Warners Retail (moreton) Ltd v Cotswold District Council and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom,Beatson L.J.,Davis L.J. |
| Judgment Date | 24 June 2016 |
| Neutral Citation | [2016] EWCA Civ 606 |
| Date | 24 June 2016 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2014/2608 |
[2016] EWCA Civ 606
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
PLANNING COURT
MR JUSTICE SUPPERSTONE
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Davis
Lord Justice Beatson
and
Lord Justice Lindblom
Case No: C1/2014/2608
Mr Rupert Warren Q.C. (instructed by Shoosmiths LLP) for the Appellant
Mr Meyric Lewis (instructed by Cotswold District Council) for the First Respondent
The Second, Third and Fourth Respondents were not represented
Hearing date: 12 May 2016
Judgment Approved by the court for handing down
Introduction
This appeal concerns the interpretation and application of the "sequential test" for proposed retail development in paragraph 24 of the National Planning Policy Framework ("the NPPF") and the guidance on the suitability of sites for such development in the "Planning for Town Centres – Practice guidance on need, impact and the sequential approach" ("the practice guidance"), issued by the Government in December 2009.
The appeal is against the order of Supperstone J., dated 22 July 2014, by which he dismissed a claim for judicial review brought by the appellant, Warners Retail (Moreton) Ltd. ("Warners"), challenging the outline planning permission granted by the first respondent, Cotswold District Council ("the council") on 12 December 2013 for the development of a food store on land at Fosseway Farm on Stow Road, Moreton-in-Marsh in Gloucestershire. The applicants for planning permission were the second and third respondents, Minton Health Care Ltd. and Glamar Leisure Ltd. ("Minton"). The fourth respondent, Sainsbury's Supermarkets Ltd. ("Sainsbury"), had made an application for a similar development on land on the opposite side of Stow Road, which the council refused on 11 September 2013. Warners own a food store, operated by Budgens, at the northern end of the High Street in Moreton-in-Marsh. They objected to both Minton's and Sainsbury's proposals.
Permission to appeal was initially refused on the papers by Sullivan L.J. on 7 October 2014, but was subsequently granted by Lewison L.J., after an oral hearing on 27 November 2014.
The issue in the appeal
Lewison L.J. granted permission on only one ground, which relates to the council's interpretation and application of the "sequential test" for proposed retail development in the NPPF and the practice guidance. The issue for us is whether the relevant policy and guidance were correctly understood and lawfully applied. Supperstone J. concluded that they were.
Minton's proposal
Minton's site is about 500 metres from the "commercial centre" of Moreton-in-Marsh as defined in the Cotswold District Local Plan (adopted by the council in 2006). The "commercial centre" is effectively the "town centre" for the purposes of national planning policy and guidance for retail development. Minton's proposal first came before the council's Planning Committee at its meeting on 11 September 2013. At that meeting the committee resolved that it be approved. It was brought back to the committee at a meeting on 11 December 2013 so that further objections by Warners and others could be considered. At that meeting the committee resolved that outline planning permission be granted. In its decision notice dated 12 December 2013 the council acknowledged that the development was contrary to Policy 19 of the local plan (which relates to "Development Outside Development Boundaries"), but stated that there were "material considerations … of sufficient merit … to justify the permitting of the development":
"A large amount of retail expenditure is currently identified as leaking from Moreton-in-Marsh to other retail stores and commercial centres outside the town. The proposed scheme will help to claw back retail expenditure to the town and also reduce the number of vehicle trips undertaken by Moreton-in-Marsh residents to other locations. The proposal will also provide additional employment opportunities for local residents. It has been demonstrated that there are no other sequentially preferable sites available in town centre or edge of centre locations and that the application site is accessible and well connected to the Moreton-in-Marsh town centre. The proposal will not therefore have an adverse impact on the vitality and viability of the town centre. The proposal is therefore considered to have economic benefits for the town as well as reducing vehicle movements thereby reducing carbon emissions. These aspects are considered to carry significant weight and to outweigh the limited landscape and highway impacts. The proposal is therefore considered to accord with the principle of sustainable development set out in the NPPF."
A number of conditions were imposed. Condition 5 set a number of "floorspace restrictions", including restrictions on the gross internal floor space – to 2,736 square metres, and on the retail sales area – to 1,742 square metres. There was no restriction on the number of car parking spaces. The application for planning permission had referred to 145, but we were told that a recent submission of reserved matters showed 170.
The Budgens store
The Budgens food store in the High Street is about 120 metres from the northern edge of the "commercial centre". Its gross floor space is 1,458 square metres, its net retail floor space 909 square metres. In February 2013 the council granted planning permission for the extension of the store, which would result in the gross floor space being increased to 2,097 square metres and the net floor space to 1,541 square metres. There are 115 car parking spaces, which will not be added to if the extension is built. Although the extension has not yet been constructed, drainage works have been undertaken to implement the planning permission and keep it alive.
Relevant policy and guidance for retail development
Two policies of the local plan were relevant to Minton's proposal: Policy 19 and Policy 25 – "Vitality and Viability of Settlements". Policy 25 says that "[development] that would harm the vitality and viability of the commercial centres will not be permitted", and that "[proposals] for development outside the commercial centres will be subject to a sequential test and, in the case of retail development, must be supported by evidence", first, of "need", secondly, to show the development "will not harm vitality and viability", and thirdly, to show that it is "accessible by a choice of means of transport".
The NPPF was published as planning policy for England in March 2012. It superseded much of the then extant national planning policy, including Planning Policy Statement 4 – "Planning for sustainable economic growth", published in December 2009 ("PPS4"), which had replaced Planning Policy Statement 6 – "Planning for Town Centres", published in March 2005 ("PPS6"). PPS6 had contained a policy requiring additional retail development outside a town centre to be justified by a demonstration of the need for the development, the two main elements of need being "quantitative need" and "qualitative need" (paragraphs 2.32 to 2.40). This component of national policy was not carried forward into PPS4, or subsequently into the NPPF. But the "sequential approach" was.
In the section headed "Ensuring the vitality of town centres", paragraph 23 of the NPPF sets out a number of requirements for local planning authorities in preparing local plans. It emphasizes the importance of "needs for retail, leisure, office and other main town centre uses [being] met in full and [not being] compromised by limited site availability". Paragraph 24 sets out government policy for the "sequential test". It states:
"Local planning authorities should apply a sequential test to planning applications for main town centre uses that are not in an existing centre and are not in accordance with an up-to-date Local Plan. They should require applications for main town centre uses to be located in town centres, then in edge of centre locations and only if suitable sites are not available should out of centre sites be considered. When considering edge of centre and out of centre proposals, preference should be given to accessible sites that are well connected to the town centre. Applicants and local planning authorities should demonstrate flexibility on issues such as format and scale."
In the "Glossary" in Annex 2 to the NPPF "Town centre" is defined as the "[area] defined on the local authority's proposal map, including the primary shopping area and areas predominantly occupied by main town centre uses within or adjacent to the primary shopping area …"; "Edge of centre" as "[for] retail purposes, a location that is well connected and up to 300 metres of the primary shopping area …"; "Out of centre" as "[a] location which is not in or on the edge of a centre but not necessarily outside the urban area"; and "Out of town" as "[a] location out of centre that is outside the existing urban area". By these definitions, it is agreed, the Budgens store is on an "edge of centre" site, and Minton's site is "out of centre". Paragraph 26 of the NPPF sets out the Government's policy for "impact assessment". It states:
"When assessing applications for retail, leisure and office development outside of town centres, which are not in accordance with an up-to-date Local Plan, local planning authorities should require an impact assessment if the development is over a proportionate, locally set floorspace threshold (if there is no locally set threshold, the default threshold is 2,500 sq m). This should include assessment of:
• the impact of the proposal on existing, committed...
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