R (Midcounties Co-Operative Ltd) v Wyre Forest District Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,LAW,Lady Justice Smith,Lord Justice Rimer |
| Judgment Date | 29 July 2010 |
| Neutral Citation | [2009] EWCA Civ 1225,[2010] EWCA Civ 841 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2009/1061 |
| Date | 29 July 2010 |
[2010] EWCA Civ 841
IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
The Hon Mr Justice Ouseley
Before: Lord Justice Laws
Lady Justice Smith
Lord Justice Rimer
Case No: C1/2009/1061
Mr David Holgate QC and Mr James Maurici (instructed by Brookstreet Des Roches LLP) for the Appellant
Mr Ian Dove QC and Mr Hugh Richards (instructed by Wyre Forest District Council) for the Respondent
Mr Russell Harris QC (instructed by Berwin Leighton Paisner LLP) for the 1 st and 2 nd Interested Parties
Hearing dates: 15 April 2010
Lord Justice Laws:
INTRODUCTION
This is an appeal, with permission granted by Dyson LJ as he then was on 27 October 2009, against the decision of Ouseley J given in the Administrative Court on 27 March 2009 ( [2009] EWHC Admin 964) when he dismissed the appellants' claim for judicial review of the grant of a planning permission by the respondent District Council on 19 May 2008. The appellants also seek permission to appeal a costs order made by the learned judge below; I shall deal with that at the end.
The planning permission was granted to Tesco Stores Limited and Santon Group Developments Limited (who were interested parties in the judicial review). It was an outline permission for a new Class A1 supermarket, customer car park, petrol filling station, new road bridge, footbridge, other highway works, landscaping and further works. The location was at the Former Carpets of Worth site, Severn Road, Stourport on Severn. If the development proceeds it would no doubt offer bracing competition to the supermarket operated by the appellants in Stourport town centre; hence the latter's interest. (In fact we were informed, in a note put in on behalf of the respondents and the interested parties, that since delivery of the judgment below the respondent council has resolved to grant planning permission pursuant to an application for a substantially similar development; and Tesco have indicated that it intends to implement this permission rather than the earlier permission the subject of these proceedings. Nothing, however, turns on these events.) I should add that Stourport Corporation NV and Worcestershire County Council were also named as interested parties, but have taken no part in the proceedings. References in what follows to interested parties are to Tesco and Santon.
The appeal is limited to one only of the grounds of challenge pursued at first instance. It was pleaded as Ground (1), and as the judge noted has always been the principal ground of challenge. Ground (1) alleges that Condition 6, attached to the planning permission, is bad in law. Condition 6 provided so far as relevant:
“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 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.”
BRIEF FACTS
The permission itself, which I have not set out, was for construction of the supermarket “in accordance with the application…”. The permission thereby incorporated the terms of the application for permission (see per Keene J as he then was in R v Ashford BC ex p. Shepway DC [1998] JPL 1073); so much was common ground, though counsel for the appellants entered a caveat at first instance with which however I need not now be concerned. The relevant documents thus incorporated were the planning application form, a document called the industrial questionnaire (which formed part of the application form) and the site layout plan.
The industrial questionnaire stated that the “floor space for retail trading” would be 2403 sq metres. But the layout plan referred to “nett sales 3422 sq ft (2919 sq metres)”. It referred also to the gross external measurement as 4209 sq metres. The planning application form itself, submitted on 30 October 2007, had no reference either to 2919 or 2403 sq metres as the space allocated for retail trading or sales. The 2919 figure only appears in the layout plan and in Condition 6. The discrepancy between that figure and the figure of 2403 sq metres is at the heart of the argument.
One of the submissions made by Mr Dove QC for the respondents was that other documents associated with the application or submitted with it show that the intention was to seek a planning permission which would allow what I may for immediate purposes call selling space over an area of 2403 sq metres. We were referred in particular to the Design and Access Statement which was required by law to accompany the application (see the Town and Country Planning Act 1990 (the 1990 Act) s.327A, and the Town and Country Planning (General Development Procedure) Order 1995 as amended, Article 4C), the Planning Statement accompanying the application, the GL Hearn Retail Statement prepared on behalf of the interested parties and submitted with the application (which however contains a reference to 2401 rather than 2403 sq metres: nothing turns on the difference), and the Environmental Statement, which accompanied the application (thus requiring the proposed development to be treated as “EIA Development” for the purposes of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, paragraph 4(2)).
Mr Holgate QC for the appellants placed some emphasis on the fact that in December 2007 the respondent council's consultants, White Young Green Planning (WYG), drew attention to the contrast between 2403 sq metres (in fact 2401 – they took the figure from the GL Hearn Retail Statement) and 2919, and suggested that the respondents seek clarification. However in my judgment it is plain that a selling space over an area of 2403 sq metres was the basis on which experts for the developers and the council gave their advice. It was also the basis on which the council officials advised the Planning Committee that “on balance” the development would not have deleterious effects on the town centre: that was an important policy consideration. I will postpone consideration of the question what the 2403 sq metres selling space precisely included, and what it did not include, until I address the appellants' primary case below at paragraph 12 ff.
THE APPELLANTs' CASE
Against this background the appellants at first put their case within the principal ground of challenge in four ways, as follows.
(1) The planning permission granted more than was applied for: 2919 sq metres rather than 2403 sq metres for nett sales or retail trading. It was therefore unlawful, since a local planning authority has no power on a planning application to grant more than had been sought by the application. (So much, I accept, is as a matter of law elementary.)
(2) Condition 6 is unlawful as being uncertain. The two figures (2919 and 2403 sq metres) are obviously inconsistent and there is no definition of nett sales (or retail sales) area such as might demonstrate an objective distinction between them.
(3) The planning permission granted consent for a larger nett sales area than had been assessed in studies which were submitted with the application (as I have indicated these addressed the lesser area of 2403 sq metres).
(4) (This argument was added by permission of Dyson LJ.) The planning permission was ultra vires Regulation 3 of the Town and Country Planning (Environmental Impact Etc) Regulations 1999, which prohibits the grant of permission for EIA development unless the local planning authority has first taken into account the “environmental information” reasonably required to assess the environmental effects of the development. The Environmental Statement prepared for the purpose of the assessment referred to a “nett sales area” of 2403 sq metres, not 2919.
However, as I shall show, none of these formulations quite catches the point on which as I see it the case ultimately depends, which is best explained after I have addressed the principal ground of challenge set out above. For his part Mr Dove submitted that the appeal is most conveniently approached by asking and answering two questions:
(1) What is the meaning of the planning permission? If, of course, the planning permission is so uncertain that the question cannot be answered, then it would be void and the judicial review would succeed on that short ground.
(2) In light of the answer to Question (1), was more granted by the planning permission than had been applied for/appraised by the experts/subject to environment assessment?
Question 1 addresses Points (1) and (2) of the appellants' four points. If it cannot be answered because of the planning permission's uncertainty, the appellants must succeed on Point (2). If it can be answered and the answer shows (Question 2) that the permission granted more than was applied for, the appellants succeed on Point (1) – and on Points (3) and (4), as it were, into the bargain. There is on analysis no free-standing case on Points (3) and (4).
There are some short points to note on the law relating to the construction of planning permissions. A planning permission is a public document...
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