Telford Trustee No.1 Ltd & Anor, R (on the application of) v Telford and Wrekin Council [2011] EWCA Civ 896

[2011] EWCA Civ 896

Case No C1/2010/2539

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 27/07/2011

Before

LORD JUSTICE WARD

LORD JUSTICE RICHARDS

LORD JUSTICE HUGHES

Between

The Queen (on the application of Telford Trustee No.1 Limited and Telford Trustee No.2 Limited)Claimants

Telford and Wrekin CouncilDefendant

Asda Stores LimitedInterested Party

Christopher Katkowski QC and Christopher Boyle (instructed by Nabarro LLP) for Claimants

Ian Dove QC and Hugh Richards (instructed by Telford and Wrekin Council Legal Department) for Defendant

Jeremy Cahill QC and Satnam Choongh (instructed by Messrs Osborne Clarke) for Interested Party

Hearing Hearing dates : 6-7 July 2011

Judgment

[1]The claimant Trustees own the majority of the land within Telford town centre. The interested party, Asda, occupies a foodstore on part of their land, under a lease which expires in April 2014. The defendant Council, which is also the local planning authority, agreed to sell the nearby site of its Civic Offices to Asda, conditional on the grant of planning permission so as to enable Asda to build a new foodstore on the site: the Council intends to use the proceeds of sale of the site to fund new offices elsewhere in the town. Asda thereafter applied for planning permission for a retail store on the site. The Trustees objected to the application. On 6 January 2010 the Council’s Plan Board (to which I will refer as “the planning committee”) resolved to grant planning permission subject to conditions. The formal grant of planning permission to Asda followed on 11 March 2010.

[2]The Trustees applied for permission to apply for judicial review of the grant of planning permission. By a judgment given on 22 October 2010 (see

[2010] EWHC 3470 (Admin)

), Beatson J refused permission. An application for permission to appeal was considered on the papers by Sullivan LJ who, pursuant to CPR 52.15, granted permission to apply for judicial review on certain grounds and ordered that the case be retained in the Court of Appeal for the hearing of the substantive claim for judicial review. The substantive hearing took place before us on 6-7 July 2011. Since we are effectively considering the matter at first instance, I have included more detail in this judgment than might have been necessary or appropriate on an appeal.

[3]There are three live grounds of claim, namely grounds 1, 2 and 4 (I shall keep the original numbering). Grounds 1 and 2 relate to the adequacy of the Council’s stated reasons for the grant of planning permission. Ground 4 relates to an alleged failure to take into account a material consideration arising out of the private law rights of the Trustees under certain covenants. Sullivan LJ refused permission on ground 3, concerning the adequacy of the environmental statement, and that ground has not been pursued.

The history of the planning application

[4]In August 2009 the Council entered into a contract for the sale of the Civic Offices site to Asda, conditional on the grant of planning permission to Asda for redevelopment of the site. Asda submitted a planning application in mid October 2009.

[5]The Trustees put forward extensive objections to the proposed development. Their representations included letters dated 16 November 2009, 11 December 2009, 14 December 2009 and 4 January 2010, and amounted in total to some 95 pages. They raised a multiplicity of issues. Among the many military metaphors used in the course of argument, Mr Cahill QC, for Asda, described the exercise as one of carpet-bombing the Council.

[6]Asda’s application was due to be considered at a meeting of the planning committee on 16 December 2009 but the matter was adjourned to the meeting on 6 January 2010.

[7]An officers’ report was prepared for members of the planning committee in advance of the meeting on 16 December. Following the adjournment of that meeting the same report, re-dated, was provided for the meeting on 6 January. In addition, the officers prepared an addendum covering information received since preparation of the main report. There were in fact two versions of the addendum: the first simply summarised the information received, whilst the second included the officers’ additional comments and conclusions. My references to the addendum will be to the second version.

[8]At the meeting on 6 January, the officer responsible for handling the application, Mr Gareth Thomas, also made an oral presentation to the members.

[9]The detailed content of the Trustees’ representations, the officers’ reports and the presentation at the meeting are best considered in the context of the reasons challenge under grounds 1 and 2. I should, however, explain at this stage that the issues turn on the application of certain policies in Planning Policy Statement 4: Planning for Sustainable Economic Growth (“PPS4”), which was published and came into effect on 29 December 2009, though a draft had been available for some months. PPS4 superseded the former PPS6. The main officers’ report referred correctly to PPS6, since that was the relevant national policy statement in force at the time when the report was prepared. PPS4 was then dealt with in the addendum to the main report, in time for the meeting of the planning committee on 6 January 2010.

[10]At the meeting on 6 January the planning committee resolved that, “for the reasons set out in the Reasons for the Grant of Permission section of the main report, as amended by replacing the reference to ‘PPS6’ with a reference to ‘PPS4’”, the Head of Planning & Transportation be authorised to grant the Asda planning permission, subject to specified conditions.

[11]In line with that resolution, the formal grant of planning permission on 11 March 2010 contained a statement of reasons identical to that in the main report, save for the substitution of PPS4 for PPS6: “Reasons for grant of planning permission The decision to grant planning permission has been taken having regard to the policies and proposals in the Telford & Wrekin Core Strategy Development Plan Document adopted December 2007 and the ‘saved’ policies in the Wrekin Local Plan 1995-2006 set out below, and to all relevant material considerations, including National and Supplementary Guidance: [There followed a list of policies including, under National Planning Policies, PPS4.] The application has been the subject of an Environmental Statement under the Town & Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. The impacts have been fully assessed by the Local Planning Authority and the conclusions reached that any outstanding environmental effects can be satisfactorily mitigated with the use of planning conditions. The proposed retail store has been fully considered and assessed to be in accordance with guidance in PPS4, the RSS and Core Strategy policies CS3 and CS4. The proposed store is of a suitable scale, mass and design, which respects and responds positively to the site context and surrounding environs, strengthening local identity of Telford Town Centre. The site layout creates and reinforces pedestrian linkages to produce a safe and secure environment in accordance with the urban design policies in the Core Strategy and Wrekin Local Plan. The traffic movements generated by the development can be accommodated without detriment to the highway safety. The layout also provides adequate car parking and bike storage provision. The development will preserve either in-situ or through translocation those trees on the site which are of important value to the visual amenities of the area and reinforce this through additional tree planting and landscaping. Issues of ground conditions, flooding, drainage, ecology, noise and pollution have been fully assessed and it is considered that any impacts can be adequately mitigated through the imposition of suitable conditions. The proposal creates a demand for additional off-site requirement, which can be adequately achieved through planning obligation contributions.”

[There followed a list of policies including, under National Planning Policies, PPS4.]

[12]Running alongside Asda’s application for planning permission on the Civic Offices site was an application by the Trustees, submitted on 11 December 2009, for outline planning permission for a new retail store on part of the Red Oak car park, adjacent to the existing Asda store in the town centre. This was in part, at least, a tactical application aimed at keeping Asda within the town centre and blocking the move to the Civic Offices site. It was in any event, as explained below, directly relevant to the assessment of Asda’s application for planning permission for the Civic Offices site.

[13]Planning permission for the Red Oak site was granted to the Trustees in September 2010. One of the matters to which Mr Katkowski QC drew attention in the course of his submissions on behalf of the Trustees was the contrast between the time taken to decide on the Trustees’ planning application and the speed with which a decision was reached on Asda’s application: as the planning officer, Mr Thomas, put it in a later email, “the Asda application was raced through”. Mr Katkowski was not able, however, to deploy this otherwise than as a jury point. It does not affect the legal issues that the court has to determine.

The reasons challenge

[14]Grounds 1 and 2 both relate to the planning committee’s treatment of PPS4 in the reasons given for the grant of the Asda planning permission. The case for the Trustees is that it was not enough to state that “[t]he proposed retail store has been fully considered and assessed to be in accordance with guidance in PPS4” (see [11] above). PPS4 raised fundamental policy issues concerning the “sequential approach” and “impact assessment” (described later in this judgment) with which it was necessary to engage. In relation to both issues, moreover, the Trustees had advanced detailed representations that the requirements of the relevant policies were not met. In the circumstances it was necessary for the reasons to explain why the proposal was considered to be in accordance with those policies. The failure to do so was a legal error which should lead to the quashing of the grant of planning permission.

[15]In examining that case I propose to look first at the legal principles governing the giving of reasons for the grant of planning permission. After that, I will set out the relevant policies of PPS4 and look in detail at the development of the Trustees’ submissions on grounds 1 and 2 respectively, before turning to my conclusions on the reasons challenge.

Reasons for the grant of planning permission: the legal principles

[16]Although there appeared at first to be little between the parties as to the relevant legal principles, an important difference became apparent in the course of argument.

[17]The duty to give reasons for the grant of planning permission subject to conditions is laid down by article 22(1)(b)(i) of the Town and Country Planning (General Development Procedure) Order 1995, as amended in 2003. Article 22(1) reads:

“22.(1) When the local planning authority give notice of a decision … on an application for planning permission … and – (a) planning permission is granted, the notice shall include a summary of their reasons for the grant and a summary of the policies and proposals in the development plan which are relevant to the decision; (b) planning permission is granted subject to conditions, the notice shall – (i) include a summary of their reasons for the grant together with a summary of the policies and proposals in the development plan which are relevant to the decision to grant permission; and (ii) shall state clearly and precisely their full reasons for each condition imposed, specifying all policies and proposals in the development plan which are relevant to the decision; (c) planning permission is refused, the notice shall state clearly and precisely their full reasons for the refusal, specifying all policies and proposals in the development plan which are relevant to the decision ….” (a) planning permission is granted, the notice shall include a summary of their reasons for the grant and a summary of the policies and proposals in the development plan which are relevant to the decision; (b) planning permission is granted subject to conditions, the notice shall – (i) include a summary of their reasons for the grant together with a summary of the policies and proposals in the development plan which are relevant to the decision to grant permission; and (ii) shall state clearly and precisely their full reasons for each condition imposed, specifying all policies and proposals in the development plan which are relevant to the decision; (c) planning permission is refused, the notice shall state clearly and precisely their full reasons for the refusal, specifying all policies and proposals in the development plan which are relevant to the decision ….”

[18]There is an obvious contrast between the duty to give a summary of the reasons for the grant of permission and the duty to give full reasons for each condition imposed and, in the case of a refusal, for the refusal. The significance of this is picked up in the authorities.

[19]I will start with the decision of the Court of Appeal in R (Siraj) v Kirklees Metropolitan Council

[2010] EWCA Civ 1286

, since the other authorities cited to us on this topic were all at first instance. Siraj concerned a challenge to the grant of planning permission for development in the Green Belt. The relevant national policy, PPG2, laid down a presumption against inappropriate development in the Green Belt and provided that such development should not be approved except in very special circumstances. The decision notice said that the applicant had demonstrated four specified matters “all of which are considered to comprise very special circumstances to justify this inappropriate development in the Green Belt”. The appellant’s challenge was on both substantive and reasons grounds. It was submitted that the council did not ask itself the critical question posed by PPG2; there was no mention of PPG2 in the summary of reasons for the grant; and those summary reasons disclosed no attempt to assess the quality of the four factors which were said to amount to very special circumstances, nor did they consider whether the presumed harm was clearly outweighed by those four factors.

[20]Sullivan LJ, with whom the other members of the court agreed, said at [13] that there was no force in those criticisms, which were based at least in part on a misunderstanding of the role of summary reasons. It was important to bear in mind the contrast in article 22(1) between the requirement to give summary reasons for a grant and the requirement to give full reasons for a refusal. He continued:

“14. A local planning authority's obligation to give summary reasons when granting planning permission is not to be equated with the Secretary of State's obligation to give reasons in a decision letter when allowing or dismissing a planning appeal …. [Referring to South Bucks District Council v Porter (No 2) [2004] UKHL 33, [2004] 1 WLR 1953:] It is important to remember that that case was concerned with the adequacy of reasons in a Secretary of State's decision letter. Although a decision letter should not be interpreted in a vacuum, without regard for example to the arguments that were advanced before the inspector, a decision letter is intended to be a ‘stand-alone’ document which contains a full explanation of the Secretary of State's reasons for allowing or dismissing an appeal. By their very nature a local planning authority's summary reasons for granting planning permission do not present a full account of the local planning authority's decision making process. 15. When considering the adequacy of summary reasons for a grant of planning permission, it is necessary to have regard to the surrounding circumstances. precisely because the reasons are an attempt to summarise the outcome of what has been a more extensive decision making process. For example, a fuller summary of the reasons for granting planning permission may well be necessary where the members have granted planning permission contrary to an officer's recommendation. In those circumstances, a member of the public with an interest in challenging the lawfulness of planning permission will not necessarily be able to ascertain from the officer's report whether, in granting planning permission, the members correctly interpreted the local policies and took all relevant matters into account and disregarded irrelevant matters.16. Where on the other hand the members have followed their officers' recommendation, and there is no indication that they have disagreed with the reasoning in the report which lead to that recommendation, then a relatively brief summary of reasons for the grant of planning permission may well be adequate. Mr Roe referred us to the observations of Collins J in paragraph 28 of his judgment in R (on the application of Midcounties Co-operative Ltd) v Forest of Dean DC [2007] EWHC 1714 (Admin). For my part, I would respectfully endorse the observations of Sir Michael Harrison in paragraphs 47 to 50 of R (Ling)( Bridlington) Limited v East Riding of Yorkshire County Council [2006] EWHC 1604 (Admin).”

[21]Sullivan LJ went on to say that in the case before the court the members had agreed with the officer’s recommendation and there was nothing to suggest that they disagreed with the reasoning in the report that led to that recommendation. The report referred to PPG2 and correctly summarised the key aspect of the policy. Such reports were not to be construed as though they were enactments but were to be read as a whole and in a commonsense manner, bearing in mind that they were addressed to an informed readership (R v. Selby District Council, ex parte Oxton Farms [1997] EGCS 60). No reasonable criticism could be made of the report, and in accepting the officer’s recommendation members were applying the correct test. As to the reasons challenge, Sullivan LJ found at [23]-[24] that it was sufficient to refer to the fact that the applicant had demonstrated the existence of four factors which comprised very special circumstances to justify the inappropriate development in the Green Belt. Those summary reasons sufficiently explained why planning permission was granted, and further analysis was not required.

[22]The passage in the judgment of Sir Michael Harrison in R (Ling)( Bridlington) Limited v East Riding of Yorkshire County Council

[2006] EWHC 1604 (Admin)

which Sullivan LJ expressly endorsed at [16] is to a considerable extent repetitious of points included in Sullivan LJ’s own judgment, but it is nonetheless helpful to set it out:

“47. In considering the adequacy of reasons for the grant of permission there are a number of factors which seem to me to be relevant. The first is the difference in the language of the statutory requirement relating to reasons for the grant of planning permission compared to that relating to the reasons for refusal of planning permission. In the case of a refusal, the notice has to state clearly and precisely the full reasons for the refusal, whereas in the case of a grant the notice only has to include a summary of the reasons for the grant. The difference is stark and significant. It is for that reason that I reject the claimants’ contention that the standard of reasons for a grant of permission should be the same as the standard of reasons for the refusal of permission. 48. Secondly, the statutory language requires a summary of the reasons for the grant of permission. It does not require a summary of the reasons for rejecting objections to the grant of permission. 49. Thirdly, a summary of reasons does not require a summary of reasons for reasons. In other words, it can be shortly stated in appropriate cases. 50. Fourthly, the adequacy of reasons for the grant of permission will depend on the circumstances of each case. The officer’s report to committee will be a relevant consideration. If the officer’s report recommended refusal and the members decided to grant permission, a fuller summary of reasons would be appropriate than would be the case where members had simply followed the officer’s recommendation. In the latter case, a short summary may well be appropriate.”

[23]In R (Tratt) v Horsham District Council

[2007] EWHC 1485 (Admin)

, at [25]-[26], and in R (Midcounties Co-operative Ltd) v Forest of Dean District Council [2007] EWC 1714 (Admin), at [28],Collins J expressed some difficulty with the first two of those factors. In relation to the second factor, he said at [26] of Tratt that reasons in relation to planning decisions must normally deal with the main issues that have been raised; the officer’s report in that case (which concerned a mobile phone mast) indicated that the main issues were need, siting and possible health concerns; and it seemed to Collins J that “the reasons ought at least to have stated, albeit only in a sentence in each case, why those issues have been decided in favour of the Applicants”. In similar vein, at [28] of the Forest of Dean case, he said that he did not accept Sir Michael’s second factor:

“[i]f there have been objections which raise one of the main issues in considering the application, the reasons for rejecting them will equally be reasons for granting permission”

. Sullivan LJ’s judgment in Siraj makes clear, however, that regard is to be had to the factors set out by Sir Michael rather than to the conflicting views expressed by Collins J.

[24]That point is of potential importance for the present case, since Mr Katkowski contended, as explained in greater detail below, that the Trustees were entitled to be told in the summary reasons not just that the proposal had been assessed to be in accordance with PPS4, but why the proposal had been found to be in accordance with the relevant policies in PPS4. His submissions placed substantial weight on the passage in Tratt where Collins J said that the reasons ought to state why the main issues have been decided in favour of the applicant for planning permission. He also relied on a passage in the judgment of Ouseley J in R (Midcounties Co-operative Ltd) v Wyre Forest District Council

[2009] EWHC 964 (Admin)

, at [190], where

the judge said that the fundamental test was:

“can an interested person see why planning permission is granted and what conclusion was reached on the principal issues?”

(emphasis added). It seems to me, however, that those submissions place more weight on the passages in Tratt and the Wyre Forest case than they can properly bear in the light of the principles set out and approved in Siraj. One must not lose sight of the fact that the statutory requirement is to give a summary of the reasons for the grant of planning permission, not a summary of the reasons for rejecting an objector’s representations (even on a principal issue) or a summary of reasons for reasons.

[25]For completeness I should also mention the decision of the Court of Appeal in Smith v Cotswold District Council

[2007] EWCA Civ 1341

, which Mr Katkowski cited in his skeleton argument as approving what Collins J said in Tratt about the need for reasons to state why the main issues have been decided in favour of the applicant. Smith was a challenge to the grant of planning permission. The judge at first instance rejected an irrationality argument as unarguable, held that the reasons for the grant were arguably inadequate, but refused permission on the ground of delay. The grounds of appeal related only to the decision on delay. The court took the view, however, that in the absence of a challenge to the judge’s finding on the irrationality issue a mere reasons challenge was pointless. May LJ referred to passages in the judgment of Sullivan J (as he then was) in R (Wall) v Brighton and Hove City Council

[2004] EWHC 2582 (Admin)

[2005] 1 P&CR 566

, concerning the exercise of the court’s discretion to quash for inadequacy of reasons; and to Collins J’s statement in Tratt at [31] that “[i]t is clearly a relevant consideration in exercising discretion in a reasons challenge whether there has been prejudice and perhaps more importantly whether there is a possibility that there might, having regard to all the circumstances, be a different decision were the matter to be reconsidered”. May LJ continued:

“16. I would adopt and approve the principles to be found both in Wall and Tratt, but I do not consider that in the present case there is any real possibility that there might be a different decision if the council were required to give proper reasons ….”

Similarly, Sir Anthony Clarke MR referred at [18] to the court’s discretion to quash a planning permission for failure to give reasons that comply with article 22 and stated that “[t]he principles applicable to the exercise of that discretion are, in my opinion, those set out in the case of Wall and Tratt, to which May LJ has referred”.

[26]It is clear that the court in Smith was endorsing Tratt only in so far as it related to the principles governing the exercise of the discretion to quash for failure to give adequate reasons. What is required by way of reasons in order to comply with article 22 was not the subject of the appeal or of any, or any reasoned, consideration by the court. I am therefore satisfied that nothing in Smith conflicts with or casts doubt on the judgment of Sullivan LJ in Siraj. It does not give Mr Katkowski any support.

[27]With that lengthy introduction I can turn to consider the way the reasons challenge was developed on the particular facts of this case.

The relevant policies in PPS4

[28]PPS4 contains a number of directly relevant policies. It is convenient to start with policy EC17, which lays down that an application should be refused if it does not comply with the requirements of the sequential approach or the impact assessment:

“EC17.1 Planning applications for main town centre uses that are not in an existing centre and not in accordance with an up to date development plan should be refused planning permission where: (a) the applicant has not demonstrated compliance with the requirements [of] the sequential approach (policy EC15); or (b) there is clear evidence that the proposal is likely to lead to significant adverse impacts in terms of any one of impacts set out in policies EC10.2 and 16.1 (the impact assessment), taking account of the likely cumulative effect of recent permissions, developments under construction and completed developments. EC17.2 Where no significant adverse impacts have been identified under policies EC10.2 and 16.1, planning applications should be determined by taking account of: (a) the positive and negative impacts of the proposal in terms of policies EC10.2 and 16.1 and any other material considerations ….” (a) the applicant has not demonstrated compliance with the requirements [of] the sequential approach (policy EC15); or (b) there is clear evidence that the proposal is likely to lead to significant adverse impacts in terms of any one of impacts set out in policies EC10.2 and 16.1 (the impact assessment), taking account of the likely cumulative effect of recent permissions, developments under construction and completed developments. (a) the positive and negative impacts of the proposal in terms of policies EC10.2 and 16.1 and any other material considerations ….”

[29]It is common ground that the policy applied in this case and that both the sequential approach and the impact assessment fell to be considered. The existing Asda foodstore is located within the Box Road surrounding Telford town centre, as defined for retail purposes. It is an in-centre location and is also within the primary shopping centre (“the PSA”). The Civic Offices site is just outside the Box Road and is technically an edge of centre location and outside the PSA. The planning application was for a main town centre use as defined in PPS4 and was not in accordance with an up to date development plan.

[30]As to the sequential approach, policy EC14.3 provides that a sequential assessment under policy EC15 is required in such a case. Policy EC15 reads: “EC15.1 In considering sequential assessments required under policy EC14.3, local planning authorities should:(a) ensure that sites are assessed for their availability, suitability and viability;

(b) ensure that all in-centre options have been thoroughly assessed before less central sites are considered;

(c) ensure that where it has been demonstrated that there are no town centre sites to accommodate a proposed development, preference is given to edge of centre locations which are well connected to the centre by means of easy pedestrian access;

(d) ensure that in considering sites in or on the edge of existing centres, developers and operators have demonstrated flexibility in terms of: (i) scale …; (ii) format …; (iii) car parking provision …; and (iv) the scope for disaggregating specific parts of a retail or leisure development …. EC15.2 In considering whether flexibility has been demonstrated under policy EC15.1.d above, local planning authorities should take into account any genuine difficulties which the applicant can demonstrate are likely to occur in operating the proposed business model from a sequentially preferable site ….” (a) ensure that sites are assessed for their availability, suitability and viability; (b) ensure that all in-centre options have been thoroughly assessed before less central sites are considered; (c) ensure that where it has been demonstrated that there are no town centre sites to accommodate a proposed development, preference is given to edge of centre locations which are well connected to the centre by means of easy pedestrian access; (d) ensure that in considering sites in or on the edge of existing centres, developers and operators have demonstrated flexibility in terms of: (i) scale …; (ii) format …; (iii) car parking provision …; and (iv) the scope for disaggregating specific parts of a retail or leisure development ….

[31]The Secretary of State has issued Practice Guidance in respect of PPS4. The document has no special statutory status but may fall to be taken into account as a material consideration. We were referred to a passage at paras 6.38-6.41 concerning the “availability” of a site, but I do not think that it is of sufficient importance to merit detailed consideration here.

[32]As to the impact assessment, the relevant requirements are those set out in policy EC16.1, which reads:

“EC16.1 Planning applications for main town centres uses that are not in a centre (unless EC16.1.e applies) and not in accordance with an up to date development plan should be assessed against the following impacts on centres: (a) 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; (b) the impact of the proposal on town centre vitality and viability, including local consumer choice and the range and quality of the comparison and convenience retail offer; … (d) in the context of a retail or leisure proposal, the impact of the proposal on in-centre trade/turnover and on trade in the wider area, taking account of current and future consumer expenditure capacity in the catchment area up to five years from the time the application is made …; (e) if located in or on the edge of a town centre, whether the proposal is of appropriate scale (in terms of gross floorspace) in relation to the size of the centre and its role in the hierarchy of centres ….” (a) 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; (b) the impact of the proposal on town centre vitality and viability, including local consumer choice and the range and quality of the comparison and convenience retail offer; … (d) in the context of a retail or leisure proposal, the impact of the proposal on in-centre trade/turnover and on trade in the wider area, taking account of current and future consumer expenditure capacity in the catchment area up to five years from the time the application is made …; (e) if located in or on the edge of a town centre, whether the proposal is of appropriate scale (in terms of gross floorspace) in relation to the size of the centre and its role in the hierarchy of centres ….”

[33]As already mentioned, those provisions of PPS4 superseded policy guidance contained in the former PPS6. Their effect was to reinforce the “town centre first” approach. An important change was the statement in policy EC17.1 that a planning application “should be refused” for non-compliance with the requirements as to sequential approach or impact assessment. PPS6 had contained no such provision, though its policies were of course material considerations and non-compliance with them was a potential reason for refusal of a planning application. A further substantial difference was that the criterion in PPS6 as to the “need” for a development was replaced by a tougher impact assessment under PPS4. Save for those matters, it was common ground between counsel that the differences were ones of “nuance”, with no material bearing on the issues before the court.

The Trustee’s case on the sequential approach (ground 1)

[34]Ground 1 concerns compliance with the sequential approach. The effect of policies EC15 and EC17.1(a) is that an application for an edge of centre development should be refused if a suitable and viable in-centre site is available. The Civic Offices site was an edge of centre site. The Red Oak car park, the site of the foodstore development proposed by the Trustees, was an in-centre site. If the Red Oak site was suitable, viable and available, it was sequentially preferable to the Civic Offices site, with the consequence that Asda’s application for planning permission in respect of the Civic Offices site should be refused.

[35]The suitability of the Red Oak site for foodstore development was not in issue. Asda, however, disputed its viability and availability. Asda relied on the fact that under the lease of its current store the Trustees were obliged to maintain 600 car parking spaces in the Red Oak car park. It contended that a new foodstore could not be built on the Red Oak site without reducing the number of car parking spaces far below 600 and causing a significant disruption of Asda’s trade because of the effect on its customers’ ability to park close to the store during the construction period; so that Asda could and would block the development until the expiry of the lease in April 2014.

[36]The Trustees countered this(a) by reference to a “car parking strategy” which indicated how parking demand from Asda shoppers would be met during and after construction, and

(b) by the submission that it would be unreasonable for the Council to take account of a retailer using its temporary control of a sequentially preferable site to block the viability and availability of that site and so to allow the self-same retailer to escape the force of the sequential approach. The car parking strategy was in fact put forward in support of the Trustees’ own application in respect of the Red Oak site, but it was also relied on in representations against Asda’s application in respect of the Civic Offices site. It is unnecessary to engage with the merits of the document, but I note in passing that it did not obviously undermine Asda’s case. For example, it indicated that the worst-case scenario during the construction phase of the Red Oak development “would provide in the region of 259 spaces at Red Oak car park for a maximum period of 8 months”; and whilst it said that demand for the existing Asda store would be accommodated within the Red Oak car park and the Ash Grey car park (located on the other side of the store), it did not deal with the relative convenience of the Ash Grey car park for Asda shoppers.

[37]The main officers’ report to the planning committee dealt at some length with the sequential approach. It was drafted before receipt of the car parking strategy and it was cast in terms of PPS6 rather than PPS4 because the former was still in force at the time, but it summarised the competing arguments about the Red Oak site as follows:

“… The Red Oak car park and the Ash Grey car park formed part of the applicant’s sequential assessment, both of which are sequentially preferable to the application site. In relation to the Red Oak CP, the applicant considers that this would not be a viable proposition as the development of a new store at this location would have practical and economic impact on the current Asda which would need continuity of operation whilst the new store is built, effectively on a large part of ‘their’ car park. Not surprisingly, the objectors who are keen to bring forward their own scheme for the Red Oak car park maintain that this site is readily available and that the applicants have failed to clearly demonstrate its lack of availability and suitability in compliance with PPS6 test. This is an important point as the objectors have commented that active discussions did take place between themselves and Asda and that it was the Council’s intervention in bringing forward the Civic site that has threatened future investment in the PSA. Moreover the objectors consider that continuity of operation is not an unfamiliar phenomenon in other town centres and is, in any event, not a planning issue. The Council has to consider whether the two sequentially preferable sites in terms of PPS6 are genuinely available, suitable and viable. Taking the larger Red Oak car park site first, there appears to be a major constraint to the development of this site in that Asda would be able to block the early development of Red Oak. The existing lease between Asda and the owners of the Shopping Centre obliges the Trustees to maintain 600 parking spaces on the Red Oak car park during the period of the lease. Whilst the Red Oak CP site is closer to the heart of the centre (‘PSA’) and sequentially preferable and suitable, this site would not be available until 2014 at the earliest given Asda’s current leasehold arrangements. Turning to the question of viability, it is acknowledged that the particular set of circumstances arising within the Telford Town Centre is unusual in that it is Asda who is proposing the development and who are already within the town centre and have control over the Red Oak car park until 2014. In order for the Red Oak site to be viable in PPS6 terms, its redevelopment must be practicable to the end user, the applicant. The viability or ‘practicability’ of this site at the Red Oak car park coming forward is dependent upon agreement by Asda at least until 2014. Paragraph 3.16 of PPS6 highlights that LPAs should take into account genuine difficulties that the applicant can demonstrate are likely to encounter in operating the applicant’s business model from sequentially preferable sites. Asda is unlikely to enter into any agreement with the owners of the Shopping Centre that brings forward the Red Oak site before 2014 as to do so would cause significant disruption to Asda, which would jeopardise their business at Telford, possibly irretrievably. Your officers conclude therefore that the Red Oak car park site is not viable as Asda has provided evidence to demonstrate that the business model could not operate viably from this site.”

[38]It was in subsequent correspondence, in particular in their letters of 14 December 2009 and 4 January 2010, that the Trustees developed their arguments that the proposed foodstore could be built on the Red Oak site without serious disruption of trade at Asda’s existing store (for which purpose they drew attention to the car parking strategy) and that it would be unreasonable and contrary to policy to allow Asda to block the early development of the Red Oak site. Those representations were summarised in the addendum to the main report. The officers’ additional comments on the relevant part of the letter of 14 December 2009 included this:

“For reasons stated in the main report, the Red Oak Car Park site forms part of the present Asda store’s car park, the extent of which would be significantly diminished during building operations and result in unacceptable trading impacts on the existing Asda supermarket, a key anchor to the town centre. Asda maintain that current lease arrangements would prevent the Trustees from starting on the store until 2014.”

[39]The addendum went on to refer to the substance of the car parking strategy as part of the summary of the letter of 4 January 2010. The additional comments which followed that summary included this:

“The principal matters raised … are rebutted specifically in comments above. Where not specifically rebutted, it is your officers’ view that none of the points raised are of sufficient concern to cause either a delay in the determination of the applications or to refuse the applications.”

[40]The various comments in the addendum also drew attention to PPS4, which was by this time in force, and described it as a relevant consideration of considerable weight. This was also picked up in the conclusions, which dealt with matters in terms of PPS4:

“The matter of the new PPS4 is an important additional material planning consideration for Members and must be given full weight …. [T]he Red Oak Car Park site must be regarded as being sequentially preferable to the Asda site in planning terms and if granted planning permission would complement the town centre retail offer within the PSA. However, there is sufficient headroom retail capacity for more than one large food supermarket in the town centre. Even if it is assumed that the Red Oak Car Park site application is granted planning permission, there is no good reason on planning grounds to refuse planning permission for the Asda proposals currently being considered. In addition, the Red Oak Car Park site cannot be considered to be available until 2014, at the earliest, in the event of Asda remaining in occupation in their present store. This is to be assumed if planning permission is refused for their current application. The Red Oak Car Park site is therefore not ‘available’ within the meaning of PPS4 and the recently published (Dec 2009) PPS4 Practice Guide (which supersedes PPS6), having regard to the local circumstances of Telford. To wait some 4 years or more for a new food supermarket to replace the current inadequate Asda store is considered excessive by Officers. Reasons include the significant retail and other planning benefits brought about by the Asda development going ahead at an early stage, as set out in the main report, especially the early stemming of leakage from Telford Town Centre including to unsustainable out of town retail locations, the fact that subject to planning permission being granted Asda is committed to going ahead, and the significant benefits of regeneration of the Town Centre which are likely to be triggered by the new Asda edge of centre development which is likely to act as a catalyst for further development within and adjacent to the town centre.”

[41]In the speaking notes of Mr Thomas, the planning officer, for the meeting of the planning committee on 6 January 2010, the comment in the addendum on the letter of 14 December 2009 was annotated in manuscript to read:

“Despite the objector’s proposals to properly manage the car park during construction of new store at Red Oak, size of new car park would be significantly diminished during building operations and result in unacceptable trading impacts …”

. The passage relating to the car parking strategy was likewise annotated with a comment to the effect that disruption from the building works and the inconvenience of the Ash Grey car park would undermine Asda’s trade. Mr Thomas says in his witness statement that he recalls advising members of the planning committee along those lines at the meeting. There is a dispute as to what he actually said at the meeting, but in my view the court has no proper basis for rejecting his evidence on the matter.

[42]Against that background I turn to consider Mr Katkowski’s submissions on this ground. First and foremost, he submitted that the statement that the proposed retail store had been assessed to be in accordance with PPS4 was not sufficient and that the reasons were plainly defective. They should have dealt with the sequential approach, the fact that the Red Oak site was sequentially preferable, and why (if indeed this was the view of members) it was considered not to be viable or available. This was a principal issue arising out of the requirements of PPS4 itself and the representations received.

[43]He submitted further that the officers’ reports did not “assuage” the informed reader’s fear that members had failed to consider the issue of viability and availability of the sequentially preferable site properly or at all. The reports did not deal adequately with the arguments advanced by the Trustees. In particular, although at a late stage they mentioned the car parking strategy, they did not grapple with the points raised by it or explain why the points were considered to be bad ones.

[44]When it was put to Mr Katkowski in argument that the Trustees could have mounted a substantive challenge by reference to the matters set out in the officers’ report, he submitted that the giving of adequate reasons came first. The duty to give reasons should operate as a discipline on the decision-making process, forcing the members to give proper consideration to the points raised. Moreover, the Trustees were entitled to adequate reasons so to enable them to reach an informed decision on whether grounds existed for a substantive challenge.

[45]Mr Katkowski sought to illustrate this in his reply, by reference to a number of “permutations” that were said to arise out of the submissions of Mr Dove QC and Mr Cahill QC for the Council and Asda respectively. The first permutation was that reliance had been placed by the members of the planning committee on the existence of sufficient “headroom” retail capacity to support new foodstores both on the Civic Offices site and on the Red Oak site: I need not go into the detail of this point, but it is touched on in the conclusions to the addendum report which I have quoted at [43] above. Mr Katkowski said that if the members relied on that, it would have involved a fundamental misunderstanding of the “town centre first” approach in PPS4 and would not have been a proper basis for finding compliance with the relevant policies. The second permutation was that members took the view that Asda was entitled to control the Red Oak site by virtue of the covenant relating to car-parking spaces and that the site was therefore not available. That, in Mr Katkowski’s submission, would have involved a failure to give proper consideration to the requirement of flexibility in policy EC15.1(d)(iii) and EC15.2. The third permutation was that the car parking strategy was considered to be irrelevant. Mr Katkowski said that this would have given a substantive ground of challenge for reasons again relating to the requirement of flexibility. The fourth permutation was a finding that the disruption caused by development on the Red Oak site would be so great that it would cause Asda to close. But if that was the view taken by members, then in Mr Katkowski’s submission it would again have been necessary to see how they overcame the car parking strategy (and he pointed out that Asda’s arguments about disruption of trade were not considered sufficient to prevent the subsequent grant of the Trustee’s application for planning permission for the Red Oak site). Mr Katkowski emphasised that the reasons actually given tell us nothing as to whether the members reasoned along the lines of any of these permutations: the points were made by him in order to show the need for fuller reasons.

The Trustees’ case on the impact assessment (ground 2)

[46]Ground 2 concerns the requirement in policy EC16.1 to undertake a retail impact assessment, and the provision in policy EC17.1(b) that an application for an edge of centre development should be refused where there is clear evidence that the proposal is likely to lead to significant adverse effects in terms of any one of the impacts set out in policy EC16.1, especially “the impact of the proposal on town centre vitality and viability, including local consumer choice and the range and quality of the comparison and convenience retail offer”.

[47]This raised, among other matters, the question whether Asda’s move to the Civic Offices site would have significant adverse effects in terms of impact on town centre vitality and viability. Attention was focused for this purpose on what would happen to Asda’s existing store after Asda had moved. Asda’s own figures showed that unless the store was re-occupied by a similar retailer, the town centre would lose some 71 per cent of its “convenience” expenditure (i.e. expenditure on food or similar). The Trustees ridiculed the suggestion that the store would be occupied by another food retailer and contended that Asda’s relocation would therefore plainly have a significant impact on the town centre.

[48]The main officers’ report referred, in the context of “quantitative need” (an issue arising directly under the previously applicable PPS6 but not under PPS4), to a retail study, the White Young Green or “WYG” study, which had been prepared in support of the Council’s own core strategy. This was said to show that there was headroom capacity “more than sufficient to accommodate the proposed new store and the re-occupied Asda store” and to leave yet further headroom for additional convenience provision should future proposals come forward. This was picked up to some extent in the section of the report dealing with retail impacts, which included the following:

“… Further analysis of trade draw has been undertaken to ascertain the likely impacts arising, particularly on the town centre should planning permission be granted for this development. This assessment has to assume that the existing Asda store within the Shopping Centre is re-occupied for it to be realistic in terms of impact on the town centre. The conclusions suggest that the proposed new foodstore would draw trade from Sainsbury’s (31%) followed by other convenience shops in the Town Centre (Iceland and M&S Foodhall) (24%) and then Donnington Wood Asda and Tesco Extra at the Wrekin Retail Park (9% each). … In terms of the Town Centre itself the principal objectors stress that the new Asda store’s trade diversion would mean £5m less being spent in the PSA. This is correct but only if the proposed store failed to function as part of Telford Town Centre i.e. as an out of centre/town stand alone store. The applicant has strongly countered this by arguing that the evidence from retail analysis and shoppers’ surveys would suggest that the proposal would function as part of the town centre …. The objectors believe that retail impact considerations put forward in the application are flawed. They claim that the loss of Asda from its current location would be unlikely to result in that store’s re-occupation by a national food retailer thus causing detriment to the vitality and viability of the town centre …. There is a degree of conflict between the evidence put forward by the applicant and that submitted by the objectors, who presumably can refer to up-to-date evidence of what’s actually happening on the ground. But your officers believe that there is a quantitative need for additional capacity to be provided in the convenience sector going forward and that arguments about the current economic climate do not alter the fact that we are planning for a period well beyond the present recession …. In relation to impacts on the Town Centre, there is a compelling argument to suggest that in order to secure the best outcome for the town centre the local planning authority should support the relocation of Asda to a new purpose built store without disruption and then pave the way for the redevelopment of the Red Oak car park site and existing Asda store for further retailing which the quantitative analysis shows is needed. The alternative – the ‘do nothing approach’ – would slow down retail growth in the town centre and the regeneration opportunities would be diminished, at least up to 2014 and possibly beyond. Your officers are satisfied that the evidence provided by the applicant and supported by the Council’s WYG Study would suggest that the proposal will not harm the vitality and viability of the town centre in terms of retail impact. It is accepted that the proposal would function as part of the town centre retail offer, provide for linked trips and serve the needs of the local community thus encouraging social inclusion ….”

[49]In the addendum to the report, additional comments on the Trustees’ representations of 14 December 2009 included this:

“Retail impact: it is a matter of conjecture whether by developing at the Civic, it would reduce the prospects of the site at Red Oak CP attracting a quality supermarket operator. No evidence has been submitted that would demonstrate that this would be the case. The Council’s evidence however suggests that there is sufficient retail capacity for more than one new large supermarket store - the role of planning is to not protect existing businesses but rather to bring forward sites that meet proven need and at the most appropriate and sustainable locations. The retail impact of two large supermarkets would be acceptable.”

A little later, in the context of “retail vacancies”, it was observed that Asda’s relocation “would moreover release the present Asda store to be converted to comparison [i.e. non-food] goods retailing – a probable outcome should the Trustees’ proposals for Red Oak Car Park be supported”.

[50]The addendum’s summary of the Trustees’ representations of 4 January 2010 included the points that PPS4 no longer required evidence of need but placed greater emphasis on impact on town centres; that PPS4 recognised that significant trade diversion from the town centre could seriously undermine vitality/viability; and that “Trustees maintain that it will not be possible to attract a new anchor to the centre”. These matters were covered by the general comment, already quoted in the context of the sequential approach, that the points had either been specifically rebutted in previous comments or were not of sufficient concern to cause delay or refusal of the application. The conclusions set out in the addendum, including what was said about the beneficial consequences for the town centre of Asda’s development on the Civic Offices site, have also been quoted and do not need to be repeated.

[51]From Mr Thomas’s speaking notes for the meeting on 6 January 2010, it seems likely that he told members that he remained of the view that the existing Asda store would be available “for other convenience/comparison shopping”.

[52]Mr Katkowski’s submissions on this ground were along the same lines as for ground 1. He submitted that that it was plainly inadequate to state in the reasons that the proposed retail store had been assessed to be in accordance with PPS4. The reasons should have dealt with the impact assessment and whether the existing Asda store in the town centre would be re-occupied. Again, this was a principal issue arising out of the requirements of PPS4 and the representations received.

[53]Here, too, Mr Katkowski submitted that the officers’ reports did not solve the problem: they did not grapple with the Trustees’ points sufficiently to equip members with the key information they needed to make their decision. This was covered further in his reply, where he again sought to illustrate, by reference to a number of “permutations”, the need for fuller reasons both as a discipline for the decision-making process and so as to enable the Trustees to decide whether there was a basis for a substantive challenge. The first permutation was that the members found that the existing Asda store would be re-occupied by a food retailer. This, he submitted, would have provided a ground of substantive challenge, since all the evidence was the other way. The second permutation was that there was considered to be sufficient headroom for two supermarkets. Mr Katkowski made the very similar submission that this would have provided a substantive ground of challenge because the Trustees’ evidence was that other supermarket operators would not take up the existing store (or the Red Oak site) if Asda was trading across the road. The third permutation was a finding that the existing Asda store would be occupied by a comparison retailer. On that basis, said Mr Katkowski, there would be a 71 per cent drop in food retailing in the town centre, which on any view would be a significant adverse impact; and if a significant adverse impact in any one respect was established, policy EC17.1 required that the application be refused. The fourth permutation was a finding that the overall effect on the town centre would be beneficial. In Mr Katkowski’s submission, this would suffer from the same problem as the third: once a significant adverse impact was established, policy EC17.1 required that the application be refused; the balancing of positive and negative impacts under policy EC17.2 would arise only where no significant adverse impacts had been identified. As in the context of the sequential approach, these various matters were advanced as showing the underlying difficulties concerning the application and the need for fuller reasons.

The reasons challenge: discussion and conclusion

[54]I have considered the reasons challenge by reference to the discussion of legal principles at [16]-[26] above, which I do not repeat. This is a case where the members of the planning committee followed the recommendation in the officers’ report and adopted the statement of reasons set out in that report. There is nothing to suggest that they departed in any way from the reasoning in the report. These are circumstances where, as Sullivan LJ put it in Siraj at [16], “a relatively brief summary of reasons for the grant of planning permission may well be adequate”. In my judgment, the relatively brief summary actually given was indeed adequate to comply with the statutory requirement.

[55]Although the focus of the argument before this court has been on PPS4, there were several other relevant polices and numerous other matters to which attention was directed in the representations received by the Council. The statement of reasons needed to cover the whole ground in summary form. It did so, and I do not accept that it adopted a materially fuller approach towards other matters than it did towards PPS4.

[56]In relation to PPS4 the key point, as it seems to me, is that the reasons made clear that the planning committee accepted, in line with the officers’ report, that the proposal was in accordance with the policy statement (as distinct from a finding that the proposal failed to comply with PPS4 but that a departure from the policy statement was justified by other material considerations). In accepting that the proposal was in accordance with PPS4, the committee necessarily accepted that the requirements of the sequential approach and of the impact assessment, as set out in policies EC14-EC17, were met. There was no need for the summary to spell that out in terms: to have done so would have added nothing of substance.

[57]If one asks why planning permission was granted, then the answer which is apparent on the face of the summary reasons is that it was granted because, so far as material, the proposal was assessed to be in accordance with PPS4. If one goes on to ask whyit was assessed to be in accordance with PPS4, and in particular why it was assessed to meet the requirements of the sequential approach and the impact assessment, one is drawn ineluctably into the giving of reasons for reasons and/or the giving of reasons for rejecting the Trustees’ objections. I am wholly unpersuaded that, in the circumstances of this case, it was necessary for the Council to go down that route in order to fulfil the requirement to give a summary of the reasons for the grant of planning permission.

[58]It is relevant that the officers’ report had dealt at length with the considerations material both to the sequential approach and to the impact assessment. The report shows the reasoning that underlay the planning committee’s acceptance that the proposal was in accordance with PPS4. If the report disclosed legal errors, it was open to the Trustees to rely on those errors by way of substantive challenge to the decision to grant planning permission. It was a striking feature of the hearing before us that a great deal of time was spent on the detail of the officers’ report and the legal validity of strands of reasoning contained in it or developed in argument by reference to it. In my judgment, the submissions pointed not towards the need for fuller reasons for the grant of planning permission but towards the conclusion that it was open to the Trustees to mount a substantive challenge on the basis of the existing material if they considered their criticisms of that material to be sustainable. I do not accept that the summary of reasons, viewed in the light of the officers’ report, left the Trustees in the dark or provided an insufficient basis for them to decide whether a substantive challenge was available to them.

[59]It seemed to me, I hope not unfairly, that the Trustees’ contention that a fuller summary was needed had a slightly disingenuous ring to it. What added to that impression was that it became plain during argument that the Trustees’ objective was not to be given a fuller statement of the reasons for the decision already taken but to secure a reconsideration of the planning application, in the hope that the members of the committee, faced with the need to give fuller reasons, might reach a different decision.

[60]In any event, I am satisfied that the summary of reasons given for the grant of planning permission in this case was adequate to comply with the duty imposed by article 22(1)(b)(i) of Town and Country Planning (General Development Procedure) Order 1995 as amended and that the Trustees’ case on grounds 1 and 2 should be rejected.

Ground 4: the Trustees’ private law rights

[61]Ground 4 is of an entirely different character from grounds 1 and 2. It concerns an issue of private rights arising out of certain covenants that restrict use of the Civic Offices site to office use and require approval of any alteration to the land. The covenants are expressed as being for the benefit of the Telford Development Corporation and its successors in title. The Trustees had been aware of the existence of the covenants and their enforceability by the Homes and Communities Agency (as a successor to the Telford Development Corporation) and had referred to the point in their representations on Asda’s application for planning permission. But it was not until some months after the grant of the planning permission that they realised that they too were in a position to enforce the covenants, as successors to the Telford Development Corporation in respect of certain land benefiting from the covenants.

[62]The effect of s.237 of the Town and Country Planning Act 1990 is that where land has been appropriated by a local planning authority for planning purposes, a development on that land in accordance with planning permission is authorised notwithstanding that it is in breach of private rights; but compensation is payable by the local authority in respect of that breach. On realising that they were in a position to enforce the covenants and that the development on the Civic Offices site would be in breach of their private rights, the Trustees obtained valuation advice as to the compensation that would be payable to them by the Council pursuant to s.237. This is said to have produced a figure of over £40 million by way of compensation.

[63]The Trustees accept that issues concerning private law rights would not normally be material to a planning decision, but they contend that in this case they were material, given the reliance in the planning officers’ report on the timing of delivery of the new Asda store relative to the April 2014 expiry of the lease for Asda’s existing store, and also on Asda’s ability to block the Red Oak development until April 2014 by virtue of its own private law rights under the lease. The Trustees argue that the need to pay compensation of the order of £40 million would delay or render impossible the Council’s own move from the Civic Office site and would thereby put at risk the delivery of the new Asda store by the time of expiry of the lease for the existing store, thus undermining a key part of the rationale for accepting Asda’s case for planning permission.

[64]An obvious difficulty in the way of that line of argument is that it was not raised by the Trustees until well after the Asda planning permission was granted. The Trustees seek to get round that difficulty by pointing to information that was in the possession of the Council’s Cabinet (but not of the planning officers or the members of the planning committee) prior to the decision to grant planning permission. A witness statement of Mr David Sidaway, the Council’s Head of Property & ICT, explains that prior to entering into the conditional contract for sale of the Civic Offices site to Asda in August 2009, the Council obtained valuation advice as to the likely compensation payable to anyone with the benefit of the covenants, which included the Trustees among others. The valuation advice confirmed that the likely level of compensation was in the region of £250,000 in total. On this basis the conditional contract for sale was entered into. Mr Sidaway states that the planning officers were not aware of the issue because, as far as he was concerned, the property department had already to its full satisfaction resolved the issue. He adds that even had it continued to be a live issue it would not have been raised with the planning officers, because this would have contravened strict separation arrangements – a “Chinese wall” – which had been established so as to ensure that the interests of the Council as landowner were not permitted to influence the decisions it took as local planning authority.

[65]Mr Katkowski submitted that, since the Council, at the level of Cabinet government, knew of the Trustees’ ability to enforce the covenants, it was under a duty to draw the issue to the attention of the planning officers and planning committee. Had that been done, it would have had to be done publicly and mention would have been made of it in the officers’ report. That, in turn, would have alerted the Trustees to the point and would have enabled them to obtain their valuation advice, which, as it turned out, was to the effect that the compensation payable would be over £40 million rather than in the region of £250,000. This would have been a material consideration for the planning committee. By taking the decision in ignorance of the point, the committee failed to take into account a material consideration.

[66]I do not accept the validity of that process of reasoning, and in my view ground 4 lacks substance.

[67]The only basis on which the payment of compensation under s.237 could have given rise to a material consideration for the purposes of the planning decision was if the level of compensation was so high that it might operate to prevent or delay the Council’s move from the Civic Offices site and, therefore, the development of Asda’s new store on that site. Compensation in the region of £40 million might have had that effect, but compensation in the region of £250,000 was plainly incapable of doing so. The Council had been advised that the lower figure was applicable, and in the light of that advice it was willing to enter into the conditional contract for the sale of the site to Asda. That remained the Council’s understanding of the position as at the date when planning permission was granted. It follows that there is no basis for saying that the payment of compensation ought to have been drawn to the attention of the planning committee at that time as a material consideration: on the information then available, it was a consideration of no consequence whatsoever. Equally, there is no basis for saying that by taking its decision in ignorance of the point the planning committee failed to take into account a material consideration.

[68]At all material times, moreover, the issue of compensation was there for the Trustees to take. They knew about the covenants and referred to the enforceability of the covenants by the Homes and Communities Agency, but they failed to spot that they themselves enjoyed rights under the covenants, with the result that they failed to take advice about the level of compensation payable to them. If the figure of £40 million should have been raised sooner, the fault lies with the Trustees, not with the Council, and the failure to consider the point is not a legitimate ground of challenge to the decision of the planning committee.

[69]I should make clear that I see nothing wrong in itself with the erection of a Chinese wall within the Council, so as to ensure that the Council’s interests as landowner had no improper influence on the planning decision and, more generally, to protect against any appearance of bias. Whether the Council’s Cabinet would have been under a duty to draw the issue of compensation to the attention of the planning officers and members of the planning committee if the potential figure had been thought to be in the region of £40 million is an entirely hypothetical question which I do not need to consider. On the facts as they were, I am satisfied that no duty arose.

[70]It may be that the compensation issue is irrelevant for a further reason. On the face of it the Council, having entered into a contract for the sale of the Civic Offices site to Asda, conditional on the grant of planning permission, has assumed the risk in relation to compensation under s.237 and cannot back out or delay the sale in the event that the level of compensation turns out to be higher than expected. But it would be wrong to reach any firm conclusion on this point without considering the full terms of the contract, which are not before the court.

Disposal

[71]For the reasons given I would dismiss the claim for judicial review.

[72]I agree.

[73]I also agree.