R (the Midcounties Co-operative Ltd) v Forest of Dean District Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice COLLINS |
| Judgment Date | 20 July 2007 |
| Neutral Citation | [2007] EWHC 1714 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2582/2006 |
| Date | 20 July 2007 |
[2007] EWHC 1714 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Collins
Case No: CO/2582/2006
Mr David Holgate, Q.C. & Mr James Maurici (instructed by Brook Street Des Roches LLP) for the Claimants
Mr Patrick Clarkson, Q.C. & Mr Simon Pickles (instructed by Berwin Leighton Paisner LLP) for the Interested Party
Hearing dates: 22 May 2007
Judgement
Cinderford is a small town in the Forest of Dean. In what is now within the designated town centre is the Cinderford Rugby and Sports Club which, as its name suggests, includes a rugby ground. The claimants own a supermarket which adjoins the Sports Club. Tesco want to demolish the existing ground and three dwellings on the road which runs to the south of it and put in their place a superstore. Next to the site to its west is a bus station and behind the bus station to its north is the claimants' supermarket. The claimants have opposed the application for planning permission made by Tesco and its agents, largely and understandably because the new superstore would be likely to have a profoundly damaging impact on their business.
On 6 January 2006 the defendant (the Council) granted planning permission, subject to a number of conditions and the need to enter into a s.106 agreement. I shall call this the Retail Permission. It was recognised that permission would not be granted unless an alternative site was provided to enable the Sports Club to continue. Accordingly, planning permission was also sought to erect a new club house, new rugby pitches and associated facilities on land which at present is an open field on a ridge to the south and east of the town. It is part of a farm known as St Whites Farm. The proposed development will include two rugby pitches and associated floodlighting. On 6 January 2006, the Council granted planning permission for the development subject to a number of conditions. I shall call this the Rugby Club permission.
One of the conditions (number 17) was that:—
"The floodlighting hereby approved shall only be illuminated between the hours of 0700 and 2100 on any day."
On 8 January 2006, the applicants applied under s.73 of the Town & Country Planning Act 1990 for planning permission to be granted without complying with Condition 17 but varying it to enable floodlighting to continue until 2200. This was granted on 22 February 2006. A decision under s.73 leaves the original permission intact and enables, if it results in a change of conditions, the applicant to choose between what he was originally granted and what he is granted on his application. It must follow that any defects in the original permission can be relied on by a challenger to the new permission, which is technically what results from a successful application under s.73. It follows (unless of course the basis of any challenge is to the particular condition) that the grounds relied on to challenge the original permission will, if they have merit, prevail against the s.73 permission. In the context of this case, this is said to mean that a successful challenge to the Rugby Club permission means that the s.73 permission must also be quashed. Mr Clarkson, Q.C., did not in the end challenge that.
This claim, which was lodged as long ago as March 2006, received permission from me on 16 May 2006. A curious feature of the hearing before me is that the claim is resisted by only one of the twelve interested parties. The defendant and the other eleven interested parties were content to accept a consent order quashing the three grants of planning permission. The consent order was based upon acceptance that there were breaches of Article 22 of the Town and Country Planning (General Development Procedure) Order 1995 in that there were no summaries of reasons such as complied with the Article in either the retail or the Rugby Club permission and, since the s.73 permission was wholly parasitic on the Rugby Club permission, it had to be quashed too. That concession reflected grounds 1 and 11 in the claim form. It was not accepted that any of the other grounds were made out. Santon Group has not accepted that that is correct and so have maintained that the claim should fail. Fresh applications for planning permission have been lodged but, as I understand it, they have not been considered by the Council pending the conclusion of these proceedings.
Santon's interest is described as 'contractual and lies in the site the subject of the retail store'. Its precise nature is immaterial since it has not been suggested that it does not have an interest which entitles it to argue that the claim should fail.
Apart from the challenge based on Article 22, the claimants have put forward a number of other grounds which, they submit, show that there were material errors in the manner in which the Council reached its decisions on the applications. It is said that there were failures to take account of various material considerations, inadequacies in conditions or s.106 requirements and failures to deal properly with statutory consultees. As will become apparent, I do not think it necessary to deal specifically with all the grounds since I am persuaded that the permissions must be quashed. The Council was in my judgment for the reasons which will become apparent correct to consent to the permissions being quashed on the ground of failures to comply with Article 22, but I shall deal with some of the other grounds upon which reliance has been placed.
The application for the retail store permission was lodged on 22 September 2004. At that time, the site was outside the defined town centre area. The relevant policy did not support the sort of development proposed, development being limited to small schemes. Apart from that, the ground was an important open area so that new development was restricted to such as would not detract in an unacceptable fashion from local amenity or character of the area and loss of recreational open space was insupportable unless a compensatory provision offering a similar or improved range of facilities was provided. Thus the development was not in accordance with the applicable plans. However, the District Local Plan review (DLPR), which was to come into force in 2005, proposed significant alterations to the limits of the Town Centre so that the site would be included. This meant that shopping development would be permitted provided that it would not adversely affect the vitality and viability of the town centre and would not result in a significant increase in the length and number of car-based trips. But the loss of outdoor recreational space was still regarded as impermissible unless there was a provision of adequate compensatory facilities. The relevant policy was (R)FBE 10 (which in the draft referred to in the officer's report was numbered (R)FBE 9 thus causing some confusion). This reads:—
"Development which would lead to the loss of public open space or private outdoor recreational open space and facilities will not be permitted. Exceptions may be made where:
1. Compensatory provision is made which offers a similar or improved range of facilities within safe and convenient reach of anticipated users.
2. It is evident that there is no over-riding community need for all or part of the existing open space and facilities at the present time and in the foreseeable future."
The DLPR was adopted on 16 November 2005. The Development Control Committee of the Council were programmed to consider the application on 13 September 2005. An officer's report was prepared. There had been a number of objections apart from those raised by the claimants, but enthusiastic support by the Town Council because Cinderford needed to attract shoppers to its Centre and the development would achieve that and the desirable regeneration of the town centre.
The officers' report was favourable to the development, provided that it was linked to 'the proposal for the relocation of the Cinderford Rugby Club to a larger site on the edge of the settlement at St Whites Farm'. The officers were persuaded that the two proposals did comply with the exception contained in the policy, whether in the existing plan or the proposed DLPR. However, it drew attention to some particular concerns relating to pedestrian access. In paragraph 9.7(vii) of the report, this is said:—
"Even though the application site is included within the town centre in the District Local Plan review, owing to the scale of the development relative to the size of Cinderford town centre, it remains a concern that, in the absence of improved linkages and environmental enhancements elsewhere within the town centre, the new store may not achieve the expected degree of regeneration of Cinderford. It is essential that the store components rather than dominate the town centre. At present, owing to the relatively under-developed pedestrian links between the main shopping area and the application site, it is likely that future customers will have to drive to the store. The concern is that, in the absence of improved pedestrian routes, those customers will not be encouraged to walk into the other shopping areas of the town centre thereby negating many of the requisite spin-off benefits accruing from combined trips."
One problem concerning pedestrian access lay with the claimant's ownership of the bus station land. The applicants for planning permission had recognised the...
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