R Midcounties Co-Operative Ltd v Forest of Dean District Council Trilogy Developments Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Singh |
| Judgment Date | 06 May 2015 |
| Neutral Citation | [2015] EWHC 1251 (Admin) |
| Docket Number | Case No: CO/3769/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 May 2015 |
[2015] EWHC 1251 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Singh
Case No: CO/3769/2014
James Maurici QC and Gwion Lewis (instructed by Hewitsons Solicitors) for the Claimant
The Defendant did not appear and was not represented
Christopher Katkowski QC and Graeme Keen (instructed by Thomas Eggar Solicitors) for the Interested Party
Hearing dates: 3 and 4 March 2015
Introduction
On 2 July 2014 the Defendant local planning authority granted planning permission to Trilogy Developments Limited (the Interested Party) for a Class A1 retail store of up to 4,645m 2 (gross) and related development. The development site is at Steam Mills Road, which lies outside the town centre of Cinderford, Gloucestershire.
The Claimant, which challenges that planning permission, is the owner and operator of the Co-operative supermarket at Dockham Road, Cinderford, which is in the town centre. There are five grounds of challenge, which I will address in turn later in this judgment.
On 20 November 2014 permission to apply for judicial review was granted by Gilbart J. The Claimant and the Interested Party agreed that permission should be granted by the Court. The Defendant had indicated, in a letter dated 9 October 2014, that it no longer wished to defend the claim. In a later letter dated 23 October 2014 the Defendant made it clear that it does not defend the claim for financial reasons but supports the opposition made to it by the Interested Party.
The planning permission under challenge in this case is the third to have been granted by the Defendant for the same proposal since March 2012. The first permission was quashed by Stewart J on 4 July 2013 following a successful claim for judicial review brought by the same Claimant. The second grant of permission, which followed the redetermination of the first application after the judgment of Stewart J, was quashed by Hickinbottom J on 30 September 2013 following another successful claim by this Claimant.
The planning permission challenged in the present proceedings was granted on a duplicate application. The resolution to grant it was passed at a meeting of the Defendant's Planning Committee on 13 May 2014, at a time when permission to challenge the second planning permission had been refused on the papers by Collins J and a renewed application was due to be heard. Permission to bring that claim for judicial review was granted after a contested oral hearing by Lang J on 22 May 2014. As I have already mentioned, that claim for judicial review succeeded before Hickinbottom J on 30 September 2014.
Factual background
In 1998 the Defendant had to consider an application for planning permission for a Tesco superstore at the same site. That was for a smaller store of 3,126m 2 (gross), with a net retail sales area of 2,090m 2. The current Asda proposal would have a net retail floor space of up to 3,000m 2.
The Secretary of State called in the 1998 planning application and a public inquiry lasting 10 days was held by an Inspector. The Inspector recommended that planning permission should be refused and that recommendation was accepted by the Secretary of State in a decision refusing permission dated 28 June 1999. Later in this judgment I will refer in more detail to the report by the Inspector and the decision by the Secretary of State in 1999.
On 3 August 2011 the Interested Party applied for planning permission for a retail store with 4,645m 2 (gross) internal floor space on the development site.
On 31 January 2012 the Defendant's Planning Committee resolved to grant that application for permission. On 29 March 2012 the Defendant formally granted the planning permission.
On 12 June 2012 the Claimant issued an application for judicial review to challenge that permission.
On 7 August 2012 the Interested Party made a duplicate planning application for the same proposal in the light of the claim for judicial review.
On 4 July 2013 Stewart J quashed the first planning permission.
On 8 October 2013 the Defendant's Planning Committee reconsidered the 2011 application and resolved to grant it again. It formally granted that permission on 2 January 2014.
On 12 February 2014 the Claimant issued a second claim for judicial review to challenge that second planning permission.
On 13 May 2014 the Defendant's Planning Committee resolved to grant the 2012 duplicate application for permission.
On 22 May 2014 Lang J granted permission to apply for judicial review of the second planning permission following a contested oral hearing. However, neither the Claimant nor Lang J was informed of the resolution passed on 13 May 2014. On 10 June 2014 the Defendant's Planning Committee passed a motion in an attempt to respond to the observations made by Lang J on 22 May. I will refer to that judgment and the resolution in more detail later.
On 2 July 2014 the Defendant formally granted the planning permission which is the subject of these proceedings.
On 21 July 2014 solicitors acting for the Claimant sent a Pre-action Protocol letter. On 29 July 2014 the Defendant responded to that letter.
On 12 August 2014 the present application for judicial review was issued.
On 30 September 2014 Hickinbottom J quashed the second planning permission.
On 23 October 2014 the Defendant advised the Administrative Court office that it no longer wished actively to defend this claim for judicial review.
On 20 November 2014 Gilbart J granted permission to bring the present application for judicial review.
On 3 December 2014 the Claimant served its amended statement of facts and grounds in this claim for judicial review.
The Inspector's Report of 1999
At para 8.13 of his report in 1999 the Inspector noted that there was no issue between the parties but that Cinderford was a weak town centre. He said that it was not even a static one, but was "clearly declining." He went on to note that this decline had been presided over by the Co-op, "which provides an insufficient attraction for people to come to the town." Later, at para 8.24, the Inspector noted "there is an extraordinarily high level of leakage from the area to shop. 65% of the residents living within the catchment area undertake their main food shopping outside the catchment …".
At para 9.10 the Inspector noted that the Council believed "that the balance of the benefits significantly outweigh any perceived disbenefits."
In setting out the case for the Co-operative Society, the Inspector noted at para 11.1 that:
"Cinderford town centre is vulnerable and weak, food shopping is the main reason for visiting the centre and there is relatively little comparison shopping. Apart from the Co-op there is one national multiple, Woolworths, which is a small unit. The Co-op acts as an anchor for the town centre and there is no other trader which acts as an anchor. Vacancies are scattered throughout the centre."
At para 11.2 the Inspector noted that the Co-op store is in an optimum location for Cinderford. He also noted that nearly two-thirds of the trips to the Co-op are combined with visits to some other part of the town centre.
The Inspector set out his own conclusions at section 14 of his report. At para 14.21 he said:
"Cinderford town centre is a weak and vulnerable shopping centre. Food shopping is the main reason for visiting the centre, and there is relatively little comparison shopping. There is a high proportion (22%) of vacant shops scattered throughout the centre. All parties agree that the Tesco store would have a significant impact on town centre turnover. …"
In considering the scale of that impact on the town centre the Inspector said at para 14.26:
"The direct impact of the Tesco store on Cinderford town centre would lie in the range 25% to 37%."
He concluded that, because of the need to reduce the catchment area of the centre assumed by the applicants and various other assumptions he thought needed to be made, "the actual impact is likely to be nearer to the higher figure than the lower. Even an impact of 25% however could not be called insignificant, whilst one of 37% is likely to be crippling on a centre as vulnerable as Cinderford is generally accepted to be. …"
At para 14.27 the Inspector said that the greatest impact would be on the Co-op, "which would suffer around a 50% reduction in turnover." He noted that damage to the centre was accepted by all parties to the Inquiry and that Tesco's case depended critically upon whether there would be enough "spin-off" from its site to the town centre to repair that damage.
The Inspector regarded that suggestion as being questionable. He concluded at para 14.30 on this point:
"In summary, the impact of the Tesco store on the vitality and viability of Cinderford town centre would be serious, causing significant harm to what is already a weak and vulnerable town centre. Leaving aside the sequential test, such impact could only be justified if significant spin off in terms of linked trips could be guaranteed to an extent that visitation to the town centre would be increased. The centre lacks a sufficient range of non-food shops or other attractions however to give any hope of significant spin-off occurring."
The Inspector then considered whether there...
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