The Queen (on the application of CBRE Lionbrook (General Partners) Ltd) v Rugby Borough Council Hammerson (Rugby) Ltd (Interested Party)

JurisdictionEngland & Wales
JudgeMr Justice Lindblom
Judgment Date14 March 2014
Neutral Citation[2014] EWHC 646 (Admin)
Docket NumberCase No: CO/10928/2013
CourtQueen's Bench Division (Administrative Court)
Date14 March 2014
Between:
The Queen (on the application of CBRE Lionbrook (General Partners) Limited)
Claimant
and
Rugby Borough Council
Defendant

and

Hammerson (Rugby) Limited
Interested Party

[2014] EWHC 646 (Admin)

Before:

Mr Justice Lindblom

Case No: CO/10928/2013

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Paul Tucker Q.C. and Mr Anthony Gill (instructed by Squire Sanders LLP) for the Claimant

Mr Richard Kimblin (instructed by Legal and Elections Manager, Rugby Borough Council) for the Defendant

Mr David Elvin Q.C. and Ms Sonal Barot (instructed by Nabarro LLP) for the Interested Party

Hearing date: 10 December 2013

Mr Justice Lindblom

Introduction

1

This claim for judicial review challenges a planning permission granted in July 2013 for major shopping development on the outskirts of Rugby. The court must consider whether the permission was lawfully granted, and not whether the decision itself was right.

2

The claimant, CBRE Lionbrook (General Partners) Ltd. ("CBRE Lionbrook") owns the Clock Towers Shopping Centre in the town centre. The first interested party, Hammerson (Rugby) Ltd. ("Hammerson"), owns Elliott's Field Retail Park, a large retail park on the Leicester Road, about a mile outside the town centre. The claim challenges the planning permission granted by the defendant, Rugby Borough Council ("the Council") in July 2013 for a redevelopment of the retail park that would greatly increase its floorspace. CBRE Lionbrook objected to that proposal. The second interested party, Cemex UK Properties Ltd. ("Cemex"), owns a site in Rugby town centre, Cemex House; the third interested party, Avenbury Properties Ltd. ("Avenbury"), owns another, off Evreux Way. Those two sites comprise the Evreux Way Development site ("the Evreux Way site"), which is allocated for retail development in the Rugby Borough Core Strategy ("the core strategy"). CBRE Lionbrook, Cemex and Avenbury intend to redevelop the Evreux Way site together with the Clock Towers Shopping Centre. Cemex and Avenbury also oppose the redevelopment of the retail park.

3

There were originally 12 grounds in the claim. Six of them, grounds 7 to 12, were abandoned before the hearing. In the remaining grounds CBRE Lionbrook challenge the Council's decision on Hammerson's application, in three main respects – an alleged failure to comply with the requirements for screening under the regime for environmental impact assessment ("EIA"), alleged failures in the application of development plan and national policy for retail development, and an allegedly unlawful failure to reconsider the proposal in the light of a letter sent to Council by CBRE Lionbrook after the Planning Committee had resolved to approve it.

Background

4

Elliott's Field Retail Park has been trading since 1988. Today it has nine retail units arranged in three terraces, which provide 15,640 square metres of comparison goods shopping floorspace in Class A1, and one unit with 255 square metres of floorspace for the sale of food and drink, in Class A3. Next to the retail park, to its south, is a Tesco superstore. Another retail park, the Junction One Retail Park, adjoins the Tesco site.

5

Hammerson's application for planning permission was submitted to the Council on 22 February 2013. Its proposed redevelopment of the retail park would provide a total of 29,675 square metres of Class A retail floorspace for the sale of comparison goods: 16,138 square metres on the ground floor and 13,537 square metres on mezzanine floors. The existing Class A1 floorspace is 15,640 square metres – 12,051 square metres on the ground floor and 3,589 square metres in mezzanine floors. A new anchor store is proposed, with 2,815 square metres at ground floor and a mezzanine of 2,787 square metres. Hammerson intend that this will be occupied by Debenhams. The development would add two small catering units, each of 140 square metres. An increase in number of car parking spaces is also proposed, from 569 to 721. The Council's committee considered and resolved to approve this proposal on 22 May 2013. The Council issued its decision notice granting planning permission for the development on 1 July 2013, after the Secretary of State for Communities and Local Government ("the Secretary of State") had confirmed that he was not going to call in the application for his own determination.

6

The Evreux Way site comprises about a hectare of land and buildings in the town centre. It adjoins the Clock Towers Shopping Centre. Avenbury's site was once a theatre and then a cinema and later a bingo hall, run by Gala Bingo. It is now vacant and is used as a temporary car park. Cemex's site has a large office building on it, occupied by the staff of Cemex UK Operations Ltd. After discussions with the Council in 2010 and 2011 Peacock & Smith Ltd., on behalf of JMKA (Rugby) Ltd. and Cemex UK Operations Ltd. made an application for outline planning permission for the redevelopment of the Evreux Way site by the demolition of the existing buildings and the erection of a retail foodstore, with a maximum of 6,255 square metres of Class A1 floorspace, and other units in Classes A1, A2, A3, A4 and A5, with a maximum floorspace of 785 square metres. That application has not yet been determined. In November 2011 the Council was notified of the intended demolition of the building once occupied by Gala Bingo on Avenbury's site. It decided that approval for this was not required. The building was later demolished. On 25 July 2012 the Council granted planning permission for the change of use of this part of the Evreux Way site to use as a temporary car park.

The issues for the court

7

I have already referred to three broad allegations advanced in the claim (in paragraph 3 above). As the parties agree, these divide into six main issues:

(1) whether the Council, having issued a negative screening opinion for Hammerson's proposal in September 2011, breached the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 2011 ("the 2011 EIA regulations") by deciding it was not required to issue a further screening opinion for the revised proposal in November 2012; and, if so, whether, in the exercise of its discretion, the court should quash the planning permission;

(2) whether the Council erred in law in not concluding that the proposed development was contrary to Policies CS1, CS8 and CS13 of the core strategy, or any of those policies; whether it erred in concluding that the development plan was silent on the question of how retail development outside the town centre was to be judged; and whether it failed to perform its duty under section 38(6) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") to determine Hammerson's application for planning permission in accordance with the development plan unless material considerations indicated otherwise;

(3) whether the Council erred in law in concluding that the proposed development met the sequential test for proposed retail development, as was required by paragraph 24 of the National Planning Policy Framework ("the NPPF");

(4) whether the Council erred in law in concluding that the proposed development complied with policy for the assessment of the impact of proposed retail development, in paragraph 26 of the NPPF;

(5) whether the Council erred in law in failing to take the application for planning permission back to the committee after it received CBRE Lionbrook's letter of 17 June 2013; and

(6) whether the approach taken by the Council to the determination of Hammerson's proposal was unlawful.

8

Mr Paul Tucker Q.C., who appeared for CBRE Lionbrook, accepted that issue (6) is subsumed in the other five, and he made no separate submissions upon it.

Issue (1) – EIA screening

The EIA regime

9

Regulation 3(4) of 2011 EIA regulations prohibits the granting of planning permission for "EIA development" unless the decision-maker has first taken into consideration the "environmental information". "EIA development" is defined in regulation 2(1) as either "Schedule 1 development" or "Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location". The "environmental information" is defined, also in regulation 2(1), as including an "environmental statement".

10

The development with which this case is concerned is not Schedule 1 development. It is Schedule 2 development.

11

Schedule 2 development includes, in paragraph 10 of Schedule 2, "[infrastructure] projects" where "[the] area of the development exceeds 0.5 hectare". "Infrastructure projects" include, in paragraph 10(b) of column 1, "[urban] development projects". In this case the relevant type of project of this description is "the construction of shopping centres …". Paragraph 13 of column 1 relates to "[changes] and extensions", including "(b) Any change or extension of development of a description listed in paragraphs 1 to 12 of column 1 of this table, where that development is already authorised, executed or in the process of being executed". The relevant thresholds and criteria in column 2 are "(i) [the] development as changed or extended may have significant adverse effects on the environment", or (ii) in relation to development of a description mentioned in column 1 of this table, the thresholds and criteria in the corresponding part of column 2 of this table applied to the change or extension are met or exceeded."

12

Regulation 2(1) defines a "screening opinion" as "a written statement of the opinion of the relevant planning authority as to...

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