“1. This application concerns the proposed development of the former South London Hospital for Women, Balham Hill. It was built in the late 1920s and designed by Sir Edwin Cooper. It is close by Clapham South Underground station and Clapham Common. It was closed in 1984. In 1994 Tesco Stores Ltd (“Tesco”) purchased the site, and submitted a scheme for mixed development in 1995, which was refused by Lambeth Borough Council in 1997. An appeal was dismissed in 1998 on the ground that the scheme would fail to enhance the character or appearance of the conservation area in which the site lies, Clapham Conservation Area No. 1. 2. In 1999 Lambeth Borough Council resolved to grant planning permission in the light of a revised application which preserved the façade of the hospital. The applications were called in, and an inquiry was held in April 2000. The Inspector appointed by the Secretary of State to hold the inquiry recommended that both applications for planning permission be refused in a report of February 7, 2001. The Secretary of State for Transport, Local Government and the Regions did not agree with the recommendations of the Inspector and by letter dated December [12], 2001 (“the Decision Letter”) the Secretary of State granted planning permission to Tesco for a food store and 104 flats. 3. In this application made undersection 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) the claimant, Wandsworth London Borough Council “Wandsworth”), which opposed the applications for planning permission, seeks to quash the decision of the Secretary of State. The boundary between Lambeth and Wandsworth is very close to the site. 4. The existing shops and other facilities at Balham Hill are partly within the London Borough of Lambeth and partly in Wandsworth. The whole of the site, save for 16 Cavendish Parade, is within the Clapham Conservation Area No.1. Wandsworth objected to the two applications. The area around the site includes a mix of residential, shopping and service uses. There are parades of shops to both the north and south of the site. Opposite the site is the Clapham South Underground station, which has shop units within it. There are some further shop units in 1-8 Westbury Parade, which adjoins the station. Clapham High Street and Balham town centres are approximately 1 km to the north and south, respectively. In total, there are 78 businesses, including some 50 retail units. 5. The shopping units which lie within Lambeth (1-11 and 17-23 Balham Hill) are identified in the Lambeth Unitary Development Plan as a “Neighbourhood Centre.”
“ – to sustain and enhance the vitality of town centres; – to focus development, especially retail development, in locations where the proximity of businesses facilitates competition from which all consumers are able to benefit and maximises the opportunity to use means of transport other than the car; ....”
“Structure plans and UDP Part 1’s, following consultation with business interests and the local community, should set out the hierarchy of centres and the strategy for the location of employment, shopping, leisure and entertainment, hospitals, higher education and other uses which generate many trips and should be well served by public transport. In particular, the development plan should indicate a range and hierarchy of centres, from city centre, through town centre, district centre to local centres and village centres, where investment in new retail and other development will be promoted and existing provision enhanced. Local planning authorities should, in indicating a hierarchy of centres, recognise that the role, function and relative importance of centres will change over time.”
“1.10 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, district and local centres and only then out-of-centre sites in locations that are accessible by a choice of means of transport. 1.12 The Government recognises that the approach requires flexibility and realism from local planning authorities, developers and retailers. Developers and retailers will need to be more flexible about the format, design and scale of the development, and the amount of car parking, tailoring these to fit the local circumstances. 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. 1.13 Not all centres, particularly small and historic towns, will have sites that are suitable in terms of size, parking, traffic generation or servicing arrangements for large-scale developments in the town centre itself. In such centres, developments should be of a scale appropriate to the size of the centre. There may also be sites in town centres which are currently subject to constraints, such as multiple ownership. Where they are identified as potential sites, local planning authorities should indicate how these constraints could be resolved. 1.14 As sites may become available after the local plan has been adopted, local planning authorities should include criteria-based policies in line with this PPG in their plan. 1.15 This approach should also apply to all key town centre uses which attract a lot of people, including commercial and public offices, entertainment, leisure, and other such uses. These should be encouraged to locate in city, town and district centres. Smaller-scale facilities, such as health centres, branch libraries, local offices of the local authority, primary schools, pubs and restaurants, should be encouraged in local centres.”
“In this guidance, the term “town centre” is used generally to cover city, town and suburban district centres, which provide a broad range of facilities and services, and act as a focus for both the community and for public transport. It excludes small parades of shops of purely local significance. The size of centre will influence the range of activities and its function. The scale of development possible and the opportunities available will differ from place to place. The guidance will need to be interpreted according to the different circumstances of each place. In London and other large cities, outside the central area, the principal shopping centres usually perform the role of town centres and these are usually complemented by district centres.”
“Types of centre Local centre – small grouping usually comprising a newsagent, a general grocery store, a sub-post office, and occasionally a pharmacy, a hairdresser and other small shops of a local nature; District shopping centres – Groups of shops, separate from the town centre, usually containing at least one food supermarket or superstore, and non-retail services such as banks, building societies and restaurants; Town Centre : in this guidance, the terms “town centre” is used generally to cover city, town and traditional suburban centres, which provide a broad range of facilities and services and which fulfil a function as a focus for both the community and for public transport. It excludes small parades of shops of purely local significance. The policy guidance for this PPG should be interpreted in a way that relates reasonably to the particular size of the town centre concerned. In London and other large cities, outside the central area; the principal shopping centres usually perform the role of town centre and these are usually complemented by district centres (see above). Regional shopping centres – Out-of-town centres generally over 50,000 square metres gross retail area, typically enclosing a wide range of comparison goods. Types of location Edge-of-centre; for shopping purposes, a location within easy walking distance (i.e. 200 – 300 metres) of the primary shopping area, often providing parking facilities that serve the centre as well as the store, thus enabling one trip to serve several purposes. For other uses, such as offices or leisure, edge-of-centre may be more extensive, based on how far people would be prepared to walk. For offices, this is likely to be in the region of 500 metres of the station or other public transport interchange. Out-of-Centre; a location that is clearly separate from a town centre, but not necessarily outside the urban area.”
“PPG6 advises that local centres for the purposes of the guidance also constitute town centres and this is confirmed by RPG3 which should be read in conjunction with PPG6 when relating the guidance to London. From Mr Caborn’s February 1999 statement in clarification of PPG6, since the proposed site is within a centre, there is no requirement to demonstrate that the test of need is satisfied (Doc 49). This is especially the case since, as shown by the previous Inspector’s policy analysis, the proposals are in accordance with an up to date development plan strategy. Nevertheless, the test of need is met.”
“4.14 If it were concluded that Balham Hill centre comprises a “small parade of shops of purely local significance” then, having regard to PPG6 and Mr Caborn’s clarification, the proposal would have to be assessed as relating to an out of centre location and there would be a requirement to show need for retail development and to apply a sequential approach. If it were concluded that the centre provides a “broad range of facilities and services and fulfils a function as a focus for both the community and for public transport” then from the PPG6 Annex A definition, the proposal would be for a town centre location and there would be no requirement to show need or to adopt a sequential approach. 4.15 Considered as a whole, this is not the case in either Lambeth of Wandsworth UDP’s, Balham Hill centre comprises a range of some 78 individual businesses including about 50 shops occupying a gross area of some 5,500 sq m and complies with the PPG6 Annex A definition (Docs 85, 97, 88, 115). It is therefore a town centre in PPG6 and RPG3 strategic policy terms and the need and sequential approach requirements do not apply.”
“5.6 The argument that Balham Hill comprises a town centre for the purposes of PPG6, RPG3 and the Caborn statement is not credible. Balham Hill serves local day-to-day needs and is not in any sense a focus for the community. RPG3 does list neighbourhood and local centres in Table 5.2 as a type of London town centre but the preceding paragraphs explain that the descriptions in Tables 5.1 and 5.2 are commended as a basis for considering the future of centres and drafting appropriate policies and proposals in UDPs. They do not appear to be a basis upon which to make development control decisions. 5.7 The central aim of Government policy for shopping is to ensure that the vitality and viability of town centres is sustained and where possible enhanced. The Caborn statement adds to and reinforces this key objective. Balham Hill is not what any reasonable person would call a town centre, even when one considers the Lambeth and Wandsworth sides together. In their land use survey (Docs 87, 88) LB Lambeth tried to show a centre that could possibly accord with RPG3 advice but this involved selecting an area which practically met Balham itself. Balham Hill is, as the last Inspector described it, “a parade of small shops serving very local needs” and is similar to many such collections of shops which have grown up around minor tube stations outside central London.”
“5.10 Mr Caborn’s February 1999 statement adds to PPG6 (Doc 104). It does not change the terminology in Annex A or in the box at the head of Section 2. The first paragraph of the statement makes it clear that the town centres that PPG6 seeks to sustain and enhance are “city, town and district centres”
“8.17 The existing shops and other facilities in Balham Hill lie partly within LB of Lambeth and partly in LB Wandsworth [2.4, 2.9]. There are about 50 retail units, mainly arranged in parades acing onto the A24 [3.34]. Nos. 1-11 & 17-23 Balham Hill, on either side of the application site, are located in LB Lambeth and are designated in Lambeth UDP as a Neighbourhood centre; other UDP designations for shopping centres being Major centres and District centres. Nos. 25-41 & 43-65 Balham Hill, 1-8 Westbury Parade and units in Clapham South Underground station are located in LB Wandsworth. They are without specific identification in the adopted Wandsworth UDP; the range of classifications being Town centres, Local centres and Important local parades. In Wandsworth Deposit Draft UDP the Balham Hill shops are identified as an Important Local Parade [2.27]. 8.18 LB Lambeth argue that in addition to the retail parades the centre of Balham Hill contains a broad range of services and facilities, with a total of 78 individual businesses including the shopping units, and should be regarded as a town centre in RPG3 and PPG6 terms and for the purposes of Mr Caborn’s clarification [4.13-4.16]. The Applicant supported this view, but LB Wandsworth, LPAC, Clapham South Neighbourhood Association and others strongly oppose it [3.37, 5.6, 6.7, 7.6]. 8.19 It appears that in the past LB Lambeth and LB Wandsworth may well have considered their respective parts o Balham Hill separately for UDP preparation and policy purposes, and the use of different classifications is not helpful in assessing its status in the retail hierarchy. It does seem to me, however, that the previous appeals Inspector took a limited view in describing Balham Hill as “a parade of small shops”[5.7]. 8.20 Having regard to RPG3 Tables 5.1 & 5.2 and to LB Lambeth’s estimate of 5,500 sq m of gross floorspace for the total existing retail provision [4.15], as well as its relationship to larger nearby centres, it seems to me that for present purposes Balham Hill as a whole may be in RPG3 terms appropriately be regarded as a Neighbourhood or Local centre. Such centres are described within Table 5.2 under the heading of “Types of London Town Centres” as having traditionally provided local services for local customers. 8.21 PPG6 Annex A advises as to the meaning of town centre, as used in the guidance, and at the start of Section 2 PPG6 states “In London and other large cities, outside the central area, the principal shopping areas usually perform the role of town centres and these are usually complemented by district centres”
“(i) [I]n concluding that the application site was within a centre for the purposes of interpreting PPG6 and the Caborn statement and therefore exempt from the requirement to demonstrate need for the retail development proposed. (ii) [F]urther or alternatively, in failing to apply the Caborn statement properly or at all in recognising that retail purposes in existing centres are exempt from demonstrating need only if need has been taken into account in the development plan. The need for further retail development had not been addressed at all in the adopted Lambeth UDP. (iii) Further or alternatively, in failing adequately or at all to state whether Balham Hill was a town centre in terms of PPG6, RPG3 and the Caborn statement, and if so, why he differed from his Inspector on this fundamental conclusion. (iv) Further or alternatively, in failing to give proper or adequate reasons for his decision not to require the developer to demonstrate retail need and a sequential approach to site selection.”
“20. What is said by Wandsworth in relation to the retail policy issues is: (i) the Secretary of State erred in law in concluding that the application site was within a “centre” for the purposes of applying the approach identified in PPG6 and expanded upon in the Caborn statement; (ii) even if the application site was within a centre for the purposes of PPG6 and the Caborn statement, the Secretary of State should not have concluded that it was exempt from the requirement to demonstrate need, since it had not been the subject of consideration in an up-to-date development plan; (iii) the Secretary of State failed to give adequate reasons for disagreeing with his Inspector, who concluded that Balham Hill was not a town centre in terms of PPG6 and the Caborn statement, and he failed to give proper or adequate grounds for his decision not to require the developer to demonstrate need. In addition, it was suggested that the Secretary of State erred in law in taking into account irrelevant considerations in his determination whether or not there was a retail need for the development.”
“24. The essence of Wandsworth’s complaint is that the Secretary of State wrongly considered that the site was within a town centre in the context of government policy and accordingly that it was not necessary for Tesco to have demonstrated that there was a need for the proposals or that a sequential approach had been taken. The Secretary of State, it is said, gave no reasons for disagreeing with the Inspector’s contrary and reasoned view. As a result the Secretary of State took the view that it was not necessary to demonstrate need and a sequential approach to site selection for these applications. The Secretary of State merely noted that the Inspector concluded that the retail need for the proposals had been adequately demonstrated and that the sequential approach had been followed and satisfied. 25. Wandsworth relies on the fact that, as reflected in PPG6 and the Caborn statement, the central aim of Government policy for shopping is to ensure that the vitality and viability of town centres is sustained and where possible enhanced. Balham Hill serves local day-to-day needs and is not in any sense a focus for the community, and Balham Hill is, as the previous appeals Inspector described it, “a parade of shops serving very local needs” and which the present Inspector said was similar to many such collections of shops which had grown up around minor tube stations outside central London. 26. Accordingly it is argued that the Secretary of State has erred in law in treating such a centre as a town centre for the purposes of PPG6, RPG3 and the Caborn statement because: (a) the “key features” in PPG6 distinguish the promotion of development in town centres from support for local centres; (b) para 1.11 distinguishes town centre sites from district and local centres: “...a sequential approach means the first preference should be for town centre sites, where suitable sites or buildings suitable for conversion are available, followed by edge of centre sites, district and local centres and only then out-of-centre sites in locations that are accessible by a choice of means of transport”; (c) given that the Secretary of State did not state that he disagreed with the Inspector’s conclusions on the role of Balham Hill or the Inspector’s interpretation of PPG6 and RPG3, there was no basis for the Secretary of State to conclude that the site was within a centre for the purposes of interpreting PPG6. On the basis of the Inspector’s conclusions PPG6 was not capable of bearing an interpretation that includes Balham Hill as a “town centre” within the meaning of PPG6 and the Caborn statement.”
“32. Paragraph 3 of the Caborn statement cannot be read in isolation. It identifies the situations in which it is not necessary to demonstrate need and a sequential approach; but the following paragraph identifies when it is necessary, namely for “edge-of-centre” and “out-of-centre” locations. A “neighbourhood or local centre” does not fall within the definition of either an “edge of centre” or an “out-of-centre” location. The reasoning in the Kettering case that nothing on the face of the Caborn statement which confines the phrase “existing centre” to “ a town centre in the narrow sense” applies to the neighbourhood or local centre in the present case. There is nothing in the statement to suggest that the words “existing centre” are confined to any particular form of centre.”
“.... the Secretary of State’s conclusion that Balham Hill, as a ‘Neighbourhood or Local centre”, was an ‘existing centre’ [the expression used in the Caborn statement] was a reasonable interpretation of policy.”
“.... attaching a meaning to the words ‘existing centre’ which, in the context of the other relevant policy documents [i.e. PPG6 and RPG3], those words can properly bear.”
“The result is that once the Secretary of State had found the site to fall within an existing centre for the purposes of the Caborn statement, he was entitled to interpret his own policy so as to find that the question of need did not arise, even though it had not specifically been addressed in the development plan.”
“39. The next group of complaints relate to lack of adequate reasoning. It is said by Wandsworth that the Secretary of State failed to explain: (i) on what basis he concluded that the site is within a centre for the purposes of interpreting PPG6; (ii) on what basis he reached that conclusion, given that he agreed with the Inspector that Balham Hill as a whole might in RPG3 terms be appropriately regarded as a Neighbourhood or Local Centre; (iii) on what basis he reached that conclusion given that the Inspector concluded that that Balham Hill lacked a sufficiently broad range of facilities and services and did not sufficiently serve as a focus for the community for it to be regarded as fulfilling the role of a town centre as envisaged in national guidance for the purposes of applying the Caborn statement; and (iv) his decision not to require the developer to demonstrate need. Wandsworth has been substantially prejudiced by this failure as it cannot be understood on what basis this conclusion has been reason and why the Secretary of State has rejected, if he has, the conclusions and approach of the Inspector. 40. I was referred to the familiar principles on the requirements of reasoning in planning decisions, and the need for prejudice (Bolton Metropolitan Borough Council v. Secretary of State for the Environment(1990) 61 P & CR 343 at 353; Save Britain’s heritage v No 1 Poultry Ltd[1991] 1WLR 153 , 165), but I can deal shortly with this point. If the Secretary of State was entitled to take the view that Balham Hill was an existing centre he did not need to spell out why he disagreed with the Inspector. It is clear that the Secretary of State considered that a neighbourhood centre such as Balham Hill was an “existing centre” for the purposes of interpreting PPG6 and the Caborn statement. To the extent that this interpretation differed from that of the Inspector, the point needed no further explanation. So also, the Inspector having concluded that a demonstration of need was required but also satisfied, it was not necessary for the Secretary of State to spell out why need was not required to be demonstrated, still less to explain why notwithstanding the Caborn statement, it was not necessary to demonstrate it. That follows from the fact that he was entitled to take the view that for existing centres it was not necessary to demonstrate need.”
“4. The essence of Wandsworth’s complaint in this court is not as to the language of the policy documents – ‘existing centre’, ‘town centre’, ‘neighbourhood or local centre’ – but rather that the Secretary of State failed to consider in his decision letter a central part of the case put forward on the merits as to why Balham Hill should not be considered a centre. The judge, it is said, did not deal with that argument. The function or role of Balham Hill had, however, been critical to the Inspector’s reasoning. If the issue were whether the judge was entitled to hold that the Secretary of State was in his turn entitled to the view that as a matter of the language used in the policy documents Balham Hill fell to be regarded as an existing centre, I would agree with Brooke LJ [when] refusing permission that there would really be no prospect of showing that the judge was wrong. But that is not, with respect, really the issue. It is, as I have stated, the Secretary of State’s alleged failure to consider Balham Hill’s function, a failure that stands in sharp contrast, so it is said, with the reasoning of his Inspector. On this issue I have concluded that an appeal is arguable. 5. Mr Morgan .... indicates that that is the whole of his case, and the appeal will no doubt go forward on that basis. ....”
“What is meant by those words an existing centre? Nothing in the [Caborn] statement confines that phrase to a town centre in the narrow sense. Indeed, the phrase being used there is not even an existing town centre but merely an existing centre without indicating what particular type of centre is being referred to. Three paragraphs earlier there is a reference to centres indicating that the Government’s policy is concerned to focus new investment including retail investment in city, town and district centres.”