R (Ortona Ltd) v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE COLLINS |
| Judgment Date | 18 November 2008 |
| Neutral Citation | [2008] EWHC 3207 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/8670/2007 |
| Date | 18 November 2008 |
[2008] EWHC 3207 (Admin)
IN THE HIGH COURT OF JUSTICE
THE ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Mr Justice Collins
CO/8670/2007
Mr Daniel Kolinsky (instructed by Mills & Reeve) appeared on behalf of the Claimant
Mr Richard Honey (instructed by Treasury Solicitor) appeared on behalf of the Defendant
This is a claim pursuant to Section 288 of the Town & Country Planning Act 1990 against the decision of an inspector refusing planning permission to the claimant in relation to the development of a relatively small area in the centre of Cromer, Norfolk.
The area in question is at present set out as a bus station. I say that because the bus station use ceased in April 2006. The issue in the appeal was essentially whether that use was dead or whether the existence of the possibility of an active bus station coming back on the site was one which properly should preclude the planning permission in question. It is not necessary to go into the details of the precise nature of the development. Suffice to say that at the end of his determination the inspector said:
“The appeal site is within Cromer Conservation Area adjacent to Old Town Hall which is a Grade II listed building. It is common ground between the two main parties that the proposal would enhance the character of the conservation area and protect the setting of the listed building making the design for the scale for the proposed development in relation to the ….. street scene generally, I consider that the planning ….. of the conservation area and the setting of the Old Town Hall would not be harmed …… For the reasons given above and having regard to all other matters raised, I conclude that the appeal should be dismissed.”
The main issues the inspector recorded were the effect of the proposed development on public transport, highway safety and the free flow of traffic in Cromer town centre.
The bus station in question is or was on a relatively small site. It was not entirely satisfactory in the sense that there were, for example, no toilet facilities and no facilities for taxis to pick up and set down no parking available for those who wished to bring a car and then use a bus. Because of the size of the site it was not possible to use it to the sort of capacity that might have been desirable. I say that because there was evidence which was not entirely satisfactory in the sense that the inspector was not able to reach a conclusion upon it as to whether National Express (the long distance bus service) were able to or did use the site in question.
The station was until April 2006 used by a company called First Bus who were the leaseholders of the site. They had permitted two other operators to make use of the site. They allowed that for no payment from those other operators albeit, in accordance with the terms of the lease, they would have been entitled to demand payment for such other use. They decided that it was not commercially viable or necessary for them to continue to make use of the bus station. Accordingly, they gave up the lease. The other operators who had made use of the bus station made no representations to the claimant or to anyone as to what they should do as a result. Accordingly, the use then ceased.
It was the claimant's case that in those circumstances the appeal site was no longer a bus station; the operators had chosen to cease using it as such. Accordingly, they took the view, because there was no indication going any other way, that the use would not resume and the site would remain vacant. They had entered into discussion with the council about the possibility of improving on-street stopping places for buses to use and to be able to lay up and to give rest to drivers. But it is clear that the use of on-street facilities was less satisfactory even than the facilities available at the bus station in question.
There was however a possible alternative site for a bus station which was a car park some 120 metres nearer the railway station and that much further from the town centre. It was a larger site but would need money spent in providing the necessary facilities and in obtaining planning permission. It appears —certainly the evidence as recorded by the inspector would seem to be —that that site was owned by the district council. Accordingly, it would have been open to the district council to grant itself planning permission to enable a bus station to be constructed insofar as construction was needed on that site. Certainly it was not a site which would have been one which gave rise to a likelihood of objection from anyone.
What was said in paragraph 12 by the inspector, having set out the matters relevant to that possible alternative site, was that it would entail a loss of car parking spaces but would be closer to the railway station. There were public toilets available and CCTV coverage. It would be better for wheelchair users, the provisions for whom were not entirely satisfactory at the site the subject of the appeal. The main disadvantage was said to be that it was 120 metres further from the town centre and it involved something of an uphill walk. The inspector concluded:
“While there is evidence of local will to support ….. planning permission may be required and it will need some works to provide adequate replacement facilities including seating, shelters and information. Most crucially, funding has not been secured and it is not clear how the on-going running costs should be met.”
The point of that was that it was apparent that the loss of the appeal site as a bus station would not necessarily mean the loss of an opportunity to have a bus station in the centre of Cromer, if that was considered necessary. It might cost something, but it was open to the district council in all the circumstances to achieve that as owners of the alternative site and, no doubt having negotiated with the bus companies as to what they needed on that site, to persuade them that they would have an advantage in using it; no doubt, at some cost to them. I presume they do not pay anything much for the use of on-street parking. Those were the main issues. It can be boiled down to whether the existing site upon which a bus station infrastructure to some extent existed should be kept —because the alternative was undesirable in as much as on-street parking produced traffic problems —and whether in those circumstances the contention of the claimant that the bus station use effectively had come to an end and would not come into being again was one that could be accepted.
The inspector's reasons for rejecting the appeal are contained essentially in paragraphs 13 to 15 of his determination. I should read those paragraphs:
“13 In my view the existing on-street operation falls considerably short of an adequate replacement for the facilities that were available on the site to consider the work programme on site. Improvements on-street do not make up this deficiency. Neither these nor the possible alternative site have established funding. The appellants contend that the appeal site is no longer a bus station and that it was the operator's choice to cease using it. They consider that if the appeal were dismissed the use would not resume and the site would remain vacant. However no direct evidence was provided by any of the operators on the circumstances that led to closure or whether there would be conditions in which their use could resume. Support from operators would be necessary if an alternative site were to be taken forward. There are examples of towns without bus stations. Conditions for public transport operation will vary according to local services. In my experience small bus stations or interchanges of the kind provided on the appeal site are not uncommon in towns such as Cromer and are used by operators. I consider that such a facility here is of particular benefit for tourists and visitors as it provides a recognisable focus for bus services for those who are unfamiliar with routes through the town.
14 Planning Policy Guidance 13 Transport PPG 13 seeks to maximise the potential usage of public transport. The established bus station use of the site would be lost if the appeal were allowed. I consider that this would be a significant retrograde step unless it was clear not only that facilities could be provided elsewhere but also there is funding to achieve this.
15 I conclude that while it has not been demonstrated that there would be material harm to public safety in Cromer town centre as a result of the appeal proposal, it is likely that in the absence of a secure alternative off-street facility there would be some adverse effect on the free flow of traffic in Cadogan Road or the one-way system. However my overriding conclusion is that there would be significant detriment to public transport. The proposal would therefore conflict with the aims of Norfolk Structure Plan Policies D1, D2, D5 and D6, Norfolk Local Plan Policy 135 which seek to promote public transport.”
The claimant has raised three grounds of attack upon the inspector's decision. First, it is submitted that there has been an erroneous approach to the loss of the bus station. The inspector ought to have considered whether there was any probability that if planning permission were refused the bus station use would be resumed. That submission was supported by the second ground, namely that there was a failure to give adequate reasons for concluding that there was a reasonable prospect that...
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