Hawksworth Securities Plc v Peterborough City Council Ireef Queensgate Peterborough Propco S.A.R.L and Others (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 26 July 2016 |
| Neutral Citation | [2016] EWHC 1870 (Admin) |
| Docket Number | Case No: CO/5715/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 July 2016 |
[2016] EWHC 1870 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/5715/2015
The Queen on the application of
Hereward Phillpot QC (instructed by Burges Salmon LLP) for the Claimant
Reuben Taylor QC (instructed by Peterborough City Council) for the Defendant
Timothy Corner QC and Richard Moules (instructed by Pinsent Masons LLP) for the First Interested Party
The Second, Third, Fourth, Fifth, Sixth and Seventh Interested Parties did not attend and were not represented
The Claimant seeks judicial review of the decision of the Defendant's Planning and Environmental Protection Committee ("the Committee"), on 16 October 2015, to grant detailed planning permission for the redevelopment of part of the Queensgate Shopping Centre ("the Queensgate scheme") in Peterborough city centre.
The Claimant is the promoter of another scheme in Peterborough city centre for the redevelopment and regeneration of the land at North Westgate ("the Westgate scheme").
The Defendant, Peterborough City Council ("the Council"), is the local planning authority.
The First Interested Party is the applicant for planning permission for the Queensgate scheme. The Queensgate Shopping Centre is owned by Invesco Real Estate and managed by Lendlease. Only the First Interested Party has taken part in these proceedings and so I refer to it hereafter as "the IP".
Gilbart J. refused permission to apply for judicial review on 23 February 2016. On the Claimant's renewed application for permission, Ouseley J. decided, on 27 April 2016, to order a rolled-up hearing.
Facts
The Queensgate scheme comprises the part demolition, alteration and extension of the Queensgate Shopping Centre, including change of use and erection of a roof top extension to provide for uses within Class A1, A3–5 (shops, restaurants and cafes, drinking establishments and hot food take-away), D2 (assembly and leisure, specifically a cinema) and other associated works. The Queensgate Shopping Centre is immediately to the south-east of the site of the proposed Westgate scheme.
The Westgate scheme is a mixed use redevelopment involving the demolition of existing buildings and structures on the North Westgate site, the construction of new buildings and structures, the stopping up, diversion and alteration of public highways and the internal and external alteration and change of use of buildings and structures to be retained on site to provide: (i) retail uses (Classes A1, A2, A3, A4 and A5), 50,000ft 2 of office space (Class B1), hotel (Class C1), 150 residential units (Class C3), community uses (Class D1) and leisure uses including a cinema (Class D2) together with various elements of ancillary development including public realm comprising a new piazza. It is approximately 4.6 ha in size.
The Claimant and others objected to the Queensgate scheme on the basis of the prejudice that it would cause to the viability of the Westgate scheme. The Westgate scheme was designed and promoted as a leisure-led development, centred on the provision of a new multi-screen cinema. It was anticipated that the cinema would generate footfall and a ready market for food and drink outlets. The Queensgate scheme also included the development of a new cinema. The Claimant contended that there was only sufficient demand to support one city centre cinema, and so the grant of planning permission for the Queensgate scheme would render the Westgate scheme unviable. The Claimant contended that it would therefore be unable to implement and deliver the Westgate scheme. This would be contrary to the Council's policy of regenerating and redeveloping the North Westgate Opportunity Area, as the proposed Westgate scheme would regenerate the North Westgate area and, if it had to be abandoned, the consequence would be planning harm.
The planning officer, in his report to the Committee on the Queensgate scheme, summarised the Claimant's objections and annexed its letter to the report. In addressing the issues arising from the objection, he advised that:
i) The Queensgate scheme accorded with the NPPF.
ii) " The applicant for the North Westgate scheme has stated that if the Queensgate scheme obtains planning permission then the North Westgate scheme cannot be implemented. This is acknowledged as it is unlikely that two city centre cinemas would be financially viable. However, this is a matter of competition between the developers and not a matter of planning policy (not least because there is not a national or local planning policy that seeks to refuse policy compliant development within the city centre that has the potential to prevent the redevelopment of the North Westgate site)."
iii) The Westgate scheme would make a "positive contribution" to the City Centre.
iv) The Queensgate scheme would be sustainable in that it would be accessible, and the provision of a cinema and restaurant quarter would contribute to the sustainability of the city centre in terms of job creation and input into the local economy.
v) The Queensgate scheme accorded with the policy objectives of Core Strategy CS4 and Policy CC3 of the City Centre Plan, encouraging trips into the city centre for leisure, social and cultural purposes to strengthen the city centre core area.
vi) The proposal for a cinema accorded with the vision for the City Centre. Policy CC3 talked about the need for a cinema within the city centre core; however it did not state that the cinema had to be on the North Westgate site.
vii) It would not be reasonable to refuse the application on the basis that the approval of the Queensgate scheme would prejudice the development of North Westgate. Policy CC3 of the City Centre Plan applied to prevent development coming forward within the North Westgate Opportunity Area from prejudicing the comprehensive development of the whole North Westgate Opportunity Area and was not to be interpreted as applying to proposed development outside the North Westgate Opportunity Area.
viii) There was no guarantee that the Westgate scheme would be delivered. It was allocated for redevelopment in the 1971 City Centre Plan and there was still a pending application dating back to 2007. On the other hand, Invesco had indicated that it expected to implement the Queensgate scheme early next year and the operator for the cinema was confirmed as Odeon.
The planning officer's report concluded:
"Subject to the imposition of the attached conditions, the proposal is acceptable having been assessed in the light of all material considerations, including weighing against relevant policies of the development plan and specifically:
— the principle of a city centre cinema and restaurant provision with additional retail provision for the city centre is acceptable. This is in accordance with the vision for the City Centre, Policy CC3 of the City Centre DPD and Policy CS4 of the Core Strategy,
— the scale, proportions, design and use of materials would harmonise with the existing centre. This is in accordance with Policy CS16 of the Core Strategy and Policy PP2 of the Planning Policies DPD.
— it is accepted that the resultant bulk and mass of the extension would have a negligible adverse effect on the setting of some listed buildings and the City Centre conservation area. However, this is outweighed by the benefits of the scheme to the vitality and viability of the city centre through the likely increase in visitor numbers through cinema and restaurant offer, improved night time economy, employment, and improved pedestrian connectivity. This is in accordance with the NPPF and Policy CS17 of the Core Strategy and Policy PP17 of the Planning Policies DPD.
— the site is accessible by a choice of means of transport and the proposal is supported by a transport statement and travel plan and will not result in any adverse highway implications. This is in accordance with Policies CS14 of the Core Strategy and Policy PP12 of the Planning Policies DPD."
Further representations were then made by the Claimant which were attached to a "Briefing Update" provided to the Committee, indicating that an offer had been received from a cinema operator but the city could not support two cinemas; a cinema was the only viable "anchor" for the scheme; the scheme could be delivered by summer 2018.
The Committee considered both applications for planning permission at its meeting on 29 September 2015. The application for the Queensgate scheme was first on the agenda, as it had been received by the Council before the application for the Westgate scheme.
A transcript of the Committee's deliberations at the meeting has been obtained by the Claimant. The planning officer addressed the Committee saying:
"…..[t]he starting point has to be development of the City Centre planning policies and had we wished to protect the North Westgate site from these developments which might compromise its deliverability then we would have formed a suite of policies specifically around protecting that site from harm … but we haven't done that, we have specifically not done that and therefore what you need to bear in mind is that … the consideration of planning policy is key to this and it is only outweighed if you feel,...
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