The Queen (on the application of Mid Counties Co-operative Ltd) v Forest of Dean District Council Trilogy Developments Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stewart |
| Judgment Date | 04 July 2013 |
| Neutral Citation | [2013] EWHC 1908 (Admin) |
| Date | 04 July 2013 |
| Docket Number | Case No: CO/6062/2012 |
| Court | Queen's Bench Division (Administrative Court) |
[2013] EWHC 1908 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Stewart
Case No: CO/6062/2012
and
David Holgate QC & Gwion Lewis (instructed by Hewitsons Solicitors) for the Appellant
Richard Drabble QC & Graeme Keen (instructed by Forest of Dean District Council) for the Respondent
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The Claimant, Mid Counties Co-operative Ltd, ("MCL") claims judicial review of the Defendant's ("the Council") decision of 29 th March 2012 to grant outline planning permission to the interested party ("Trilogy"). The outline planning permission was for:
" … a Class A1 retail store of up to 4645 m 2 including ancillary uses recycling centre associated accesses off Steam Mills Road and estate roads, car parking and landscaping (demolition of existing buildings)"
The site is land at Steam Mills Road, Cinderford, Gloucestershire. It is out of the town centre. Permission to bring judicial review was granted by Simon J after an oral hearing on 10 th April 2013.
MCL owns and operates the Co-operative supermarket at Dockham Road, Cinderford. This is in the town centre. Trilogy is the relevant developer of the site. The retail store is to be operated by Asda Stores Ltd.
History
On 28 th June 1999 the Secretary of State, accepting the recommendation from the Inspector, refused an application for outline planning permission on the site for a large retail store namely:
" … the construction of a Tesco foodstore associated parking and petrol filling station with car wash and additional car parking for an adjoining service station on land at the junction of Valley Road and Steam Mills Road, Cinderford."
Tesco's application, which had been supported by the Council, had been called in by the Secretary of State for his own determination. The Inspector reported after a 10 day public inquiry.
There have been further applications for extra retail provision in Cinderford over the years between 1999 and 2011. During the whole of the relevant period MCL's store has been the largest retail store in the town. Three of the applications were on the rugby club site adjacent to MCL's store. In 2008 Tesco made an application in respect of the rugby club site. The rugby club entered into an agreement with Tesco that it would relocate to a new ground outside the town. However the determination of the Tesco application was delayed because of further negotiations with the highway authorities as a result of ownership issues introduced by MCL. The agreement between Tesco and the rugby club expired. MCL then entered into a 10 year sponsorship deal with the rugby club which in effect prevented the club selling its site and relocating. Tesco then withdrew its application. The rugby club site is no longer available for retail development.
Trilogy's Application
On 24 th January 2012 the Officers' Report was published. The case officer was Mr Tony Pope. It recorded that "Members had the opportunity to visit the site in July 2011". The recommendation was:
"Delegated authority be given to the group manager — planning and housing and the group manager — legal and democratic to issue the planning permission subject to the completion of 106 legal agreements or unilateral undertakings to deliver contributions of £471,000 towards town centre enhancements in line with the adopted Cinderford Town Centre Regeneration Scheme, comprising £160,000 towards redevelopment of Cinderford bus station; £110,500 towards parking improvements and the implementation of restricted parking zones; £65,000 towards architectural lighting scheme; £30,000 towards soft landscaping and bulb planting; £45,000 towards high quality materials in the Triangle and High Street; £10,000 for minor footway improvements within the town centre; £2,500 towards crime prevention; £48,000 for associated design and supervision fees; £41,040 towards the improvement of the junction of St Whites and Valley Road and £46,008 toward public transport; and subject to the conditions set out below. If the agreements or undertakings are not concluded by 30 March 2012, to refuse planning permission."
On 31 st January 2012 the council's Development Control Committee met and considered the 2011 application and the Officers' Report. The committee resolved to accept the recommendation in the Officers' Report and to grant permission. The majority was 14 to 1. Permission was formally granted on 29 th March 2012. By this time the National Planning Policy Framework ("NPPF") had replaced all national planning policy statements. Planning permission was granted subject to 20 conditions.
After pre-action correspondence MCL issued this claim on 12 th June 2012.
The Grounds of Challenge:
Ground 1
This Ground (1 of 6) states "(a) Failure to consider the importance of consistency with the earlier decision of the Secretary of State that planning permission should not be granted for a Class A1 supermarket on the site as any benefits secured via a section 106 planning obligation would not be sufficient to outweigh the "very serious harm" to the vitality and liability of Cinderford town centre; (b) Alternatively, failure to provide reasons for departing from this earlier decision of the Secretary of State."
MCL rely on the 1999 refusal planning permission to Tesco. That was an application for a store with a gross floor space of 3126 sq metres. The Inspector's conclusions (with which the Secretary of State agreed) included the following:
"The Relationship of the Proposed Developments to National Planning Policy Set Out in PPGs 1, 6 and 13."
i) " … the sequential approach.
14.6 The starting point for the sequential approach is the consideration of the need for any new shopping floor space … "
ii) "14.9 … While there may be some capacity for additional shopping floor space within the Cinderford catchment even after the Co-op and Lidl are developed, such capacity need not be on the scale of the proposal. The first test of the sequential approach is therefore not met."
"The possible impact of the proposed development on the vitality and viability of the town centre of Cinderford."
(iii) "14.21 Cinderford town centre is a weak and vulnerable shopping centre. Food shopping is the main reason for visiting the centre, and there is relatively little comparison shopping. There is a high proportion (22%) of vacant shops scattered throughout the centre. All parties agree that the Tesco store would have a significant impact on town centre turn over … "
(iv) "14.26 The direct impact of the Tesco store on Cinderford town centre would lie in the range 25% to 37% … the actual impact is likely to be nearer to the higher figure than the lower. Even an impact of 25% could not be called insignificant, whilst one of 37% is likely to be crippling on a centre as vulnerable as Cinderford is generally accepted to be … "
(v) "14.27 … the greatest impact would be on the Co-op which would suffer around a 50% reduction in turnover … "
(vi) "14.29 Great reliance was placed upon survey results from other market towns which showed high level of spin-off associated with other centre stores … a survey of Cinderford shoppers who do not currently go to the town centre revealed that 91% said that it was unlikely that they would start to use the town centre as well as a new Tesco. 22% of those currently going to the centre said that they would no longer use it if the new Tesco is built. This suggests a decline in usage rather than increased spin-off … "
(vii) "14.30 … The impacts of the Tesco store on the vitality and liability of Cinderford town centre would be serious causing significant harm to what is already a weak and vulnerable town centre. Leaving aside the sequential test such impact could only be justified if significant spin-off in terms of linked trips could be guaranteed to an extent that visitation to the town centre would be increased. The centre lacks a sufficient range of non food shops or other attractions however to give any hope of significant spin-off occurring."
"The suitability of the site for the development proposed and whether there are any considerations which will outweigh any possible harm to the vitality and viability of the town centre."
(viii) "14.33 Benefits would also accrue to the town centre in the form of increased parking at Hayward Road … paying for public toilets and other cosmetic enhancements to shop fronts etc would not be directly related to the impacts the development would not meet the tests in the circular nor significantly enhance the centre as a draw for Tesco shoppers."
(ix) "14.35 In summary, whilst there would be tangible benefits associated with the proposal, they would not outweigh the very serious harm to Cinderford town centre that would result, should the proposal go ahead."
In the 2011 Officers' Report reference was made to an analysis undertaken on behalf of the council estimating that "between 25% and 30% of the current level of expenditure flowing to Cinderford town centre" would be diverted to the proposed Asda store. They said that little weight could be placed on Trilogy's assumption that the store would generate linked trips into...
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