Horne & Meredith Properties Ltd., R (on the application of) v Bridgnorth District Council [2005] EWHC 2251 (Admin)

[2005] EWHC 2251 (Admin)

Case No CO/1189/2005

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

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

Date 27 October 2005

Before

HIS HONOUR JUDGE MOLE QC

Sitting as a DEPUTY HIGH COURT JUDGE

Between

THE QUEEN (ON THE APPLICATION OF HORNE & MEREDITH PROPERTIES LIMITED)Claimant

BRIDGNORTH DISTRICT COUNCILDefendant

TESCO STORES LIMITED1 st Interested Party

MERCIAN DEVELOPMENTS LIMITED2 nd Interested Party

James Maurici (instructed by Wragge & Co) for Claimant

Peter Goatley (instructed by Eversheds) for Defendant

Patrick Clarkson QC (instructed by Ashurst Morris Crisp) for Interested Parties

Hearing Hearing dates: 6 & 7 October 2005

JUDGMENT

[1]Horne and Meredith Properties Ltd (hereafter the Claimant) seeks to judicially review a planning permission issued on the 17th of December 2004 by Bridgnorth District Council (the Defendant, hereafter the Council). Permission to bring proceedings was granted by Collins J. on the 15th of April 2005. The planning permission (03/0070) was for the erection of a Tesco retail food store, a retail DIY store and the construction of car parking and a section of link road on land at Smithfield on the north-west edge of Bridgnorth town centre. The Council had resolved to grant planning permission for development, subject to conditions and agreements, on the 8th of October 2003.

[2]The Claimant advances three grounds of challenge. Ground 1 is that the council failed to have regard to material considerations. The assessment of quantitative need for shopping floorspace had been an important justification for the resolution to grant planning permission. After the date of the resolution, changes to the shopping pattern in the localities had the potential to affect that assessment materially. It is said that the council ought, at least, to have reconsidered those new circumstances with the application and their resolution in mind but did not do so. Ground 2 is that the planning permission was ultra vires because the form in which it was issued in respect to two conditions differed from the form approved by the planning committee. There was neither specific authority nor any general delegated authority that gave the officers power to issue the planning permission in that form. Ground 3 is that condition 51 of the permission was unlawful, hence the planning commission as a whole is unlawful and should be quashed.

Law

[3]A planning permission is not granted until it is issued. In the case of R. (Burkett) v. Hammersmith London Borough Council

[2002] 1 WLR 1593

, Lord Steyn said:

"Until the actual grant of planning permission the resolution has no legal effect. It is unlawful for the developer to commence any works in reliance on the resolution. And a developer expends money on the project before planning permission is granted at his own risk. The resolution may come to nothing because of a change of circumstances. It may fall to the ground because of conditions which are not fulfilled. It may lapse because negotiations for the conclusion of a section 106 agreement breakdown. After the resolution is adopted the local authority may come under a duty to reconsider its decision if flaws are brought to its attention: R. v. West Oxfordshire District Council, ex parte C. H. Pearce Homes Ltd (1985) 26 RV R 156. Moreover, it is not in doubt that a local authority may in its discretion revoke an outline resolution."

[4]The circumstances in which the local planning authority may come under a duty to reconsider its decision were considered in the case of R. (Kides) v. South Cambridgeshire District Council [2003] JPL 431. In that case almost 5 years had elapsed between the council's decision to grant permission and the issue of the notice. A number of changes which were said to be material had taken place. The appellant contended that the council was under a duty to reconsider those changes before granting planning permission but had failed to do so. Jonathan Parker LJ considered the duty imposed by section 70 (2) of the 1990 Act on a planning authority dealing with an application for planning permission to "have regard to ... (all) material considerations." He said- “"material considerations”121. In my judgment a consideration is "material", in this context, if it is relevant to the question whether the application should be granted or refused; that is to say if it is a factor which, when placed in the decision-maker's scales, would tip the balance to some extent, one way or the other. In other words, it must be a factor which has some weight in the decision-making process although plainly it may not be determinative. The test must, of course, be an objective one in the sense that the choice of material considerations must be a rational one, and the considerations chosen must be rationally related to land-use issues. "Have regard to"

122. In my judgment, the authority's duty to "have regard to" material considerations is not to be elevated into a formal requirement that in every case where a new material consideration arises after the passing of a resolution (in principle) to grant planning permission but before the issue of the decision notice there has to be a specific referral of the application back to committee. In my judgment the duty is discharged if, as at the date at which the decision notice is issued, the authority has considered all material considerations affecting the application, and has done so with the application in mind - albeit that the application was not specifically placed before it for reconsideration.”

[5]After turning to the situation where a material consideration arises for the first time immediately before the officer signs the decision notice, he continued- "126. In practical terms, therefore, where since the passing of the resolution some new factor has arisen of which the delegated officer is aware, and which might rationally be regarded as a "material consideration" for the purposes of s. 70 (2), it must be a counsel of prudence for the delegated officer to err on the side of caution and refer the application back to the authority for specific reconsideration in the light of that new factor. In such circumstances the delegated officer can only safely proceed to issue the decision notice if he is satisfied(a) that the authority is aware of the new factor,

(b) that it has considered it with the application in mind, and

[6]The Judge had earlier recorded the submission of Mr Drabble on behalf of the interested parties thus- "115. As to section 70 (2), Mr Drabble submits (as he submitted unsuccessfully to the judge: see para.71 of the judgment, quoted earlier) that where there has been a material change of circumstances between the resolution and the issue of the decision notice consequent upon the resolution of the relevant question is whether the officer with authority to issue the decision notice remains entitled to act on the resolution, and that he will remain entitled so to act provided that that has not been a change of circumstances "of a kind that means the committee should be invited to form a fresh judgment" (I quote from paragraph 12 of Mr Drabble's skeleton argument, on which he based his oral submissions". Paragraph 12 of the skeleton argument continues:

"He is not obliged to go back to committee if his mandate remains good, as it will if the changes are small or if the original resolution remains consistent with the policy views of the council albeit expressed in a different context. If it is clear that the council as a whole (including the officers holding delegated powers) are alive to the various changes of circumstances, the council will have regard to all material considerations at the date of issue; express reconsideration by the original committee is not necessary."

[7]Parker LJ said of this:

"127. In substance, therefore, I accept the submissions made by Mr Drabble ... (quoted above) but with the proviso (which may in any event be implicit in his formulation of the statutory duty) that the test of a "material consideration" is an objective one in the sense explained in paragraph 121 above. It is not for the delegated officer to decide what is a material consideration within the meaning of section 70 (2). Hence it is no defence to a claim that an authority has breached its section 70 (2) duty for the authority to assert that in issuing the decision notice the delegated officer did not consider the consideration to be "material"

. Accordingly, I respectfully agree with the judge's observation (in paragraph 71 of the judgment) that "the delegation of the consideration of new material considerations is no answer to the... claim".

[8]In the event, the Court of Appeal agreed with Ouseley J. that the council had discharged its duty on the facts.

[9]I was referred to the case of R. v. St Edmundsbury Borough Council, ex parte Davidson [ 2000] JPL 417 as an example of a case where there was a material change, to which the council failed to have regard, between the resolution and the grant.

Facts

[10]The Tesco/Mercian application was submitted on the 31st of January 2003. It related to a site just outside the northwestern age of the town centre as defined in the development plan at the time. The site included land in the ownership of the claimant. It was claimed as an advantage of the Tesco application that it would complete a relief road, cutting the corner formed by Whitburn Street and the High Street and Northgate. To the west of the application site and on the other side of the first segment of the relief road was a large Somerfield supermarket and its car parking. The Somerfield supermarket was also, at that time, on the edge of the defined town centre. Government planning policy, set out in PPG 6 at that time, required that applications for large retail developments in "edge of centre " positions should be able to demonstrate that there was a need for them. Demonstration of the need should include showing a "quantitative need", in the sense that there was retail expenditure available in the catchment area that was not sufficiently catered for by the existing available retail floorspace. "Qualitative need", such as the need for a good choice of shops, range of goods, and competitive pricing, was also relevant.

[11]The Tesco/Mercian application was therefore supported by a retail assessment, dated February 2003, produced by Development Planning Partnership (or DPP), which sought to show both a qualitative and quantitative need for the proposed development. This assessment was based on an account of shopping patterns in the Bridgnorth area. A key finding was that the Somerfield store was by far the most popular main food store in Bridgnorth and was trading strongly at a level substantially in excess of the company national average. To understand why that finding was important it is necessary to set out of the assessment in some detail.

[12]The DPP's assessment was explained at paragraph 6 .9 in this way:

" All retail capacity assessments are predicated on estimating the turnover of existing and committed floorspace by using relevant sales floorspace figures, and where possible, published company average or benchmark turnover levels and comparing such turnover estimates with the forecast expenditure available in order to identify whether there is any expenditure surplus or headroom available to support new retail floorspace, having made appropriate allowances for existing and committed floorspace. Consequently, sales floorspace figures and benchmark turnover levels represent two key inputs into any capacity assessment."

[13]I note that "company average or benchmark" turnover levels are one of the "key inputs" into the assessment.

[14]The assessment went on to explain that it was done on a "business basis" and set out the reasons why this was the approach that DPP preferred. DPP then set about their analysis in accordance with the broad scheme they had set out in paragraph 6.9. They identified a level of expenditure that could be available to support convenience business floorspace in the catchment area (£32.3 million) at the anticipated opening date of 2006. They identified the turnover of the proposed Tesco store that would be derived from that catchment area, in their opinion (£12.9 million). They then turned to the provision of convenience business floorspace compared to available expenditure. In paragraph 6 .26 they said:

"For the purposes of this analysis we have adopted, where possible, floorspace figures published by Focus to which we have applied the relevant company average turnover ratio published in Retail Rankings 2002... to identify the turnover based on these averages."

They continued: “6.27 on the basis of the above quantitative assessment, we conclude that the turnover required to support the proposed new store (£12.9 million derived from the primary catchment) can be justified on the following grounds: (i) Over-trading at existing stores in Bridgnorth, principally Somerfield, currently totals approximately £9.8 million i.e. existing expenditure which is available to support new floorspace. (ii) of the total current convenience business expenditure leakage from the PCA (approximately £9.3 million), we estimated that approximately £2.14 million could realistically be clawed-back, i.e. existing expenditure available to support new floorspace. (iii) moreover, there is expenditure growth that also justifies additional convenience business floorspace. As demonstrated above, in the period up to 2006, such expenditure is forecast to increase by £4.8 million. If an allowance is made to account for that element of main food expenditure which is likely to be realistically attainable within the study area (80%), approximately £3.84 million of this will be available to support new floorspace, such as that proposed by Tesco. (iv) existing levels of over-trading plus achievable claw-back and expenditure growth therefore total approximately£15.7 8 million. This contrasts favourably with the turnover requirement of the proposed Tesco's store that will be derived from the PCA i.e. £12.92 million." “6.27 on the basis of the above quantitative assessment, we conclude that the turnover required to support the proposed new store (£12.9 million derived from the primary catchment) can be justified on the following grounds: (i) Over-trading at existing stores in Bridgnorth, principally Somerfield, currently totals approximately £9.8 million i.e. existing expenditure which is available to support new floorspace. (ii) of the total current convenience business expenditure leakage from the PCA (approximately £9.3 million), we estimated that approximately £2.14 million could realistically be clawed-back, i.e. existing expenditure available to support new floorspace. (iii) moreover, there is expenditure growth that also justifies additional convenience business floorspace. As demonstrated above, in the period up to 2006, such expenditure is forecast to increase by £4.8 million. If an allowance is made to account for that element of main food expenditure which is likely to be realistically attainable within the study area (80%), approximately £3.84 million of this will be available to support new floorspace, such as that proposed by Tesco. (iv) existing levels of over-trading plus achievable claw-back and expenditure growth therefore total approximately£15.7 8 million. This contrasts favourably with the turnover requirement of the proposed Tesco's store that will be derived from the PCA i.e. £12.92 million."

[15]The assessment went on to conclude that the proposed store was justified in capacity terms and would meet a demonstrable quantitative need.

[16]It is evident that the total of approximately £15.78 million, which is contrasted with the turnover requirement of the proposed Tesco store of £12.92 million, depends heavily on the "available" existing expenditure at the existing stores of £9.8 million. It is further clear, from the tables attached to the assessment, that by far the greatest contribution to that £9.8 million would come from Somerfield: Somerfield's estimated actual turnover in 2006 is put at £18.14 million (table 8) of which it is estimated that Tesco would draw £8.66 million leaving Somerfield with £9.48 million (table 10). Somerfield's total turnover based upon company average turnover is calculated at £8.36 million. The underlying significance of the use of company averages or "benchmark" figures is that they are taken to give a measure of the comparative competitiveness of the different retail operators. I was shown the UK Retail Rankings 2002 which record that, at the time of the assessment in 2000/2001 Tesco had a sales per square foot of £1,051 while Somerfield had a sales per square foot figure of £520.

[17]I pause to comment upon my understanding of these figures. It seems to me that the assumption that is at the foundation of this part of the analysis is that since Tesco makes about twice as much per square foot as Somerfield does, in a "head to head" competition between the two stores, the Tesco store would be so much more competitive that it would be able to divert to itself roughly as much of Somerfield's existing turnover as would leave Somerfield with a turnover close to its company average. On the other hand, I note from the Retail Rankings that Sainsbury's at the same time had a sales per square foot figure of £976. By parity of reasoning, that figure would seem to suggest that Sainsbury might be expected to be a much tougher competitor for Tesco; one from whom it could be much harder to wrest existing convenience goods expenditure. Such a contention is at the heart of Mr Maurici's argument on ground 1.

[18]The assessment of retail impact thus starts with the judgment that there is ample "headroom" to accommodate Tesco. That this headroom is achieved at the expense of Somerfield is acknowledged, but is of course no ground for objection in planning terms. The assessment concludes that there would only be limited impact on the rest of shops in Bridgnorth town centre and there would be no ground for concern about any adverse impact upon the vitality and viability of the town centre as a whole. It is no part of Government Policy to protect one retailer against another; still less is it any concern of this Court. However, it is a concern of Government Policy to protect the vitality and viability of a defined town centre. For that reason it was important to demonstrate that most of the turnover necessary to support Tesco would come from another food store and not the town centre shops

[19]On the 28th of April 2003, the office of the Deputy Prime Minister, issued a statement on Town Centre Planning Policies, which emphasised that quantitative factors were to be given more weight than qualititative ones in the assessment of need and said that a "goods based" assessment would be favoured. This prompted DPP to submit a Supplemental Goods Based Assessment in June 2003. This assessment continued to employ the methodology of the first assessment but adapted it to a goods basis. On the basis of average turnovers per square metre DPP obtained a total turnover for 2001 in convenience goods derived from the primary catchment area of some £14.3 million, of which Somerfield's contribution would be £5.5 million (paragraph 10). DPP then subtracted this £14.3 million, described as "turnover requirement to support existing floorspace at benchmark turnover levels", from the expenditure that they had calculated to be available within the PCA (£ 25.3 million). (I have added the emphasis.) This left "a surplus or expenditure headroom of £11.0 million". For 2006 they calculated the "expenditure surplus or headroom" to be £13.2 million. On a convenience goods basis, even assuming that Tesco would derive 90% and not 80% of its turnover from the PCA, its convenience goods turnover requirement would be £12.5 million, which DPP compared favourably to the 'expenditure surplus' of £13.2 million (paragraphs 11 to 17). Paragraph 15 of the Supplemental Assessment said:

"On the basis of this convenience goods based assessment, the additional convenience goods floorspace proposed by Tesco is justified in terms of surplus expenditure capacity, irrespective of which population forecast is adopted."

[20]DPP reached a similar conclusion in respect of comparison goods and concluded that there was, therefore, a demonstrable strong quantitative need for the proposal.

[21]The Council sought an expert appraisal of DPP's assessments from Chestertons. This was forthcoming in August. It accepted the DPP assessment with some reservations which are not important for this case. The officer report to committee set out the main points of DPP's assessment and recorded Chesterton's views based upon that study. On the 8th of October 2003 of the Development Control Committee resolved that they were minded to permit the proposal subject to referral to the Secretary of State for various reasons, which, in the event, caused no difficulty, and subject to a section 106 agreement to include certain specified matters and a number of specified conditions.

[22]The first change in the shopping in Bridgnorth took place in February 2004 when the 'One-Stop Convenience Store' in Bridgnorth was replaced by a new Tesco Express. Then the Somerfield store was purchased by Sainsbury's in April, and it reopened as a new Sainsbury's in June.

[23]In October 2004 Sainsbury's and the claimant made a planning application. This prompted correspondence from Sainsbury's solicitors, Denton Wilde Sapte (hereafter DWS). On the 27th of October DWS wrote to Mr Clark, the Head of Legal Services, and made the point that certain material changes in circumstances should be drawn to the attention of committee members for them to decide whether their decision on the Tesco application should be confirmed. One of the circumstances that was said to be material was the change in the retail situation in Bridgnorth following the acquisition by Sainsbury's of the Somerfield unit.

[24]Mr Clark replied on the 10th of November 2004, saying:

" If there are no material changes from what was approved on the 8th October 2003 in the overall content of the conditions or the section 106 Agreement it is the practice of this Council to issue the planning permission on completion of the Section 106 Agreement. If however there are changes to the overall content of the conditions and Section 106 Agreement then it would be referred back to the Development Control Committee for reconsideration to see if the Members were still willing to grant the planning permission based on the altered conditions/terms of the Section 106 Agreement. This practice is common to many Councils across the Country."

[25]On the 16th of November DWS responded that Mr Clark might have misunderstood the point of the earlier letter. That point was set out again and was supported by, amongst other things, a report prepared by Turley Associates which dealt with the retail capacity issues in Bridgnorth and set out the reasons why it was said that the assumptions as to capacity that had been made in the DPP reports had now been overtaken. (Paragraphs 13 to 19 were particularly relevant.) An early response was asked for. Mr Clark responded on the 29th of November 2004. He said:

"I note the further papers supplied with your letter of the 16th November 2004. Obviously the Kwik Save Store has now been rebranded as Sommerfield Store.(sic) While not putting myself forward as expert in these matters I find Turley Associates statement that the catchment area population will decline by 2006 rather surprising. The demand for housing in Bridgnorth town is high (as reflected in the prices) and in recent months the Development Control Committee have given permission for additional housing units, which are currently being built. In addition the new local plan, which is due to go to Enquiry on the 7 June 2005, provides for an additional 500 homes within two miles of the Smithfield site."

[26]He then essentially repeated the passage from his earlier letter that I have set out above. On the 16th of December DWS again wrote to Mr Clark, recording that he had not sought to address the points that had been made, and warning him that the council's approach was, in DWS's view, unlawful.

[27]On the 17th of December 2004 the Tesco/Mercian planning permission was issued and the section 106 agreement was signed. Mr Clark's letter of the 23rd of December 2004, ended:

"I appreciate at some Councils that there is an automatic reference back to committee when a certain period has passed from their original decision. This is not the present practice of Bridgnorth District Council's Development Control Committee and therefore given the content of the Section 106 and planning conditions taken together meet the requirements of Committee following its deliberations at the special meeting on the eighth of October 2003 of the Section 106 Agreement has been completed and the permission then issued."

[28]Mr Paul Walker is the Director of Development Services at the council with responsibility, amongst other things, for planning applications. He says (paragraphs 16 to 22 of his statement) that he considered the Turley material carefully but it provided no sound basis for referring the Tesco/Mercian application back to committee for reconsideration. He summarises his reasons for this conclusion. He also says that he considered the correspondence between DWS and Mr Clark but formed the view that no new material considerations were raised that warranted reconsideration by the committee of its decision to grant permission.

Submissions – Ground 1

[29]Mr Maurici, for the claimant, focused upon the effect on the quantitative need assessment of the change of Somerfield to Sainsbury's and of the One Stop Store to Tesco's Express. His points can be briefly summarised thus: given the way DPP had undertaken their quantitative analysis, with the use of company averages or benchmark figures to justify sufficient "head room" to accommodate Tesco, the change in floorspace, particularly of the Somerfield floorspace to occupation by Sainsbury's with a different and more competitive average or benchmark figure, required a re-evaluation of the analysis by the committee. He referred me to the case of Kides, the relevant passages of which I have set out above. He submitted that the effect of that case was that the claimant should succeed unless I was satisfied that the floorspace changes could not have been rationally regarded as a material consideration.

[30]Mr Peter Goatley, for the Council, submitted that I should find that the changes the claimant relied upon were, indeed, not material. He pointed out that the floorspace was of exactly the same size and was in exactly the same position. Both the Somerfield/Sainsbury and the Tesco sites were "out of centre" or "edge of centre" and were equal in terms of government policy. Neither had any hierarchical preference in policy terms or in terms of the development plan. Neither deserved any protection from the other's competition. He drew my attention to the criticisms that Mr Walker made of the Turley analysis. There was some reason to think that in fact Sainsbury was trading at a lower level than the Somerfield store had been. The growth in the primary catchment area was, Mr Walker felt, likely to be higher than the Turley analysis foresaw. A specific criticism was that, in paragraph 15 of the Turley analysis, the substitution of Sainsbury's had been tested by applying the Tesco average convenience goods turn over to Sainsbury floorspace, whereas Sainsbury was likely to trade below the Tesco average. For these and other reasons Mr Walker was entitled to conclude- and I should also conclude- that it was unnecessary to put the matter back before committee because the changes had not in fact had the effect of making any material difference. Mr Patrick Clarkson QC, for the interested parties, adopted and elaborated upon the points made by Mr Goatley. It might not be over-cynical, he ventured, to see the claimant's case as being an opportunistic attempt to delay a competitor. On a careful examination of the facts it would be seen that nothing that mattered had really changed.

[31]Mr Maurici, for the claimant, responded that, given that there was no hint in Mr Clark's letters that he had understood the point DWS was making, let alone that he had referred the matter to the Director of Development Services, it was difficult to reconcile the contemporary correspondence with Mr Walker's evidence.

Submissions-Ground 2

[32]Mr Maurici's second ground is that there were significant changes from the terms of the committee's resolution to the terms on which the permission was actually issued. The resolution was expressed to be subject to, amongst other things, the section 106 obligation including "car park management/pricing" and "Completion of Green Travel Plans". (Committee minute, page 7, (ii)) There was no specific authority given in the resolution to officers to dispense with these obligations or to transform them into conditions. Nor was there any general authority in any scheme of delegation which allowed officers, in the exercise of their discretion, to effect such a transformation. In fact, those obligations became, respectively, conditions 48 and 51. This change was ultra vires.

[33]Mr Goatley replied that this was a technical objection. He drew my attention to a general power granted to Senior Planning Officers in the council's Scheme of Delegation in these terms " 7. Authority to attach appropriate conditions to permissions which are granted subject to conditions." While acknowledging that he had not sought to rely upon this power before, he argued that it would cover the matter adequately.

Submissions-Ground 3

[34]Condition 51 of the planning permission, issued on the 17th of December 2004, read as follows:

"Before development commences a Green Travel Plan shall be submitted to and approved in writing by the Local Planning Authority."

[35]Mr Maurici submits that such a condition is unenforceable and unlawful. The reason is that, even if such a plan were submitted and approved there is no mechanism specified to enforce its implementation. The condition is of the sort condemned as unenforceable by the Secretary of State in Circular 11/95 at paragraph 30.

[36]Mr Goatley submitted that condition 51 was not flawed; the plan would have to be submitted to the planning authority and would contain its own measurable outputs, which would give the Council the opportunity to monitor and implement it. In any event, Mr Clarkson put forward a planning obligation by deed given by Tesco and Mercian, attached to the witness statement of Marianne Bate. The crucial provision of this obligation is:

"5.1 The Developer and the Landowner hereby agree that following written approval by the Council of the Green Travel Plan pursuant to Condition 51 of the Planning Permission they shall implement or procure the implementation of the Green Travel Plan as approved thereafter"

. He submitted that, whatever I thought of Mr Maurici's point, this obligation completely met it and, in the exercise of my discretion, I should decline to quash in reliance on it. Conclusions Ground 1

Conclusions

[37]I have no doubt that Mr Maurici's submissions on ground 1 are correct. Average floorspace or benchmark figures were used in the quantitative assessment undertaken by DPP to demonstrate that a substantial proportion of the existing turnover of the existing convenience shopping floorspace, and particularly Somerfield's floorspace, might be considered as creating "head room" within which a major part of the turnover of a new Tesco could be accommodated without any harm to the vitality and viability of the town centre. The necessary underlying assumption was that Somerfield was not as strong a competitor as Tesco and would be forced to yield up a substantial part of its existing turnover. This reasoning was the justification for a very significant proportion of the notional turnover which it was considered would be available to Tesco in 2006 when that store opened. It seems to me that it was inescapable that the assessment might change when a significantly stronger competitor occupied the Somerfield floorspace. The average floorspace turnover figures show that whether or not Sainsbury is quite as strong a competitor as Tesco, they are both in the same league. They both turned-over, on average, approaching double the amount from their convenience floorspace that Somerfield did. Applying the Tesco floorspace figure to the floorspace occupied by Sainsbury's, as the Turley analysis did, might indeed overstate the effect of the change to a degree but not in my judgment to such a degree that the significance of the change could be dismissed as immaterial. To borrow the words of Parker LJ in Kides, the effect of the change is material in that it has some weight in the decision making process, although plainly it may not be determinative.

[38]The facts that the floorspace stayed the same and that the actual turnover of Sainsbury's was less than the actual turnover of Somerfield on the same site, are nothing to the point. (Although one might doubt the validity of drawing any very significant conclusions from a comparison between a store that had only been open for a few months and one of that had been trading on the site for years.) It does not follow that because the turnover of Sainsbury's was lower that it was as (or more) vulnerable to competition than Somerfield and would be as easily deprived of a substantial amount of that turnover to support Tesco. The "average or benchmark" based analysis suggested the contrary.

[39]Of course, it may be that on a proper re-analysis, the consultants can demonstrate that the occupation by Sainsbury of the Somerfield floorspace makes little difference to the quantitative analysis in the end. The methodology may be revisited. Such differences as there are may be overwhelmed by factors such as higher than anticipated available expenditure within the primary catchment area. The Committee may conclude, probably but not necessarily after taking specialist advice, that they are satisfied for proper reasons that a sufficient quantitative need remains.

[40]What, in my judgment, cannot be said is that on a reconsideration it is inevitable that the Committee would reach the same conclusion. The changes in the occupation of shopping floorspace were plainly material to the assessment of quantitative need upon which the council had relied in their resolution of the 8th of October 2003. It was incumbent upon them to consider those changes with the Tesco application in mind. They never did so. Even if I had been satisfied that the Council's officers had adequately considered the changes, and I am not, that would not have been enough. For those reasons the claimant succeeds on ground 1 and the planning permission is quashed.

[41]Accordingly it is not necessary to express a concluded judgement on grounds 2 and 3. They can be dealt with when the whole matter goes back to committee. In case it is helpful, I summarise my views as follows: Ground 2.

[42]There is force in the point that the Council are unable, surprisingly, to point with any conviction to either specific or general authority for the officers to change the status of these requirements. Paragraph 7, set out above is not really apt to cover the situation. The point is a technicality, it is true, but it would have been difficult for the Council to urge that I should not have exercised my discretion to quash given Mr Clark’s repeated insistence that changes in the overall content of the s.106 obligations and conditions would be referred back to committee.

Ground 3

[43]Condition 51 is obviously drafted in a way that makes it unenforceable but it is equally clear that the obligation put forward by Mr Clarkson’s clients remedies the defect in practical terms. I would not have been inclined to quash on that ground alone in the circumstances.