The Queen (on the application of Lloyds Pharmacy Ltd) v Leeds City Council Manor Park Surgery (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Judge Behrens |
| Judgment Date | 19 December 2013 |
| Neutral Citation | [2013] EWHC 4031 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5512/2013 |
| Date | 19 December 2013 |
2013 EWHC 4031 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
The Court House
Oxford Row
Leeds LS1 3BG
His Honour Judge Behrens sitting as a Judge of the High Court in Leeds
Case No: CO/5512/2013
and
Anthony Crean QC and Anthony Gill (instructed by Pinsent Masons LLP) for the Claimant
Hugh Richards (instructed by Catherine Witham, Leeds City Council) for the Defendant
In this application for judicial review Lloyds Pharmacy Ltd ("Lloyds") seeks to challenge the decision of the Defendant Council ("the Council") dated 28th March 2013 to grant planning permission to Manor Park Surgery. The grant related to an extension and redevelopment of the Surgery and for a change of use to incorporate a pharmacy and optician.
. Lloyds operates a national chain of pharmacy shops. One such shop is next door to the Surgery. Due to its proximity to the Surgery the Lloyds' pharmacy has always been the main pharmacy serving the Surgery. Lloyds' pharmacy processed 152,830 prescriptions in the last twelve months up to May 2013, 99% of which were issued by the Surgery. It is thus unsurprising that the application was opposed by Lloyds.
. The permission that was granted was subject to 12 conditions. Conditions 3 and 9 are relevant to these proceedings:
3. The opening hours of the extended surgery shall be restricted to 0800 – 1900 Mon – Fri only. The opening hours of the proposed pharmacy shall be restricted to 0600 – 2200 Mon – Fri, 0900 – 2100 Saturday and 1200 – 2000 on Sundays.
In the interests of local residents.
9. The proposed pharmacy shall operate as indicated on the approved plans and shall be limited to no more than 110 square metres in floor area and be fully integrated as part of the surgery and shall be used to retail medical and healthcare products (including the dispensing of medicines and prescription related products) as an ancillary and complementary use to the use of the premises as a doctors surgery.
For the avoidance of doubt and to retain control of any retail uses within the building as ancillary and complementary to the main use and to accord with national and local retail policy.
. As already noted Lloyds seeks an order quashing the planning permission. There are 8 grounds upon which the order is sought. It will, of course, be necessary to consider those grounds later in this judgment. In his helpful submissions Mr Crean QC divided the grounds into three groups. Grounds 1 and 2 relate to planning policy. He asserts that the Council misunderstood s 38(6) of the Planning and Compulsory Purchase Act 2004 and misapplied UDP policy S9. Grounds 3 and 4 relate to evidence. He asserts that the Council granted the permission on two false premises and thus took into account immaterial considerations in granting permission. Grounds 5 to 8 relate to Condition 9 when read with Condition 3. A number of complaints are made. It is said that the condition is unenforceable, that it nullifies the effect of the planning permission and that it failed to limit the use of the pharmacy to medical and healthcare products.
. On behalf of the Council Mr Richards contends that the permission was a valid exercise of a planning judgment by the Planning Panel ("the Panel"). He contends that when the Panel Report is read as a whole all relevant policy matters (including s 38(6), the breach of Policy S9, and paragraphs 24 and 27 of the NPPF) were drawn to the Panel's attention. He does not accept that the decision was based on any false factual premise. He contends that Condition 9 is perfectly lawful and workable. Accordingly he submits that the Panel made a decision (which was in accordance with the planning officer's recommendation) which was lawful.
. Manor Park Surgery has taken no part in the application. I was told during the course of the hearing that apart from some preparatory work no steps have been taken to implement the permission pending the decision of the Court.
. Permission to apply for judicial review was granted on the papers by Vincent Fraser QC on 24 th July 2013.
. Before turning to the matter in detail I must record my gratitude for the extremely clear and helpful skeleton arguments and oral submissions that were presented by all three Counsel. The conciseness of the submissions was much appreciated and enabled me to focus on the real issues between the parties.
The Background Facts
. There was no dispute as to the background facts. Accordingly much of this section is taken from the summary in Mr Crean QC and Mr Gill's skeleton argument.
The Surgery
. Manor Park Surgery is a nine doctor (with associated staff) practice based in the Bramley area in the north west of Leeds city centre. It consists of the surgery building and an integrated pharmacy building which shares an entrance hall. The pharmacy was added as an extension to the original surgery building in the late 1990s. Lloyds' pharmacy shares an entrance hall with the Surgery and operates under complementary hours.
. The Surgery lies behind a row of terraced houses off of Bellmount Close, a small cul-de-sac in Bramley. The Surgery is not within any of the designated 'Town Centres' for the purposes of Policy S2 of the Local Plan or Local Centre for the purposes of Policy S9. The nearest designated 'Town Centre' and high street is Bramley District Centre some 460m from the Surgery and pharmacy.
The Planning Application
. On 28 May 2012 Manor Park Surgery sought permission from the Council for an extension and redevelopment of the Surgery and for a change of use to operate a pharmacy and optician.
. The Planning Application was the subject of considerable local interest which included a letter of objection written by agents acting on behalf of Lloyds.
. According to Mr Butler, the Area Planning Manager, the Council received 20 individual letters of objection and 292 standard letters of objection. The objectors alleged lack of need, that the pharmacy should be in the town centre, and that the methadone needle exchange was not appropriate for a residential area. The letter sent on behalf of Lloyds raised the policy objections relied on in this application.
. There was also considerable support for the application. The Council received a petition with 1089 signatures which said that the proposal would bring a much needed extension of medical facilities to the local community and patients of the surgery. It was supported by the local MP.
. On 29 th August 2012 a public meeting was called by the Ward Members for Bramley Ward. It was well attended.
. On 30 th August 2012 Dr Fuller sent an email to Cllr Gruen dealing with concerns expressed at the meeting. It included sections on traffic congestion, extended opening hours and methadone dispensing. It also contained a paragraph relevant to grounds 3 and 4:
Over the years it has become very apparent that the practice is running at capacity. There is currently no room to offer the patients an improved or additional service. As a result we have to turn away new medical services as we are unable to accommodate these due to lack of space. Early this year the practice received a letter from our local MP … after she had received a complaint for a patient who was unable to get an appointment at the surgery. The practice then went on to develop plans that would allow us to employ 6 more doctors and provide additional medical services. Historically the PCT (Primary Care Trust) has helped finance new developments but now due to the state of the economy practices need to come with the finance themselves. As a result we have taken on a pharmacy and opticians to help finance the extension and provide the additional space that is crucial to being able to provide a better medical service.
. The Council granted planning permission on 16 October 2012. Lloyds challenged the legality of the grant in a letter dated 20 November 2012. Following receipt of that letter the Council consented to judgment and the permission was quashed.
. The Planning Application was returned to the Council for redetermination. The Planning Application came before the Panel on 28 March 2013 with a new Panel Report. It will be necessary to refer to the Panel Report in more detail later in this judgment. The Report recommended that the Planning Application should be approved subject to conditions. The Panel granted planning permission in line with the planning officer's recommendation in a Decision Notice dated 28 March 2013.
Planning Policy
The Law
. There was no dispute between the parties as to the relevant law. Much of this section is taken from the skeleton arguments.
Statute
. S 38(6) of the Planning and Compulsory Purchase Act 2004 provides:
"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise"
Local Policy
. The Development Plan for the area comprises the Leeds UDP (Review 2006) and supporting Supplementary Planning Guidance (SPGs) and Supplementary Planning Documents (SPDs).
. I was referred to policies S2 and S9. Policy S2 outlines the town centres first approach to be used for retail development. It is plain that Bramley qualifies as a town for the purpose of S2
. Policy S9 follows on from S2 and deals with smaller, non major retail...
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