BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Court of Appeal in Northern Ireland Decisions

You are here: BAILII >> Databases >> Court of Appeal in Northern Ireland Decisions >> Belfast Chamber of Trade and Commerce & Ors, In the Matter of [2001] NICA 6 (28 February 2001)
Cite as: [2001] NICA 6

[New search] [View without highlighting] [Printable RTF version] [Help]

Belfast Chamber of Trade and Commerce & Ors, In the Matter of [2001] NICA 6 (28 February 2001)

Judgment: approved by the Court for handing down
(subject to editorial corrections)






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

2. Planning Legislation and Policy

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

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

“planning policies, in themselves, do not confer legally enforceable rights or duties. Rather, they provide guidance for planning authorities, applicants and interested members of public as to the approach that the planning authorities will generally adopt when considering various types of planning application. The circumstances in which planning applications may arise are infinitely varying and the task of formulating, co-ordinating and implementing policy for the orderly and consistent development of land is both difficult and demanding and may frequently require the resolution of complex problems produced by competing policies and/or conflicting interests. Planning policies are but one of the material considerations that must be taken into account by the planning authority in accordance with the 1991 Order.”

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

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

“5. The Government’s policy objectives for town centres and retail developments are:

- to sustain and enhance the vitality and viability of town centres;

- to focus development, especially retail development, in locations where the proximity of businesses facilitates competition from which all consumers are able to benefit and maximises the opportunity to use means of transport other than the car;

- to maintain an efficient, competitive and innovative retail sector; and

- to ensure the availability of a wide range of shops, employment services and facilities to which people have easy access by a choice of means of transport.

6. The Department is committed to allowing freedom of choice and flexibility in terms of retail development throughout Northern Ireland and to assist the provision of a wide range of shopping opportunities to which the whole community has access. It is not the function of land use planning to prevent competition among retailers or between methods of retailing, nor to preserve existing commercial interests. However, the Department recognises the value and importance of established shopping areas in town, district and local centres, and is therefore committed to protecting their vitality and viability.”

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

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

“Large single-level individual store with a minimum of 1000 square metres gross retail floorspace normally selling goods such as DIY goods, furniture, electrical goods, carpets and gardening goods, with car parking provision.”

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

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

“39 Major proposals for comparison shopping or mixed retailing will only be permitted in out-of centre locations where the Department is satisfied that suitable town centre sites are not available and where the development satisfies all the following criteria:

- complements or meets existing deficiencies in the overall shopping provision;

- is unlikely to lead to a significant loss of investment in existing centres;

- is unlikely to have an adverse impact on the vitality or viability of an existing centre or undermine its convenience or comparison shopping function;

- will not lead to an unreasonable or detrimental impact on amenity, traffic movements or road safety;

- will be accessible by a choice of means of transport;

- will provide adequate car parking, cycle parking and facilities for other transport modes, where appropriate;

- is to a standard of design, of both the buildings and the spaces around the buildings, which contributes positively to townscapes and is sensitive to the surrounding area;

- provides suitable access for the disabled;

- will be unlikely to add to the overall number and length of car trips and should, preferably, contribute to a decrease; and

- will be unlikely to prejudice the implementation of development plan policies and proposals.

Where a proposed out-of-centre development satisfies the above criteria the Department will favour an edge-of-centre location over a location elsewhere out-of-centre.”

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

“Proposals for food supermarkets and food superstores on sites outside town centres, including edge-of-centre sites, may be acceptable provided that the proposal satisfied all the criteria set out at paragraph 39.”

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

13. The Planning History

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

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

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

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

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

“Evaluating the second and third criterion of paragraph 39 in that context [the objectives set out in PPS5], I have not been persuaded that the impact of the proposed foodstore justifies its rejection.”

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

“Given the similarities between the two foodstores and their offers and the general proposition that like will compete with like, it is very unlikely that the impact of two foodsuperstores will be significantly greater than the impact of one; the stores will trade one against the other.”

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

“(a) the food superstore

(i) in respect of the retail proposals policy accords the highest level of protection to Holywood town centre and Belfast City Centre.

(ii) while the foodstore will impact upon convenience foodstores in Holywood, I have not been persuaded that this establishes adverse impact on the centre as a whole or undermine [sic] its convenience or comparison shopping function. A food superstore would be inappropriate within Holywood town centre, but such a development within easy distance of it may in fact sustain and enhance its vitality and vitality

(iii) impact of the foodstore upon Belfast City Centre will be limited and the impact upon other centres does not give cause for concern for the centres as a whole

(iv) impacts upon the centres as a whole are not exacerbated to a significant extent by the development of two food superstores.”

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

“13.9.4 Individual components of the proposal, I judge acceptable evaluated against appropriate policy contexts. The proposal will establish the area as an attractive retail and leisure destination, this will be increased by the development of the Tesco foodstore. The fears of local traders are understandable. In the policy context of which I must take account, I have not found the effect upon Belfast City Centre, Holywood town centres, other town centres and other centres such as would justify rejection of any individual component. I have not been persuaded that the impact of the D5 proposal as a whole and/or its impact in conjunction with the Tesco proposal, on the evidence presented, justifies its rejection.

13.9.5 Accordingly I advise that the Commission recommend to the Department that the proposal be permitted, subject to appropriate conditions as agreed between the parties and/or as referred to throughout my consideration.”

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

“Given the evidence presented at the Inquiry, the conclusions and recommendation of the Planning Appeals Commission, Planning Service accepts on balance that planning permission should be granted for both applications.”

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

“Planning Service has concerns about the likely adverse impact on the vitality and viability of Holywood, Connswater and Dundonald, and undermining their convenience and comparison shopping facilities.”

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

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

“The Planning Service has carried out an evaluation of the reports of the Planning Appeals Commission. They have reservations as to the impact of the proposals on the shopping centres of Holywood, Connswater and Dundonald. However, on balance their view is that permission should be granted for both applications.”

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

“the presiding Commissioner has made a closely argued case for permission on both sites, and I have concluded that the recommendations of the PAC should be accepted.”

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

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

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

“The Commissioner had considered that the proposals were unlikely to have had an adverse impact on these areas [Holywood, Connswater and Dundonald] and that there would not be a long term loss of investment to Holywood; she also considered that the development would meet a need (in qualitative terms) in the shopping provision in the area. Mr Stewart’s disagreement with her conclusions can only be interpreted as indicating his view that the first two of these factors would in fact accrue and that there was no deficiency in shopping provision in the area. Despite this and the obvious conflict (in Mr Stewart’s estimation) of the proposals with PPS5, he recommended that planning permission be granted. This recommendation is difficult to understand in view of his conclusion that it was in conflict with paragraph 39 of PPS5 which requires that all the criteria therein outlined be fulfilled before planning permission for an out of town shopping centre be granted; it is all the more mystifying when one considers Mr Stewart’s advice in the same memorandum that the proposals were inconsistent with two of the four policy objectives for retailing and town centres set out in paragraph 5 of PPS5 and his comment that ‘to approve a development which would be contrary to these objectives could undermine the Department’s retail policy and create a precedent for the approval of similar developments.”

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

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

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

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

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

The first draft contained right at the beginning a recommendation that the application be refused planning permission, but this was deleted.
The opinion expressed in paragraph 6.14 that the setting aside of the zoning of substantial area of industrial land was not justified is qualified by references to the draft Regional Strategic Framework.
The conclusion in paragraph 7.16 that the proposal fails to satisfy the criterion relating to the loss of investment in Holywood town centre is again qualified.
In paragraph 7.25 of the original version the opinion was expressed in relation to adverse impact:
“In view of the likely impact on Holywood, Connswater and Dundonald it is considered the proposal fails to satisfy this criterion.”

In the revised version the conclusion in paragraph 7.22 about the adverse impact on the vitality of Holywood town centre is qualified. In paragraphs 7.23 and 7.24 of the new version the concern expressed about Connswater in the original draft is also reduced and qualified, and the concern expressed in the original paragraph 7.24 about the effect on Dundonald is deleted in the final version.
The view expressed in the original Paragraph 7.36 that the proposal fails to meet the policy in the Regional Strategic Framework is modified by a qualification set out in the revised version.
The conclusion set out in paragraph 12 of the original is substantially rewritten. Instead of the recommendation that the application be refused planning permission, there appears the following new paragraph 12.2:
“It is considered some of the conclusions and recommendations of the Appointed Member and the Commission are not sustainable on the evidence recorded in the report, Departmental policy has been incorrectly interpreted, the proper level of weighting has not been given to material considerations and material considerations have not been taken into account.”

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

“7.12 However, this position may now have changed given the existing planning permission for a Tesco superstore at Knocknagoney. The proposal may no longer complement existing shopping facilities but rather represent duplication.

7.13 Whilst in present circumstances the proposal may fail the ‘complements’ test a material consideration to be taken into account is the prejudice to the applicant through the failure of the Department to make a decision timeously. If little weight is given to this material consideration then the proposal may fail to meet the criterion. If significant weight is given then it could be judge the proposal satisfies this criterion.”

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

(a) The retail policies in the Belfast Urban Area Plan had been superseded by PPS5 and the emerging RSF.
(b) In relation to the criteria in paragraph 39 of PPS5 he said:
“The professional conclusion is that the superstore element fails to meet PPS5 policy in relation to two criteria listed in para 39 viz a significant loss of investment and adverse impact in relation to Holywood town centre. In addition, there is concern about the adverse impact on the vitality and viability of existing centres, namely Connswater and Dundonald. While the conclusion was also reached that the proposal did not meet a quantitative deficiency in overall shopping provision, there is much less certainty as to whether the proposal fails the complements test.”

(c) On adverse impact, which he described later as “marginal”, he set out his view:
“I am satisfied that recent developments at both Connswater and Dundonald help alleviate any concern about adverse impact on these centres and therefore reach a judgment that the proposal passes this test.

The adverse impact on Holywood town centre relates to the convenience shopping function which is dominated by the existing Tesco store within the town centre. The original concern about adverse impact was directly linked to the proposed D5 & Tesco, Knocknagoney, developments. The existence of a further superstore is unlikely to additionally impact significantly on the convenience function overall, in the context that Tesco is now trading. In addition, a significant factor is the overall trend away from reliance on the convenience function as evidenced by the bustling, thriving atmosphere with a low number of vacancies.

Impact leading to contraction of Holywood’s convenience shopping function is certainly a concern but it needs to be balanced by its developing role in the shopping hierarchy as indicated by the Commission and reinforced by the actual change in emphasis on the ground.”

(d) He considered the issue of lost investment and concluded that the issue was “arguably very finely balanced” and “marginal in the context of the overall proposed development”.
(e) In his conclusion he expressed the view that the superstore element of the proposal failed to meet planning policy in respect of loss investment and adverse impact in relation to Holywood town centre, and there were also concerns about adverse impact on existing centres. He went on to discuss broader considerations:
“You will, however, wish to consider the overall proposal against the background that all the other major elements pass all the policy tests. The proposed development represents a high quality package; considerable investment; plus employment opportunities which must be judged against the policy failures in relation to only the superstore part of the proposals. A further countervailing factor is the opportunity to provide a quality multi-purpose development which will increase the choice and range for East Belfast residents (and the wider catchment area) who currently must travel to either north, south or west Belfast, which are currently well served by such shopping. This is important in the context of allowing freedom of choice and flexibility, assisting the provision of a wide range of shopping opportunities to which the whole community has access. The site is on a main transport route and will be served by public transport through a formal planning agreement. While the superstore element could be excluded and the remaining elements approved the quality package proposed is a beneficial concept which expands the retail offer and assists linked journey shopping.”

(f) The final recommendation in Mr McKay’s submission was as follows:
“The Planning Service recommendation, based on the professional assessment within the strict interpretation of policy, points towards a refusal. However, the Department may wish to balance these marginal policy failures primarily in relation to Holywood town centre against any countervailing factors, including those referred to above, and reach a decision on how to progress this application.”

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

“ ... I have some difficulty with the conclusion of the Planning Service that the D5 proposal fails the lost investment test – even if only in a marginal way”.

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

“40. In this case, we have two professional assessments which reach different conclusions as to conformity with policy.

41. The Report of the PAC includes the report of the Appointed Member who has provided an extensive evaluation recommending approval. Such a report must be given appropriate weight and cannot lightly be set aside.

42. On the other hand, the Department is the custodian of its own policies and the professional advice is that one element of the proposal (ie the foodstore) does not – in a marginal way – meet two of the policy criteria in para. 39 of PPS5.

43. My judgement is that the question of whether there is a policy failure in relation to the foodstore is finely balanced having regard to the overall objectives of PPS5. Even if there is such a failure, when countervailing factors (see attached Annex) are taken into account, together with the general principle that there is a presumption of permission in relation to development proposals, I consider that outline permission should be granted for the totality of the development as proposed in the application – subject to appropriate conditions. I recommend accordingly.

44. Before coming to a conclusion on this recommendation, the Minister should visit the site, and I should be glad to arrange.”

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

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

“2. In approaching the issues, the Minister might find it helpful to consider the following points:

(a) does the food superstore element on the proposed development fail either the ‘lost investment’ or ‘adverse impact’ tests in the Retail Planning Policy Statement?

NB. The Planning Appeals Commission found that the proposal satisfied the tests; the subsequent Planning Service analysis found that there was ‘policy failure’, but the Chief Executive of the Planning Service judged it to be marginal.

(b) if there is no ‘policy failure’, then approval would follow;

(c) if there is ‘policy failure’, then the Minister as decision-maker needs to judge its extent and to weigh that against the ‘countervailing factors’ summarised in the Annex to Mr Mackenzie’s submission;

(d) approval or refusal of the food superstore element of the proposal would then depend on the relative weight attached to ‘policy failure’ (which would point towards refusal) and ‘countervailing factors’ (which would point towards approval).

3. I have considered the issues and agree with the recommendation at paragraph 43 of Mr Mackenzie’s submission, namely that outline permission should be granted for the totality of the development, subject to appropriate conditions.”

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

“The Minister understood the investment test plus adverse impact but was concerned about the complements test in the first criteria and asked for clarification. Mr McKay explained the position and referred to the detailed submissions which covered this aspect, specifically the difficulty in reaching a conclusion that the superstore fails the complements test. The Minister indicated that he would carefully consider the position on all the criteria before reaching a decision.”

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

“In reaching this decision, the Minister has had regard to:

(a) the overall objectives of PPS5;

(b) the fact that all elements of the proposal, except the food superstore, are consistent with those objectives and satisfy the policy tests;

(c) countervailing factors;

(d) the fact that the policy failures, in relation to the impact of the food superstore element on Holywood Town Centre, are judged to be marginal and thus not significantly detrimental in terms of the overall objectives of policy, in particular those relating to the vitality and viability of town centres;

(e) the fact that there are no policy failures in relation to Belfast City Centre;

(f) the fact that the industrial land zoning in the BUAP was not a determining issue.”

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

“I have fully considered all the relevant issues. All but one element of the proposal meet the relevant policy objectives and tests. There are marginal policy failures in relation to the food superstore element of the proposal regarding the possible impact on Holywood Town Centre. However, these have to be weighed in the context of the general policy objectives and countervailing factors. I have reached the judgement that a number of factors, including investment and employment opportunities, maintaining an efficient competitive and innovative retail sector, increased consumer choice and range plus independent regeneration in Holywood Town Centre outweigh these marginal failures. I have therefore approved the application subject to suitable conditions and planning agreements.”

The Issues

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

1. The Department failed to follow the requirements of its policy contained in the Belfast Urban Area Plan on retail warehouse parks.
2. The criteria contained in paragraph 39 of PPS5 were mandatory, and as the proposal failed to comply with all of them permission should have been refused.
3. The Minister was not given a proper understanding of the nature of the test in the first criterion in paragraph 39, that the development should complement or meet existing deficiencies in the overall shopping criteria.
4. There was no real basis for the conclusion that the failure to comply with the second and third criteria in paragraph 39 was “marginal” in the absence of an up-to-date “health check” on Holywood town centre.
5. There was a real danger of bias having affected the decision.

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

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

47. The “Complements” Test

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

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

“Following discussion with the Minister regarding this particular test it was concluded that the proposal met the complements test as it offered a beneficial retailing opportunity providing choice and competition.”

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

“It seems to me that the starting point must be the dictionary definition of ‘complement’ which is something that ‘completes, perfects, fills up or makes up a whole’. In the context of paragraph 39 of PPS5 the term is used as an alternative to meeting ‘existing deficiencies’. In this context it seems to me that the true interpretation is that, while there may be no deficiency, the out-of-centre proposal may, in certain circumstances, broaden or make complete a pre-existing range of shopping provision. In my view, applying the legal principles stated, the simple addition of a competitor providing the same range of shopping provision as a pre-existing operator would not be a tenable, literal or contextual, interpretation of the term. I have come to the conclusion that the Minister appears to have been given defective advice by his senior officials as a result of which he misunderstood this aspect of the policy. Failure to properly understand a policy renders a decision as defective as if the decision-maker pays no regard to the policy at all – see Woolf J, as he then was, in Gransden v Secretary of State for the Environment (1986) JPL 519. Since satisfaction of the complements test was clearly one of the major elements in the Minister’s decision the decision must be quashed upon that ground.”

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

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

“the words spoke for themselves and were not readily susceptible to precise legal definition. Whether a proposed development met the description was in most cases likely to be a matter of fact or degree and planning judgment. He said ‘in most cases’ because it was for the Court to say as a matter of law whether the meaning given to it by the secretary of State or one of his Officers or inspectors to the expression when applying it was outside the ordinary and natural meaning of the words in their context ... The test to be applied by the court was that it should only interfere where the decision-maker’s interpretation was perverse in that he has given to the words in their context a meaning that they could not possibly have or restricted their meaning in a way that the breadth of their terms could not possibly justify.”

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

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

“If there is a dispute about the meaning of words included in a policy document which a planning authority is bound to take into account, it is of course for the court to determine as a matter of law what the words are capable of meaning ... If in all the circumstances the wording of the relevant policy document is properly capable of more than one meaning, and the planning authority adopts and applies a meaning which it is capable as a matter of law of bearing, then it will not have gone wrong in law.”

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

“Since a planning policy does not confer rights or impose duties that are legally enforceable I cannot see that it could ever be a matter for the court to determine its meaning as a matter of law for the purpose of deciding an issue arising from the making of a planning application. The decision whether to grant or refuse planning permission is an administrative decision which is only susceptible of review on the well established principles of administrative law. Any conclusion that is formed by the decision-maker as part of that decision can, in my judgment, be challenged only on Wednesbury grounds unless it is a conclusion of law. A conclusion on the meaning to be attached to a statute or a statutory instrument or a planning permission (which confers a legal privilege) is a conclusion of law, and a court can accordingly determine whether the conclusion is correct. A conclusion on the meaning of a planning policy, on the other hand, is a matter for the decision-maker in the case. On review the role of the court, in my judgment, is to say whether the decision-maker has attributed to the policy a meaning which he could not reasonably have attributed to it or, in forming his conclusion, has taken into account irrelevant matters or disregarded matters that were relevant. The court thus determines the ambit of reasonableness, which is a matter of law.”

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

“It is highly dangerous, if not impossible, to attempt to place an accurate definition upon a word in common use; you can look up examples of its many uses if you want to in the Oxford Dictionary but that does not help on definition; in fact it probably only shows that the word normally defies definition. The task of the court in construing statutory language such as that which is before your Lordships is to look at the mischief at which the Act is directed and then, in that light, to consider whether as a matter of common sense and every day usage the known, proved or admitted or properly referred facts of the particular case bring the case within the ordinary meaning of the words used by Parliament.”

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

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

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

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

61. Countervailing Factors

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

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

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

65. Retail Impact Assessment

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

“Given the history of this application and the intense public interest which it has generated, together with the criticism articulated by the Appointed Member, the passage of time and the advent of a trading food superstore at Knocknagoney, to fail to commission a comprehensive health check specifically in relation to this proposal and at the same time to exhibit to his affidavit a health check in respect of Holywood town centre compiled for the purpose of a totally different inquiry in 1999, before Tesco started to operate, is in my view quite inadequate and almost verges on arrogance, particularly in respect of the citizens of Holywood.”

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

“a. there is no legal basis for the imposition of an absolute investigative duty and that in so holding Coghlin J went beyond the permissible scope of review and trespassed on the planning judgment of the Department; and

b. there was ample evidence from which the Department could lawfully conclude in the exercise of its planning judgment that the said policy failure was marginal.”

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

“The law has always made a clear distinction between the question of whether something is a material consideration and that weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process.

This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State.”

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


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

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

“Procedural fairness ... requires that the decision-maker should not be biased or prejudiced in a way that precludes fair and genuine consideration being given to the arguments advanced by the parties. Although perfect objectivity may be an unrealisable objective, the rule against bias thus aims at preventing a hearing from being a sham or a ritual or a mere exercise in ‘symbolic reassurance’, due to the fact that the decision-maker was not in practice persuadable. The rule against bias is concerned, however, not only to prevent the distorting influence of actual bias, but also to protect the integrity of the decision-making process by ensuring that, however disinterested the decision-maker is in fact, the circumstances should not give rise to the appearance or risk of bias.”

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

“Even though the decision-maker may be scrupulously impartial, the appearance of bias can itself call into question the legitimacy of the decision-making process.”

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

“What must be established is the real danger of bias having affected the decision in the sense of having caused the decision-maker, albeit unconsciously, to weigh the competing contentions, and so decide the merits, unfairly.”

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

(a) Mr Mackenzie

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

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

1. In his judgment in the first judicial review Kerr J castigated Mr Mackenzie for misrepresenting the views of the Planning Service. He does not suggest anywhere in his judgment that this was deliberate, and it does appear from the evidence of his remarks in the subsequent case relating to the Newry development that it is unlikely that he intended to imply it. We are unable to draw any inference from the fact that Mr Mackenzie has not sought to justify or explain his misrepresentation: assuming that it was innocent but the product of carelessness or bad judgment, it is difficult to know what he could be expected to say.
2. Mr Deeny points out that Mr Mackenzie was concerned with several planning applications brought by Sainsbury for out-of-centre superstore developments in respect of which there was controversy, but not in others where there was not. We have examined carefully, as did Coghlin J, the circumstances of these cases, and cannot find in them cause for even the degree of suspicion which attached to Macavity in Old Possum’s Book of Practical Cats. Mr Mackenzie was the deputy secretary of the Department who had responsibility for planning, and as such was the most senior official to deal with difficult planning cases, apart from the Permanent Secretary with his responsibility for oversight of all the affairs of a large department. It is hardly surprising in these circumstances that he would be associated with the decisions in those cases. We note that in the Coleraine case the allegations of bias made in the proceedings in the Queen’s Bench Division were made against the Department, not against Mr Mackenzie personally (apart from the suggestion, rejected by the court, that he had improperly amended a draft letter), and that the applicants did not appeal on the issue of bias.

(b) The Department

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

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

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

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


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








BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII