguable, but so without legal hope that this court could and should declare the Second Claim to be totally without merit. If none of the Claimant's grounds in relation to the 2013 Permission is made good, the Claimant will, in substance, fail. If none is arguable, then it is correctly common ground that permission should be given in respect of neither claim. In either event, the merits of the grounds in the First Claim might conceivably be relevant on the question of costs; but the substantive issues between the parties turn on the challenge made to the 2013 Permission in the Second Claim.
- For those reasons, I shall begin by considering the grounds in the Second Claim. That has an added attraction because, as matters evolved, those grounds are few and narrow.
- The main thrust of the Claimant's complaints in respect of each grant is that the Council, and in particular the relevant officers' reports, failed to comply with relevant national and local planning policy.
- The principles relevant to the proper approach of local planning authorities to such policy are uncontroversial.
i) Section 70(2) of the Town and Country Planning Act 1990 provides that, in dealing with an application for planning permission, decision-makers must have regard to the provisions of "the development plan", as well as "any other material consideration". "Material considerations" are those that serve a planning purpose, i.e. one which "related to the character of the land" (Westminster City Council v Great Portland Estates Plc  AC 661 at 670C-E per Lord Scarman). In this context, they include statements of central government policy, since March 2012 set out mainly in the National Planning Policy Framework ("the NPPF"), which replaced many earlier policy documents.
ii) "The development plan" sets out the local planning policy for an area, and is defined by section 38 of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") to include adopted local plans. Section 38(6) provides that:
"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."
The decision should be in accordance with "the plan"; but not necessarily in accordance with every policy within the plan, which may pull in different directions (R (Cummins) v London Borough of Camden  EWHC 1116 (Admin) at  per Ouseley J).
iii) Planning decision-makers cannot have due regard to relevant policies unless they understand those policies. They must therefore proceed on the basis of a proper understanding of relevant policies as properly construed, the true interpretation of such policies being a matter of law for the court. Where they have misunderstood or misapplied a policy, or failed to take reasonable steps to acquaint themselves with the information that will enable them to give proper informed answers to the material questions, that may found a challenge to his decision, if it is material, i.e. if their decision would or might have been different if they had properly understood and applied the guidance (Secretary of State for Education and Science v Tameside Metropolitan Borough Council  AC 1014 at page 1065B, Gransden & Co Ltd v Secretary of State for the Environment (1985) 54 P & CR 86 at page 94 per Woolf J, R (Midcounties Co-operative Society Limited) v Forest of Dean District Council  EWHC 1714 (Admin) per Collins J, and Tesco Stores Ltd v Dundee City Council  UKSC 13;  PTSR 983 at - per Lord Reed).
iv) Whereas what amounts to a material consideration is a matter of law, the weight to be given to such considerations – the part any particular material consideration should play in the decision-making process, if any – is a question of planning judgment, and is a matter entirely for the planning authority: an application for judicial review does not provide an open opportunity for a disappointed party to contest the planning merits of a decision. The court will intervene, and will only intervene, on conventional public law grounds, including where the authority has failed to take into account, or properly construe or apply, the relevant development plan or other material policy (Tesco Stores Ltd v Secretary of State for the Environment  1 WLR 759 at page 780 per Lord Hoffman).
v) A landowner or other legally interested party is entitled to challenge a grant of planning permission where a public law basis for such a challenge exists, even if his motive is to advance his commercial interests at the expense of others who will benefit from the grant of permission, such motive being irrelevant (R v Ogwr Borough Council ex parte Carter Commercial Developments Ltd  2 PLR 54 at page 58H; and R (Mount Cook Land Ltd) v Westminster City Council  EWCA Civ 1346;  2 P & CR 22 at  per Auld LJ).
vi) Where a planning authority is considering an application for planning permission in which it has an interest in a capacity other than as the planning authority (e.g., as landowner), it must be "particularly scrupulous about evaluating [the] application in the correct policy perspective…" (R v Teesside District Council ex parte William Morrison Supermarket plc  JPL 23 at  per Sedley J).
vii) When challenged, planning officers' reports are not to be subjected to the same exegesis that might be appropriate for the interpretation of a statute: what is required is a fair reading of the report as a whole (R (Zurich Assurance Limited trading as Threadneedle Property Investments) v North Lincolnshire Council  EWHC 3708 (Admin) at ).
The Relevant National and Local Guidance
- National planning policy is contained in the NPPF, which raises a policy presumption in favour of sustainable development (paragraph 14). I was particularly referred to the policies in paragraphs 24 and 27 of the NPPF, which I have considered, but which I need not set out at length for the purposes of these applications. Of more relevance here is the development plan. As I have indicated, unless material considerations indicate otherwise, a decision on a planning application must be made in accordance with that plan.
- In respect of the 2013 Application, the development plan at the relevant time comprised the Swindon Borough Local Plan 2011 for the period 2011-16 ("the Local Plan"), the previously overarching Wiltshire and Swindon Structure Plan (in operation at the time the 2012 Permission was granted) having been revoked on 20 May 2013.
- As Mr Holgate submitted, Policy S1, found within Paragraph 5.5 of the Local Plan, establishes a hierarchy for new retail floorspace within the Borough of Swindon. The primary shopping area of the town centre is expressed to be the "pre-eminent centre for new retail development in the borough and should be the focus for all significant retail proposals…". The policy also supports proposals for new retail floorspace in "the district and local centres, provided that … the additional floorspace proposed reflects the centre's role and function within the retail hierarchy…". Proposals for new floorspace outside those defined centres is dealt with thus:
"Outside the defined centres
Proposals for new retail floorspace, including extensions over 200 square metres gross, on the edge of or outside the defined shopping centres will be permitted only where there is a clearly identified need for that scale of development in that area, and subject to:
i) the proposal by itself or cumulatively would not harm the vitality and viability of Swindon town centre and/or other existing centres, and
ii) developments are or will be accessible by a choice of means of transport, including public transport, walking and cycling.
for sites on the edge of the defined centres:
- these should be well connected to the centre,
- these should be of a scale that reflects the role and function of that centre, and
- they will be permitted only where there are no suitable sites or buildings available or likely to become available within the centre, and
for sites out of centre:
- these should be close to a centre and capable of developing links with that centre, and
"Out of centre", for these purposes, is defined in Annex 2 to the NPPF, as:
- they will be permitted only where there are no suitable sites or buildings available or likely to become available within or on the edge of the centres."
"A location which is not in or on the edge of a centre but not necessarily outside the urban area."
Thus, "in centre", "edge of centre" and "out of centre" are defined to be mutually exclusive: a proposed development must fall within one category, but cannot fall in more than one. "Edge of centre" is defined in the same annex, as:
"For retail purposes, a location that is well connected and up to 300 metres of a primary shopping area."
"Primary shopping area" is also defined in that annex, as:
"Defined area where retail development is concentrated…"
There is such a defined area within Swindon Town Centre. Policy S13 of the Local Plan designates Eldene as a Minor Local Centre. As such, it is not (nor does it contain) a primary shopping area.
The Local Plan goes on to say that commissioned studies had concluded that there was no need for additional retail development over and above that already existing or specifically catered for in the Plan itself. However, in the Plan, the Council accept that, during the Plan period, the need for additional development might arise; but it would be for the developer to prove that the proposed development was needed and could not be accommodated in the town centre or some other defined shopping centre (paragraph 6.5.3).
Of this hierarchy, the Local Plan says:
"6.5.4 … [T]he applicant will be expected to show that the proposal is located in accordance with the sequential approach and it satisfies the criteria described in S1. In applying the sequential approach the [Council] will require applicants to provide evidence that all appropriate sequentially preferable locations have been thoroughly assessed. The [Council] will be both realistic and flexible when considering such evidence and will be sensitive to the needs of retailers.
6.5.5 Where new out of town centre development is permitted, conditions may be imposed to limit the range and type of goods to be sold…"
With regard to paragraph 6.5.5, it is worth noting in passing that, in respect of both the 2012 Permission and the 2013 Permission, a condition was imposed on the development limiting the scope of the goods to be sold by the anchor store, more or less to food and food-related items.
Thus, for new, out of centre retail developments, Policy S1 requires the applicant developer to show the following:
As I have indicated, within the Local Plan, Eldene Local Centre is designated as a "Minor Local Centre". "Minor Local Centres" are areas where there are three to nine shops in close proximity (see paragraph 6.9.13). Policy S13, found within paragraph 6.9 of the Local Plan, provides that, within Minor Local Centres, Class A1 retail uses shall be permitted "provided they are appropriate to the scale, function and character of the centre". Paragraph 6.9.14 explains:
i) there is a "clearly identified need" for such a development;
ii) there is no impact on the vitality and viability of the town centre and nearby centres;
iii) the sequential test as to the availability of alternative in-centre sites is satisfied: and
iv) that the development will be properly accessible.
"… The minor centres complement larger centres and provide a valuable function in meeting the day-to-day shopping needs of those without access to a car."
Finally, Policy CF6 in paragraph 8.3 of the Local Plan provides as follows:
"Loss of Established Community Facilities
Proposals that would result in the loss of established community facilities within settlements, including public houses, shall only be permitted where there is:
a) a satisfactory and sustainable alternative to that facility within the settlement; or
b) it has been demonstrated that the facility is no longer economically viable for such use."
The Second Claim: The Claimant's Grounds
In the wake of Collins J's pessimistic observations on it when he adjourned the permission application, at the hearing before me the Claimant abandoned the ground that the 2013 Permission was unlawful as not containing a summary of reasons for grant. The Claimant was right to do so. I need say nothing further about it.
The grounds remaining are effectively three in number.
Ground 1: The officers' report of 1 July 2013 failed properly to interpret and apply Policies S1 and S13 of the Local Plan, thus not only unlawfully departing from those policies themselves, but also breaching the NPPF.
Ground 2: The officers' report unlawfully relied upon a plan or aspiration of the Council, not incorporated into the Local Plan or indeed any policy, to replace Eldene Local Centre with the proposed development and thereafter redevelop the Eldene Local Centre site.
Ground 3: The officers' report proceeded on a fundamentally flawed basis with regard to the retail impact assessment.
Ground 1: Failure Properly to Interpret and Apply the Development Plan
Mr Holgate submitted that Policies S1 and S13 of the Local Plan were not properly interpreted and applied in the officers' report, so that the approval was not only contrary to the development plan but also contrary to the NPPF, because the proposed development is such fundamental conflict with the objectives of Policies S1 and S13 that the NPPF presumption in favour of sustainable development could not apply. In the written grounds, these featured as two separate grounds; but both turn on the proposition that the Council failed properly to interpret and apply Policies S1 and S13, and they can conveniently be dealt with together.
With regard to this proposition, Mr Holgate's submission ran thus. In establishing a hierarchy for the provision of new retail floorspace, Policy S1 only endorses development proposals which are consistent with the role and function of the centre to which the particular proposal relates. The development proposal here would result in a change in the function of Eldene. It is currently a minor local centre, with the function of meeting the day-to-day shopping needs of those without access to a car. The data suggest that less than 5% of users of the Eldene Local Centre do their main food shopping there. The officers' report justified the development proposal on the basis that the new superstore and additional retail units would do more than service the day-to-day shopping needs of those without a car: it would service also the needs of many more local residents for their main food shopping needs. The proposal would therefore in reality move the centre up in the hierarchy, by creating a new centre effectively replacing the old (minor) centre with a substantially larger one operating at a higher level in the hierarchy. It was an objective of Policies S1 and S13 to maintain the function and character of a particular centre, as designated. This development runs counter to that objective. Thus, he submitted, the officers' report laboured under, and made a decision on, a fundamental misunderstanding of these policies. The decision to grant was therefore wrong in law.
The officers' report of 1 July 2013 dealt with the NPPF and Local Plan Policies thus:
"5.5 The overriding policy thrust of the [NPPF] is to presume in favour of sustainable economic development. With respect to retail schemes, the NPPF seeks to protect the vitality of our Town Centres. Its local application means that significant retail proposals should be focused towards Swindon Town centre in the first instance. Larger retail schemes outside of Town Centres are expected to be subject to an impact assessment and a sequential site assessment.
5.8 The extent to which the Council can now give weight to the policies in the adopted Local Plan has now changed. Where there is inconsistency between the policies in the adopted Local Plan and the NPPF, the NPPF now takes precedence. The extent to which key policies in the Local Plan accord with the NPPF are explained below.
5.10 Policy S1 of the… Local Plan… is the dominant policy against which the scheme should be assessed. Policy S1's requirement to demonstrate a need is not mentioned in the NPPF. However, Policy S1's other requirements still feature in the NPPF and the policy is considered to be largely consistent with the NPPF.
5.11 Notwithstanding the fact that retail need is not mentioned in the NPPF, the applicant has undertaken a Needs Assessment, which has helped inform their case that there is a particular need for the retail scheme in this area.
5.12 Policy S13 (Major [sic] Local Centres) of the Local Plan does not apply to this scheme, because the application site lies outside of the Eldene Local Centre.
5.15 Outside the Town Centre,… Policy S1 seeks to steer proposals for new retail floorspace towards the Borough's District and Local Centres. The application site lies outside of the Borough's defined retail centres. In such locations, Policy S1 advises that new retail schemes will only be permitted subject to the proposal by itself or cumulatively not causing harm to the vitality and viability of Swindon Town Centre and/or other existing centres.
5.19 The applicant commissioned consultants to undertake an Independent Household Survey of 700 households in the area. This survey enabled the applicant to identify the existing shopping patterns of local households. This work showed that approximately 89.5% of locally generated expenditure is currently leaking to other stores elsewhere in the survey area and beyond. The assessment noted that this is a significant level of leakage which indicates that existing stores in the immediate area are not meeting the needs of local residents… The applicant concludes that these shopping patterns reflect a clear 'gap' in main foodstore provision in this part of Swindon and a clear need for suitable new provision which will help to address the deficiency.
5.20 The Retail Assessment considers the impact of the store on existing and proposed centres in what would be the proposed store's catchment area…. The Retail Assessment identifies… a -23.5% loss of turnover at the Tesco Store at Ocotal Way, a -22.0% loss of turnover at the Sainsbury's Store on the Oxford Road, a -12.4% loss of turnover at the Sainsburys Store at Bridgemead, and a -22.7% loss of turnover at the Co-op Store in the Eldene Centre (2016 projections)….
5.22 Of the stores that would experience a more significant impact, the Co-op at the Eldene is the only store within a defined centre. The impact of the application scheme on Eldene therefore warrants closer scrutiny. The Eldene Centre is anchored by a 360 sq m net Co-op store. It would be expected that the majority of the store's turnover would be derived from 'top-up' food purchases. This expectation is demonstrated by the results of the householder survey, which show that only a small proportion of residents identify the Co-op store at Eldene as where they do most of their main-food shopping. The Co-op is therefore serving the convenience needs of a small proportion of local residents.
5.23 The applicant notes that given the proximity of the application site to the Eldene Centre, "we also anticipate a reasonable degree of impact on this centre (22.7%) although this also reflects the fact that the store is not currently trading very strongly". The Co-op considers that the level of impact is significant, and as per the Local Plan policies and the NPPF, it should be refused. In monetary terms the applicant anticipated the level of anticipated trade diversion from the store to be a "marginal" £0.4m. The applicant concludes "We do not consider that this level of trade draw from the Co-op at Eldene will be significant to cause closure…". There is no substantiated evidence available to the [local planning authority] that would refute this conclusion. Officers consider that the Impact Assessment is robust and agree with the conclusion reached that trade diversion from existing centres as a result of the new store would be at a level that would not undermine these centres. Officers consider that the proposal meets both criteria set out in para 26 of the NPPF in relation to impact.
5.24 The Council as owner of the Eldene Centre has indicated that it wishes to replace the existing retail facilities. Hence the provision of the additional 3 retail units as part of the proposed development. The Council's aspiration (as landowner) is not yet supported by any planning policy and therefore cannot form the basis for determining whether the proposed scheme is acceptable or not. However, in any event the conclusion reached is that the proposed development will not have an unacceptable impact on the existing retail facilities in the Eldene Centre should the Eldene Centre Retail units remain.
5.27 The site lies 150 metres from Eldene Centre. On this basis the applicant considers the site to be edge-of-centre in applying the sequential approach. Given that the Eldene Centre is a local centre, officers would not support the conclusion that a scheme 150 metres away could be defined as on the edge of the Eldene Centre. Officers have reviewed the sequential test assessment on the basis that this is an out-of-centre scheme.
5.28 In undertaking the Sequential Site Assessment, the applicants note that the rationale for the scheme is to address a clear 'gap' in main foodstore provision in this part of the Borough which is leading to high levels of expenditure leakage and unsustainable travel patterns.
5.29 With this in mind, the applicant assessed potentially sequentially preferable sites in areas that would have the potential scope to serve South-east Swindon's retail needs. The areas assessed comprised sites [including] the Eldene Centre. Officers are in agreement with the scope of the Sequential Site Assessment.
5.30 The Co-op's main objection to the sequential approach is on the basis that they do not accept that there is a location specific need. For the reasons set out under Local Retail Need in this report, officers would disagree with this assessment. The Co-op has also objected that there is no indication that the applicant has sought to discuss the available of sites with landowners, with a genuine attempt to select a more central location. The Co-op also asserts that the Sequential Assessment falls short of the expectations in the Government's Practice Guidance. As previously discussed, officers consider the issue around trying to find a more central location is moot, given the purpose of the store, to serve a locally identified need. Officers consider that the potentially sequentially preferable sites were assessed using a robust NPPF compliant methodology. It is not clear what the Co-op is referring to in their assertion that the assessment falls short of the expectations in the Government's Practice Guidance. Officers can see no inconsistencies or omissions here.
Future Proposals for the Eldene Local Centre
5.35 Officers would note that a report was submitted to Cabinet which identifies an aspiration to, in the longer term, replace the out-dated retail facilities at the Eldene Centre with the retail units provided as part of the proposed development. [That appears to be a reference to the report by planning officers to the Council Cabinet dated 21 March 2012, referred to in paragraph 5 above.] This report does not comprise planning policy, and therefore little weight can be applied to the report ….
5.55 In summary, the original conclusions of the Planning and Retail Assessment still hold true. The application proposals will not result in any significantly adverse impacts on any defined centres or planned and committed investment, and will sustainably meet the objectives of the NPPF."
The officers' error in paragraph 5.12 is immaterial: Policy S13 concerns Minor Local Centre, and the reference to "Major Local Centres" is clearly just a typographical error. No party has suggested otherwise.
I quote that lengthy passage without apology. Looking at it fairly, I do not consider that the Claimant's first ground is arguable for the following reasons.
Policies S1 and S13 set out criteria for assessing planning applications for new retail floorspace, dependent upon where the relevant site is: they set different criteria for where the site is (i) in the town centre, (ii) within other defined centres, including minor local centres or (iii) "outside the defined centres", which category is subdivided into "edge of the defined centres" and "sites out of centre" (with an effective further subdivision for "sites out of centre" into those which are close to a centre and those which are not). Although no doubt the proposed development would have a potential effect on the Eldene Local Centre as well as other centres (including Swindon Town Centre), the Site is not within the Eldene Local Centre or any defined centre at all; nor is it "edge of centre", because it is not within 300 metres of a primary shopping area or anything like (see paragraph 25 above). The proposed development was out of centre. That was the basis upon which the officers' report, properly, proceeded. Indeed, contrary to Morrisons' original submission to the Council that this was edge of centre development, it has always been the Claimant's own case that the Site is out of centre: that was the position taken by DPDS in their response to the 2012 Application (see paragraph 4.3 of their 30 July 2012 submission), and that position has been confirmed in these claims (see, e.g., Mr Holgate's skeleton argument for the First Claim, at paragraph 55).
With regard to this planning application, Paragraph 5.12 of the officers' report is therefore correct: Policy S13, which sets criteria where a proposed site is within a centre, does not come into play at all.
The relevant policy is S1. As I have indicated (paragraph 28 above), Policy S1 permits out of centre retail development provided that (i) there is shown to be a "clearly identified need" for such a development, (ii) there is no impact on the vitality and viability of nearby centres (including, in the Site's case, the Eldene Local Centre); and (iii) the sequential test as to the availability of alternative in-centre sites is satisfied. In respect of the Site, accessibility is not, and has never been, an issue.
Policy S1 is identified, unequivocally, in the officers' report (see paragraph 5.10, where it is referred to as "the dominant policy against which the scheme should be assessed"). Furthermore, accessibility not being a relevant issue, the report addresses the three issues it was required to address (see paragraph 28 above).
i) In paragraphs 5.10-5.11, the position with regard to need was accurately identified: in fact, GVA's February 2013 planning and retail assessment dealt with need in some detail over nine pages.
ii) In paragraphs 5.15-5.23, the report explicitly and with some care addressed the impact of the proposed development on the vitality and viability of other relevant centres in the retail hierarchy, including Swindon Town Centre, Cavendish Square and "nearby local centres". With regard to the Eldene Local Centre, because of its proximity to the proposed development, the officers said that the impact on that centre warranted "closer scrutiny" (paragraph 5.22). In this context, the Claimant's store there was particularly identified (again, paragraph 5.22).
iii) Finally, in paragraphs 5.26 onwards, it dealt with sequential site assessment. The Claimant's main objection was that there was no location specific need. The report concludes that there was such a need; and that "potentially sequentially preferable sites [had been] assessed using a robust NPPF compliant methodology" and "there are no sequentially preferable sites that could accommodate the proposals".
These are matters of planning judgment; and the conclusions reached by the officers were, clearly, ones to which they were entitled to come.
The officers' report, in the extract I have quoted, properly identified the policy to be applied, accurately set out the requirements of that policy and correctly addressed those requirements in the context of this application. Contrary to Mr Holgate's contention, the policy does not arguably additionally require the Council to consider "how a centre functions within a retail hierarchy". This proposed development was out of centre and, as such, the planning decision-makers had to have regard to the its impact on other centres only in the context and by the criteria set out in the policy, namely its impact on the vitality and viability of those centres. That the officers' report did. The report found (in paragraph 5.24) that the proposed development would not in fact have an unacceptable impact on the existing retail facilities in the Eldene Centre. Therefore, the report concluded, as it was entitled to do, that the proposed development neither sought to elevate Eldene up the retail hierarchy – the proposed development being entirely distinct from Eldene – nor did it put in jeopardy Eldene as a continuing minor local centre.
There is nothing arguably challengeable here. The officers responsible for the report clearly had Policy S1 at the forefront of their minds; they did not arguably misunderstand its requirements; nor did they arguably misapply it. The report's approach and conclusion are simply unimpeachable on public law grounds. As Mr Jones and Mr Maurici compellingly submitted, this is in reality a challenge to the merits of the conclusion of the officers, and thus the Council, in the context of commercial competition between the Claimant and Morrisons. But it is not arguable that the Council's approach to the Local Plan Policies S1 and S13, or the conclusion reached, was wrong or unlawful.
Ground 2: Unlawful reliance upon a plan or aspiration of the Council
Mr Holgate submitted that the officers' report erred in relying on a plan or aspiration of the Council to regenerate the Eldene Local Centre site.
Two passages of the officers' report of 1 July 2013 are relevant to this ground, paragraphs 5.24 and 5.35 (quoted at paragraph 35 above).
Mr Holgate criticises the officers for relying on the plan or aspiration of the Council that Eldene should be redeveloped. If such is a local planning policy, then it has not gone through the rigorous process required for such a plan. He referred to the detailed scheme for the approval of local policy plans set out in the 2004 Act and the Town and Country Planning (Local Planning) (England) Regulations 2012 (SI 2012 No 767), and to the recent case of R (TW Logistics) v Tendring District Council  EWCA Civ 9 at  which emphasises the requirement for a planning authority to set out its planning policies in its development plan which is subject to the consultation and scrutiny provisions of the scheme. If it is not local planning policy, then Mr Holgate submitted that it was an irrelevant consideration, which ought not to have been given any weight at all.
Of course, I am not concerned with planning merits. But it is worth noting in passing that there is a consensus that the Eldene Local Centre is wanting in at least some respects. The Report to Cabinet dated 21 March 2012 (see paragraph 5 above), referred to the fact that the centre is "poorly laid out and deteriorating in condition due to age"; and, in their 30 July 2012 objections to the 2012 Application, DPDS themselves conceded that, "The design is dated and somewhat awkward with poor visibility and accessibility…" (paragraph 1.2).
But, leaving the merits of some form of redevelopment of the Eldene Local Centre entirely apart, in my view, there are two answers to Mr Holgate's submissions on this ground.
First, whatever had gone before, it cannot sensibly be suggested that the officers proceeded on the basis that Eldene would be replaced: their report dealt, in detail, with the analysis of draw etc on the basis that it would remain. The officers' report made clear beyond peradventure that the redevelopment aspiration and long-term plan for the Eldene Local Centre site was held by the Council qua landowner and not qua planning authority: paragraph 5.24 expressly refers to the Council "as owner of Eldene Centre" having indicated a wish to replace the retail facilities there. For that reason, and equally clearly, the report stated that it did not comprise planning policy and "[could] not form the basis for determining whether the proposed scheme is acceptable or not" (paragraph 5.24).
However, even if not planning policy, it does not mean that that aspiration or long-term wish as to the future of the land is irrelevant in the planning context. Future plans, intentions and aspirations of a local authority qua landowner relate to "the character and use of land", and thus are a material consideration for planning purposes, just as much as a development brief of a landowner other than the local authority itself, the identity of the landowner (as Mr Holgate submitted) being entirely irrelevant (see Westminster City Council v Great Portland Estates Plc  AC 661 at pages 669G to 670E per Lord Scarman; and R (Mills) v Arun District Council  EWHC 588 (Admin);  PLCR 13 at  per Sullivan J as he then was). That the aspiration of the Council as landowner for the Eldene site was a material consideration appears to have been accepted, as a proposition, by DPDS. Far from submitting that that the aspiration was not a material consideration in the planning application, they rather said that, because the aspiration was not part of current planning policy, "it would not be a strategy that could be given any serious weight in determining the [planning] application" (30 July 2012 submission, at paragraph 2.2). The officers in fact gave it "little weight" (their I July 2013 report, paragraph 5.35)
Of course, the authority must proceed with due care when considering a planning application in which it has an interest as a landowner; but, in my judgment, the terms of the officers' report in this case make clear that they fully understood this obligation, and did approach the issue with all appropriate scrutiny and care. Attaching "little weight" to that factor, for the officers, it was clearly not a determinative factor.
In any event, second, the officers' report at paragraph 5.24 says that:
"… [I]n any event the conclusion reached is that the proposed development will not have an unacceptable impact on the existing retail facilities in the Eldene Centre should the Eldene Centre Retail units remain."
In other words, the policy test in Policy S1 was in any event met so that even if, contrary to my firm conclusion, the officers did take into account an irrelevant consideration, it was immaterial: they would clearly have come to the same conclusion even if they had not taken that matter into account.
For those reasons, I consider that the second ground too is unarguable.
Ground 3: The Retail Impact Assessment
As his third and final ground, Mr Holgate submitted that the officers' report proceeded on a fundamentally flawed basis with regard to the retail impact assessment. Before me, he focused this submission on the failure of the report to take into account the evidence of DPDS that the Claimant's Eldene store was "highly likely to close" if the proposed development went ahead. Having referred to the applicant's conclusion that "this level of trade draw from the [Claimant] at Eldene [i.e. 22.7%] will not be significant to cause closure" as "there will still be a healthy level of locally available expenditure to support local convenience goods facilities at Eldene" (GVA's February 2013 Planning and Retail Assessment, paragraph 7.18), the officers' report said that there was "no substantiated evidence available to the [Council] that would refute this conclusion". But there was, says Mr Holgate: there was the evidence of DPDS that the store was likely to close.
However, in my judgment, again the answer to that submission is short, simple and fatal.
Policy S1 required the officers to consider the adverse impact of the proposed development on the vitality and viability of, amongst other centres, the Eldene Local Centre including the Claimant's store there. For the 2013 Application, Morrisons relied upon the February 2013 planning and retail assessment of GVA, which had a monetary analysis of the impact on the Claimant's store, concluding that it would have an estimated 22.7% adverse effect on its trade. The Claimant responded to this analysis through DPDS, in their submission dated 28 March 2013. In respect of the Second Application, that did not raise the issue of the Claimant's Eldene store having to close if the proposed development went ahead; nor can such a submission be impliedly cast out of their reference to their comments in relation to the draw figures in the earlier assessment (see paragraph 13 above). The officers were not obliged to address a point that was not made in this application. The main plank of the submission therefore bears no weight.
In so far as a wider submission with regard to the draw analysis was pursued, in my judgment it is no better: the officers clearly did consider the viability and vitality of the Eldene Local Centre, if the proposed development were to proceed, as they were required to do. On page 9 of their 28 March 2013 submission, after referring to the impact on other stores (including the Claimant's own store at Cavendish Square), DPDS said:
"In any event, the impact on the Eldene centre estimated by GVA is 22.7%. This is a significant adverse impact in any language and a refusal of planning permission is indicated in any event under the local plan policies and the NPPF which states that 'where an application fails to satisfy the sequential test or is likely to have significant adverse impact on one or more of the above factors (i.e. the impact tests) it should be refused."
Therefore, in respect of the 2103 Application, the Claimant did not say that their Eldene store would close if the proposed development went ahead, nor did they seek positively to refute the monetary draw analysis; they only contended that (i) they were not satisfied with GVA's own analysis and assessment, and (ii) even on that analysis, the impact on the Claimant would be significant. However, the Claimant did not seek to put forward any analysis of its own – as it was able and entitled to do – and the officers were in my view clearly entitled to consider that the analysis from GVA which they did have was sufficient to enable them to accept make a properly informed opinion as to the draw and its consequences. Planning decision-makers have a wide discretion as to the information that is sufficient to enable them to make a properly informed decision. Indeed, the evidence is that the officers in this case were well-satisfied as to these matters. Despite the representations from the Claimant, they described the analysis as "robust". There was of course evidence from GVA that the household survey evidence would, to an extent, overstate the adverse impact on the Claimant's Eldene store (GVA's February 2013 Planning and Retail Assessment, paragraph 7.9). Furthermore, following receipt of DPDS's submissions on the 2012 Application, whilst raising with GVA other issues they raised, the officers do not appear to have raised any concerns about the draw analysis or conclusion, in respect of either application. They appear to have been satisfied with the information and analysis GVA had provided, as they were again entitled to be. Being satisfied as to that clearly fell within their wide discretion on such matters.
That case of the Claimant with regard to impact in respect of the 2013 Application is properly recorded by the officers at paragraph 5.23 of their report: "The Co-op considers that the level of impact is significant, and, as per the Local Plan policies and the NPPF, it should be refused". But, in respect of the 2013 Application, the officers were clearly satisfied that they had sufficient information to make decisions with regard to the draw analysis; and the point made by the officers that there was "no substantiated evidence" to refute the monetary GVA monetary analysis was correct. Whether that impact would undermine the vitality or viability of the Eldene Local Centre was a matter of planning judgment. The report concluded that it would not: the officers considered the impact assessment robust, and agreed with its conclusion that trade diversion would not be such as to undermine the centres they had considered, including Eldene (see paragraph 5.23). They were clearly entitled, a matter of planning judgment, to draw such a conclusion.
That conclusion, as a matter of planning judgment, is unarguably unimpeachable. This ground is, again, in reality, no more than a disagreement with the planning judgment made by the officers, which they were entitled to make on the evidence and submissions before them.
Ground 3 is consequently also unarguable.
For those reasons, I do not consider that any of the grounds in the Second Claim is arguable. I therefore refuse permission to proceed with the Second Claim; and, because the First Claim is now academic, also on that claim.
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