Warners Retail (Moreton) Ltd v Cotswold District Council Minton Health Care Ltd & Glamar Leisure Ltd and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 22 July 2014 |
| Neutral Citation | [2014] EWHC 2504 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/298/2014 |
| Date | 22 July 2014 |
[2014] EWHC 2504 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon Mr Justice Supperstone
Case No: CO/298/2014
and
Rupert Warren QC and Guy Williams (instructed by Messrs Shoosmiths) for the Claimant
Meyric Lewis (instructed by Cotswold DC Legal Services Dept.) for the Defendant
Interested Parties were not represented
Hearing dates: 11 July 2014
Introduction
The Claimant, Warners Retail (Moreton) Ltd, challenges the decision of the Defendant ("the Council") made on 12 December 2013 to grant planning permission to the First Interested Party, Minton Health Care Ltd and Glamar Leisure Ltd, for a new food store at Fosse Way Farm, Stow Road, Moreton-in-Marsh, Gloucestershire ("the Minton site").
The Claimant is the owner of an existing food store within Moreton-in-Marsh, trading as Budgens, which will be directly affected by the permitted store if it is brought into operation.
The Council is the local planning authority for Cotswold District.
On 14 March 2014 Lewis J granted permission to apply for judicial review.
The Factual Background
The planning application for the Minton site was placed before the Council's planning committee on 11 September 2013 when it resolved to grant permission. However the application was brought back to the Committee on 11 December 2013 to consider further objections by the Claimant and other persons when the Council again resolved to grant planning permission.
Permission was granted on 12 December 2013 for the following development:
" Demolition of existing buildings and erection of food store with associated parking. Landscaping and ancillary works at Fosse Way Farm, Stow Road, Moreton-in-Marsh."
The grant of permission was made subject to a number of conditions. Condition 5 imposed floor space restrictions so that the gross internal floor space shall not exceed 2,736 sq m, and the retail sales area shall not exceed 1,742 sq m. Of the total retail floorspace the area for convenience goods shall not exceed 1,394 sq m, and comparison goods 348 sq m. The application included 150 parking spaces.
The Minton site extends to 2.3 acres. It lies within the Cotswold Area of Outstanding Natural Beauty. It is outside the settlement boundary for Moreton-in-Marsh as delineated in the Cotswold District Local Plan 2001–2011 ("the Local Plan"), and it is located approximately 490 metres from the town centre (described as the Commercial Centre in the Local Plan).
The Budgens store lies at the northern end of the High Street in Moreton-in-Marsh. It is located within the town, albeit not within the designated "town centre" for retail policy purposes. In retail terms the Budgens site is "edge of centre". It lies approximately 125 metres from the northern edge of the Commercial Centre. It has a net floor space of 909 sq m (1458 sq m gross). It also contains a post office. At the date of determination of the relevant planning applications the Claimant had secured planning permission to expand the store to a total of 1541 sq m (an extension of 639 sq m gross).
The same Planning Committee on 11 September 2013 considered two other planning applications of relevance, both of which were refused. The first was an application for an alternative form of development on the Minton Site (which included additional land). This was an application for a retirement community including a 48-bed care home and 51 assisted living units.
The second was an application by the Second Interested Party, Sainsbury's Supermarkets Ltd ("Sainsbury's"), for a food store of broadly similar size to the Minton permitted development, on land on the opposite side of Stow Road known as "Land Parcel Easting 420527 Northing 231667", Stow Road, Moreton-in-Marsh ("the Sainsbury's site"). The Sainsbury's site is also outside the town settlement boundary, but abuts it (whereas the Minton site is 40–60m from it). The Council considered that two new food stores would harm the vitality and viability of Moreton-in-Marsh town centre and that the Minton application was preferable to the Sainsbury's application.
Relevant Policy Considerations
By section 38(6) of the Town and Country Planning Act 2004 ("the 2004 Act") the Council was under a duty to determine the planning application in accordance with the development plan unless other material considerations indicated otherwise.
The Local Plan formed part of the adopted development plan. It includes the following two policies of particular relevance which, so far as is material, provide:
"POLICY 19: DEVELOPMENT OUTSIDE DEVELOPMENT BOUNDARIES
Outside Development Boundaries, and subject to Policy GB.1 and policies for site-specific allocations indicated on the Proposals Map and insets, development appropriate to a rural area will be permitted, provided that the proposal relates well to existing development; meets the criteria set out in other relevant policies in the Plan; and would not:
(d) adversely affect the vitality and viability of settlements;"
"POLICY 25: VITALITY AND VIABILITY OF SETTLEMENTS
2. Development that would harm the vitality and viability of the commercial centres will not be permitted. 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:
(a) of need;
(b) that it would not harm vitality and viability; and
(c) that it is accessible by a choice of means of transport."
The National Planning Policy Framework ("NPPF") includes the following:
"24. 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.
26. 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 floor space threshold (if there is no locally set threshold, the default threshold is 2,500 sqm). This should include assessment of
? the impact of the proposal on existing, committed and planned public and private investment in a centre or centres in the catchment area of the proposal; and
? the impact of the proposal on town centre vitality and viability, including local consumer choice and trade in the town centre and wider area, up to five years from the time the application is made. For major schemes where the full impact would not be realised in five years, the impact should also be assessed up to ten years from the time the application is made.
27. Where an application fails to satisfy the sequential test or is likely to have significant adverse impact on one or more of the above factors, it should be refused."
Relevant definitions are set out in Annex 2 of the Framework. These include:
"Out of centre: A location which is not in or on the edge of a centre but not necessarily outside the urban area."
"Out of town: A location out of centre that is outside the existing urban area."
National planning guidance in Planning for Town Centres – Practice Guidance on Need, Impact and the Sequential Approach (DCLG, 2009 ("the Guidance")) includes the following:
"6.37 These terms [for the sequential approach] are defined as:
? Availability – whether sites are available now or are likely to become available for development within a reasonable period of time (determined on the merits of a particular case, having regard to inter alia, the urgency of the need)…
? Suitability – with due regard to the requirements to demonstrate flexibility, whether sites are suitable to accommodate the need or demand which the proposal is intended to meet.
…
i) Availability
6.41 When promoting a proposal on a less sequentially preferable site, it will not be appropriate for a developer or retailer to dismiss a more central location on the basis that it is not available to the developer/retailer in question
ii) Suitability
6.42 When judging the suitability of a site it is necessary to have a proper understanding of scale and form of development needed, and what aspect(s) of the need are intended to be met by the site(s). It is not necessary to demonstrate that a potential town centre or edge of centre site can accommodate precisely the scale and form of development being proposed, but rather to consider what contribution more central sites are able to make, either individually or collectively, to meeting the same requirements."
Legal Principles
This case turns largely upon criticisms of the officers' reports to the Council's Planning Committee, viewed in the light of national and local planning policy. The relevant legal principles relating to such reports are not in issue. They were helpfully summarised recently by Hickinbottom...
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