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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> ASDA Stores Ltd, R (on the application of) v Leeds City Council & Anor  EWHC 3578 (Admin) (20 December 2019)
Cite as:  PTSR 874,  WLR(D) 20,  EWHC 3578 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen (on the application of ASDA STORES LIMITED)
|- and -
|LEEDS CITY COUNCIL
|- and –
COMMERCIAL DEVELOPMENT PROJECTS LIMITED
Ms Hall (instructed by Leeds City Council Legal Services) for the Defendant
Mr Warren QC (instructed by Birketts LLP) for the Interested Party
Hearing dates: 11/12/19
Crown Copyright ©
Mrs Justice Lieven DBE :
"construction of a mixed-use retail – led development comprising retail (use classes A1, A2, A3 and A5), leisure (use class D2), non-residential institutions (use class D1) and book makers (sui generis) with associated access, parking and landscaping ("The proposed development")."
on a 5.9ha site at the former Benyon Centre, Middleton Ring road, Leeds (the site). The decision was dated 5 April 2019. The Interested Party was the applicant for planning permission. The claimant is the owner and operator of a large retail store on the site adjacent to and immediately to the south of the site.
"The site is located approximately 70m from the edge of the defined Middleton Town Centre. However, it is immediately adjacent to the proposed Centre boundary in the Leeds Sites and Allocation plan (SAP) which proposes an extension to the existing centre to incorporate the Asda store adjacent to the site. The design of the development seeks to integrate itself into the existing retail provision at Middleton Centre and utilises existing pedestrian infrastructure in order to provide legible links between the proposed development and the existing shop and businesses. As already stated the small unit shops are located at the south-western corner of the site, closest to the centre and are likely to be occupied by a range of uses within Use Classes A1, A2, A3, A5, D1 and sui generis."
"1) The proposal (in this edge of centre [sic] location) will result in a significant adverse impact on Middleton Town Centre, therefore harming the viability and vitality of the town centre location. The proposal is therefore contrary to paragraph 89 and 90 of the NPPF and policies SP2 and P8 of the Core Strategy."
"10.5 The Unitary Development Plan does not define Primary Shopping Areas. However, is does define Primary and Secondary Shopping frontages for Middleton Town Centre. The NPPF defines a Primary shopping area as a "defined area where retail development is concentrated". It can therefore be said that the protected shopping frontages define a very similar approximation of a primary shopping area. Whilst the draft Site Allocations Plan has not been adopted, it does define Primary Shopping Areas and is therefore considered a helpful material consideration in determining the status of the site's location.
10.6 The draft Site Allocation has material weight as it has now been through the Examination stages, is based on up-to-date survey data and, with regards to Primary Shopping Area designations, has received very little objection. Crucially, the proposed Primary Shopping Area reflects the designated protected shopping frontages within the Unitary Development Plan. Therefore, as the proposal site is within 300m of both the adopted protected Shopping Frontages and the proposed Primary Shopping Area boundary it is considered appropriate in this case to define the site as edge of Centre. As a result, the proposal is not considered in-centre development and in accordance with policies SP2 and P8 of the Core Strategy and Chapter 7 must pass a sequential and Impact Assessment before the application is approved."
"10.10 As with the previous applications on the site, the severity of the projected impact upon Middleton Town Centre rests largely on the likelihood of the re-occupation of the existing B&M Bargains unit that will be vacated as a result of the new development. Colleagues in Policy stated in their initial response on the 2nd July 2018:
"…concerns persist as to the likelihood of the re-occupation of the existing B&M Bargains unit in Middleton Town Centre, which is likely to be rendered vacant by the proposal development. For the previous application the applicants submitted further information on the likely future occupiers of that unit. Whilst this assessment is less than a year old, it includes an occupier (Poundworld) that has since entered administration. This potentially casts some new light on the state of the discount retailer market. The LPA feel that the assessment of the B&M unit therefore requires updating and are proposing to commission an independent assessment of the likelihood of the re-letting of the existing B&M unit. This aspect of the application is crucial to assessing the retail impact of the scheme.
Should the unit remain vacant over the long-term the projected impact upon Middleton Town Centre is predicted to be in the order of 42%. This would constitute a significant adverse impact and would justify the refusal of the scheme. The Council therefore consider that it is crucial that it can put together as accurate a picture as possible on the likelihood of re-occupation of this unit. The Council will not be able to arrive at a view on this application until this evidence forms part of the assessment picture."
"During the consideration of the previous application, the LPA considered that Middleton Town Centre is performing well. Officer's view at that time was that the B&M Bargains Unit was an attractive one, owing to its visible location on the ring road and access to a large surface car park to the front of the store. However, the vitality of the centre currently relies upon the B&M unit to drive footfall and spend. As previously stated, should that unit not be re-occupied the impact upon Middleton Town Centre will be significantly adverse. In our view there is now significant doubt about that re-occupation, and given that the unit generates 42% of the turnover of the centre, the failure to re-occupy the unit with a store of a similar footfall and turnover would have a significant adverse impact on Middleton Town Centre."
"In response to questions and comments from the Panel, the following was discussed:
- Some Members showed support towards the application and felt that the proposals would have a positive impact on the area. It was felt that the employment opportunities and the potential to attract more customers to the area were factors and could outweigh the recommendation for refusal.
- Some concern that policy and guidelines would not be followed should the officer recommendation be overturned. The Panel received further advice with regard to this and informed that as decision makers it was for Members to decide what weight to give each material consideration and an alternative motion to the officer recommendation would have to be tabled should a different decision be sought.
- There was still some concern with regard to the layout and design. It was reported that should the application be approved then the detailed design could be agreed with ward Members via discharge of conditions.
There was a broad agreement across Members that other issues outweighed policy and that the application should be approved contrary to the officer recommendation. Issues highlighted included the opportunity for employment, economic impact, the site's location to Middleton centre and the opportunity to extend the centre.
A motion to approve the application, contrary to the officer recommendation was made and seconded and following a vote it was:
RESOLVED- That the officer recommendation be overturned and the application be approved in principle as the following were considered to outweigh the recommendation set out in the officer report:
- The additional jobs growth provided by the development and the economic development it represents in the area.
- The site location adjacent to the existing centre and the excellent links allowing for enhanced linked trips between the existing centre and the proposal site.
- The proposal site is an obvious choice to expand the centre to provide an increased range of good [sic] and services for local people, given the limitations of the existing centre."
"At the Panel meeting on 20th December, in considering the application, Members placed greater weight on the benefits of the scheme in terms of economic development, regeneration, increase in retail offer and job creation, and considered these benefits outweighed any harm the proposal would have on vitality and viability on Middleton District centre. Members also considered the proposal has the potential to boost trade at Middleton District centre, by new linked trips. The economic and regeneration benefits are material planning considerations and valid reasons to approve the application, contrary to the advice of Officers."
The relevant policies
"89 When assessing applications for retail and leisure development outside town centres, which are not in accordance with an up to date plan, local planning authorities should require an impact assessment if the development is over a proportionate, locally set floorspace threshold…This should include assessment of:
the impact of the proposal on town centre vitality and viability, including local consumer choice and trade in the town centre and the wider retail catchment (as applicable to the scale and nature of the scheme.
90 Where an application fails to satisfy the sequential test or is likely to have significant adverse impact on one or more the considerations in paragraph 89, it should be refused."(emphasis added)
"SPATIAL POLICY 2: HIERARCHY OF CENTRES AND SPATIAL APPROACH TO RETAILING, OFFICES, INTENSIVE LEISURE AND CULTURE
The Council supports a centres first approach supported by sequential and impact assessments. The Council will direct retailing, offices, intensive leisure and culture, and community development to the City Centre and designated town and local centres in order to promote their vitality and viability as the focus for shopping, employment, leisure, culture, and community services. Proposals which would undermine that approach will not be supported..." (Emphasis added).
"4.2.6 The Core Strategy approach, in line with the Centres Study and national guidance, is to achieve growth within centres, with a 'centres first' approach, protecting the vitality and viability of centres. This requires a sequential assessment and where appropriate, impact assessment to be conducted to direct town centre uses to the appropriate level within the centre's hierarchy. Further details regarding this approach are in Policy P8."
"10. There are a number of places in which the word "should" is used in the NPPF in a wide range of contexts.
11. Paragraph 90 is found in a passage of paragraphs that set out national panning policy on "Ensuring the vitality of town centres", i.e. Chapter 7.
12. This contains a number of policies that apply in plan-making context and a development control context.
13. Paragraph 90 is an example of the word "should" being used in a development control context.
14. Paragraph 90 follows the requirement in paragraph 89 for a local planning authority to require an impact assessment in certain circumstances which should include an assessment of the impact on the proposal on private investment (89(a)) and town centre vitality and viability (89(b)).
15. Paragraph 90 then says that where an application is likely to have significant adverse impact on (a) or (b) it should be refused.
16. These words should be given their ordinary meaning in this context. This is that where a proposal causes (for example) a significant adverse effect on town centre and vitality it should be assessed as contrary to national policy on ensuring the vitality and vitality[sic] of town centres. This would, in the absence of any other considerations, provide a basis for refusal of the application.
17. Paragraph 90 read in context does not mean that in any case where the sequential test is failed or the proposals are likely to have a significant adverse effect on planned investment or town centre vitality and viability the application must be refused. In this sense, it is not mandatory.
18. Such an interpretation would (a) not give "should" its ordinary meaning, (b) be inconsistent with the duties under section 38(6) and s70(2) to have regard to all material considerations, and (c) fail to read paragraph 90 in its proper context which is within the NPPF section addressing town centres.
19. These submissions only address the question of interpretation paragraph 90 NPPF and not the question of the weight to be given to it in any given case."
Ground of Challenge
"41. The Planning Court – and this court too – must always be vigilant against excessive legalism infecting the planning system. A planning decision is not akin to an adjudication made by a court (see paragraph 50 of my judgment in Barwood v East Staffordshire Borough Council). The courts must keep in mind that the function of planning decision-making has been assigned by Parliament, not to judges, but – at local level – to elected councillors with the benefit of advice given to them by planning officers, most of whom are professional planners, and – on appeal – to the Secretary of State and his inspectors. They should remember too that the making of planning policy is not an end in itself, but a means to achieving reasonably predictable decision-making, consistent with the aims of the policy-maker. Though the interpretation of planning policy is, ultimately, a matter for the court, planning policies do not normally require intricate discussion of their meaning. …One thing, however, is certain, and ought to be stressed. Planning officers and inspectors are entitled to expect that both national and local planning policy is as simply and clearly stated as it can be, and also – however well or badly a policy is expressed – that the court's interpretation of it will be straightforward, without undue or elaborate exposition. Equally, they are entitled to expect – in every case – good sense and fairness in the court's review of a planning decision, not the hypercritical approach the court is often urged to adopt.
42. The principles on which the court will act when criticism is made of a planning officer's report to committee are well settled. To summarize the law as it stands:
(1) The essential principles are as stated by the Court of Appeal in R. v Selby District Council, ex parte Oxton Farms  E.G.C.S. 60 (see, in particular, the judgment of Judge L.J., as he then was). They have since been confirmed several times by this court, notably by Sullivan L.J. in R. (on the application of Siraj) v Kirklees Metropolitan Borough Council  EWCA Civ 1286, at paragraph 19, and applied in many cases at first instance (see, for example, the judgment of Hickinbottom J., as he then was, in R. (on the application of Zurich Assurance Ltd., t/a Threadneedle Property Investments) v North Lincolnshire Council  EWHC 3708 (Admin), at paragraph 15).
(2) The principles are not complicated. Planning officers' reports to committee are not to be read with undue rigour, but with reasonable benevolence, and bearing in mind that they are written for councillors with local knowledge (see the judgment of Baroness Hale of Richmond in R. (on the application of Morge) v Hampshire County Council  UKSC 2, at paragraph 36, and the judgment of Sullivan J., as he then was, in R. v Mendip District Council, ex parte Fabre (2000) 80 P. & C.R. 500, at p.509)…"
"EC17.1 Planning applications for main town centre uses that are not in an existing centre and not in accordance with an up to date development plan should be refused planning permission where;
(b) … the proposal is likely to lead to significant adverse impacts…."
"iv) If it has not been demonstrated, or if it has been demonstrated but there is clear evidence that the proposal is likely to lead to significant adverse impacts set out in Policies EC10.2 and 16.1, then the policy is that the application should be refused. However, that national policy (of refusing an application in these circumstances) is capable of being displaced if the planning committee considers that it is outweighed by other material considerations. That too requires the committee to perform a balancing exercise, but this exercise is performed outside the four corners of the policy: it is required because of the nature of the policy, not because of its terms. However, one negative factor that must be taken into account in this exercise is of course the fact that it is the national policy to refuse an application in these circumstances."
"As I have indicated (paragraph 22(ii) above), the question as to whether an applicant has demonstrated compliance with the requirements of the sequential approach is capable of only one of two answers, "yes" or "no". If it has not demonstrated compliance, then there is a presumption raised by Policy EC17 that the application will be refused. In this case it is common ground that Simons failed to demonstrate compliance with the requirements of the sequential approach in the manner I have described (paragraphs 34-5 above)."
"Mr Tucker submitted that those passages displayed a fundamental misunderstanding and misapplication of Policy EC17 – because the policy does not admit of partially meeting of the sequential test. The committee, instead of being told in unequivocal terms that where there was (any) failure to meet the sequential test the national policy directed refusal of the application, were led to believe that the partial breach of the test should merely be weighed against the positive material considerations, notably the economic benefits of the development. That was a legal error with regard to the proper approach to Policy EC17, as a result of which the planning permission should be quashed."
"iii) However, that is not the end of the planning committee's exercise; because, having found that the applicant had not satisfied the sequential test (thereby giving rise to a national policy presumption of refusal), the committee still had to decide whether there are any other material considerations which displace that presumption…"
Claim Ref: CO/2005/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BEFORE: Mrs. Justice Lieven DBE
UPON HEARING Counsel for the Claimant, Counsel for the Defendant and Counsel for the Interested Party
IT IS ORDERED THAT:
1. The Claimant's Claim is dismissed, and
2. The Claimant is to pay the Defendant's costs in the sum of £12,279.68; and
3. The Claimant is to pay the Interested Party's costs of filing and serving its acknowledgement of service in the sum of £12,000; and
4. Permission to appeal to the Court of Appeal is refused