The Midcounties Co-Operative Ltd, R (On the Application Of) v Forest of Dean District Council, Court of Appeal - Administrative Court, August 04, 2017, [2017] EWHC 2056 (Admin)

Issuing Organization:Administrative Court
Actores:The Midcounties Co-Operative Ltd, R (On the Application Of) v Forest of Dean District Council
Resolution Date:August 04, 2017
 
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Neutral Citation Number: [2017] EWHC 2056 (Admin)

Case No: CO/6220/2016

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Bristol Civil Justice Centre

2 Redcliff Street

Bristol BS1 6GR

Date: 04/08/2017

Before :

THE HONOURABLE MR JUSTICE SINGH

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Between :

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Mr James Maurici QC (instructed by Gowling WLG (UK) LLP) for the Claimant

Mr Vincent Fraser QC (instructed by the Solicitor to the Council) for the Defendant

The Interested Party did not appear and was not represented at the hearing.

Hearing dates: 21 and 22 June 2017

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Approved Judgment

Mr Justice Singh :

Draft 4 August 2017 10:29 Page 11

  1. In this claim for judicial review the Claimant, which is the owner of a supermarket in the town centre of Coleford, Gloucestershire, challenges the planning permission granted by the Defendant on 27 October 2016 to the Interested Party (``Aldi'') for the development of a discount food store, car parking and landscaping on land at Tufthorn Avenue, Coleford (``the Site'').

  2. Permission to bring this claim for judicial review was granted by me after an oral hearing on 14 March 2017.

  3. The Site lies within the settlement boundary of Coleford but outside the town centre. On 28 October 2014 Aldi had made an earlier application for planning permission for a similar store on the Site. On 15 July 2015 the Defendant, which is the local planning authority for the area, refused that application.

  4. On 23 May 2016 Aldi made a further application for planning permission to develop a store with a few minor modifications. The proposal had slightly reduced car parking. The gross area of the store would be slightly larger but the net floor space would be the same. On 13 September 2016 the Defendant's planning committee was deadlocked and so referred the planning application to the full Council.

  5. On 20 October 2016 the full Council considered the planning application and resolved to grant permission. That permission was formally granted on 27 October 2016 and is the subject of the present challenge.

    Factual Background

  6. The Site is approximately 0.91 ha in area and is undeveloped. It is identified as an employment site in the Defendant's Core Strategy and is allocated for employment-generating uses in the Council's emerging Allocations Plan. The Site is also identified as an employment site by a saved Local Plan policy, which the Allocations Plan will replace.

  7. When the Defendant refused the 2014 application for planning permission on 15 July 2015 it gave the following two reasons:

    ``01. By reason of the scale of the store proposed and location outside the defined town centre boundary, it would have a significant harmful impact upon the vitality and viability of Coleford Town Centre contrary to the aims and objectives of paragraph 27 of the NPPF [National Planning Policy Framework], paragraphs 13-18 of PPG - Ensuring the Vitality of Town Centres and Policy CSP.14 of the Core Strategy.

  8. The application site is not sequentially preferable to a known suitable, available and viable alternative site within the town centre. Accordingly the proposal is contrary to the aims and objectives of paragraph 27 of the NPPF and Policy CSP.14 of the Core Strategy.''

  9. That reference to an alternative site within the town centre was a reference to a site adjacent to Lord's Hill and Pyart Court (``the Lord's Hill Site''). That site is located within the defined town centre boundary. It benefits from an extant planning permission (granted in October 2013) for a food store, although the proposed operator (Tesco) pulled out of the development in late 2014 for financial reasons. The Lord's Hill Site is identified for retail use in the emerging Allocations Plan (draft policy AP54).

  10. It was common ground before me that the differences between the applications for planning permission in 2014 and 2016 were minor and that, consequently, the two applications were virtually identical. The minor differences were that:

    i) the gross floor space was 14 sq m greater;

    ii) the canopy over the main entrance lobby was enclosed;

    iii) the total number of parking spaces was reduced by two to 121.

  11. In support of the 2016 application there was submitted further information on behalf of Aldi. This included a viability appraisal for each of four alternative site layouts, two of which had been submitted previously in support of the 2014 application. The information also included a Planning and Retail Assessment (``PRA'') prepared by Turley Associates Limited in May 2016.

  12. The Claimant's agent (Richard Holmes) objected to the 2016 application by emailed letters dated 13 June and 19 July 2016.

  13. The Defendant instructed its own independent consultants, GVA Grimley Limited (``GVA'') to review the retail planning policy aspects of the 2016 application. GVA gave advice in writing dated 22 August 2016.

  14. The Council's officers prepared a report for the Planning Committee. It recommended refusal for the same reasons as the refusal in July 2015.

  15. Aldi then made further representations dated 7 September 2016, supported by a written opinion from counsel (Neil Cameron QC). Those documents were reported to the Planning Committee in an update to the Officers' Report.

  16. At a meeting of the Defendant's Planning Committee on 13 September 2016, neither a motion for refusal nor a subsequent motion for granting planning permission could gain a majority vote. Accordingly the Committee referred the planning application to the full Council.

  17. On 17 October 2016 the Claimant sent the Council a written opinion by Gwion Lewis.

  18. On 20 October 2016 an email was sent by Wendy Jackson, the Council's Regeneration Manager.

  19. The Council's officers also circulated an update report before the full Council meeting on 20 October 2016. They continued to recommend refusal of the planning application for the same two reasons as before.

  20. At its meeting on 20 October 2016 the full Council voted to grant planning permission (31 votes were in favour, 5 were against, with 6 members of the Council abstaining). The full Council set out its reasons in a resolution in the following terms:

    ``(a) It would recoup trade that had previously been lost to Coleford.

    (b) It would increase employment.

    (c) The Site was accessible and well connected to the town centre.

    (d) The sequential test fails because the town centre site was not comparable or suitable for the broad type of development.

    (e) It would add retail choice.

    (f) It would support economic regeneration.

    (g) It was sustainable development.''

  21. It was common ground before me that, although the resolution said at sub-para. (d) that the sequential test ``fails'', in fact what was meant was ``passes.''

  22. On 27 October 2016 the Defendant formally granted planning permission in accordance with its resolution.

    Officers' Reports22. In preparation for the planning committee meeting on 13 September 2016 there was provided to members an Officers' Report. This was later updated in preparation for the meeting of the full Council on 20 October 2016.

  23. The relevant parts of the Report begin at page 76. The Site was considered by the Report in Section 3.

  24. After setting out a description of the proposal at paragraph 1 and of the Site at para. 2 and the planning history at para. 3, it was noted at the end of para. 1 that:

    ``Revised information has been submitted regarding the sequential test and retail impact.''

  25. At para. 4 of the Report a summary was provided of the Applicant's representations. These included a reference to the Planning and Retail Assessment.

  26. Para. 4 of the Report ended with the following:

    ``The Retail Assessment demonstrates that the proposal is in accordance with planning policy at all levels, including key policy tests of impact and the sequential approach to site selection. It confirms that there are no other sites within sequentially preferable locations elsewhere that should be considered appropriate. As the scale of development falls under the 2,500 sq.m. threshold for retail impact assessment, such an assessment is not required in this instance. However, a proportionate impact assessment has been undertaken in any case. The store proposal will deliver a number of major benefits to the Coleford area and the wider community, including the provision of a new limited assortment discount food store, providing increased retail competition and providing the local community with access to affordable, healthy and fresh produce; major employment/economic benefits in terms of construction and retail jobs; reduced unemployment within the area; increased retention of expenditure; and reduced vehicle shopping miles. The application proposal accords fully with the aims and objectives of planning policy towards retail development and there is no policy reason why permission should be withheld.''

  27. That summary was an accurate and fair summary of the conclusions reached by Turley Associates Limited in its Retail Assessment of May 2016, in particular in the conclusions set out at Section 8 of that Report.

  28. Para. 7 of the Officers' Report set out their evaluation by reference to the issues identified in bullet points at the beginning of that paragraph. Those issues included:

    (1) the principle of development;

    (2) the sequential test; and

    (3) retail impact.

  29. In relation to (1) the principle of development, the Report concluded that the proposed development was contrary to the aims and objectives of policy CSP.14 of the Core Strategy. This is because policy CSP.14 ``supports the provision of up to an additional 1200 sq.m. of convenience goods floor-space and 1300 sq.m. of comparison goods floor-space within the town centre. It does not make any allowance for such facilities to be located elsewhere in Coleford, be this edge of centre or outside of the town centre.''

  30. In relation to (2), the sequential test, the Report took the view that, with regards to flexibility on the part of Aldi (or rather what the Officers considered...

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