Milton (Peterborough) Estates Company Trading as Fitzwilliam (Malton) Estate v Ryedale District Council Gmi Holbeck Land (Malton) Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove |
| Judgment Date | 09 July 2015 |
| Neutral Citation | [2015] EWHC 1948 (Admin) |
| Docket Number | Case No: CO/4915/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 July 2015 |
[2015] EWHC 1948 (Admin)
IN THE HIGH COURT OF JUSTICE
PLANNING COURT (LEEDS DISTRICT REGISTRY)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Dove
Case No: CO/4915/2014
The Queen — on the application of —
and
Peter Village QC & James Strachan QC (instructed by Pinsent Masons LLP) for the Claimant
David Manley QC (instructed by Ryedale District Council) for the Defendant
Paul Tucker QC and Michael Rudd (instructed by LB & Co Limited) for the Interested Party
Hearing dates: 10 th– 11 th June 2015
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This claim is a challenge by way of Judicial Review to the grant of planning permission by the defendant to the interested party for A1 retail units, offices, petrol filling station, car park and landscaping at a site known as Wentworth Street Car Park ("WSCP") in Malton, North Yorkshire. The planning permission was granted on 12 th September 2014. The claimants are landowners who own a significant part of Malton town centre and who also have the benefit of the grant of a planning permission on appeal on 29 th October 2012 for another retail development in the town on what is known as the Livestock Market Site ("LMS").
The claimant contends, in brief, that in granting planning permission the following errors of law occurred. Firstly, the members of the planning committee were seriously misled in relation to the conclusions that the Inspector had reached in the claimant's appeal in relation to the LMS site when he granted permission as set out above. This was, in particular, in relation to the Inspector's conclusions in respect of the sequential ranking of the LMS site and the WSCP site and his reasons for concluding that the former was preferable to the latter. They were further misled by the failure to allude at all to the Inspector's conclusion that for the purposes of retail impact analysis the LMS site should be counted as part of the town centre.
Secondly, in disagreeing with the Inspector's conclusions in particular in relation to the sequential test the officer's report on which members relied to make their decision to grant planning permission, failed to provide adequate reasons for that disagreement.
Thirdly, it is contended that the council failed to have regard to the impact on planned investment which would occur in relation to the implementation of the LMS if planning permission were granted for the WSCP. It is contended that the officers failed to properly disentangle the intentions of the proposed operator of the LMS site, Booths, from the intentions of the claimant, the landowner. Finally, it is contended that consideration should have been given to rescreening the proposed development for EIA purposes in the light of circumstances having changed since it was originally screened.
History
On 10 th May 2011 the claimant applied for planning permission for the retail development of the LMS site. The proposal sought to demolish all buildings on the site and construct four new retail units with a total gross external floor space of 4,092 square metres along with a three storey decked car park and new public area. The largest of the retail units was proposed for a high quality food store and had a gross external floor space of 2,360 square metres. The three smaller retail units were proposed for comparison goods retailing.
In August 2011 the interested party applied for outline planning permission for a new food store of 5,205 square metres gross together with other ancillary development as described above. Around the time of making the application the interested party sought the opinion of the defendant as to whether or not their proposed development was Environmental Impact Assessment ("EIA") development pursuant to the then relevant Regulations, namely the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulation 1999. This request for a screening opinion was made by way of a letter dated 22 nd August 2011. Amongst a number of characteristics of the proposed development the letter addressed the question of cumulative effect. The information provided in the letter was as follows:
"4.2 The Subject Site lies adjacent to the existing Malton town centre commercial limits (Ryedale Local Plan adopted March 2002). The emerging Core Strategy includes a proposal for the town's commercial limits to be extended to an area known as the Northern Arc, which is suitable for mixed use development including new convenience and comparison retail uses. The area of the Subject Site proposed for built development lies broadly within the Northern Arc and there is currently another application for planning permission submitted to RDC for retail uses with the Northern Arc and thus adjacent to the existing town centre commercial limits. However, the two sites are not contiguous and are separated by existing town centre uses and residential streets. No adverse environmental effects are anticipated were both sites to include built development such as would result in a requirement for an EIA.
4.3 A full statement has been prepared by Nathaniel Lichfield and Partners ("NLP") pursuant to Planning Policy Statement 4, which covers retail impact and the strategic retail policy implications of the proposal. The work by NLP includes a conclusion that only one large new convenience store/foodstore can be accommodated in Malton or the District generally. This is consistent with work undertaken on behalf of RDC by Roger Tym and Partners ("RTP"). Additionally Arup has prepared an economic impact assessment of the proposal which takes other development into account, where such potential is identified. These documents have been submitted as part of the planning application.
4.4 It is submitted that there are no developments anticipated to be constructed or conducted in the area which would together give rise to significant environmental effects such as to warrant EIA of this scheme."
On 14 th October 2011 the defendant responded to the screening opinion and the covering letter made clear that the opinion had been "given strictly on the basis of the information provided in the submitted application". The screening opinion concluded that the development, whilst within Schedule 2 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (the applicable Regulations at the time of providing the opinion), it was a development which was not likely to give rise to significant effects on the environment and therefore did not qualify as EIA development.
On 12 th April 2012 the defendant refused the claimant's application for planning permission for four reasons. The first and fourth reasons are of materiality to the matters in this case. So far as relevant the first reason for refusal was expressed as follows:
"Whilst the application site is on edge of centre as defined in National Planning Policy, and would function as an immediate and logical extension to the town centre, it is considered that the site is not currently available for the proposed development or suitable for the type/mix of retail development proposed by this application. Furthermore, the applicants have failed to demonstrate to the satisfaction of the Council that the proposed development would be viable, and therefore that the scheme would be deliverable.
It is considered that an alternative site, located to the east of Wentworth Street and currently in use as a car park, is sequentially preferable to the application's site on the basis that it is available suitable and viable.
The application is therefore judged to have failed to demonstrate compliance with the sequential approach required by National Planning Policy."
The fourth reason for refusal, again so far as relevant, provided as follows:
"The National Planning Policy Framework states that where a proposed development is likely to have a significant adverse impact on town centre vitality and viability planning permission should be refused…
There is a resolution to approve an application for a foodstore with a gross floor space of 4,494 square metres (net floor space of 3,086 square metres) as part of a scheme at Wentworth Street, Malton taking the impacts of the proposed development into account it is considered that in combination with this commitment the proposed development is likely to have a significant adverse impact on town centre vitality and viability, contrary to the provisions of the National Planning Policy Framework and Regional Spatial Strategy."
The claimants appealed and the appeal was heard by the public inquiry procedure. During the course of the inquiry the following material formed part of the evidence before the Inspector who made the decision on the appeal on behalf of the Secretary of State:
a) Within the inquiry's Core Documents the Inspector was presented with reports from Roger Tym and Partners ("RTP") that had been commissioned to provide the evidence base for the defendant's emerging forward plan (which started as a Core Strategy and later developed into a Local Plan Strategy). The role of these reports was to provide the Council with evidence in relation to matters concerning retail planning both in terms of the retail needs that had to be planned for and also the potential candidate sites...
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