R Salford Estates (No. 2) Ltd v Salford City Council
| Jurisdiction | England & Wales |
| Judge | HIS HONOUR JUDGE WAKSMAN QC |
| Judgment Date | 17 May 2011 |
| Neutral Citation | [2011] EWHC 2097 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 May 2011 |
| Docket Number | Case No: CO/580/2011 |
[2011] EWHC 2097 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Sitting in MANCHESTER
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M3 3FX
His Honour Judge Waksman QC Sitting as a Judge of the High Court
Case No: CO/580/2011
Mr Paul Tucker QC (instructed by Eversheds) appeared on behalf of the Claimant.
Mr Richard Drabble QC (instructed by Cobbetts) appeared on behalf of the Defendant.
Mr David Elvin QC (instructed by Ashurst LLP) appeared on behalf of the Interested Party.
Approved Judgment
HIS HONOUR JUDGE WAKSMAN QC
Introduction.
This is the rolled-up hearing of an application for permission to bring a claim for judicial review and, if granted, the determination of that claim in relation to a decision notice of the defendant local planning authority, Salford Council ("the council"), dated 22 October 2010. By that decision the council granted planning permission to the interested party, Tesco Stores Limited ("Tesco"), to build a new superstore in Pendleton, Salford. The claimant, Salford Estates (No. 2) Limited ("SEL"), is another retailer which owns a large separate retail area called Salford Shopping City This is close to the development site, although on the other side of what is presently a dual carriageway called Pendleton Way.
Permission
It is contended that I should refuse permission on the grounds of delay in that although the claim was made just within the three-month period it was not made promptly. The strictures of the European Court in the case of Uniplex v NHS [2010] 2 CMLR 47 do not apply here since the claim is not concerned with EU legislation or domestic law giving effect to it. For reasons which are better explained after I have dealt with matters of substance, I do not find that the claim has not been made promptly and accordingly permission should not be denied on that ground. I also consider that the grounds put forward are at least arguable, and so at the outset I grant permission. I therefore turn to matters of substance.
The Facts
The site on which the proposed superstore is to be built is within an area of land to the west of Pendleton Way in a broadly triangular shape (see the plan at page 62 of the trial bundle). The location of the store itself is shown in the middle of the upper part of the plan at page 63. The area to the east and to the right of Pendleton Way is Salford Shopping City ("Shopping City").
Prior to the meeting of the planning committee on 21 October 2010 Mr Lamb, the planning officer, produced a detailed report. I refer to certain parts of it as follows. First, at page 113 of the bundle, he describes the location of the site and the area concerned, gives a general geographical description and refers to Shopping City. At page 128 of the bundle towards the top he says this:
"The scale and principle of a food store is considered appropriate. The Council, as local Planning Authority must also be satisfied that the store enables linkages with the existing centres and across Pendleton Way in the interests of good urban design and also securing the vitality and viability of the defined centre as a whole. This matter is explored in the design section of the report below."
Then in the section headed "Design and Appearance" at page 129A of the bundle, two thirds of the way down he says this:
"Turning again to linkages with the wider centre, the applicants design and access statement recognises that a challenge with the site in urban design terms is its connectivity. The site is accessed directly from Pendleton Way, which itself forms in part of a strategic network of large dual-carriageway roads that circulate Shopping City…. Pendleton Way forms part of the post war masterplan for this area of the city and was conceived on the principles of facilitating traffic movement and separating pedestrians into discrete routes such as the underpass that connects the site to Shopping City presently. Pendleton Way currently has metal railings installed along the majority of the central reservation which also form a barrier to the wider centre.
Following negotiations with the applicant, officers have ensured that as part of this application the underpass will be replaced by two super-crossings.., and while the detail of these have yet are yet to be agreed they will facilitate far greater connectivity between the two halves of the town centre. In addition the application proposes the removal of the existing railings along the central reservation and a landscaping scheme that will use hard and soft materials to create some legibility of movement across the site. Which is beneficial not only in Urban design terms but also in terms of the viability and vitality of the wider centre.
It is considered that the removal of the railings along Pendleton Way would provide greater connectivity between the superstore and the town centre. A number of submitted objections seek a scheme which goes further and close or part close Pendleton Way to create better connectivity to the centre as a whole. A full or part closure is not proposed as part of this application and Members are asked to come to a determination on this basis. However, as is detailed below in the "other matters" section of this report and for information only it remains an aspiration of the Council to look at how to deal with Pendleton Way and the full /part closure option."
Then at page 129H, dealing with conditions he says this:
"A condition to ensure that the off site highway works is attached as a Grampian condition and will cover the works to Pendleton Way including the crossings and the removal of the underpass."
This is in fact a reference to what was proposed as condition 32.
In the next paragraph:
"It is further reported that the opportunity should be taken, therefore, in so far as is possible, to improve the ease of access for pedestrians between the proposed new superstore and the existing Shopping City but that such improvements will come forward in phases. It is considered that the proposed development would now provide an opportunity to start to deliver these changes in Pendleton Way which will need to be introduced over a series of phases and over a period of time. In the first instance the delivery of two super-crossings would go some way towards securing this. With other initiatives from the City Council, Local Highways Authority being explored in terms of the wider aspiration to further reduce the severance effect of Pendleton Way."
One then goes to page 129I under the heading "Other Matters". The first paragraph states:
"As has been detailed above, the City Council currently has aspirations to close (either in full or part) Pendleton Way and create a greater area of public realm and connectivity within the town centre. As part of this aspiration the Council are looking to explore various options which can be undertaken through works as Local Highways Authority. This was clearly involve engagement with all interested parties and will require a number of issues to be addressed. For example any scheme would disrupt the circulation of the bus operators which currently circulate Shopping City…. The removal of this section of bus route will require detailed consultation with the bus operators and GMPTE and will require investment in additional infrastructure work in the form of new bus stops and the re-routing of buses…In addition, careful consideration will need to be given to provide more suitable facilities for Hackney Carriages and the relocation of the taxi ranks to a more prominent position.
The City Council's highways consultants have advised that Pendleton Way is not covered by a dual carriageway order which would otherwise need to be revoked. However, the closure of a central section of Pendleton Way would require the City Council to introduce a Prohibition of Driving Order..and the relocation of bus stops and taxi ranks will need detailed discussion and agreement with the GMPTE prior to the processing of the necessary TROs for these changes.
Further, the southbound carriageway currently facilitates access to two car parks belonging to Shopping City as well as an egress from the market. The removal of Pendleton Way would render these car parks redundant and, in the absence of plans for Salford Shopping City itself, this cannot be considered as part of the current submission. However, any works to the public realm secured by this permission could be used towards this wider aspiration.
As plans for Pendleton Way move forward engagement will take place with all parties, (notably Salford Shopping City, GMTE Tesco and the wider community). However, for the avoidance of doubt this does not form part of Members' consideration of this application."
Then under the concluding section:
"The physical division of the town centre, due to the presence of Pendleton Way, is addressed to the removal of the railing on the central reservation, construction of two crossings and infilling the subway. This comprises the first phase in a step change to this currently over-engineered street to be followed by further downgrading works and eventually full closure. As such, the application starts with the integration of the town centre and sees a shift from a street designed to carry traffic to that which is designed."
I then turn to page 129P and the text of the first version of condition 32 proposed, which reads as follows:
"Prior to the commencement of development details of the highway works (crossings and filling...
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...and it would not enable a "key element" of the development to be changed: in this context my attention was drawn to R (Salford Estates (No 2) Ltd) v Salford City Council [2011] EWHC 2097 (Admin), para 38 per HHJ Waksman QC sitting as a Deputy High Court Judge. There the learned Judge said: ......