R Trashorfield Ltd v Bristol City Council Sainsbury's Ltd and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 20 March 2014 |
| Neutral Citation | [2014] EWHC 757 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/12439/2013 |
| Date | 20 March 2014 |
[2014] EWHC 757 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BRISTOL
Bristol Civil Justice Centre,
2 Redcliff Street, Bristol, BS1 6GR
Mr Justice Hickinbottom
Case No: CO/12439/2013
and
Daniel Kolinsky (instructed by Richard Buxton Environmental & Public Law) for the Claimant
James Findlay QC and Richard Ground (instructed by Liam Nevin, Head of Legal Services, Bristol City Council) for the Defendant
The First Interested Party did not appear and was not represented
Saira Kabir Sheikh (instructed by Burges Salmon LLP) for the Second Interested Party
Hearing date: 13 March 2014
Introduction
The Memorial Ground was built in 1921 as the home of Bristol Rugby Club, the name adopted because it was dedicated to local rugby players who had died in the World War I. In 1996, Bristol Rovers Football Club moved in to share the ground. The rugby club hit hard times, and ownership of the ground passed to the owners of the football club, the Second Interested Party ("the Football Club"). The ground, more recently known as the Memorial Stadium, has a capacity of 12,000, but has seating for only 2,500 and the facilities there are generally poor.
The ground is situated on 3.3 hectares of land in Filton Avenue, Horfield ("the Site"), being surrounded by mainly terraced residential properties. The Site is located about 100m from Gloucester Road Town Centre ("the Town Centre"), and 325m from the defined primary shopping area of that Town Centre. The Town Centre is divided into northern and southern parts, the former being nearer the stadium. The largest food shop in the Town Centre is a Co-op store within the northern part.
The Football Club wishes to relocate to a 20,000 capacity purpose-built stadium on land currently owned by the University of the West of England in Stoke Gifford, South Gloucestershire, as part of a proposed development project that would also see the construction of 500 new homes and 100 extra-care units, as well as the university using the sale proceeds towards a £100m investment in a business school, a media centre, teaching space, student accommodation, a new students' union and infrastructure including a transport hub. It is intended that the new stadium will have various facilities, other than the actual ground; and those will be used, not only by the Football Club, but also by the university and wider public. The South Gloucestershire development has been granted planning permission.
However, the Football Club has no substantial assets other than the ground which it owns, and it has been making losses. Thus, the project depends upon the club selling the Memorial Stadium for development. With the First Interested Party ("Sainsbury's"), it proposes development on the Site involving a new 9,000 sq m gross internal area supermarket, 65 dwellings (including 40% affordable housing), floorspace that could be used for commercial or community purposes, a public open space ("Memorial Square") and associated works. It will support 350 additional full and part time jobs.
The proposal has given rise to opinions, resolutely held and forcefully voiced, both for and against the project. The Football Club and its supporters see the new stadium as vital to the club's future. Bristol City Council ("the Council") considers the developments, which involve a total investment of £200m, important for regeneration purposes. Those who wish to see the project go ahead have the backing of the local Member of Parliament, who has raised the importance of the development, as she sees it, in the House of Commons; and they have sponsored a petition with thousands of signatures in support of the development. However, the supermarket will inevitably have some effect on the nearby Town Centre shops and local residents. The Claimant, TRASHorfield Limited, a company limited by guarantee, was incorporated in August 2013. Its directors are members of TRASHorfield, an association of local traders and residents who object to the development, "TRASHorfield" standing for "Traders and Residents Against Sainburys Horfield". It has the backing of the two Bishopston Ward local councillors. It stimulated over 1,000 objections to the planning application, and it too has sponsored a petition with thousands of signatures.
Both supporters of the development, and objectors to it, clearly hold very strong, disparate views; and there has been a high level of interest and debate about the merits and demerits of the proposed development, in which politicians, press and public have engaged. Certainly, it is clear that the development proposal gives rise to a number of conflicting public, as well as private, interests.
On 4 May 2012, an application for planning permission for the demolition of the Memorial Stadium and the proposed redevelopment of the Site I have described was submitted to the Council as the local planning authority by Sainsbury's through their agents, the retail consultants WYG Planning and Design ("WYG"). The application came before the Council's Development Control (North) Committee ("the Planning Committee") at its meeting on 16 January 2013, when it was approved on the basis of the Planning Officer's recommendation; and planning permission was granted subject to the completion of a Section 106 Agreement dealing with specified matters. That Agreement was entered into by (amongst others) the Council, Sainsbury's and the Football Club, on 14 June 2013; and, that day, planning permission was granted by an officer on behalf of the Council under delegated powers.
The Claim
In this claim, lodged on 4 September 2013, the Claimant seeks to challenge and quash that planning permission, on three grounds focused mainly (although not exclusively) on the Council's evaluation of the retail impact of the development on the Town Centre. The grounds are as follows, the numbering being mine.
Ground 1: The Planning Committee approved the application on the basis of a misunderstanding of the evidence and advice of the Council's own retail consultants as to the extent of the impact on the Town Centre, which was a material (indeed, it is said, critical) consideration in the determination of the application.
Ground 2: The Planning Committee approved the application only on the basis that specified measures to mitigate the retail impact of the proposal and ensure required compliance with relevant regulations would be identified, agreed with relevant parties and incorporated into the Section 106 Agreement; and it authorised the Council's officer under delegated powers to grant planning permission only on that basis. The Section 106 Agreement did not contain such specified measures. Consequently, the grant of planning permission was (i) not in compliance with the relevant regulations and (ii) ultra vires the Planning Committee's authorisation.
Ground 3: The Planning Committee's summary reasons incorrectly state that the application complied with the particular policy in the Bristol Local Plan that protects the Site for use as a sports stadium.
On 14 November 2013, Burnett J gave permission to proceed on Grounds 1 and 2, but not on Ground 3. The Claimant renewed its application for permission on that ground. Therefore, I have before me a substantive application on Grounds 1 and 2, and, in effect, a rolled-up application on the third ground.
The Council and the Football Club oppose each ground on its merits. In addition, they say that the application for judicial review was not brought reasonably promptly, and should be refused on that basis alone. However, as merits are an important factor in considering the exercise of the court's discretion as to whether to extend time and grant relief in a judicial review claim, I shall deal first with the merits of each ground.
Ground 1: Misunderstood Expert Advice and Recommendation
The Ground
The Planning Committee had the benefit of a Planning Officers' Report ("the Officers' Report"), which formed the basis of the Committee's resolution to approve the application. The Officers' Report concluded that the retail impact of the proposed supermarket on the Town Centre would not be "significantly adverse". That was stated to be based on advice received from the Council's own independent retail consultants, GVA Grimley ("GVA"). In particular, the report said (at page 28):
"In terms of the impact test, we consider that on balance none of the negative aspects of the scheme outlined above constitute a significant adverse impact. In reaching this conclusion, particular regard has been paid to current health of [the Town Centre] is good and the predictions of both the Applicant [i.e. Sainburys] and the Council's Advisors included above are that it is set to continue to be good. Even adopting the Advisor's more cautious assessment, the [Town Centre] continues to grow in the periods to 2017 and then on to 2022."
However, Mr Kolinsky for the Claimant submits that that was materially misleading. Whilst GVA considered the current health of the Town Centre to be good, it never expressed the view that it would continue to be good if the development were to proceed; and, indeed, it expressed various concerns and caveats about the future retail health of the Town Centre if the supermarket were to go ahead, which are not articulated at all in the Officers' Report. The Officers' Report therefore gave an unfair and...
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