IN THE HIGH COURT OF JUSTICE NO: CO/5113/98
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Monday 28th June 1999
B e f o r e:
MR JUSTICE DYSON
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R e g i n a
ST EDMUNDSBURY BOROUGH COUNCIL
EX PARTE DAVIDSON
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Computer-Aided Transcript of the stenograph notes of
Smith Bernal Reporting Limited,
180 Fleet Street, London EC4A 2HG
Telephone No: 0171 421 4040 Fax No: 0171 404 1424
(Official Shorthand Writers to the Court)
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MR DOUGLAS EDWARDS (instructed by Richard Buxton, 40 Clarendon Street, Cambridge CB1 1JX) appeared on behalf of the Appellant
MR NEIL KING (instructed by St Edmundsbury Borough Council, PO Box 122, St Edmundsbury House, Western Way, Bury St Edmunds, Suffolk IP33 3YS) appeared on behalf of the Respondent
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J U D G M E N T
(As approved by the Court)
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Monday 28th June 1999
MR JUSTICE DYSON: This is a challenge to planning decisions by the Respondent Council made on 8th and 22nd December 1998. With the consent of the parties and Simons Estates Limited (an interested party), I am treating this application for leave to apply for judicial review as the hearing of the substantive application.
The decisions under challenge are the refusal by the Council on 8th December to reconsider a resolution of the Planning Committee to grant conditional planning consent, inter alia, for a multiplex cinema on land known as the Parkway site Bury St Edmunds, and a conditional planning consent granted by the Council to Simons Estates Limited on 22nd December 1998 authorising the multiplex cinema.
Consideration by the Council of the provision of a multiplex cinema at Bury St Edmunds dates back to 1986. Two suitable sites were identified: the Parkway site and what is known as the Cattle Market site. Part of the Cattle Market site was subject to a lease and occupied for the operation of a livestock market by Lacey Scott, who are auctioneers. The Council is the freehold owner of most of the Cattle Market site and the whole of the Parkway site.
By an Officers' report dated 9th October 1996, which was presented to the Policy and Resources Committee of the Council, the suitability of the two sites was considered. Of the Cattle Market site, the report stated at paragraph 5.2.4:
"Clearly the site would be a suitable location for a multi-screen cinema development. However, the site has a complex history and any proposal for development will require extensive and involved consideration. The development of part of this site would have the following disadvantages:
(a) It is premature to consider development on this site. By considering this proposal in isolation, the Borough Council could actually frustrate the achievement of wider aspirations for the future development of the town.
(b) Any development proposal on the Cattle Market site would raise the issue of the operation of the Livestock Market. To maintain the operation of this facility, the immediate development options would be limited to the St Andrews Street (South) frontage or the Prospect Row car park. The St Andrews Street (South) frontage is the most obvious and natural focus for the consideration of retail development in the future. Development on the Prospect Row car park may prejudice the future form and nature of development of the site. Furthermore, this part of the site offers limited frontage for a multi-screen cinema.
(c) The Council would need to involve a third landowning party in the negotiations.
(d) Having regard to the range of current uses for the site, land ownership issues and the high level of public interest in any development on the Cattle Market site, it is unlikely that a development of this nature could proceed without considerable delay."
At paragraph 6, the Officers set out their conclusions. At 6.1 they stated:
"... and the Cattle Market site, which is a suitable location, could not be developed in the near future without frustrating wider expectations for this site.
6.2 On the above assessment your officers consider that the Parkway site is the most suitable location..."
Despite that recommendation, the Council decided to instruct the Officers to consider both sites further. Accordingly, development briefs were prepared for both sites.
The Officers consulted the public and reported back to the Committee on 6th February 1997. They reported that there was public support for both sites. For the reasons given, which included car parking considerations, the Officers considered in their report on balance that the Parkway site should be selected. This recommendation was accepted. Simons Estates Limited was selected as developer, and that company submitted a planning application for the development of the Parkway site. The application was the subject of a report, which was considered by the Committee on 5th November 1998.
Important to the background of this consideration was central government guidance contained in PPG6, which provided that local planning authorities should adopt a sequential approach to planning permission for town centre and retail development. This is explained in PPG6 at paragraphs 1.8 to 1.17 inclusive. 1.10 provides:
"In drawing up their development plans, local planning authorities should, after considering the need for new development, adopt a sequential approach to selecting sites for new retail development. Both local planning authorities and developers selecting sites for development should be able to demonstrate that all potential town centre options have been thoroughly assessed before less central sites are considered for development for key town centre uses. If, however, there is no need or capacity for further developments, there will be no need to identify additional sites in the town.
1.11 Adopting a sequential approach means that first preference should be for town centre sites, where suitable sites or buildings suitable for conversion are available, followed by edge-of-centre sites...
1.12 ... Local planning authorities should be sensitive to the needs of retailers and other town centre businesses and identify, in consultation with the private sector, sites that are suitable, viable for the proposed use and likely to become available within a reasonable period of time."
The need to apply PPG6 in general and the sequential test in particular was recognised by the Officers in the preparation of their report for the meeting of 5th November 1998. The critical passage in that report appears at page 12, where the Officers consider the suitability of the site:
"The availability of centrally located sites within Bury St Edmunds, capable of accommodating the proposed development, is recognised as being limited. Prior to the Planning Committee accepting the Parkway car park as the preferred site for a multiplex, a number of other potential sites were investigated, to which a sequential test analysis was applied. Of the sites investigated, only the Cattle Market and the current application site were deemed to be acceptable and of an appropriate size.
Although the Cattle Market area fulfilled the requirements of being within the town centre defined in the Local Plan and allocated for redevelopment (including leisure uses), a working party has only now been established to consider the future of this important parcel of land. It has a key role to play in the evolution of the town. However, there is concern that piecemeal proposals would be premature with the possibility that the strategic redevelopment of the site in an accepted and coordinated manner may be frustrated. Prior to embarking on redevelopment proposals for the Cattle Market area, it will be most important for the Council to have fully determined the potential prospects for the site. This will necessitate extensive consultation, and it is unrealistic to assume that the site would come forward in the short term.
In sequential test terms, the Parkway surface car park is considered to be edge-of-centre. It lies outside and to the west of the designated town centre, but has a town centre function providing long-stay car parking that serves the central core. The Planning Committee has considered previously the principle of developing the site in the manner proposed. Those discussions resolved that the Parkway surface car park be pursued in preference to a location on the Cattle Market. Members felt that this was the most centrally located site which could accommodate a multi-screen cinema and which, unlike the Cattle Market Site, could be available to a developer within a reasonable period of time. The application follows on from that earlier decision and the release of an approved Development Brief.
NB. In selecting the Parkway site as being appropriate for a multiplex development, the Council has applied fully the sequential approach to site selection as detailed in PPG6. It has recognised that the town centre should be the first preferred location, and has considered the potential of the Cattle Market option. An alternative edge-of-centre location that was suitable, viable for the proposed use and which would be available within a reasonable period of time was identified only after it was concluded that the Cattle Market site was not readily available for development."
On 6th November it was announced that the Cattle Market would cease to operate as from 16th December and that Messrs Lacey Scott would shortly surrender their lease of the site. Control of the Cattle Market site would thereafter revert to the Council.
This revelation prompted a letter from Mr Richard Buxton, Solicitor acting on behalf of the Applicant, to the Council. He stated, inter alia, as follows:
"... I understand that the Council resolved to grant permission on the premise that the Cattle Market site, the preferred site for a multiplex development, was not available. I understand it has now become available. It is therefore imperative that the Council reconsider its decision to grant permission. Failure to do so would be unlawful."
The reply to that letter on 8th December lies at the heart of this case. It was written by Ms Bowes, Head of Legal Services for the Council. She says:
"Thank you for your letter of 4th December enclosing a copy of your letter of the same date to the Chief Planning Officer.
You are in error to think that the Council 'resolved to grant permission [for the Parkway Site] on the premise that the Cattle Market site ... was not available'. The Council, in its capacity as Local Planning Authority, had before it an application which it considered on the planning merits. The resolution to grant consent was made because the proposals were acceptable in planning terms in their own right, including the test of sequential development, and there is no reference to the availability of any other site.
This would have been the case even had the Council had before it two applications in different locations. It is not the function of a Local Planning Authority to adjudicate between competing applications, because the test is absolute not comparative: if both are acceptable on planning grounds then consent must be granted to both. An acceptable application cannot be rendered unacceptable by the alleged 'superiority' of another.
It is not reasonable to expect the Local Planning Authority to reconsider its decision in the light of the potential availability of the Cattle Market site, upon which the permutations of potential development are numerous and for which there is no proposal in existence. To do so would in my view leave the Authority open to challenge from the developers who have a legitimate expectation that their consent can now be issued."
It is common ground that: (1) it was open to the Council to reconsider its resolution to grant planning permission in respect of the Parkway site development, and (2) the availability of alternative sites was a consideration relevant to the determination of the planning application since the majority of the Parkway site lay outside the town centre, as defined in the local plan, and the PPG6 sequential approach needed to be applied.
On behalf of the Applicant, Mr Edwards submits that the Council's refusal to reconsider its resolution following the notification of the surrender of the tenancy at the Cattle Market site was unlawful. He argues that the surrender amounted to a material change of circumstances which required the issue to be reconsidered. The availability of the Cattle Market site as an alternative location for development of a multiplex cinema was a material consideration. Mr Edwards also makes a number of detailed criticisms of the Council's letter of 8th December.
On behalf of the Council, Mr King submits that the overriding or main reason why on 5th November 1998 the Council resolved to grant planning permission for the development of the Parkway site was because the Cattle Market site was not readily available for anything other than an unacceptably piecemeal development. Accordingly, the fact that part of the Cattle Market site was subject to a tenancy was immaterial to the Committee's decision of 5th November, so that the subsequent surrender of the tenancy could not be a material consideration justifying a reappraisal of the resolution.
Although one of the reasons for the decision of 5th November 1998 was a reluctance to sanction a piecemeal development of the Cattle Market site, I am satisfied that it was not the only reason for the decision. I do not find it possible on the material before me to place the reasons in order of priority, still less to state with any precision how important each reason was in the minds of the members of the Committee. The only councillor who has given evidence is Councillor Lockwood. He states that the Council voted "by a very narrow margin" to grant permission for a cinema on a Parkway site. He states that what appears to have been the determining factor in favour of the Parkway site was the car parking advantages of that site over the Cattle Market site. Those advantages were considered in detail by the Officers in their report of 6th February 1997, which assumed the continuing operation of the livestock market. As Councillor Lockwood puts it at paragraph 8 of his affidavit, the effect of the auctioneers giving up their space on the Cattle Market site was "at minimum, to free up substantial potential car parking space there".
Paragraph 5.2.4 of the report of 9th October 1996 identifies four disadvantages of development of part of the Cattle Market site, of which one is the concern that piecemeal development could frustrate the future development of the town. The second relates to the issue of the continuing operation of the livestock market which, in the opinion of the Officers, would be prejudicial to the proposed development in a number of respects. Paragraph 5.2.4(d) states that, having regard, inter alia, to the range of "current uses", it is unlikely that a development of this nature could proceed without considerable delay. The reference to "current uses" must at least include the use for a livestock market.
It is true that, as Mr King points out, in their conclusions, the Officers say of the Cattle Market site that it "could not be developed in the near future without frustrating wider expectations for this site". This would appear to be a reference to the objection based on piecemeal development. But paragraph 5.2.4 in the body of the report plainly identifies four separate disadvantages of the Cattle Market site.
As we have already seen, the suitability of the Cattle Market site is also discussed in the report of November 1998. Reflecting the language of paragraph 1.12 of PPG6 the Officers stated that the Cattle Market site was not readily available for development since it was unrealistic to assume that it would come forward in the short term. Mr King submits that the Officers were saying that the site would not be available within a reasonable time solely because piecemeal development was opposed and a coordinated comprehensive development of the whole site could not take place in the short term. Mr Edwards submits that the Officers must also have had had in mind the other matters raised in the October 1996 report, as well as the car parking issues referred to in the February 1997 report and mentioned in Councillor Lockwood's affidavit.
The October 1996 report was referred to in the November 1998 report. There is no record of the discussion that took place at the Committee meeting of 5th November 1998 save for what is stated by Councillor Lockwood. I do not consider that the report of 5th November requires me to find that the only, or even necessarily the main, reason why the Committee decided (if it did so decide) that the Cattle Market site was not readily available for development was because that development would be piecemeal and, on that account, unacceptable. Councillor Lockwood thought that the main issue was car parking. Other issues had been raised in October 1996. Quite apart from other considerations, as a matter of ordinary language, that part of the Cattle Market site that was let to the livestock market was not available for the development because it was occupied by the auctioneers.
I now turn to the letter of 8th December 1998. I confess to having difficulty in understanding the first sentence of the second paragraph. The Council resolved to grant planning permission on the basis of the report of 5th November 1998. That report stated in terms that the Cattle Market site was "not readily available for development". Moreover, the concluding words - "and there is no reference to the availability of any other site" - cannot be right. The availability of the Cattle Market site was referred to. The third paragraph of the letter is at best, from the Council's point of view, hypothetical and irrelevant. In a very real sense, the sequential test in PPG6 did require the Council to make comparisons between the two sites. The fourth paragraph refers to the "potential availability" when the site was now actually available. The reference to a challenge based on legitimate expectation is ill-founded (see R v Yeovil Corporation, Ex Parte Trustees of Elim Pentecostal Church  70 LGR 142.
In my view, once the auctioneers decided to close down the livestock market and surrender the tenancy at the Cattle Market site there was a material change of circumstances, and a number of the objections identified in the report of October 1996 ceased to apply. One major objection remained, namely the problem of piecemeal development. But it seems to me that, in the changed circumstances, the Council should have reconsidered the application of PPG6 afresh. Had they done so, they might well have decided to confirm the decision of 5th November 1998, but in my view they were required to consider the matter afresh.
Accordingly this application succeeds.
MR EDWARDS: I am much obliged, my Lord. On the question of costs, first of all, my client is legally aided in this matter and I would ask for legal aid taxation in any event. I would also ask my client's costs be met by the Council in this matter, although a procedural difficulty arises in this regard in terms of summary assessment. As this matter was originally listed as a leave hearing, neither myself, nor for that matter Mr King's clients, have prepared a schedule.
MR JUSTICE DYSON: I think it is my understanding that where a successful party is legally aided that a summary assessment would not apply.
MR EDWARDS: That may be so.
THE ASSOCIATE: That is correct.
MR JUSTICE DYSON: So I think all I say is there should be a legal aid assessment of your costs; and, subject to Mr King, that the respondent should pay your costs, which should be the subject of a detailed assessment.
MR EDWARDS: I am much obliged.
MR JUSTICE DYSON: Mr King.
MR KING: My Lord, I cannot resist that. Could I, however, ask your Lordship for leave to appeal? I am asking because no decision has been taken yet on whether the Council wants to appeal and therefore I need to try to cover the position in the event that they decide they do want to.
MR JUSTICE DYSON: Yes, of course. What are the grounds apart from that I am wrong?
MR EDWARDS: My Lord...
MR JUSTICE DYSON: This does turn upon a close analysis of these rather difficult documents.
MR KING: I have to accept that from the way both I argued the case and from your Lordship's judgment. I cannot really add anything to the argument that I put earlier.
MR JUSTICE DYSON: You put it very clearly, Mr King, but I do not think it is a case in which I shall give leave. I will fill in the appropriate form and it will be passed to the parties.
MR EDWARDS: I am obliged to your Lordship.