IKEA Properties v First Secretary of State [2005] EWHC 208 (Admin)

Case No CO/4370/2004[2005] EWHC 208 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday, 18 th February 2005
B e f o r e:
THE HONOURABLE MR JUSTICE ELIAS
Between
IKEA PROPERTIESClaimantFIRST SECRETARY OF STATEDefendant
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Christopher Katkowski Q.C.(instructed by Shoosmiths for Claimant)Miss Nathalie Lieven (instructed by Treasury Solicitors for Defendant)
Judgment

Introduction

[1]Under the provisions of Section 288 of the Town & Country Planning Act 1990, the Claimant [“IKEA”] challenges the decision of the Defendant [“the FSS”] given by a decision letter dated 2nd August 2004 [“DL”] whereby he refused planning permission for the construction (inter alia) of a 28,000 sq.m. IKEA store on the former Thomas Storey site, Tiviot Way in Stockport.[2]The planning application was originally made in September 1999. In July 2001 the FSS called-in the application for his own determination. A public inquiry was held in January 2002 and the local planning authority, Stockport MBC [“the Council”], gave evidence in support of the proposals; no-one gave evidence in opposition. The (first) Inspector, Mrs. Hesketh, recommended that permission should be granted. By a decision letter dated 30th October 2002 the FSS disagreed and refused permission. IKEA challenged this decision; the FSS consented to the decision being quashed, and it was quashed by an Order of this Court dated 7th February 2003. The reasons for the decision being quashed had nothing to do with the first Inspector’s report. There were no complaints about that. It was connected with errors in the decision letter.[3]The public inquiry was re-opened with a different (second) Inspector, Mr. Cookson, in November 2003, and the Council again gave evidence in support of the proposal; no one gave evidence in opposition. The second Inspector recommended that permission should be refused. The FSS agreed. It is plain that when a decision is quashed and the inspector again sets up an inquiry, this is a reopening of the original inquiry and not strictly a second and distinct inquiry: see the Town and Country Planning (Inquiries Procedure) (England) Rules 2000 Rule 19. The FSS cannot simply ignore the evidence received at the initial stage.[4]The scope of the reopened inquiry will depend on the range of matters which the Secretary of State requests the Inspector to consider. In this case it covered very much the same matters as the first Inspector had been required to consider. There were, however, certain matters which the first Inspector dealt with which were not the subject of the second inquiry. These included matters relating to, for example, appearance and landscaping, but the FSS did not find against IKEA on any of these grounds and therefore nothing turns on this. The reopened inquiry also had to deal with certain developments that had occurred following the first Inspectors report such as the McNulty statement which I return to consider below.[5]To put the issues in this case extremely briefly, IKEA were contending that their proposal constituted a sub regional retail store that would attract customers within the Stockport region. They had considered alternative sites within that area. They contended that this proposal was in line with the emerging development plans and that the Unitary Development Plan (“UDP”) should be given little weight since it was largely now spent. The FSS disagreed. His conclusion, which in most but not all respects was consistent with the conclusions of the second Inspector, was that the catchment area for the store would extend well beyond the Stockport region. Accordingly, the analysis of appropriate sites should also have considered sites which might more appropriately serve that wider catchment area. He considered that there would be certain benefits from the proposal but that the objections outweighed them. He also took the view that the adopted UDP was the touchstone against which the development should be assessed, whereas the emerging plan should be given very little weight. On that basis the proposal was not in accordance with the UDP.[6]In the last paragraph of his “Overall Conclusions” the FSS concluded that: “Having weighed up the issues, the Secretary of State has concluded that the objections he has identified to the location and scale of the proposed store and the inadequacy of the sequential approach outweigh the benefits of the proposal and indicate that he should determine the application in line with the development plan.” [DL 41][7]There are several distinct grounds of challenge. They have in fact been whittled down and Mr Katkowski Q.C. Counsel for IKEA, did not pursue before me some of the matters which were in the original grounds of challenge. They are still nonetheless extensive and in a number of ways interrelate. Mr Katkowski submits that in substance this is a reasons challenge although that characterisation does not deal with all the matters he has raised. In particular, he has contended that there a certain matters which the FSS has taken into account or failed to consider and that on occasions his approach to the issues before him have been wrong as a matter of law. These various Wednesbury heads tend of course to run into each other.[8]The decision letter was dated 2nd August 2004. Such is the range of the grounds of appeal in this matter that they touch upon most of the paragraphs in the DL. In the circumstances rather than overload the body of this judgment with an extensive quotation from the DL, I have set out material paragraphs (DL 12 – 41) as an appendix to this judgment.[9]The law in this case is not in dispute. Ms Lieven, counsel for the FSS, helpfully set out a number of propositions, which were not disputed by Mr Katkowski. I summarise them briefly as follows: 1. A challenge under s.288 should only be brought on the grounds of error of law either on the basis that the decision is not within the powers of the 1990 Act (s.288(1)(b)(i)) or that there has been a failure to comply with relevant requirements (s.288(1)(b)(ii)). 2. The weight to be attached to any particular piece of evidence is a matter for the decision maker and not the court. As Lord Hoffmann put it in Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759 (HL) at p.780G-H:
“The law has always made a clear distinction between the question of whether something is a material consideration and the weight it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority…… If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State.” 3. The interpretation of policy is a matter for the decision maker, so long as the words of the policy allow that meaning: R v Derbyshire CC ex p Woods [1997] JPL 958 (CA) at 967-968 per Brooke LJ (with whom Sir John Balcombe and Butler-Sloss LJ agreed). 4. The decision letter should be read as a whole and not as an examination paper. Further, it should be read as by an informed reader who will be aware of the issues involved: South Somerset DC v Secretary of State for the Environment [1993] 1 PLR 80 (CA) at p.83 per Hoffman LJ; see also South Bucks DC v Porter (No 2) [2004] 1 WLR 1953 (HL) per Lord Brown at paragraphs 26 and 35. 5. The reasons should be read in a straight forward way, without excessive legalism or exegetical sophistication: see the observations of Sir Thomas Bingham MR in Clarke Homes v Secretary of State for the Environment (1993) 66 P&CR 263 (CA), para 33. His Lordship added that if there is a reasons challenge, the court should only interfere if it is left with a “genuine and not merely a forensic doubt “ as to what the Minister has decided and why. A useful synthesis of the relevant authorities, adverting to some of the principles to which I have made reference, is found in the speech of Lord Brown in the SouthBucks case. He summarised the relevant law thus: “35. It may perhaps help at this point to attempt some broad summary of the authorities governing the proper approach to a reasons challenge in the planning context. Clearly what follows cannot be regarded as definitive or exhaustive nor, I fear, will it avoid all need for future citation of authority. It should, however, serve to focus the reader’s attention on the main considerations to have in mind when contemplating a reasons challenge and if generally its tendency is to discourage such challenges I for one would count that a benefit. 36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matters or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”

The grounds of challenge

[10]As I have indicated, there are numerous interrelated grounds of challenge. They can, I think, usefully be considered under four heads. First, IKEA contends that the FSS erred in law in failing to make any reference, except in the most cursory way, to the recommendations and conclusions of the first Inspector. It is said that as a consequence he failed satisfactorily to address certain controversial issues in the case. Second, it is said that the FSS also failed properly to analyse the objections to the proposals. In particular, it is alleged that he erred in his analysis both of the catchment area which the store was designed to serve, and also the sequential analysis of prospective sites carried out by IKEA. Third, there are a series of complaints directed against the FSS’s consideration of the benefits which IKEA submitted would result from the development. In particular it is said that the FSS erred in his analysis of the likelihood of linked trips to the town centre; that he set too high a standard of proof when considering whether there might be benefits from reduced mileage; and that he failed to give credit for the benefits which would undoubtedly result from the fact that there would be a reduction in the number of customers who would visit the Warrington and Leeds stores. Finally, it is said that he did not properly consider the UDP and the emerging plan, and failed to address adequately the observations of the first Inspector as to the weight to be given to them.[11]In my judgment, it is plain from the decisions on reasons that there is no specific obligation on the FSS to refer to the recommendations of an Inspector at all. As Lord Brown’s decision in the South Bucks case indicates, the obligation is simply to give intelligible and adequate reasons so that it is clear what the FSS decided on the principal controversial issues and why. In the normal way if a Minister is differing from the views of the Inspector, then in the course of giving adequate reasons for his decision he is likely to identify the areas of disagreement and to explain why he has departed from the Inspector’s conclusions. This will help to achieve one of the purposes for giving reasons which, as Lord Brown makes clear, is to assist developers in understanding what amendments they may need to make in any future planning application. Accordingly, if the FSS disagrees with the Inspector and considers, for example, that a particular factor does not support the proposed development, then he ought to give clear reasons why he has come to that different conclusion. It is not necessary, it seems to me, that he refers to the Inspector’s findings in terms, but he is at risk of failing properly to deal with the “principal controversial issues in dispute” if he does not do so. It will generally be more convenient to do so.[12]In this case the FSS barely referred to the report of the first Inspector. It is mentioned in the history of the matter, and there are a couple of references to evidence that was before the first Inspector. But he does not engage specifically and in terms with any of her recommendations. He did say, however, that he had taken into account that first report as well as the evidence before the first inspector (DL 5), and it would therefore be wrong for me to assume otherwise. The question still arises, however, whether there are issues identified in that first report which he has failed adequately to address.[13]In this connection, however, it is in my view relevant that the second Inspector was asked to consider –at least in so far as the issues were in dispute- the same issues as had been considered by the first Inspector. In those circumstances there must be less of a risk of the FSS failing to deal with the main issues in dispute even if he only concentrates on the report of the second inspector. There can be no complaint merely on the grounds that the first Inspector’s conclusions and recommendations are not addressed in terms. Plainly it would be formulaic in the extreme to require the FSS simply to identify that his conclusion is either consistent or inconsistent with the recommendation of the first Inspector. That much would be obvious from a reading of the decision letter together with the first Inspector’s report. Accordingly, I reject this ground as a distinct ground in its own right. It can only be material if IKEA can identify controversial and significant issues which were not properly dealt with by the FSS at all. That challenge, however, exists independently of whether he has focused on the first report, although a failure to do so might increase the risk of an error creeping in to his determination.[14]The determination of the catchment area in this case was crucial. It sets the contours both of the assessment of need and the sequential analysis. The first Inspector and the FSS rejected IKEA’s submission that development was sub regional. In reaching that conclusion, Mr Katkowski says that the FSS erred in certain respects. First, he contends that the size of the development was such that it ought, in the light of PPG 6 and the UDP, to have been treated as a sub regional development. The UDP policy US3 sets 25,000 square metres as the threshold for a “sub regional scale” retail development. The FSS’s own policy in PPG 6 (which I consider more fully below) defines “regional shopping centres” as being “generally over 50,000 square metres.” (see the “glossary of terms” in annex A to PPG 6). Mr Katkowski points out that at DL 18 the FSS specifically noted that the policy US3 would apply to the proposed development. In the circumstances he contends that either the FSS out to have concluded that this was a sub regional development or at least he ought to have explained clearly why it was not.[15]In my judgment, there is no magic in these definitions. The relevant documents to which Mr Katkowski referred no doubt give some indication of how proposed developments of a certain size are likely to be treated (although as Miss Lieven points out PPG 6 it is concerned with shopping centres and not individual stores). But each case will have to be considered on its merits. What is crucial here, for planning purposes, is the catchment area. The size of the store will plainly have relevance to that but it is only one factor, albeit in most cases no doubt a significant one, which will be relevant in determining the area from which the customer base will be drawn. The Secretary of State indicated that he agreed with the inspector’s conclusion that the proposed store would attract a strong market well outside the Stockport sub region (DL 24). The reason given by the inspector, with which the FSS agreed, broadly was that the unique position of IKEA meant that IKEA effectively competed with itself and the proximity to the main road network would further promote its wide appeal. In my opinion, therefore, the FSS has given his reasons for rejecting IKEA’s submission as to the likely catchment area, and nothing in the policies relied upon by Mr Katkowski conflicts with the FSS’s conclusions. Accordingly, I reject this part of the argument.[16]The separate and independent ground arose in the following away. The FSS in the reopened inquiry specifically sought information about the applicant’s proposals for additional new stores and extended stores in towns and district centres in the north of England. IKEA were contending that they were proposing to develop a number of new stores which would have an impact on the catchment area from which customers of the Stockport store would be drawn. IKEA notified the second Inspector that the stores in Warrington and Leeds had permission to extend. There were stores in Nottingham and Birmingham, a planning application for a new store in Sheffield and intended proposals for North Manchester and North Liverpool. The FSS chose gave not to give any weight to these matters. They therefore had no bearing on the assessment of the catchment area of the proposed stores. The reason given was effectively that matters were too little progressed. It was not clear whether planning permission would be granted or not. (DL 29)[18]Mr Katkowski’s initial complaint appeared to be that there was some injustice in asking for this information and then, having been given it, effectively saying that it was immaterial. However, he accepted that it was ultimately a matter for the FSS what weight he would give to these matters. Moreover, in fairness, the FSS may have wished to have known precisely at what stage various proposals had reached.[19]Be that as it may, Mr Katkowski says that in any event the FSS has misrepresented the position in that paragraph. There were a number of sites where there was something more than a bare proposal; accordingly the FSS was rejecting this evidence on a false premise.[20]Miss Lieven contends that this is wholly unrealistic. The sites in respect of which there was something more than a bare proposal were too far away to have any realistic impact on the catchment area. That was something that would have been plain to anyone involved in this application. (I note that that could not be properly said about the extension of the Leeds and Warrington stores, because it is accepted that Stockport would trawl some customers from their catchment areas. But those stores are already in existence; permission has been granted merely for an extension and those extensions unlikely to have any significant impact on the relative market shares between Stockport and those stores.)[21]I accept Miss Lieven’s submission on this point. It seems to me that the stores at Nottingham, Birmingham and Sheffield would have a very marginal effect indeed on the relevant catchment area. The proposed store at North Manchester was an entirely different matter, but as I have said, the FSS was entitled in the circumstances not to put any weight on that factor given the very early stage of development of that proposal.[22]The claimant submits that in various ways the FSS erred in the way he dealt with the sequential approach. That requires some consideration of the relevant planning material relating to that matter. PPG 6 is the policy guidance relating to out of town centres and retail developments. It has been supplemented by a statement from Richard Caborn on 11th February 1999 (the Caborn statement) and a news release on 11th April 2003 by Mr McNulty (the McNulty statement). PPG 6 itself requires a sequential approach to be adopted when selecting a site for new development. Developers have to demonstrate that they have made a thorough assessment of possible available sites before considering out of town development. The first preference should be for town centre sites followed by edge of centre sites (these being sites within an easy walking distance of the primary shopping area) and only if no such sites are available should consideration be given to out of centre sites in locations that are accessible by a choice of means of transport. The McNulty statement identifies the way in which the sequential approach should be applied:
“In applying the sequential approach, the relevant centres in which to search for sites will depend on the nature and scale of the proposed development and the catchment that the development seeks to serve, as set out in the Caborn statement. The scale of such proposals should also be appropriately related to the centre and catchment that the development seeks to serve. The FSS therefore wishes to make it clear that development that would serve a wide catchment should be located in a centre that serves a similar catchment area.”
[23]I observe that in speaking of “the catchment the development seeks to serve”, it may be thought that the relevant catchment is that identified by the developer. However, it is accepted that the relevant catchment is that which the development will in fact serve and that it is for the FSS to reach a conclusion on that. It is that catchment which defines the area within which the sequential analysis must be applied.[24]The first Inspector analysed the assessment that had been made in this case. That was set out in an appendix to a document entitled “statements of common ground”. The appendix was headed “sequential site analysis.” That identified numerous sites which had been examined, about half of which were in the urban area of Stockport. The first Inspector concluded that there had been a thorough sequential assessment. It should be noted, however, that this report was produced prior to the McNulty statement. The second Inspector did not refer at all to this more wide-ranging assessment. He dealt with the question of sequential approach by noticing that the parties had, as he put it, concentrated their efforts on sites in Stockport town centre. There were two particular sites in the town centre which had been considered and rejected, and he agreed that they were inappropriate sites. However, he concluded that the proposed store would attract a market well outside the Stockport sub region. Accordingly, in line with the McNulty letter, he considered that by focusing on sites only in Stockport town centre IKEA had been overly restrictive.[25]The FSS agreed with the second Inspector’s characterisation of the relevant catchment area, as we have seen. However, unlike the second Inspector, he did make reference to the wider assessment that had taken place. Nevertheless, he concluded that the sequential exercise was inadequate. He noted the more rigorous approach carried out when the inquiry was initially opened but commented that even that approach did not include certain centres within the catchment area, such as Manchester or Salford. He also observed that the focus had been on sites of 3 hectares and above with a minimum of 4 hectares being required to accommodate the particular store in the proposal (DL 25). Finally, he also criticised the applicants for failing to adopt a sufficiently flexible approach to the question of potential sites. PPG 6 makes it plain that the developer must adopt a flexible approach in terms of format, design and scale of the development. The FSS accepted, contrary to the view of the second Inspector, and in line with the recommendation of the first Inspector, that it was not necessary for the store to disaggregate the elements of the retail operation (which were the showroom, the market place and warehousing.) But nevertheless, he observed that the developers had not adequately considered the possibility of reducing the size of the store so as to make it compatible with the Stockport sub region, that being the area it was intended to serve (DL 27).[26]Mr Katkowski makes a number of criticisms of this analysis. First he submits that the FSS was wrong to state that there had been no proper assessments of sites in Manchester. A brief glance at the list of sites that had been assessed as set out in the statement of common ground would have indicated otherwise. Second, he also says that the FSS erred in saying that IKEA had only focused on sites of an area of 3 hectares or more. Again, he points to the appendix in which a number of sites are identified which are smaller than that and which had been rejected for a number of reasons quite independently, in some cases, of size.[27]I initially considered that there may be some force in this submission. But I accept the observations of Miss Lieven that the analysis of the FSS’s reasoning must be considered in the context of the submissions being made at the reopened inquiry. At that stage it is plain that IKEA were submitting that the relevant catchment area was the Stockport region and that in that context they had looked at all potentially available sites. They provided up to date information about the two sites at Stockport city centre but they gave no further analysis or updating of the wider range of sites which had been part of the evidence at the original inquiry. It had not even been suggested that the assessment of these other sites beyond the Stockport region should be taken into account in the event that the primary argument, based on Stockport being the catchment area, was rejected. In view of that, I accept Miss Lieven’s submission that the FSS was plainly entitled to conclude that the assessment had been less than adequate. Indeed, it had never been conducted, it appears, on the premise that a wider catchment of the kind identified by the second Inspector and FSS was the material catchment for the purposes of the sequential site analysis. It is plain that the focus had been on the Stockport region and the sites available therein. Mr Katkowski accepted that this was so and gave reasons, which it is not necessary to go into, why IKEA had formulated its case in this way.[28]The FSS was, it is common ground, mistaken in his observations about the failure to consider sites at Manchester. Miss Lieven suggested that such inquiries as there were, were unsatisfactory, but the FSS did not criticise IKEA on that basis. However, I am satisfied that the conclusion reached by the FSS was one which he would have reached even had he not made that particular error. For example, he criticised IKEA for not considering Salford and it is not suggested that IKEA had done so. It would perhaps be surprising if the FSS had concluded that there had been a sufficiently thorough analysis in circumstances where the need for it in the context of the wider catchment area had not been recognised.[29]In my view, similar difficulties face the criticisms of the FSS’s allegedly mistaken observation that material sites taken into consideration had been at least 3 hectares or more. The FSS’s observations to that effect merely reflected what IKEA itself was saying in its submission to the first Inspector. Other smaller sites had been considered but in view of what IKEA had stated about having regard to sites of 3 hectares and above, the FSS can hardly be criticised for taking them at their word.[30]The failure to focus on smaller sites is also germane to the criticism that Mr Katkowski makes against the FSS’s conclusion that ignoring smaller sites demonstrated a lack of flexibility in terms of format, design and scale of development. In that context, at DL 27 the FSS observed that IKEA had not been prepared to reduce the size of the store so as to make it suitable for the Stockport sub region. Mr Katkowski, with some justification, observes that is an odd conclusion because the FSS had also accepted the second Inspector’s view that in effect there were no competitors for IKEA save effectively from their own stores in the wider region. In short, the Inspector appears to have taken the view that because of IKEA’s brand identity, it would inevitably attract customers well beyond the sub regional area. That does not sit happily with the notion that the store size could be reduced so as to limit potential customers to that area.[31]I accept that there is a certain apparent contradiction in the FSS’s approach. However, Miss Lieven suggests that one possible explanation is that the FSS was simply observing that if IKEA were seeking to contend that the store would appeal only to the customers within the Stockport region, then it should have reduced the size of the store accordingly. He was not pre-judging whether that would or would not be possible or how any proposal of that kind would be assessed if it were to be made.[32]That is a possible explanation, I think, of the FSS’s observation at DL 27. However, be that as it may, it is clear that the principal basis for the FSS finding against IKEA with respect to sequential analysis was that it did not properly identify the area within which that analysis had to take place. Moreover, IKEA had not considered the possibility even within that area of adopting a format that could enable it to achieve its objective with sites below 3 hectares. These were objections which the FSS was entitled to make to the proposal as it stood. The fact that there may have been some potential contradiction in one aspect of his conclusions relating to the sequential assessment does not begin to invalidate those conclusions. Moreover, I am satisfied that the FSS has made sufficiently clear his reasons for finding against IKEA on this issue, and also that there is no real doubt where he takes issue with the contrary views of the first Inspector.

The three benefits

[33]I next consider the criticism directed at the FSS’s alleged failure properly to weigh up the benefits of the proposed development. The Secretary of State accepted that there were certain benefits, in particular the regeneration of the site and the benefits in terms of increased employment (albeit in breach of the UDP). However, Mr Katkowski submits that there were potentially three other benefits which IKEA considered would result from the development and which the FSS failed adequately to deal with in his DL.

Linked trips

[34]First, it is said that there is clear evidence that the development would promote linked trips between the new site and the Stockport town centre some 700 yards away. IKEA had in fact carried out a survey of potential customers which suggested that somewhere in excess of 40% of the potential customers had indicated that they would combine a linked trip of that nature if they were to visit the store. The FSS rejected this. He did not consider that there would be any significant linkage. He said that he agreed with the first inspector that any linkage would be inconsiderable. The Inspector had taken the view that there would be few linked trips because those who normally shopped elsewhere would not be enticed to Stockport Town centre because it had little to offer them. They would be unlikely to change their routine. In addition he considered that a visit to IKEA would be a special occasion. The FSS broadly agreed with this. He considered that given the location of the store on the motorway it would be likely that the new store would operate as a free standing shopping destination. He added that “any linked trips which do take place would be likely to be by car and this has to be weighed against any benefits to the town centre in terms of attracting more people.” (DL 32).[35]Mr Katkowski says that the FSS acted on a false premise which arises in the following way. The second Inspector had plainly misunderstood the result of the survey which IKEA had carried out. He had understood IKEA to be claiming that 80% of proposed clients would make linked trips. He observed, not surprisingly, that the figure “appears to be very high.” He explained the survey by noting that it was undertaken in the Stockport area and perhaps was explicable on the basis that those using Stockport as a shopping destination would incorporate visits to IKEA into their normal shopping routine, (see his report para 139). The FSS then said he had taken account of the survey but he did not indicate that he was aware that the figure referred to by the second Inspector was false.[36]Miss Lieven rightly conceded that had the FSS realised that the second Inspector had made an error, he ought to have made that clear in his decision letter. It seems to me to be a reasonable inference that the FSS was acting on the same misapprehension as the second Inspector, given that he did not identify this error. Mr Katkowski submits that this may be a significant error. It is hardly surprising that both the Inspector and the FSS would reject the result of the survey if they thought that the figure was wholly unrealistic. But he says that the FSS may have focused with more attention upon this evidence, and paid it more respect, had he properly appreciated what IKEA were saying. He may have engaged more specifically with the material being put before him.[37]I accept that there is some force in this point. I do consider that the FSS might have given a little more weight to the results of the survey had its conclusions not appeared to be so unrealistic. Moreover, I accept that it is an error which the FSS would not have made had he focused more clearly on the first Inspector’s conclusions. She had considered the matter carefully and had properly understood the results of the survey.[38]Mr Katkowski says that in the circumstances it is impossible to say what significance the survey may have had for the FSS’s conclusion on this point had he properly understood it. Miss Lieven submits that realistically it would have made no difference. The FSS was aware that IKEA were claiming that there would be significant benefits resulting from linkage, and he gave cogent reasons why he took a different view. In particular, his conclusion that the location was such that it would operate as a free standing shopping destination was in truth one which he would inevitably have reached independently of the specific results of IKEA’s survey.[39]I agree with her submission. I do accept that the FSS may have looked more carefully at the implications of the survey had he recognised that IKEA were claiming fewer linkages than the Inspector had appreciated. Nevertheless, it seems to me unrealistic to believe that his overall conclusion would have been materially different given his reasons for it.[40]In this context, Mr Katkowski was also critical of the FSS observing that any benefit from linked trips would in any event have to be weighed against the fact they would be likely to be by car, thereby increasing the volume of cars in the centre. He says that this is quite irrelevant to the qualitative benefits that linked trips may make. If the development generates extra spending in the city centre, that is a qualitative benefit notwithstanding the distinct detriment that may be created by the greater number of cars. That is plainly right. However, it seems to me that this was merely an observation by the FSS who, whilst concluding that he considered there would be no significant increase in the number of trips to the town centre, was simply observing that in any event any benefits that may result from linked trips would to some extent be offset by the increased generation of car traffic. It seems to me that was a proper and relevant observation to make.[41]Second, there is also a complaint directed at the way in which the FSS dealt with the issue whether there would be a reduction in the overall car miles. The FSS concluded that there would not. He recognised there would be a reduction with respect to the customers who would transfer their allegiance from other stores to Stockport, but he took the view that this would be offset by the increase in car miles from new customers. He did not consider that this was a factor to be weighed against the proposal but rather it was in the end neutral.[42]IKEA accepts that, again, the weighing of these matters was for the FSS. However, their complaint here was that he imposed too high a burden on them to show that there would be a mileage reduction. At DL 19, he commented that the evidence submitted to him did not demonstrate “conclusively” that there would be a reduction in the length and number of motorised journeys. At DL 34 he commented that the information did not enable him “to conclude with any certainty” that IKEA’s estimated reduction would be achieved. And finally, at DL 40, he said that he was not “wholly persuaded” that there would be a net reduction in travel. Mr Katkowski submits that whether a certain benefit will accrue from a proposed development has to be determined on the balance of probabilities. It was wrong, he submits for the FSS to require conclusive proof of something which was inevitably an estimation of future likelihood.[43]Miss Lieven accepts that the language was unsatisfactory. I agree. In my judgment whilst the weight that the FSS may give to a particular factor can properly depend upon the extent to which he is satisfied that the particular benefit will be achieved, he was wrong if he were suggesting- and I think that the language at least suggests that he was- that a factor can only carry any weight if the FSS is satisfied that the benefit will be achieved to such a high standard of proof. However, I think that if the DL is read fairly, the FSS was saying that he really was not sure what the impact of the development would be on the mileage overall. There were conflicting factors, some reducing mileage and some promoting it, and it was difficult to predict which would be the dominant feature if the development were to go ahead. The language was indeed inapposite and unfortunate, but I do not think it can be said that any prejudice has resulted from it. The FSS treated this factor neutrally and given his obvious uncertainty about the position, he was entitled to do that.

The qualitative benefits

[44]Finally, Mr Katkowski criticises the FSS for saying that the proposed store would not provide a qualitative benefit to Stockport because it would not provide “a wide range of goods.” The FSS observed that the store could not provide the competition with large shopping centres and out of town developments in other areas. This was surely an accurate, if obvious, observation. Mr Katkowski rightly observes that IKEA were never claiming they could provide such competition as a single store with a limited range of goods. Nevertheless, for what it was worth, the observation was entirely accurate and is not open to criticism.[45]Mr Katkowski also says that there manifestly was a qualitative benefit arising from the fact that trade would be clawed back from other stores in Leeds and more particularly Warrington. This in fact is not in dispute and the FSS accepted these in terms at DL 22. Mr Katkowski accepts this but complains that when the FSS in his overall conclusions came to deal with the potential benefits of the proposed development, he did not identify this particular benefit as one to be weighed in favour of the proposal. This is true, and I accept it would have been desirable had it been specifically identified at that point in the DL. But I do not accept that it should be assumed the FSS would have ignored this feature. It was, after all, one of the reasons why IKEA were proposing to place the store near Stockport and both Inspectors accepted that the development would relieve pressure on the Warrington and Leeds outlets.

The significance to be afforded to the UDP and the proposed UDP

[46]Mr Katkowski states that the FSS failed to grapple with the first Inspector’s conclusion as far as employment was concerned, that the development was consistent with the underlying aims of the UDP and also the council’s emerging policies (see para 10.5 of her report). The first Inspector accepted that the proposals did not strictly meet the UDP’s employment allocation, since under the original UDP retailing was likely to be deemed unacceptable. But she considered that little weight should be given to the existing UDP and greater weight to the emerging policies. The reason for this was because the UDP itself identified a period from 1986 to 2001. Accordingly, she thought that the plan was technically out of date. By contrast, she considered that under the emerging policies the site had been seen as an appropriate area to place a retail outlet and that would fit that strategy.[47]The second Inspector took a different view, as did the FSS, essentially for the same reasons. The FSS considered that it was wrong to treat the UDP as effectively a spent force. He expressly considered the argument that the weight to be given to the UDP was reduced because the policies were related only to a period up to 2001. He rejected that view ( DL 15) both on the basis that this was too limited a reading of the UDP itself since the reference to 2001 related to only one criterion of the overall policy; and also because the policies in the UDP reflected the government approach to out of centre retail development. He took the view accordingly that the scheme had to be judged against the UDP policies. When so judged, particularly against policy UE 3, the development did infringe the policy.[48]Notwithstanding this, he was satisfied that the overall aim of the policy was to avoid the further loss of employment resulting from industrial land being made available for other uses. He was satisfied in this case that the use of the site for the development would not in fact result in an unacceptable shortage of employment land in the general area. His conclusion was that although the proposal was in breach of the UDP employment policies, he did not consider that the conflict was so significant as to conclude that the development should not be permitted on this basis. Indeed, he considered there were employment benefits which should be given weight in favour of the proposal (DL 36),[49]Furthermore, the FSS agreed with the Inspector that the emerging plan could be given only limited weight. The reasons why the Inspector had taken that view was that the proposals were still in draft from, there had been an objection, and as yet that had not been determined and indeed no inquiry had even been held. The second Inspector had concluded that it would be “folly” to regard the emerging draft of the UDP as overriding the adopted plan. Mr Katkowski commented that this was somewhat extreme language but he accepts that the weight to be given to the matter is for the FSS. But he contends that the FSS simply has not engaged with the first Inspector’s assessment of the aims of the UDP. She had concluded that the development would be consistent with those aims and he has not addressed that specific conclusion.[50]I think that the short point to this particular issue is that the FSS did not find against IKEA on this matter. It is true he did not approach the UDP in the same way as she did, but nonetheless he concluded that the use of the land for purposes other than the employment use as identified in the UDP was acceptable in principle in this case. I do not think that it can be said that the FSS did not address the fundamental issue here, which was the significance of the employment generated by the development, and its relationship to the UDP. He arrived at the same point as the first Inspector and gave clear reasons for his analysis. In any event, the claimant has suffered no prejudice from any failure specifically to address that particular matter.[51]Mr Katkowski also floated a more particular complaint in this connection, namely that the FSS could not properly conclude that he would give very little weight to the developing policies in the emerging plan given the fact that the only objection lodged has been directed at the question of need and sequential steps. He says that the council has now identified the justification for the new plan in terms of need and that the objection is not rooted in any fundamental opposition to the land being developed in the way that IKEA proposes. In effect this submission is that the objection is unlikely to be sustained and that therefore the FSS ought to have given the emerging plan greater weight. I reject that. The FSS was entitled to take the view that he would not anticipate the outcome of the inquiry into the developing plan, and consequently would not attach very much significance to it given the stage which it had then reached.[52]Notwithstanding the fact that I do consider this decision to be less than satisfactory in certain respects, I do not think that the challenges mounted by IKEA demonstrate errors such as require me to quash the decisions. I reach this conclusion not merely having analysed the complaints individually but also after weighing the impact of their cumulative effect. I consider that the essential reasoning of the FSS is clear. At the heart of it, he took the view that the catchment area was wider than merely the Stockport sub region. The effect of that was that IKEA’s sequential analysis was thereby inadequate because it had focused on the narrower region. He was fully entitled to reach that conclusion. In addition he was doubtful about whether certain of the benefits which IKEAconsidered would result from the proposal would in fact be achieved.[53]Specifically, he doubted whether there would be any significant increase in linked trips or reduced mileage. These factors led him to consider that in the circumstances, he ought not to allow a development which he considered to be inconsistent with the development plan. He formed his own judgment as to what the material development plan was and how much weight should be given to the emerging plan. Again, he differed from IKEA on that, but he was entitled so to do.[54]For all these reasons, therefore, this appeal fails. APPENDIX: Extract from Decision Letter Main Issues

APPENDIX: Extract from Decision Letter

[12]The Secretary of State considers that the main issues in this case are those identified in his letter of 18 June 2003, which are reproduced in paragraph 3 above. The relationship of the Proposal to PPG11 and to the Regional Planning Guidance for the North-West[13]As noted by the Inspector, (IR 113 and 114), PPG11 and RPG 13 indicate that development plans and other strategies should recognise the need to protect, sustain and improve all of the town and city centres in the region. Policy EC8 in RPG for the North West which relates to retail, leisure and office development, says, inter alia, that no need has been demonstrated to create new or to extend existing out-of-centre regional or sub-regional shopping and leisure facilities. Having regard to this, and noting that the guidance is up to date, the Inspector concluded that, on the face of it, there is no basis for the development on grounds of need on the analysis of regional and sub-regional evidence in the RPG (IR 114). The Secretary of State considers that the final sentence of Policy EC8 reinforces the thrust of the policy which is to direct retail, office and leisure development to sustainable locations in accordance with national policy in PPG6 and the Spatial Development Framework of the RPG. As the proposal has been put forward as a sub-regional development (IR 55), the application site is outside a primary shopping area and, in the Secretary of State's view, it has not been demonstrated that no suitable town centre sites are available (see paragraphs 24-27 below), the Secretary of State concludes that the development does not comply with Policy EC8.[14]The Secretary of State has had regard to the objectives of the RPG to seek to promote economic competitiveness, urban renaissance and social progress. It identifies Stockport as one of 10 centres in the metropolitan area where priority will be given to development which is complementary to the regional shopping centres of Liverpool and Manchester/Salford (IR 86). However, he does not consider that these objectives outweigh the policy conflict identified above.

The relationship of the proposal to the adopted and emerging UDP

[15]The Secretary of State has had regard to the evidence submitted at the re-opened inquiry about the weight to be given to the existing UDP and to the emerging UDP (IR 49-50, 87/88 and 90). In the former the site is within a designated employment area (IR 115), whereas in the latter, the site is considered an area of opportunity for a major scheme within the M60 gateway with appropriate uses being Classes B1, B2, B8 or a large-scale single-use comparison retail warehouse (IR 119). The applicants argue that the existing UDP's weight is reduced because its policies for the release of land for development were related to the period to 2001 (IR 49). The Secretary of State does not accept this view. He recognises that Policy US3(ii) in the adopted UDPsays that new out-of-centre retail development of regional or sub-regional scale will not be permitted during the plan period to 2001. However, he does not consider that the reference to 2001 within one criterion of the policy implies that the UDP as a whole should be regarded as being out of date or that its policies should carry little weight especially where, as here, the shopping policies reflect the general Government approach to out-of-centre retail development (IR 117). In the Secretary of State’s view, until the replacement plan has been adopted, the adopted UDP is the Development Plan for the purposes of section 54A, although he accepts that the matter is being considered post 2001. He therefore agrees with the Inspector (IR 117) that the IKEA scheme must be judged against these policies, especially policy US3.[16]Regarding the emerging plan, the Secretary of State considers, for the reasons given by the Inspector in IR 118-121, that the policies in the emerging plan can be given only very limited weight in determining the application.[17]In relation to the adopted UDP the Inspector concludes that the proposed development is precluded in terms of Policy US3 and must be judged against employment policies Policy UE3 and UE3.1 (IR 121). Considering firstly the application of employment policies, the Secretary of State notes that the application site is within a designated Employment Area in the adopted UDP, and that policies in the plan seek to retain employment land for B1, B2 and B8 uses and preclude retailing and retail warehousing (IR 115). He considers that the B1 office development which forms part of this application is in accordance with these policies. The overall aim of policy UE3 is to avoid the further loss of employment land and, in particular, industrial land, to other uses. The Secretary of State notes that, at the time the inquiry first opened in 2002, evidence was submitted that there was an excess of land best suited for B1 or B2/B8 uses (paragraphs 7.87 to 7.91 of the first Inspector's Report). No evidence on this matter was produced at the re-opened inquiry (IR 150).In the circumstances,the Secretary of State considers that the use of the site other than for the employment uses identified in (A) and (B) of Policy UE3.1 is unlikely to result in an unacceptable shortage of employment land in the general area of the application site. He accepts that the proposal would generate a significant level of employment opportunities. Consequently, although the retail element of the proposal is in breach of UDP employment policies, the Secretary of State does not consider that this conflict is so significant as to be determinative in this case.[18]As to the application of the shopping policies in the UDP, Policy US3 provides that new retail development will be permitted in or adjacent to existing centres provided that it is appropriate in scale and character to the particular centre, and also states that new out-of-centre retail development of regional or sub-regional scale will not be permitted during the plan period to 2001. As the development is neither in nor adjacent to an existing shopping centre, it does not comply with the first criterion in Policy US3. In relation to the second, the Secretary of State notes that the supporting text to the policy, by referring to schemes smaller than regional or sub-regional scale (below 25,000 sq m), suggests that for the purposes of the policy, developments in excess of 25,000 sq m are regarded as being of sub-regional scale, which would apply to the proposed development. However, he thinks that some weight should be given to fact that this part of the policy is stated to apply only until 2001, which suggests that this reflected the requirements for larger retailing up to 2001 and that any proposal coming forward after that date would need to be assessed in the light of the circumstances applying at the time. However, the more recently adopted RPG gives support to the view that there is currently no requirement for a sub-regional or regional scheme.[19]Policy US3(iii) is permissive of other new shopping development outside existing centres in special circumstances defined in policy US3.2 where provision cannot be accommodated within or adjacent to an existing centre. It seems to the Secretary of State, therefore, that this proposal should be considered against the criteria in US3.2 together with the more up to date advice in PPG6 and subsequent clarifications concerning need and the sequential approach. For the reasons given below, the Secretary of State concludes that the proposal would not conflict with the criteria within policy US 3.2 in relation to impact. However, he considers that criterion ii) would not be satisfied since he does not think it has been demonstrated that no suitable site of a similar size is available in or next to an existing shopping centre. As indicated in paragraphs 24-28 below, the Secretary of State considers that in view of the wider catchment area to be served by the proposed development, it is important to look beyond the borough when undertaking a search for sites. In relation to criterion iii) the Secretary of State considers that most customers would travel to the site by car and that while some attempts have been made to offer access by a choice of means of transport, the site is not easily accessible, especially for those arriving on foot (see paragraph 35 below). He also has doubts whether iv) would be met since the submitted evidence does not demonstrate to him conclusively that the overall effect on travel patterns would be such that the length and number of motorised journeys would be reduced (see also paragraph 34 below).[20]Accordingly, on the issue of whether the proposal complies with the UDP, the Secretary of State considers that whilst the retail element conflicts with the employment policies in the UDP, the conflict is not such that it would warrant refusing permission purely on this account, given the availability of other employment land. With regard to shopping policies, hedoes not agree with the Inspector (IR 121) that the proposal is precluded in terms of Policy US3 since policy US3(ii) is time limited and US3(iii) is permissive of out-of-centre shopping development in certain circumstances defined in policy US3.2. However, whilst he considers that the proposal generally complies with policy US3.2 i), of the adopted UDP, he does not think that it complies with criteria ii), iii)and iv) and he concludes that the retail element of the proposal conflicts with shopping polices in the adopted UDP. The need for a retail store of the scale proposed within the Stockport Metropolitan Council Area[21]The applicants estimate that there would be a requirement in the Stockport sub-region of between 80,000 sq m and 91,905 sq m of comparison retailing floorspace (IR 51-53 and 123). The Secretary of State agrees with the Inspector that these estimates are more acceptable than the more optimistic figure of 128,571 sq m, but he is satisfied that, on the basis of even the more conservative estimate, there is a quantitative need for additional comparison floorspace in the sub-region which would partly be satisfied by the proposed store (IR 124 and 126). However, since the Secretary of State considers that the store would serve a wider catchment area than the Stockport sub-region (see paragraph 24 below), he considers that, in seeking to demonstrate a need for the comparison floorspace proposed, the applicants should have assessed whether there is a need in a wider area than Stockport. He does not consider, however, that their failure to do so constitutes an over-riding objection to the proposal, since the level of need within the Stockport sub-region does not suggest to him that it would have been demonstrated that there is insufficient need within the wider area for the amount of comparison floorspace proposed in the application.[22]The McNulty statement clarified that the Secretary of State places greater weight on quantitative need than qualitative need for new retail provision, but accepts that need can be expressed in quantitative and qualitative terms. He accepts that clawing back trade from other centres and the IKEA stores in Leeds and Warrington would be some qualitative benefit. He agrees with the Inspector that Stockport is relatively weak in comparison goods retailing compared with other centres and out-of-town developments (IR 125) and he accepts that the town centre needs to provide a wide range of good attractive, high-quality comparison goods retailing. However, he considers that an IKEA store in the location proposed would not necessarily provide the town centre with the wide range of goods that is needed in order for Stockport to compete with other centres. The proposed store is not in the town centre and, for the reasons set out in paragraph 32 below, the Secretary of State's view is that there are likely to be relatively few linked trips. He considers, therefore, that because the proposal would result in comparatively few linked trips, and would not provide a full range of comparison goods, the proposed store would not provide a qualitative benefit to Stockport town centre.[23]The Secretary of State notes the Inspector's view in IR 126 which he understands to refer to the range of goods offered. To the degree that there is any ambiguity in the Inspector's conclusion in respect of the quality of goods offered, either in this paragraph or in IR 137, the Secretary of State disagrees with the Inspector. The relevant Catchment Area, the search for alternative sites and flexibility of format, scale and design[24]The applicants say that an IKEA store in Stockport would perform a sub-regional role due to its catchment being constrained by the existing IKEA stores at Warrington and Leeds (IR 38, 129). The Secretary of State does not accept this view and he agrees with the Inspector (IR 130 and 135) that the proposed store would attract a strong market from well outside the Stockport sub-region. The Secretary of State notes IKEA's stated intention to propose additional stores (IR 28 and 29). However, for the reasons given in paragraph 29 below, he does not think he can place reliance on this when considering what is the relevant catchment area. The McNulty statement makes clear that the scale of retail proposals should be appropriately related to the centre and catchment that the development seeks to serve. The Secretary of State agrees with the Inspector that the proposed store would serve a wider catchment area than the Stockport sub-region (IR 130). For this reason he also considers that the scale of this particular proposal is too large for Stockport and that it would be better located in a regional centre that would better serve that catchment area, such as South Manchester or Salford.[25]Regarding the search for sites, the Secretary of State agrees with the Inspector that neither of the two sites in Stockport town centre would be suitable for the reasons he gives in IR 128. He agrees with the Inspector (IR 130) that undertaking a sequential exercise only on sites in Stockport town centre is overly restrictive. As made clear in the McNulty statement, development that would serve a wide catchment area should be located in a centre that serves a similar catchment area, but there is no indication at the re-opened inquiry that the applicants have looked at any other sites within the sub-region or beyond. He accepts that a more rigorous search was carried out when the inquiry first opened (paragraphs 7.46-7.53 of first Inspector's Report) including sites at Altrincham, Oldham and Glossop. However, this search did not include other centres within the catchment area, such as Manchester or Salford, and it was stated that site assessments had regard to sites of 3 hectares and above, and that a minimum site area of 4 hectares would be required to accommodate a store of the scale proposed in this application. In the Secretary of State's view this suggests that the search for sites concentrated on sites which could accommodate the development as a whole, and that it did not demonstrate the flexibility and realism in terms of the format, design and scale of the development required by PPG6.[26]Contrary to the advice in PPG6 the applicants have adopted a format-driven approach rather than a class of goods approach when searching for sitesand are not prepared to disaggregate the individual elements of the retail development or to reduce the size of the store (IR 30-31, 35-37). The Inspector concludes that the various elements of the store are clearly different in form and function and could physically take place on different sites and in different locations (IR 132). In this particular case, the Secretary of State accepts that there is a quantitative need for comparison shopping and in the circumstances, he does not consider that requiring disaggregation of the three main elements of the store in the way the Inspector suggests would necessarily be appropriate. However, there appears to be no particular justification for the call centre to be co-located with the store. The Secretary of State notes from the proof of evidence of Mr Cordrey that the centre is the call centre for the northern part of the UK, and whilst he does not doubt that it would be desirable for it to be relocated from what is described as cramped unsuitable accommodation elsewhere in Stockport, he does not think it has been demonstrated that it needs to be relocated on the application site. He sees no reason why it cannot be disaggregated to a sequentially preferable site.[27]The Secretary of State would also have expected the applicants to demonstrated greater flexibility in terms of the scale and design of the store. He recognises that some flexibility has been demonstrated in terms of changes to the layout and design, and regarding a reduced amount of car parking and home deliveries to customers who do not travel to the store by car (IR 132). However, they have not been prepared to reduce the size of the store and the amount of car parking to an extent that it would be of a scale suitable for the Stockport sub-region it is intended to serve. In this respect he considers that the proposal does not comply with the guidance about site selection and flexibility in the McNulty statement and he agrees with the Inspector that in these respects the development does not comply with the advice in that statement (IR 133).[28]Consequently, the Secretary of State has concluded that because of the very limited search for sites across the wider catchment area to accommodate a store that is likely to draw customers from an area greater than the Stockport sub-region, and the failure to demonstrate flexibility in terms of scale and design, the sequential approach was inadequate and that in this respect the proposal is contrary to PPG6 and to Policy US 3.2 ii) of the UDP. The anticipated trade draw of the proposed store in the light of IKEA's proposals for additional new stores and extended stores[29]The Secretary of State agrees with the Inspector about the anticipated trade draw of the proposed store and notes the proposals for additional new stores and extended stores in the north of England (IR 134-135). Since any proposals for new stores or extensions to existing stores will have to be the subject of applications for planning permission, which will be determined on their own planning merits, it would not be appropriate to make any assumptions on the outcome of any such applications. The anticipated trade draw of the proposed store and the impact on the sub-regional shopping role of Stockport Town Centre[30]The Secretary of State agrees with the Inspector, for the reasons he gives in IR 136-137, that the sub-regional role of Stockport town centre would not be adversely affected.

The likely impact of the proposed store on town, district and other centres

[31]The Inspector concludes (IR 138) that Stockport town centre is sufficiently robust to withstand an IKEA store on the application site, but has not reached any conclusions in relation to other centres within the sub-regional catchment area. The applicants provided some evidence as to the impact on individual centres (IR 63-65) but neither they nor the Council appear to have carried out a detailed assessment in terms of the factors listed in paragraph 4.3 of PPG6. The Secretary of State is concerned about the paucity of detailed material on impact. However, given the Inspector's conclusions in IR 136 and 137, and in particular the limited effect on furniture retailing in Stockport (IR 137), the trade draw from the existing IKEA stores at Warrington and Leeds, and the fact that the stores which are likely to experience the most impact are themselves out-of-centre (IR 61), he has reached the conclusion, on the facts of this particular case, that the impact of the proposed store would not be unacceptable.[32]The Secretary of State agrees with the Inspector (IR 139) that the likelihood of linked trips between the proposed store and Stockport town centre would be inconsiderable. He agrees with the Inspector's views in IR 139 about the customers who travel some distance from across the wide catchment area. However, he also takes the view that even for those customers who already use Stockport as a shopping destination, they are unlikely to link a significant number of trips to the town centre with trips to IKEA. The Secretary of State has taken account of the survey referred to in IR 139, but in the light of the location of the store on a motorway well outside the town centre, he thinks that IKEA is more likely to operate as a freestanding shopping destination. Further, any linked trips which do take place would be likely to be by car, and this has to be weighed against any benefits to the town centre in terms of attracting more people. The accessibility of the site by all means of transport and the impact on traffic generation and overall traffic patterns[33]The Inspector identifies in IR 140 various measures proposed to improve public transport and pedestrian links so as to ensure that the development would be served by a choice of modes of travel. He records that a green travel plan is to be produced. However PPG13 paragraph 89 recommends that green travel plans should be worked up alongside an application for major developments comprising shopping, and submitted with it. In this respect therefore, given the nature of the development and the travel implications, the relevant advice in PPG13 has not been followed.[34]The Secretary of State agrees with the Inspector (IR 141) about the safe and efficient operation of the road network around the site. The proposal is expected to reduce the mileage travelled by customers who currently visit the Warrington and Leeds stores (IR 142) but could also lead to an increase in new customers. The applicants estimate that the need to travel would be reduced with an overall saving in vehicle miles of some 4.5m (IR 77). In their closing statement (paragraph 73 IR page 56) they say that their calculations include new customers. The Secretary of State accepts that the proposed home delivery service may have some impact on travel patterns, but he does not think that he has sufficient information to enable him to conclude with any certainty whether, having regard to the increase in new customers, the estimated reduction in travel will be as significant as estimated. However, on the basis of the evidence available, he does not think that were there to be a net increase in travel, this would be on such a scale as to constitute an over-riding objection to the proposal.[35]Policy in PPG13 requires that shopping is accessible by public transport, walking and cycling. The PPG also aims to reduce the need to travel. The Secretary of State would not go so far as the Inspector to describe the measures designed to promote modes of travel other than the car as merely palliatives (IR 143) since they do give customers some element of choice of modes of transport as advocated in PPGs 6 and 13. However, because of the proximity of major roads, it is unlikely that many people would choose to walk to the store. More fundamentally he thinks that in order to comply with PPG6 and PPG13, a proposal with the broad catchment area of this particular scheme ought to be located where there is a better spread of public transport and where there is a genuine choice of modes of travel. He agrees with the Inspector that, in reality, the proposed store will be heavily reliant on trips by the private motor car (IR 143).

The extent to which the proposed store would help regenerate the area

[36]The local planning authority strongly support the proposal because of the regeneration benefits that it would bring (IR 78-81); the site is located in the most deprived ward in Stockport (IR 82-84). The Secretary of State agrees with the Inspector (IR 144) that the development would improve the appearance of a prominent, unattractive, brownfield site, next to the M60 motorway, and that it would create employment opportunities in an area which experiences high levels of deprivation. The design and external appearance of the building are matters for consideration by the Council. Whilst he agrees with the Inspector (IR 145) that similar regenerative benefits could be achieved by the development of the site for employment uses other than retailing, he notes that the site has been vacant for some years, and he has accepted (paragraph 17 above) the principle of the use of the site other than for the employment uses identified in the adopted UDP. That being so, he gives greater weight than the Inspector to the fact that no employment use has been promoted in the recent past. He accepts, therefore, that the regeneration benefits in terms of the improvement of a prominent site, and the creation of employment opportunities in an area of deprivation are benefits in this particular case, which can be given weight in determining the application.

Section 106 agreement and Conditions

[37]The Secretary of State considers that the agreement dated 30 January 2002, as summarised by the Inspector in IR 148, and those within the supplementary agreement (IR 16) comply with the advice in Circular 1/97. As he does not propose to grant planning permission he has not considered in detail those conditions suggested by the Inspector.

Overall Conclusions

[38]The Secretary of State concludes that the proposal is contrary to employment policies in the adopted UDP which designates the site as employment land. However, he considers that the use of the land other than for the employment uses identified in the adopted UDP is acceptable in principle and would not result in an unacceptable shortage of employment land in the general area of the application site. In his view, in the absence of other objections to the proposal, the conflict with employment policies would not have been so serious as to justify refusal of permission. There are also regeneration benefits which weigh in favour of the proposal.[39]In terms of retail policy, the proposal is contrary to RPG policy EC8 which says that there is no need for new out-of-centre sub-regional shopping facilities. The Secretary of State accepts that there is a quantitative need in the sub-region for additional comparison goods shopping and that there would be no adverse impact on any existing centre. To that extent the proposal complies with UDP retail policies for out-of-centre retail development. However, the Secretary of State considers that because its catchment area would be wider than the Stockport sub-region, IKEA should have looked for a location closer to a regional centre. In his view limiting their search for sites only to Stockport town centre was too restrictive. He also takes the view that the applicants have shown insufficient flexibility in terms of scale and design. He considers that to be of a scale suitable for the Stockport sub-region, the store should be smaller with less car parking, and that it would have been possible to disaggregate the call centre from the remainder of the store. On the basis of the limited evidence submitted, he considers that it has not been demonstrated that there are no sequentially preferable sites available that could accommodate the proposal. Accordingly, in relation to the sequential approach, the Secretary of State concludes that the proposal conflicts with policy advice in PPG6 and with retail policies in the adopted UDP.[40]Moreover, the Secretary of State takes the view that the proposal is contrary to PPG13 since a store of the size proposed should be located somewhere where there is a greater spread of public transport and where there is a genuine choice of alternatives to the car. Most people would drive to the application site which, although reasonably well served by buses, is difficult to access on foot. Additionally, he is not wholly persuaded that there would be a net reduction in travel, given the likely attraction of the store over a wide area.[41]Having weighed up the issues, the Secretary of State has concluded that the objections he has identified to the location and scale of the proposed store and the inadequacy of the sequential approach outweigh the benefits of the proposal and indicate that he should determine the application in line with the development plan.84. MR JUSTICE ELIAS: I hand down the judgment in terms which have already been shown to counsel. I am particularly grateful for the observations on this, because I have not had time to check some of it. What happened actually in the draft was that every time "Ikea" appeared, my computer went wrong somehow, and of course when I tried to put it all back in, I did not always put it all back in, so some sentences had gone a bit weird. Anyway, I am very grateful to you both for looking very carefully at it.85. MR LYNESS: My Lord, as you know, I did not appear at the substantive hearing. I was told by my learned friend Ms Olley who appears for the defendant in this case that at that hearing it was agreed that any consequential matter should be dealt within 14 days of your Lordship handing down judgment.86. MR JUSTICE ELIAS: I understood that it was agreed that whoever won should get their costs, but I will not formally make that order. Is that your understanding, both of you?87. MS OLLEY: Yes. My understanding was that any consequential matters would be dealt with in writing within 14 days, including costs.88. MR JUSTICE ELIAS: Then that is how it will be dealt with.89. MR LYNESS: My Lord, just for the avoidance of doubt, we would seek to protect our position in the event that you refuse us permission to appeal. I ask for a direction of a period of 14 days to appeal to the Court of Appeal after your decision on that application rather than from today.90. MR JUSTICE ELIAS: Yes. All right. I grant that.91. MR LYNESS: I am grateful, my Lord.92. MR JUSTICE ELIAS: You will have to catch me in Leeds. Thank you very much.