Bolton Metropolitan District Council & Others v Secretary of State for the Environment & Others

JurisdictionEngland & Wales
JudgeLord Justice Glidewell,Lord Justice Hoffmann,Lord Justice Hobhouse,LORD JUSTICE GLIDEWELL
Judgment Date08 July 1994
Judgment citation (vLex)[1994] EWCA Civ J0708-2
CourtCourt of Appeal (Civil Division)
Docket NumberNo. QBCOF 93/1641/D
Date08 July 1994

[1994] EWCA Civ J0708-2

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

(ON APPEAL FROM THE HIGH COURT OF JUSTICE)

(QUEEN'S BENCH DIVISION)

(Mr. Justice Schiemann)

Before: Lord Justice Glidewell Lord Justice Hoffmann and Lord Justice Hobhouse

No. QBCOF 93/1641/D

Bolton Metropolitan District Council & Others
Appellants
and
Secretary of State for the Environment & Others
Respondents

MR. R. PURCHAS QC and MR. M. LEWIS (instructed by Messrs. Sharp Pritchard, London) appeared on behalf of the Appellants.

MR. J. SULLIVAN QC and MR. C. KATOWSKI (instructed by Treasury Solicitors) appeared on behalf of the 1st Respondents ( Secretary of State for the Environment).

MR. D. KEENE QC, MR. B. ASH QC and MR. P. STINCHCOMBE (instructed by Messrs. Stephenson Harwood, London) appeared on behalf of the 2nd Respondents ( Manchester Ship Canal Company).

The 3rd Respondent did not appear and was unrepresented.

MISS S. HAMILTON QC and MR. S. HEAD (instructed by Messrs. Nabarro Nathanson, London) appeared on behalf of the 4th Respondents ( Trafford Park Development Corporation).

1

Lord Justice Glidewell
2

The Second Respondent to this appeal, the Manchester Ship Canal Co Ltd (the Ship Canal Co) is the owner of a large area of land at Barton Dock Estate, Dumplington, in the Metropolitan Borough of Trafford. The Ship Canal Co made three applications for planning permission, two for the construction of a sub-regional shopping centre on some 6l ha and a third for a similar sub-regional shopping centre together with a regional sports complex on a total area of some 120 ha. The First Respondent, the Secretary of State for the Environment, called in two of the applications for his own decision. The Ship Canal Co appealed against the failure of Trafford Borough Council to give a decision on the third application within the required time. By a decision letter dated 4 March 1993 the Secretary of State allowed the appeal and granted outline permission for the development proposed in all three applications.

3

The present Appellants, a consortium comprising the Manchester City Council and the Metropolitan Borough Councils of Bolton, Bury, Oldham, Rochdale, Stockport, Tameside and Wigan, (all the Local Planning Authorities in Greater Manchester except the Borough Councils of Trafford and Salford) made application to the High Court under section 288 of the Town and Country Planning Act 1990 challenging the validity of the Secretary of State's decision. In a judgment given on 15 October 1993 Schiemann J dismissed the application. The consortium now appeal to this court.

4

The site and the development proposed

5

The 120 ha site lies at the western end of the industrial area known as Trafford Park. It is bounded on its northern side by the Manchester Ship Canal, and on its south-western side by the M63 motorway. Roads serving the site give access to the motorway at two existing junctions, numbers 3 and 4. The sub-regional shopping centre (the Trafford Centre) is intended to be constructed on an area of 6l ha which adjoins the motorway between these two junctions. The proposed regional sports complex is intended to be constructed on the remainder of the larger site, between the Trafford Centre and the ship canal.

6

Trafford Park, including the l20 ha site, has been designated as an Urban Development Area under section 134 of the Local Government, Planning and Land Act 1980. The Fourth Respondent, the Trafford Park Development Corporation, was established by the Secretary of State under section 135 of the 1980 Act for the purpose of regenerating the UDA.

7

The inquiries and other procedures which led to the Secretary of State's decision

8

At approximately the same time as the three applications were made by the Ship Canal Co, other applications were made by other companies for development of retail centres broadly similar to the Trafford Centre on other sites in the area. One of these was in Trafford and three in Salford. The Secretary of State constituted a joint inquiry into all eight applications and appeals. The inquiry was conducted by an Inspector, Mr Brundell, together with an assessor, and was held between 22 September 1987 and 26 February 1988. In his report Mr Brundell recommended that outline planning permission should be granted for the Trafford Centre and the regional sports complex on all three of the Ship Canal Company's applications. He also recommended that the other five competing applications should all be refused.

9

In an interim decision letter dated 23 August 1989 the Secretary of State said:

"(He) agrees with the Inspector's conclusion that the building of one major shopping centre on the western side of Greater Manchester would not cause unacceptable harm to the regeneration of the conurbation or to the vitality and viability of any existing town centre. He also agrees that more than one such centre would be harmful and should not be permitted. In the light of the Inspector's conclusions, he considers that there are no grounds concluding that such a centre is likely to have an unacceptable impact on other centres when considered in conjunction with the proposed shopping developments he has permitted at Cheadle and Handforth."

10

Having reached this overall conclusion, the Secretary of State accepted the Inspector's recommendation that of the competing applications for a major shopping centre, the Trafford Centre was to be preferred over the others. However, the Secretary of State also decided that there remained a problem of ensuring that the traffic generated by the Trafford Centre should be able to gain access to the M63 safely. He said

"In view of the potential traffic hazards identified at the inquiry the Secretary of State is not prepared to grant planning permission for the proposed development without being satisfied about the safety of traffic joining the M63 at junction 3. Therefore, he feels unable at present to accept the Inspector's recommendations that planning permission be granted."

11

The Secretary of State invited further representations about this issue. In the meantime, he refused one of the other applications, but made no decision on the remaining three, pending the resolution of the problem he had identified with regard to the Trafford Centre.

12

There then ensued a lengthy period of time in which all interested parties made representations to the Secretary of State. Until August 1989 the attitude of the Department of Transport, which is of course the department responsible for the M63, was that in order to ensure that traffic from the Trafford Centre could be accommodated on the M63 safely, a fourth lane southbound between junctions 2 and 3 would be necessary. However, the Department also concluded that it was not prepared to construct a fourth lane, on environmental and other grounds, even if the Ship Canal Co gave the land necessary for the construction of such a lane. Thus the Department at that time recommended that planning permission for the Trafford Centre should be refused.

13

However, over the next 21 months the Department of Transport changed its attitude to these matters. In a letter dated 7 May 1991 the Secretary of State for the Environment enclosed a further statement he had received from the Department of Transport, which concluded that a fourth lane southbound between junctions 3 and 4 was no longer required, but that a substantial improvement at junction 3 was required for traffic joining M63 northbound, including an additional lane from that point northwards to junction 2, which would involve the widening of Barton Bridge by which M63 crosses the ship canal. The Department also required other improvements at junction 3 for southbound traffic.

14

In the event, after receiving further representations, in a letter dated 4 November 1991 the Secretary of State decided that before he could reach a decision it was necessary for him to re-open the inquiry. In that letter he described the matters which he wished to have investigated at the re-opened inquiry in the following terms.

"a)Whether roadworks are necessary to allow traffic from the proposed Trafford Centre to be accommodated safely on the M63;

b)The extent and timing of such works;

c)Whether the planning advantages of Trafford Centre are such that permission should be given for it without a condition requiring the provision of all or some of those roadworks and

d)Whether the prospects of the work being provided when required are sufficiently reasonable as to enable permission conditional upon their provision to be granted."

15

The consortium tried to persuade the Secretary of State to widen the ambit of the re-opened inquiry to enable the whole question of the acceptability of the proposed development of the Trafford Centre to be reconsidered in the light of what were alleged to be changed circumstances. The Secretary of State, as he was entitled to do, declined to widen the ambit of the re-opened inquiry, which was therefore held with the terms of reference referred to in his letter of 4 November 1991. That inquiry lasted from 9 June to l7 July 1992, and Mr Brundell delivered his further report to the Secretary of State in September 1992. He again recommended that permission should be given for the Trafford Centre subject to conditions.

16

Before the Secretary of State made his decision on the applications, the consortium sent to him in October and November 1992 extensive written representations. In summary, the effect of these was that since the time when the first inquiry was held in 1987/88 there had been changes of government policy in a number of important respects and that many of the important factual...

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