R Salford Estates (NO 2) Ltd v Durham County Council Dalton Park Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | HHJ Richardson QC |
| Judgment Date | 15 February 2013 |
| Neutral Citation | [2013] EWHC 2751 (Admin) |
| Date | 15 February 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5023/2012 |
[2013] EWHC 2751 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Leeds Combined Court
1 Oxford Row
Leeds
West Yorkshire
LS1 3BG
His Honour Judge Jeremy Richardson QC
Case No: CO/5023/2012
Mr Tucker QC and Mr Evans (instructed by Eversheds) appeared on behalf of the Claimant
Mr Clarkson QC and Ms Allan (instructed by Durham CC) appeared on behalf of the Defendant
Mr King QC and Mr Williams (instructed by Fladgate) appeared on behalf of the Interested Party
(As approved)
Introduction
This judicial review application is the second part of a challenge to a decision made by Durham County Council (Durham CC) on 7 June 2011 when it resolved, via the Planning Committee, to grant planning permission for three large retail developments in and around Peterlee in County Durham. The three sites are Castle Dene in the town centre (to be developed by the claimant in this case), the Tesco site on the periphery of the town centre (to be developed by Tesco Stores Limited), and the Dalton Park site, which is five miles from the town centre (to be developed by Dalton Park Limited).
The first judicial review application covered the Tesco site; the second covers the Dalton Park site. The application before me is a rolled-up hearing in the sense that I am determining whether permission to apply should be granted simultaneously with the full application if permission is granted. Consequently, I have heard full argument from all parties. I am grateful to all counsel for the erudition and expedition of their arguments.
I have already determined the first challenge by Salford Estates (No 2) Limited (SE2) to the decision of 7 June 2011. There was full argument in early September 2012, and I handed down a judgment in London on 19 September 2012 (see R(Salford Estates) (No 2) Ltd v Durham CC and Tesco Stores Ltd (first interested party) and Dalton Park Ltd (second interested party) [2012] EWHC 2512 (Admin)).
Reference was made to this case in the judgment. Indeed, upon handing down I gave certain case management directions for this case. For convenience I will refer to that case as "the Tesco case", and this case will be referred to as "the Dalton Park case".
This judgment must be viewed as supplemental to the judgment in the Tesco case. It would be unwise to view this judgment standing alone. The two judgments are to be read together. I have no intention of revisiting territory I have already covered, although I shall refer to certain passages of the judgment in the Tesco case. I simply note that SE2 have not sought permission to appeal against my decision from the Court of Appeal. I refused permission to appeal. The judgment in the Tesco case stands.
I simply note parenthetically that a portion of my judgment, where I explained the role of the court in judicial review applications of this kind, was recited with approval by Wilkie J in R(Estates and Agency Properties Ltd) v LB Barking and Dagenham and Tesco Stores Ltd (interested party) [2012] EWHC 3744 (Admin) at paragraph 10.
In an ideal world, both judicial review applications relating to the core decision made on 7 June 2011 would have been heard at the same time. However, for reasons which I shall briefly explain, that was not possible.
The two linked judicial review applications
The Planning Committee of Durham County Council resolved to grant planning permission for three large retail sites on 7 June 2011. The critical decision was made on that date. However, the individual planning permissions for the three sites were made on different dates: Castle Dene on 27 June 2011; the Tesco site on 7 October 2011; and Dalton Park on 26 March 2012.
The Secretary of State for Communities and Local Government, following a period of consideration, decided much later, and sequentially, whether to call in the decisions. He declined to call in the three decisions. There was a further reason for the delay in the Dalton Park case because a planning obligation under section 106 of the Town and Country Planning Act 1990 had to be arranged. Consequently, the Tesco case was made the subject of judicial review proceedings before the decision was made in the Dalton Park case. Unwarrantable delay would have been caused to the Tesco case by waiting for this case to take its course.
Although Dalton Park Limited was an interested party in the Tesco case, they took no active part in the proceedings, albeit they were represented by counsel throughout. They in effect reserved their position until the outcome of the Tesco case was known, and the focus was firmly upon their part of the overall case. I shall not repeat or recite passages of my judgment in the Tesco case, except where necessary.
This challenge (the Dalton Park case)
The challenge in this case (the Dalton Park case) relates to the decision of Durham CC to grant planning permission for a food store/out-of-town factory outlet/hotel/cinema and other related developments at Dalton Park on 26 March 2012. The decision was taken in principle on 7 June 2011. Permission to apply for judicial review in respect of the Dalton Park case was refused by me on paper on 10 October 2012. Wilkie LJ refused Tesco Stores Limited permission to become an interested party on 6 November 2012. By consent, I agreed to a "rolled-up" hearing, where the renewed application for permission would be heard on 5 December 2012 as that appeared the most efficient way to proceed.
The background to this case is fully set out at paragraphs 10 and 11 of the judgment in the Tesco case:
"10. Peterlee is a new town which was built in 1948 under the provisions of the New Towns Act 1946. It is on the north- east coast in County Durham just to the south of Sunderland and well north of Teesside. Durham CC is the planning authority for the area as a unitary local authority. Within Peterlee town centre there is only one large retail shopping complex at Castle Dene Shopping Centre which is owned by Salford. The only large supermarket in the town centre is ASDA which is very close to the Castle Dene site. Durham CC has been desirous of expanding retail led regeneration schemes in the area for some while. It is part of the local plan (see District of Easington Local Plan 2001 which was adopted by the predecessor local authority prior to the creation of the county council as a unitary authority) [I shall call this 'the local plan' hereafter]. By June 2011 Durham CC had to decide upon, inter alia, three planning applications for major retail development in and around Peterlee. Those applications were:
(1) The Castle Dene Site: this application was made by SE2 as part of the redevelopment of the Castle Dene Shopping Centre in the town centre. The plan was to construct a food superstore (12,802 square metres). No retail operator has been identified for this site. This application was made on 13 th September 2010.
(2) The Tesco Site: this application was made by Tesco to construct a Tesco Extra food superstore (10,815 square metres) at the periphery of the town centre although it is separated from it by a main road called Burnhope Way (which is also the B1320). This is the site of the former college. This application was made on 23 rd December 2009. Tesco was additionally required to enter in to a Section 106 Agreement to provide underpass and other environmental advantages to Peterlee.
(3) The Dalton Park Site: this application was made by Dalton to construct a food superstore (8,452 square metres) on an out of town factory outlet site called Dalton Park. The site is over 5 miles from Peterlee town centre and abuts the A19 arterial road. This application embraced a 90 room hotel, a cinema, food and drink outlets (including a drive-through arrangement) and a fuel filling station. This application was made on 29 th December 2009.
(4) The North Blunts Site: this application was made by North Blunts Limited and related to a former school site on the edge of the town centre. This was refused by Durham CC. I shall make further reference to this aspect of the case at paragraph 16 (infra).
11. On 7 th June 2011 Durham CC resolved to grant planning consent to the first three applications at the meeting of the County Planning Committee held at the County Hall in Durham. In respect of the Tesco site it was conditional upon a Section 106 Agreement being made (see section 106 of the Town and Country Planning Act 1990). The Secretary of State for Communities and Local Government (Secretary of State) has decided, through the National Planning Casework Unit, not to call-in the decisions in relation to the Tesco and Dalton Park Sites. The decisions of the Secretary of State in respect of the Tesco site and the Dalton Park site were not made concurrently and that has caused the judicial review application about the Dalton Park site to be considerably delayed. Hence, it has not been possible to have a single hearing to consider both cases."
I also call attention to four important facts set out at paragraph 18 of my previous judgment. I also set out the more detailed facts of this case taken as a whole, and incorporate paragraphs 29 to 58 of my previous judgment.
"29. The Castle Dene Shopping Centre in the centre of Peterlee opened in 1963. It comprises several shops. There is at present only one large supermarket in Peterlee: ASDA. Durham CC have been desirous for some while in promoting major retail led regeneration in Peterlee which furthers the Local...
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