Stamford Chamber of Trading, R (on the application of) v South Kesteven District Council [2009] EWHC 2252 (Admin)

[2009] EWHC 2252 (Admin)Case No CO/9208/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 15 July 2009
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF STAMFORD CHAMBER OF TRADINGClaimantAND OF COMMERCEClaimantv
Between
SOUTH KESTEVEN DISTRICT COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Michael Bedford (instructed by Matthew Arnold & Baldwin) appeared for ClaimantMr Christian Zwart (instructed by Legal Department, South Kesteven District Council) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE COLLINS: This claim involves an attack on a planning permission granted by the defendant council on 22 July 2008 to enable Morrison Supermarkets plc, the interested party, to construct a non-food or comparison goods retail and leisure development at Uffington Road, Stamford, Lincolnshire. The site in question is on the eastern edge of the town on an old factory site now cleared.[2]The first claimant, Stamford Chamber of Trade, is an unincorporated association of local businesses, particularly concerned to maintain the viability and vitality of the town centre and having a general concern about all developments or planning permissions which may affect the town centre and those trading in it. The second claimant has premises which are opposite those upon which the development is to take place.[3]The main grounds of attack relate to the alleged factual inaccuracies in and the incomprehensibility of passages in the officer's report to the committee and the failure to put into effect the resolution of the committee.[4]I deal first with the attack on the officer's report. Before doing so, I should say that the question of development of the site in question has a relatively lengthy history. Stamford is the second largest town in the local planning authority's area in Lincolnshire. It has a historic core which was, in fact, the first conservation area created in England containing over 500 listed buildings. It is a singularly attractive town centre. It straddles the River Welland. Within the town there is still only one crossing point. Clearly, as a result, there are considerable traffic problems. That crossing point accommodates all north/south movement through the town centre and, in addition, provides the main east/west route for traffic using the A16 road which at the moment has to cross the river at this point.[5]Those traffic problems have given rise to traffic schemes of one sort or another to build relief roads. One such proposal concerned the possibility of a road either adjacent to - or possibly even through part of - the site in question.[6]There was a separate challenge to the Secretary of State because it was suggested that the route known as Policy T1 ought to have been preserved. The decision was reached that it need not be preserved, and thus one aspect of opposition to the development in this case has been removed as a result of that. That challenge was dealt with by Mr Rabinder Singh QC, sitting as deputy judge of this court, who rejected it.[7]There has been an application for leave to appeal. That was refused, as I understand it, by a single Lord Justice. This morning a renewed application was successful, so there will be an appeal against that particular decision. If that appeal succeeds so that the challenge to the failure to retain the policy relating to the relief road is quashed that will affect this particular planning permission. As I understand it, the council and the interested party contend that it could go ahead notwithstanding the need to preserve the particular relief road route.[8]The claimants contend that that is not, in fact, a sensible possibility, but that issue clearly would have to be considered as it has not yet been. In those circumstances the matter would be deferred at least until the Court of Appeal decision had been reached and perhaps after that if the claimants succeeded on the appeal for a reconsideration by the planning committee. Thus the possibility of immediate development is certainly remote and unlikely at the moment.[9]I need say no more about the relief road aspect because that is not part of this claim.[10]In 2004 the interested party applied for planning permission for a retail and leisure development on the site. In March the claimants objected to that on grounds, including scale and location having a detrimental impact on the vitality and viability of the town centre and also prejudice to the relief road link corridor which, at that stage, remained technically in being. That application was withdrawn in April 2005.[11]In December 2005 a second application was made for a revised scheme on same site. Similar objections were made by the claimants. On 10 March 2006 the council refused planning permission on the ground that the Transport Assessment was inadequate. The interested party appealed. The claimants were both made Rule 6 parties. The appeal was withdrawn in March 2008, and so the Inquiry was cancelled. The reason for the withdrawal, no doubt, resulted from the fact that in August 2006 a fresh application was lodged by the interested party for a further revised scheme.[12]On 21 September 2006 the first claimant objected on similar grounds to those that they had raised in relation to the other previous applications.[13]There was on 13 November 2007 a meeting of the Development Control Committee which considered a report on the application recommending that, provided the Secretary of State did not call it in, planning permission should be granted. The committee decided to defer the application for determination by the Lead Professional-Development Control, subject to certain provisos, including the completion of a Section 106 agreement to improve pedestrian and cycle access from the town centre to the development and to provide a bus service to the site.[14]In February 2008 solicitors for the claimant wrote to the defendant's solicitors enclosing a copy of a final draft retail report from a consultant, MT Town Planning, instructed by them. That report undertook a critical review of the analysis which the interested party had produced in support of the application for planning permission and of the council's assessment of retail issues in the report to the committee of November 2007. It was critical of the question as to whether there had been demonstration of need for the particular development. There was an assertion that the quantum of floorspace proposed was excessive in relation to likely turnover and floorspace in the town centre; it was of an inappropriate scale; and the impacts on the town centre were likely to be in excess of those reported to the committee. In addition, it was said that it was not sufficiently accessible, inasmuch as there was insufficient provision for public transport to the site.[15]What followed from that was a succession of reports produced by the interested party through its consultants, and others to the council commenting on those reports by a firm of planning consultants who were instructed by the council, that is to say Messrs White Young Green ("WYG").[16]The committee was due to sit to consider the application on 22 July 2008. There was prepared for it a report by the officer. In fact, the two previous reports that had been prepared for the previous hearings were put together with a subsequent third report (which dealt with up-dating of matters which had either not been dealt with fully in the previous reports or in respect of which there had been criticisms) and the up-dated report, or the up-dated part of the report, was an endeavour to meet those criticisms because the recommendation of the officer was that planning permission should be granted subject to a number of conditions.[17]WYG, in June 2006, had produced what was described as a Retail Needs Study - which sought to identify the need for such comparison goods as were proposed to be sold from the development within Stamford - looking to the future. A number of dates were chosen and that which, it is accepted, is the proper date to consider is 2011. That had been chosen because it was thought to give sufficient time for the development to settle down and so would provide a realistic idea of the need which, of course, was a question of forecasting on the information which was then available and which was decided to be reliable in identifying what the future needs were. Whether or not, in the light of the economic situation which has developed, those forecasts are accurate, I do not know, but that is not an issue which is directly material for the purposes of this claim.[18]WYG had produced an earlier report in 2004, no doubt when the original application had been made by the interested party back in 2004. That had been up-dated by the 2006 report. That again was up-dated in two further reports, one prepared in June 2008 and one in July. The June 2008 report is described as a retail audit supporting up-dated retail assessment prepared by Peacock & Smith, Peacock & Smith being those instructed by the interested party. The July report is described as a retail audit of additional information submitted by Peacock & Smith in July 2008. The purpose obviously of the two reports was to give the committee the up-dated position to enable them to reach the correct decision in their meeting of 22 July.[19]There has been considerable detail put forward before me in the arguments by counsel. I do not propose to go into them in a great deal of detail because the reasons have become clear. It seems to me that the claim can be resolved by reference to relatively short and, I hope, clear considerations.[20]The question is essentially whether the committee were presented with material by the officer which was misleading in the sense that it failed properly to identify the square metreage of non-bulk comparison goods which could properly be allowed in the development. When I say "properly allowed" I mean without having an adverse impact upon the vitality and viability of the town centre and which fitted in with the forecast made by those concerned and, in particular so far as the council was concerned, by their consultants WYG.[21]It is to be noted that in its June 2008 report WYG stated:
"1.04 In total, the proposal includes 6,335 sq m gross (4,435 sq m net) of new retail floorspace and 2,128 sq m gross of leisure floorspace. Of the net comparison goods floorspace it is proposed that 2,282 sq m is to be used for the sale of bulky good and 2,153 sq m for the sale of non-bulky goods. It is understood that units 1,4, 5 and 6 are proposed for bulky goods retailers, whilst the JJB unit [that is for the sale of sports goods] and units 2 and 3 are proposed for the sale of non-bulky comparison goods. 1.05 The planning application follows a previous almost identical retail park proposal on the application site by [the interested party] ..... On behalf of the council WYGP undertook a retail audit of this proposal. A copy of this audit is attached at Appendix A. The audit was informed by the South Kesteven District Councils Retail Needs Study undertaken by WYGP in March 2004. We understand that this planning application was refused on highways grounds under planning officer delegated powers in March 2006."
They referred to the up-dated Retail Needs Study in 2006. They went on:
"1.07 The subject planning application was submitted in August 2006 and was accompanied by a P & S Retail Assessment dated July 2006. The assessment was based on the March 2004 South Kesteven District Council Retail Needs Study and not the more recent 2006 study. An up-dated Retail Assessment was submitted by P & S in May 2008 taking into account the findings of the more recent 2006 Study. It is our understanding that the up-dated P & S Assessment supersedes the information contained in the P & S July 2006 Assessment. 1.08 Accordingly, this retail audit provides an update of the previous January 2006 WYGP retail audit having regard to national retail planning guidance contained in PPS 6, the 2006 [council] Retail Study,the up-dated retail assessment and information submitted by P & S in support of the planning application."
[22]One of the matters Mr Bedford draws attention to is that the tables used and figures produced in the officer's report are taken from Appendix A which refers back to the 2004 study, and therefore is out-dated, and so the figures are not accurate having regard to the 2006 report.[23]If one goes back to the retail need study of 2006 one finds that it in fact was concerned with floorspace capacity for the whole district, but in that district there were four urban areas which were specifically identified, one of which was Stamford. It was said in that study that in terms of Stamford it was assessed that the town could support close to 4,000 sq m of new comparison floorspace by 2011; the precise figure given was 3,697 sq m which could explain the reference to "close on 4,000". But there was a table (figure 4.2 on page 28 of the report) which is headed "Market Share Adjustments for the four urban areas 2011 onwards". We find in Stamford that the market share for clothing and footwear and for other non-food goods remains constant at respectively 9 per cent and 21.1 per cent. In addition DIY and Hardware is also constant. The increases are in electrical goods and furniture and floor coverings.[24]Taking account of an increased market share, it was stated that Stamford could support up to 5,145 sq m net comparison goods floorspace by 2011, rising to 15,300 by 2021. But WYG drew attention to the fact that longer-term forecasting might be unreliable and should be subjected to up-dating.[25]There is a reference to "net" and "gross", the point being that the area which generates the trend is effectively the sales area and that is what is referred to as "net". There are of course questions of detail as to what precisely should be included in the sales area but, broadly speaking, that is the distinction. There is a question as to what is the appropriate division in percentage terms; 70-30 was, it seems, applied by those advising the interested party but WYG suggested that a truer figure should be 80-20. Those are not figures that are going to be crucial for the purposes of the analysis of this claim.[26]The key page in the officer's report is internal page 57 (which is at page 258 of the bundle). At page 54 (255) the heading is "Quantitative Need". "Bulky" and "non-bulky" are defined. "Bulky goods" are defined as - " ..... those falling into three categories .....• Electrical good - incorporating domestic appliances, radio, television and other durable goods [and so on]• Furniture and carpets - .....• Do-it-yourself and hardware - ..... " Those are all the categories in respect of which there was to be no increase in the market share in 2010 onwards (refer paragraph 68). Thus that was going to remain a constant figure and would not and could not be affected by the method of comparison as will become apparent.[27]The officer's report sets out in table 32d (on page 55) what it describes as the "Total Bulky Comparison Goods Floorspace Capacity in Stamford (increased market share)". The residual capacity in 2011 is put at 3,216 sq m. The next table - 33c - shows that the residual capacity in respect of non-bulky comparison goods floorspace is 1,929. Thus the total is given there as 1,929 plus 3,216 or a total of 5,145 (refer paragraph 72).[28]The officer then considered the question of estimated turnover and produced a figure for 2011 of £13.2m. That was out-dated. The correct figure should have been £15.6m which would clearly affect the question of impact. The point is made that the gross net ratio of 70-30 adopted by P & S appeared low and the majority of retailers associated with retail parks generally adopted 80-20. It was considered that the floorspaces quoted by P & S should be conditioned. That meant that conditions should be imposed on any permission granted to ensure that there was a limit placed on the square metreage that could be used for the purposes of sale of bulky, on the one hand, and non-bulky, on the other, and the total of floorspace that could be used for sale of any sort.[29]Retail Capacity was then set out in two figures: figure 2.2 and 2.3. This is where we begin to get to the difficulties. Three separate scenarios are put against the relevant dates (I am referring to 2011): scenario 1 (constant market share); scenario 2 (floorspace efficiency increase); scenario 3 (10 per cent increase in market share). The total square metreage shown for non-bulky in those three scenarios ranges from 4,987 (in scenario 1) to 6,436 (in scenario 3). These figures are based on the 2004 report.[30]The officer goes on:
"P & S consider that there is potential and a need for Stamford to further increase its market share of non-bulky comparison goods retail trade. P & S state that this would allow the town to be able to successfully compete with other centres and meet more of the town's population shopping needs within the town."
There is further figure 2.3 headed "Non-bulky comparison goods floorspace capacity in Stamford, based on P & S's increase in market share" which is a further increase from 10.1 per cent to 13.1 per cent, giving a total square metreage of 9,090 sq m. Those total figures - and all I have said for non-bulky - do not fit in at all with the forecasts put forward by WYG.[31]As I have indicated, in June 2006 the net comparison goods floorspace which Stamford could support was said to be 5,145. That was made up by 3,126 in bulky goods and 1,929 non-bulky goods. That 1,929 figure is a most important one because that is the figure which would remain constant. It would not depend upon how one calculated the market share or the increase in market share because there was no increase in the market share which would be obtained in non-bulky goods.[32]The claimant's advisers saw a copy of the officer's report and wrote a lengthy letter of 18 July which had attached to it what was described as comments on the committee report made by their advisers. So far as any quantitative needs were concerned, the point was made that 1,929 was the figure which had been put forward by WYG as the capacity for non-bulky, and that the quantity suggested by P & S (that is the interested party's advisers) was 2,153 sq m, which was in excess of that. In fact, WYG had not dissented from the 2,153 figure. In their June 2008 audit they say this (internal page 15):
"Based on P & S's recent health check of Stamford Town Centre and our own review of Experian Goad Town Centre Plan for Stamford (May 2007) [in other words, put forward by experts] there would appear to be no vacant units in the town centre capable of accommodating even the smallest of the proposed units, measuring 465 sq m gross. We would agree with P & S's conclusions on this matter. Notwithstanding this, we would advise the council, should planning permission be granted, that suitable planning conditions are attached preventing the retail units from being sub-divided into smaller units and restricting the amount of floorspace devoted to non-bulky goods to that assessed in the P & S assessment (2,153 sq m net)."
[33]That figure was in excess of 1,929 which WYG had indicated, in their view, was the appropriate capacity. Nonetheless it was clear from that audit that they were not prepared to say that the 2,153 was unacceptable. Nevertheless it was, in the end, of course a matter for the committee to decide what was the appropriate figure, and they should therefore have had the proper full information to enable them to know precisely what the position was. It is there that it is said, with some force, that the officer's report fell down. This matter had been raised in the report or in the comments rather attached to the claimant's solicitor's letter of 18 July. At paragraphs 1.31 and 1.32 it is stated:
"1.31 The apparent acceptance of the P & S approach by the council is contrary to guidance in PPS 6 ..... on taking account of the catchment areas of competing centres. It also ignores the recommendations of the 2006 WYG Retail Study as the proposed non-bulky goods floorspace (2,153 sq m) is greater than the recommended capacity (1,929 sq m) in the design year of 2011 on even the most optimistic scenario. 1.32 P & S do not provide any market evidence of demand for the proposed units other than JJB and the 2006 WYG study found only one requirement for a large space user in the town. The 2006 WYG survey also identified quite high retention levels for non-bulky goods other than clothes in the town suggesting very little need for additional floorspace for this class of goods."
[34]That being the material, one goes back to the officer's report and at page 57 (page 258 in the bundle) one finds this:
"Having regard to the amount of the expenditure leakage from Stamford's catchment (£81.6m at 2003) to Peterborough your officers do not disagree with P & S's assumed increase in market share for Stamford. As noted by P & S, there will always be a significant amount of PCA expenditure on non-bulky comparison goods expenditure directed to Peterborough due to its wider retail offer choice. However it is reasonable to assume that widening the retail choice at Stamford would have the potential to 'claw' a proportion of this expenditure back to the town, resulting in a diminishing need for residents in Stamford to travel long distances for their non-food shopping to higher order centres such as Peterborough. The above tables [that is setting out the four scenarios] show that WYG have calculated that assuming an increase in market share that 1,929 sq m of additional floorspace for non-bulky goods can be accommodated in Stamford. This is 37% of the total increased floorspace capacity available. Taking P & S's forecast envisaged in scenario 3 which is considered to be acceptable then 37% of 6436 sq m is 2381; this is 53% of the total retail floorspace proposed. The JJB store has a comparable net floorspace of 1,502 sq m and it is considered that the goods offered are not significantly different from that identified in the categories of WYG. The remaining floorspace should be restricted to those classes of goods identified as Bulky Comparison by WYG. It is acknowledged that the incorrect table was used to justify the condition to split between bulky and non-bulky. It is considered that the split of 50/50 bulky and non-bulky floorspace is logically justified from the above analysis and as a consequence the condition restricting the goods to be offered at the units should be amended to reflect the."
[35]It is obvious that that last sentence simply was not making sense because you can hardly end a sentence with the definite article. Something has gone wrong in the checking of the report.[36]But the previous paragraph - which indicates, on the face of it, that the available or the appropriate floorspace for 2011 for non-bulky goods should be 2,381 - simply is, as Mr Bedford submits, erroneous because it ignores the fact that the market share for non-bulky goods remains constant. Thus scenario 3, which is based on a 10 per cent increase in market share, would be an increase only in bulky goods. Therefore the 1,929 figure would remain constant. That is clear from tables produced in the WYG report, which makes it clear that the 1,929 remains constant.[37]Thus the exercise of translating by virtue of it being 37 per cent of the capacity available is an exercise that is impermissible if one pays proper regard to the information provided by WYG. That being so, the figure of 2,381, which is in excess even of the 2,153 which WYG seem prepared to accept, is an entirely false picture to the committee.[38]I do not see that there is any answer to that as a matter of fact based upon the figures that have been produced in the various reports. Thus the committee were, on the face of it, misled into believing that the figure of 2,153 was not only acceptable but was within that which the figures produced show to be correct. Furthermore, in fact, if one adds the 1,502 which is contained in what is called the JJB store to that available net in units 2 and 3 (which were the two units that were going to be linked into two non-bulky goods) one reaches a figure which exceeds the 2,153. It does not quite reach the figure of 2,381; I think it comes out at about 2,245.[39]There is, on any view, an increase over - if one takes those additions - that which has been recommended. That becomes significant in relation to the second basis of the challenge, namely the failure, it is said, to apply properly the resolution of the committee in relation to conditions.[40]I come back to the last sentence which makes no sense as it stands. What is said in statements produced by the officer and by the chairman of the committee is that there was a mistake in the sentence, that what it should have said was - it is considered that the split of 50-50 bulky and non-bulky floorspace is not logically justified from the above analysis and as a consequence the condition restricting the goods to be offered in the units should be amended. The officer said that there should have been added after the word "the" - that it should have ended with the words "the proposed conditions from White Young Green."[41]Mr Bedford submits that that is an ex post facto justification and one should be cautious in accepting it. In fact, if one reads it as it stands the 53 per cent figure which is referred to in the previous paragraph is of course relatively close to a 50-50 non-bulk. So it is not inconsistent with that but the officer should have indicated that the 50-50 split was logically justified and that the only words missing at the end of the sentence would be the words "above analysis" or "it". So it would read:
" ..... consider a split of 50-50 bulky and non-bulky floorspace is logically justified from the above analysis as a consequence of conditions restricting the goods to be offered in the units should be amended to reflect the above."
[42]It is suggested that the whole analysis is contrary to a 50-50 but not necessarily in the way in which the matter is reported. Be that as it may, the chairman of the Development Control Committee says he was well aware it was not a question of 50-50. He was, he says, and so was the committee, well aware of the ongoing history of this. They had - and Mr Zwart makes this submission forcefully - before them all the relevant material, including that put forward on behalf of the claimants, and thus they had access to everything which had been put forward on both sides and indeed by WYG in relation to this application. That being so, it was, it is said, quite impossible to concede that they had not been entirely aware of all the relevant considerations.[43]There was also provided in addition to the report what is described as additional information to the committee. This produced, as appendices, the objections put forward on behalf of the claimants and further information by the applicants and the audits provided by WYG. It was said that the audit confirmed that the impact was considered acceptable and recommends conditions. It stated that the applicant stated that the net floorspace proposed for retail was 4,435 sq m, that the WYG study set out in the report (at pages 55 and 56) indicated the total residual floorspace was 5,145 sq m, that being the total. They said that they considered that the report was not confusing and did address the objections properly and so there was no reason to change the recommendation that had been made.[44]One of the recommendations, as I have already indicated, from WYG was that conditions should be attached to any planning permission if any were granted which limited the amount of floorspace to be made available for non-bulky and bulky goods. In the conclusions to their July 2008 report WYG said at paragraphs 3.01 and 3.02:
"Having regard to the additional information provided by P & S it is considered that the proposal is acceptable with regard to retail policy test: retail impact. 3.02 It is important to note the proposal involved 2,153 sq m non-bulky and 2,282 sq m gross bulky comparison goods floorspace within 7 retail units. P & S state that the non-bulky comparison goods floorspace is proposed within the first floor of the JJB unit and units 2 and 3, whilst units 1, 4, 5 and 6 are proposed for the bulky comparison goods floorspace. P & S's retail assessment and WYG's retail audit is based on these assumptions. Accordingly should the proposal be granted we would strongly advise the council to attach planning conditions. • restricting the net retail sales retail floorspace of the proposal to 4,435 sq m; • restricting the retail sales area of units 2 and 3 and the first floor of the JJB unit to allow the sale of non-bulky comparison goods floorspace only; • restricting the retail sales area of units 1, 4, 5 and 6 to allow the sale of bulky comparison goods floorspace only; • preventing the sub-division of the 7 retail units into smaller retail units. 3.03 Should the council require WYG to provide advice on the wording of these planning conditions we can provide examples used by other planning authorities in the UK."
[45]The resolution by the committee was as follows:
"It was proposed and seconded that, as the proposal was in accordance with the national policies as set out in ..... PPS 1 and PPS 6, Planning Policy Guidance Note PPG 13, Policies EN 1 and S 1 in the saved policies of the South Kesteven Local Plan, and as the issues relating to detriment to the Welland Quarter, employment sites allocated on Greenfield sites, damage to vitality and viability of the town centre, conflict with protection corridor for the Ryhall Road link, no contribution to improving road network and making the south eastern relief road unfeasible, are material considerations but are not sufficient to indicate against the proposal and to outweigh the policies referred to above, it be deferred for determination by the Lead Professional, after consultation with the Chairman, subject to the completion of a Section 106 agreement in relation to environmental improvements to the east end of the High Street, subject to conditions as set out in the committee report, four additional conditions as outlined in the WYG report and to a note to the County Council that bus stops should conform to County Council standard."
[46]The conditions set out in the committee report numbered 20. Most are not material for our purposes; the two that are are condition 9 - which was that the minimal unit size will be 480 sq m gross external in two units, whilst the other five have a minimum 700 sq m gross external floorspace, the two smaller ones being 2 and 3 which were proposed for non-bulky goods - and condition 18 provides that the proportion of retail floorspace for the sale and display of non-bulky comparison goods shall be restricted to 2,200 sq m.[47]Planning permission, when granted, contained 21 conditions. The conditions which relate to limitation are contained in 18 to 21, which read as follows:
"18 The total non-food retail floorspace of the development shall be restricted to a maximum of 4,435 sq m, including a maximum of 1,502 sq m non-food retail floorspace in the mixed leisure unit identified as 'JJB Sports and Fitness' on [the relevant] plan. 19 The retail floorspace in the 'JJB Sports and Fitness', Unit 2 and Unit 3, identified on plan ..... shall be used for the sale of non-bulky goods as classified in the ..... Retail Needs Study 2006. 20 The retail floorspace in the Unit 1, Unit 4, Unit 5 and Unit 6 ..... shall be used for the sale of bulky goods ..... 21 The development shall comprise of 6 non-food retail units and a combined non-food retail and sports and fitness area; the minimal gross external size of the units shall be 480 sq m."
[48]Thus it is clear that the conditions which were contained in the officer's report, namely 9 and 18, have not been included in the conditions attached to the planning permission. What has happened is that the limitation has been by reference to the units - 2 and 3 - and the floorspace in JJB. There is no indication as to the extent of the limitation of non-bulk in 2 and 3. Obviously they could not exceed what those units are capable of including. But the result of that was to reach a figure that was in excess of 2,153, which was the limit that WYG had considered to be appropriate and acceptable. It was actually in excess of the 2,300 which was the figure that had been put forward in the original condition 18.[49]True it is that the amount of excess is not enormous, perhaps just under 100 sq m if one takes the total of 2,245 and applies it to 2,153. Nonetheless it could represent a relatively substantial sum in terms of the amount of money, being something possibly in the region of £500,000, and would not be regarded as something which is de minimus.[50]What is said on behalf of the council is that the direct approach was understood to be that devised by WYG in its July 2008 audit, and that that is the manner in which the limitation was applied. Mr Shipman, in his statement, says that his experience of enforcement suggested to him that it was not going to be easy to enforce in relation to limits in terms of square metreage. At paragraph 26 of his statement he said:
"26 In addition to my development control experience, I have particular experience in enforcement planning ..... and this had highlighted the difficulties of measuring floor space associated with different types of goods. Whilst the retail floor area of a shop is understood as being the floor area devoted to the display of goods and the circulating space. The area of the floor taken up by goods can be the difficult part to quantify. For example, should a proportion of the circulating area also be allocated? If you do include circulating space, do you apportion part of the initial 'walk-in' space and a space by the till? If so then this will be an arbitrary figure that would be subject to arguments. If you do not include circulating area then it is easy to measure the area of a display gondola/stand but do rack/shelves only attached to a wall create floor space. Do you allow the same follow of car ports that are only attached to a wall and that it creates a covered floor area? Or do you follow the principle when calculating fees where you add each floor area but exclude common areas such as stairwells? If you do then do you multiply multiple shelves and racks on the wall? All these questions create issues which detract from the enforceability of the conditions. ..... 27 From my own experience, I concluded that ..... condition 18 in requiring floor area to be restricted to 2,200 sq m failed [relevant tests] set out in circular 11/95" - that dealt with conditions - "in that it appeared to me impractical to enforce and, whilst precise, it is not clear what exactly is or is not to be measured, and it would have been unreasonable to set out at such level of detail here an internal display plan so that the condition would be clearer. In addition, this condition would have created a unit that had part of the floor space allocated to Bulky Goods and part allocated to Non-bulky Goods because, clearly, the floor areas of the units do not conveniently divide into 2,200 sq m. The same arguments would apply if the floor area was restricted to 1,929 sq m identified through the WYG Retail Report."
[51]The concerns about enforceability are not particularly convincing when one bears in mind that the conditions which were imposed included a condition which is number 18 that there should be an overall restriction to a maximum of 4,435 with a maximum of 1,502 non-food in the mixed level unit. Since the suggestion was that units 2 and 3 should be limited to non-bulky goods and that the other four should be limited to bulky goods, the problem of mixing bulky and non-bulky could have been simply avoided by providing that units 2 and 3 should not exceed the amount which, added to 1,502, reached 2,153. That would simply have been an avoidance of the problems that are said to be created and would make enforcement clearer.[52]The other problems - problems other than the mixture of bulky and non-bulky - seem to me to be as valid or invalid in relation to overall figures in condition 18 as they do to any other limitation, thus, as I say, what is said is not in the least convincing as a reason for not imposing condition 18. I appreciate that condition 18 might have had to have been adapted somewhat in order to deal with 2 and 3. That would have been perfectly possible. The result would have been a limitation in total of non-bulk which accorded with the WYG recommendation. Of course the committee in the resolution made it clear that they did want condition 18 or its equivalent to be part of the conditions which were imposed. As it seems to me, what happened did not accord with the resolution which had been passed by the committee.[53]If it was considered that it was not possible for whatever reason sensibly to impose one of the conditions, what should have happened is that the matter should have gone back to the committee in order to enable them to change the resolution if they saw fit to do so. That was not done. As it seems to me, the officer - in conjunction with the chairman - exceeded what was permitted by the resolution.[54]The importance of this is that it is the sale of non-bulky goods which would have the most obvious impact on the town centre. The bulky goods, one would recognise, are not those which are so readily on sale in town centres, if only for the obvious reason of difficulties of access by motor vehicle in order to collect such items; of course they can be delivered and no doubt there is scope, but it is the non-bulky goods that are the greatest competition.[55]A further point raised by Mr Bedford, on behalf of the claimants, relates to consideration of the transport arrangements. At page 27 of the report (page 228 of the bundle) there is reference to a March 2008 report and this is stated:
"Delaine Bus Company have stated that they will extend the circular town centre service to provide public transport to the development. They have further stated that they do not require a subsidy; consequently this does not need including in the S 106 Legal Agreement. Bus stops are being provided at this end."
That, it is said, is factually inaccurate. Delaine are not, in fact, the company which provided any circular town centre service. The company that provided that service was a different company, namely Mark Bland Travel operating what was described as a town hopper service, an hourly service linking the suburbs ? site ? with the town centre.[56]It perhaps is not particularly material that the right company has not been stated. The point is whether the extension could be provided. The answer to that is that there was no evidence that it would. The most they had was an indication that if it became apparent that there was a need, then consideration would be given and indeed it would be likely that the service might be extended. Certainly there was no suggestion by either company that they wanted to provide, at the moment, public transport to the development in the sense of right up to the development. Their view was that the stock in place was already available and was sufficiently close to the development to enable individuals to walk there.[57]This was further referred to in paragraph 4.1 of the officer's report in the up-dated part of the report as follows:
"In July 2007, discussions and meetings were held with the two local bus companies Mark Bland Travel and Delaine Buses regarding serving the site with their existing services. Mark Bland Travel operates the No 182 Town Hopper service which is an hourly service that links the application site with Stamford. The service currently stops outside Morrisons store entrance" - Morrisons have a food store which is next to the site in question - "which is a 100-metre walk distance to the nearest non-food retail unit and a 280-metre walk distance to the furthest proposed retail unit store entrance. On the basis of these short-walk distances it has been agreed with Mark Bland Travel there is no requirement to extend the service into the proposed development since the existing Morrison's Store entrance stop is close enough to serve the development. Mark Bland welcome the proposed development as it is likely to increase patronage on the service and furthermore they have indicated their willingness to discuss with Morrison's in the future potential improvements to the service to cater for any additional demand that may arise outside the current timetable. Delaine Buses currently operate the No 203 service which runs 5 times a day in each direction along Uffington Road between Stamford and Bourne. In the vicinity of Morrisons the service operates a hail and ride service with no formal bus stops following discussions with Delaine Buses it was agreed that with the introduction of formalised bus stops on Uffington Road they would use these stops to serve the proposed development. The proposed bus stops are to be located on Uffington Road some 46 metres to the east of the proposed site access roundabout and will incorporate raised kerbs and shelters. The proposed bus stops will be within a 310[-metre] walk distance of the furthest store entrance. The location of these bus stops has also been agreed with the Local Highway Authority."
[58]It was said that bus stops are well within the maximum walking distance which, the guidelines suggest, should not exceed 400 metres. An appropriate planning condition could resolve the issue in relation to the travel plan. It includes:
"This initial report will concentrate on those items identified in the above objection."
That is all that is said about transport.[59]There was a condition which was proposed in the planning permission in relation to transport - number 17 - that read as follows:
"17 Within six months of each part of the development being occupied and of any subsequent changes of occupier, a Travel Plan shall be submitted to and approved in writing by the local planning authority. All plans shall include details to ensure the frequency of public transport serving the site meets the requirements of users. Thereafter annually a survey shall be analysed and submitted, by each occupier, to the local planning authority that will provide details of the implementation of the Travel Plan. The occupier shall ensure that travel arrangements are fulfilled in accordance with the Travel Plan, unless the local planning authority stimulates approval to any variation."
[60]The complaint made by the claimants essentially is that at the moment there is no weekend service which, for a development such as this, is a real defect because one would expect many would want to do their shopping at the weekend, certainly on a Saturday and possibly too on a Sunday. The existing bus services are by one company five a day, and the other (town centre hopper) once every hour. Those are not, on the face of them, adequate to ensure that there is a proper service to be provided. Furthermore condition 17 is one which will be very difficult, if not impossible, to enforce. The last sentence, for example, provides that an occupier must - "ensure that travel arrangements are fulfilled in accordance with the Travel Plan unless the local planning authority stipulates approval to any variation." It is difficult to see how an individual occupier could in fact achieve that because it would have no contractual arrangement with the bus company which provided the particular service. Furthermore to indicate that a fresh plan would have to be provided within six months of each fresh occupation of one of the units is not very practical.[61]What should be done is to ensure that a plan exists and is set out before the planning permission is implemented. It is said that this particular condition does not meet any of the concerns which have been raised, and nor does it meet any of the concerns expressed in the officer's report.[62]Mr Zwart makes the point that that condition was one which was approved by - and it may even have been drafted by the Highway Authority. The Highway Authority is not the planning authority. The Highway Authority will not have to enforce the planning authority. And, as it seems to me, condition 17 is the one which is very difficult to justify in the terms in which it is set out. It seems to me that the highways objection rather than the objections in relation to the provision of bus services - public transport - have not been properly dealt with or met by the planning permission as it stands.[63]In all the circumstances I am satisfied that there have been errors both in the approach adopted by the officer in the ways I have explained and in the failure properly to implement the resolution which means that this particular permission cannot now stand.[64]For all those reasons I propose to allow this claim and to quash the permission as granted.[65]Of course that does not mean that permission will not in due course be granted depending on the result of the Court of Appeal decision in relation to the section of the relief road route. But if a permission is to be granted it must be granted on a proper understanding of the limitation which is required upon the floorspace to be made available in particular for the sale of non-bulky goods.[66]MR BEDFORD: Can I raise about four matters for you to consider?[67]MR JUSTICE COLLINS: I am sure as you appreciate, I have been dealing with this from notes. I cannot pretend that I got everything right.[68]MR BEDFORD: The first point in relation to this is at page 256 of the bundle. There was a passage when you were summarising part of the committee report and the issue as to bulky and non-bulky. You had identified at paragraphs 2.15 and 2.24 of the report - of the definitions quoted - of the difference between bulky and non-bulky. You made the points that what was important was that there was no increase in market share. The examples you gave were actually examples which related to electrical furniture and DIY which are in the bulky category whereas the point where there was no increase - - - - -

MR JUSTICE COLLINS: Did I get that the wrong way around? I think later I made it clear.

[70]MR BEDFORD: You did.[71]MR JUSTICE COLLINS: I got that the wrong way around. I will make sure that that is corrected.[72]MR BEDFORD: The second point was - again later on you gave the correct figure - just after you referred to table 33c you added together the 3,216 and the 1,929, my note was you gave the figure of 5,245; it should be 5,145.[73]MR JUSTICE COLLINS: That is my mathematics. I am quite prepared to believe I got that wrong.[74]MR BEDFORD: The third matter - again you covered it slightly later - was there was a point where you said "there was no suggestion that public transport would be provided to the development direct". You referred to the existing bus stops on Uffington Road. At that stage you also referred to the fact that the other service - which was the shopper/hopper service - goes to the Morrison store entrance. You did refer to that later.

MR JUSTICE COLLINS: I can re-cast that slightly?

[76]MR BEDFORD: The last point is that when you referred to - - this is on pages 254 and 255 of the bundle, you either quoted directly or summarised the effects of paragraphs 4.1 to 4.4. Your Lordship indicated that they were in the up-dated report. They are in the up-dated report but those are the verbatim repeat of the applicant's transport consultant - - - - -[77]MR JUSTICE COLLINS: That is right. My understanding was that the officers do not say anywhere that they disapprove.[78]MR BEDFORD: It is the way the phraseology is. Those are the points in relation to the judgment. Can I ask for an order that the application be allowed and order that the claimants be paid their costs by the defendant, to be taxed if not agreed on assessment?[79]MR JUSTICE COLLINS: Yes. Mr Zwart, you cannot resist a costs order, can you?[80]MR ZWART: I cannot.[81]MR JUSTICE COLLINS: Unless you have already agreed a sum, there will be a detailed assessment if not agreed.