R (Midcounties Co-Operative Ltd) v Wyre Forest District Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY |
| Judgment Date | 27 March 2009 |
| Neutral Citation | [2009] EWHC 964 (Admin) |
| Docket Number | CO/6918/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 March 2009 |
[2009] EWHC 964 (Admin)
Mr Justice Ouseley
CO/6918/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Mr D Holgate QC and Mr J Maurici appeared on behalf of the Claimant
Mr H Richards appeared on behalf of the Defendant
Mr R Harris QC and Mr R Taylor appeared on behalf of the Interested Party
Midcounties Co-operative Limited, the claimant, operates a supermarket in Stourport town centre. It seeks the quashing of a planning permission granted on 19 May 2008 by Wyre Forest District Council to Tesco Stores Limited and Santon Group Developments Limited for the development of a new supermarket with associated facilities at the former Carpets of Worth site in Stourport at the edge of or just beyond the town centre.
The principal ground of challenge concerns condition 6 on the permission which restricts the amount of retail floor space. Mr Holgate QC for Midcounties contends in a variety of ways that the floor space permitted exceeds the amount applied for or is greater than that which was assessed when the need for and impact of the store were considered by the Council. The scope of the condition was uncertain. This challenge involves a debate over the meaning of various similar phrases which incorporate the words “net” and “retail”, a debate which has been around since the dawn of retail planning.
The challenge also alleges that the tailpiece to condition (6) is unlawful because it allows the local planning authority to increase the gross external area and the “net retail sales area”, whatever that may be, in a manner which side-steps the statutory procedures for the grant of planning permission or variations to conditions. It would enable more than had been applied for or assessed to be developed.
Midcounties also contends that another condition is bad for a similar reason. It contends that the District Council had been procedurally unfair in the way it dealt with Midcounties over the section 106 agreement proposed between Tesco and the District Council. It is also said to have ignored considerations material to its judgments in respect of the impact of the development on the conservation areas, on road safety and on air quality.
Finally, it is said that the reasons for the grant of planning permission are legally inadequate.
Condition 6
Was more granted than applied for?
The outline permission is for:
“Construction of a new class A1 supermarket … new road and bridge … highways and other works … in accordance with the application received by the Council on 31 October 2007 and as subsequently amended subject to the following conditions …”
Condition (6) provides:
“The food store hereby approved shall not exceed the following floor space allocations (maxima);
Gross external—up to 4209 sq. metres measured externally
Nett retail sales—up to 2919 sq. metres,
unless otherwise agreed in writing with the Local Planning Authority.
Reason
In the interest of clarity, in order to define the permission and to ensure that it accords with Policies RT.1 and RT.4 of the Adopted Wyre Forest District Local Plan.”
I believe no irony is intended in the first part of the reason.
It is agreed that the effect of the words of the planning permission was to incorporate the application within it, following the principles of interpretation set out by Keene J in R v Ashford Borough Council ex parte Shepway District Council [1998] JPL 1073 at pages 19 to 20, and routinely applied since.
Mr Holgate entered a note of qualification. He said the application could not be part of the planning permission or used to interpret the permission if the application itself was uncertain. That is misconceived. The application is not being referred to as extrinsic material in order to interpret a permission of which it is not part. The application, by those words of incorporation, is part of the permission and has to be referred to in order that the permission as a whole is interpreted properly. This may have the effect of introducing an ambiguity, which would not have been there if the application had not been incorporated, but that simply means that the planning permission has an ambiguity when properly read as a whole.
It is agreed that incorporated in the planning permission therefore are the application form, the industrial questionnaire, and the site layout plan PO7H, later revision J. No floor space of any sort appears in the description of the development on the front of the planning application. Scale but not layout was reserved for future consideration.
The industrial questionnaire part of the application form which said:
“Total floor space of all buildings [in] proposed new floor space 4209 sq metres.”
referred to the gross external measurement of the proposed store.
The proposed new “floor space for retail trading” in the questionnaire was 2403 sq metres. The layout plan said “nett sales 31,422 sq ft (2919 sq.m)”. It also referred to the gross external measurement as 4209 sq metres as shown on the industrial questionnaire.
I accept Mr Harris QC's argument for Tesco/Santon that the 2919 sq metre figure in the permission in condition 6 and the 2919 sq metres figure on the application layout plan refer to the same physical space used for the same activities, whatever those activities may be. So “nett sales” on the layout plan and “net retail sales” in condition 6 refer to the same physical space used for the same activities. It would be a coincidence too far for so specific a figure to refer to two different but necessarily partly overlapping spaces. It follows that the grant of permission for “nett retail sales up to 2919 sq metres” does not exceed the application for the 2919 sq metres “net sales” shown on the layout plan. They are the same.
There is, however, no definition of “nett sales”, “net retail sales” or of “floor space for retail trading”, the phrase used in connection with the figure of 2403 sq metres. I accept that the planning permission could be construed so that a conflict existed in what was being applied for between the 2403 sq metres and 2919 sq metres since those different figures have quite similar descriptive phrases attached to them. It would follow from that that, if 2919 “net retail sales” permitted were equivalent to the 2403 “floor space for retail trading” applied for, the grant exceeded what had been applied for, or that what had been applied for was so uncertain that no lawful planning permission could be granted for it.
But in my judgment that would not be the right approach. That would be striving to create contradiction, whereas the more obvious reading is that the 2403 and 2919 figures refer to partly different uses or areas, for all the lack of clear differentiation in the language used to describe them. My reasons are these.
The 2403 sq metres cannot be a separate area additional to the 2919 sq metres in a gross external area of 4209 sq metres. I regard it as obvious that the 2403 sq metre area is subsumed within the 2919 sq metre area rather than partly overlapping the 2919 sq metre area and partly overlapping all or part of the remaining 1290 sq metres in the building. Each of the phrases used in connection with the 2919 and 2403 sq metre areas include “retail” and “trading or sales”. If the 2403 area overlapped the 2919 and the 1290 areas, it is difficult to imagine what sensible area or distinct use it could relate to. None was suggested. The grant does not conflict with that part of the application referring to 2403 sq metres “floorspace for retail trading”. That is a subset of the 2919 sq metre area.
The application was therefore not so internally contradictory that no sensible planning permission could be granted on it, nor was the permission void for uncertainty because tainted by uncertainty in the application.
What is the scope of the floorspace limit in condition 6?
That first conclusion leads into the question of what the phrase “nett retail sales” in condition 6 actually limits, albeit that it is the same as “nett sales” and contrasts with the smaller 2403 sq metre “floor space for retail trading” to be found within the 2919 sq metre area. No definition of “nett retail sales” as used in condition 6 is to be found in the planning permission or in the condition. The reason for the condition and the policies referred to in that reason afford no assistance on the meaning of “nett retail sales”. There is no definition of the terms used in the application form.
It is agreed that the 4209 sq metre figure is the gross external area of the building. It is obvious that the difference of 1290 sq metres between the gross external figure and the 2919 sq metre figure cannot be the difference between the gross external and a mere internal measurement excluding only walls, pillars and such other items as are excluded to arrive at what is known as “valuer's net”. Nor was that suggested as an explanation for the 1290 sq metre difference between the gross external area and the area is covered by the 2919 figure.
That use of the word “net” illustrates Mr Holgate's point: “net” of itself may mean many things and convey little without a context. In context, however, I regard it as plain from the application, its description of the development and the layout plan that the gross external area of the store would...
To continue reading
Request your trial
-
Sienkiewicz v South Somerset District Council Probiotics International Ltd (Interested Party)
...from approved on the first approval of details. This sort of tailpiece was void; he relied on a judgment of mine in R (Midcounties Co-Operative Co Ltd) v Wyre Forest DC [2009] EWHC 964 (Admin). 76 That judgment has its virtues, but relevance here is not one of them. The condition primarily ......
-
The Queen (on the application of Karen Treagus) v Suffolk County Council Kerstin Cecilia Gliksten (Trading as the Denham Estate) (Interested Party)
...69 It was argued, therefore, that the ability to relax the geographical limits is unlawful: reference was made to R(Midcounties Co-operative Ltd) v Wyre Forest District Council [2009] EWHC 964 (Admin) at 66–72 per Ouseley J and R(Halebank Parish Council) v Halton Borough Council [2012] EWHC......
-
The Queen (on the Application of Tws) v Manchester City Council and Another
... ... the judge considered the case of R (Midcounties Cooperative Limited) v Wyre Forest District ... ...
-
Threadneedle Property Investments Ltd and Another v Southwark Borough Council and Another, Bilford Ltd and Another
...judgment .in R (Ling (Bridlington) Ltd) v East Riding of Yorkshire County Council [2006] EWHC 1604 (Admin). In R (Midcounties Co-operative Ltd) v Wyre Forest District Council [2009] EWHC 964 (Admin) Ouseley J said (at para. 190 of his judgment) that "the fundamental test" was "whether an ......