Tesco Stores Ltd v Teignbridge District Council & Ors [2009] EWHC 3685 (Admin)

Case No CO/10688/2008

[2009] EWHC 3685 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Wednesday, 16 December 2009

Strand

London WC2A 2LL

B e f o r e:

RABINDER SINGH QC

(Sitting as a Deputy High Court Judge)

Between

TESCO STORES LIMITEDClaimant

Between

TEIGNBRIDGE DISTRICT COUNCILDefendant

SAINSBURY'S SUPERMARKETS LIMITED (AND OTHERS)Interested Party

Computer-Aided Transcript of the Stenograph Notes of

WordWave International Limited

A Merrill Communications Company

165 Fleet Street London EC4A 2DY

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

Mr C Katkowski QC (instructed by Berwin Leighton Paisner LLP, London EC4R 9HA) appeared for Claimant

Mr J Findlay QC (instructed by the Legal Department for Teignbridge District Council) appeared on behalf of the Defendant

Mr W Hicks QC appeared for Interested Party, Sainsbury's

J U D G M E N T

THE DEPUTY JUDGE:

Introduction

[1]This is a claim for judicial review of the grant of a planning permission dated 3 September 2008. The defendant is the local planning authority for the relevant area and the main interested party is Sainsbury's, which is the beneficiary of the grant of the relevant planning permission. Material Facts

[2]On 4 April 2008, the Council received from Sainsbury's and Millwood Properties Limited a planning application in relation to a site at Shutterton Bridge, Dawlish. The application was for a 3,820 square metre food store with a petrol filling station, car wash, parking for 266 vehicles and associated works. It was submitted in association with a separate application for industrial and employment uses on a neighbouring site. That other application was granted, but I am told is not (in legal terms) linked to the planning permission with which this court is concerned, and so I need not dwell upon that.

[3]On 13 June 2008, in a letter which appears at page 225 of the bundle, planning consultants, DPP, acting on behalf of the claimant, which is Tesco, wrote to the local planning authority with reference to Sainsbury's application and stated that:

"As you are aware, Tesco is pursuing a sequentially preferable site at Lady's Mile Holiday Park for a 25,000 sq ft net retail store. The site at Lady's Mile Holiday Park is some 200 metres closer to Dawlish town centre than Shutterton Bridge, [That distance was in fact not accurate because on any view it is somewhat further than that, but it does not matter, for present purposes, exactly what the distance was as that was the distance notified in that letter.] is significantly better located in relation to existing residential areas and caravan parks and is more accessible by non-car modes of transport."

[4]The letter continued to describe the fact that there had been a public exhibition earlier in June into Tesco's proposal, and that it was anticipated that a full planning application by Tesco would be submitted by 20 June. It also, at some length, made a number of criticisms of the Sainsbury's application and concluded with this:

"In my client's view the most appropriate approach would be to defer Millwood & Sainsbury's application and report it to Committee at the same time as our pending application."

[5]At some point in June the officer's report was prepared in anticipation of the meeting of the Development Control Committee, which was to take place on 23 June. The exact date of that report is not material, although I am informed that usually such officer's reports are drafted about a fortnight before the relevant Committee meeting and made available to the public approximately five days before the relevant meeting.

[6]A copy of that officer's report starts at page 145 of the bundle. I will read relevant passages from it. At section 1 the report recommended that Sainsbury's application should be refused for two reasons:

"1. Loss of employment land resulting in a shortfall in employment land provision. 2. Site not proven to be most favourable on application of sequential test."

[7]In the section dealing with description the report stated that:

"The entire site is identified as an Employment Commitment in both the Teignbridge Local Plan (TLP) and the Teignbridge Local Plan First Review (TLPFR). Outline planning permission for industrial development on this site was first granted in 1993 and was renewed a number of times. A reserved matters application for industrial/employment development consisting of five blocks of office units, one industrial unit and seven buildings containing trade units was approved on 22 March 2007. ... The approved development would comprise a total of 10,250 square metres (110,330 square feet) of floorspace divided between Trade Units, Starter Units, Industrial and Offices."

Further on in the description section the report continued:

"The proposal represents a departure from the Development Plan as the application site is identified as an Employment Commitment in the TLP where Policy E4 would apply; this identifies the circumstances in which sites can be released for alternative uses. The Policy cross-refers to a Structure Plan Third Alteration Policy which has since been superseded by Policy ST20 of the Devon Structure Plan (DSP). Policy ST20 makes clear that employment sites should be reassessed for alternative uses through Local Plan-making and that subject to this assessment they should be reserved for employment uses. The proposal is therefore contrary to Policy ST20 of the DSP. The application has been advertised as a Departure, but it is necessary to identify whether there are any material considerations that would indicate that a decision should be made contrary to the provisions of the development plan."

Under the heading of "Retail Issues" it is important to note that the report stated:

"There is a clear and demonstrable need for a new supermarket in Dawlish which has been identified in both the Teignbridge Retail Study Update (2006) and Teignbridge LDF Core Strategy (2007). Only about 30% of convenience goods expenditure by Dawlish residents is spent in Dawlish - the remainder is spent elsewhere, including 31% at Exeter."

The section on retail issues then continued that:

"Since the planning application was submitted it has become known that Tesco are exploring a potential supermarket site at Lady’s Mile which is closer to Dawlish Town Centre than the Shutterton site. In the light of this knowledge the Applicants have submitted an Addendum to their Retail Assessment to cover this site. The Addendum concludes that, although the Lady’s Mile site is closer to the town centre it is still out-of-centre and therefore does not represent a sequentially preferable site. The Addendum also questions the suitability of the site for a supermarket, bearing in mind its location in a Coastal Preservation Area and a Holiday Development Area where a supermarket proposal would be in conflict with adopted planning policies. It is considered that the Applicants have demonstrated that there are no available sites within the town centre or in an edge-of-centre location that could meet the recognised need for a supermarket in Dawlish. In the absence of any other sites the need for a supermarket would represent a material consideration which could warrant a departure from Policy E4. However, should the Lady's Mile site become available, it is considered that it would be a sequentially favourable location for meeting Dawlish's demonstrable need for a supermarket, being closer to the town centre and more closely linked to the built-up residential areas of Dawlish."

In the section of the report headed "Employment Issues" it is stated that:

"The application site has long been allocated for employment development and outline planning permission was first granted in 1993. Reserved matters approval was first granted in March 2007. The site was identified as an Employment Commitment in the TLP and TLPFR. The 2006 Employment Land Review concluded that Dawlish requires additional employment land to achieve a better balance between jobs and homes and to avoid out commuting. A further 2 hectares (5 acres) of Employment Land was recommended in addition to the application site and this was reflected in Policy CS15 of the Core Strategy DPD. The proposed supermarket would result in the loss of more than half of the employment site with no proposal for any alternative provision. This is a clear breach of Policies E4 of the TLP and ST20 of the DSP and could only be justified if there are material considerations that indicate a decision should be made contrary to the Development Plan policies."

[8]The report then considered the identified need for a supermarket, which had already been discussed earlier, and continued in the following way:

"By the Applicant’s own admission, however, in terms of commercial viability there is a reasonable prospect that the whole site would eventually come forward for employment use along the lines of the previously approved scheme. Whilst new employment opportunities will be created by the supermarket development, these will not be skilled jobs. If the approved business park development were to come forward more skilled jobs and higher order employment opportunities would become available. There is also the issue of alternative provision for the lost employment land to fulfill the identified requirement for employment land to 2016. This proposal makes no alternative provision for the employment land that would be lost, thus it would increase the shortfall of overall employment provision for the period to 2016 albeit that it would facilitate some provision in the short term."

[9]Finally, in the officer's report, I should set out the conclusions, which were as follows:

"The proposal would cater for a demonstrable local need for a new supermarket in Dawlish. Whilst the location of the proposed development is some way from the town centre it could still have an overall positive impact on car use, traffic and congestion in terms of reducing the overall distance travelled by car. If this site was the most sequentially preferable available location in Dawlish the need for a supermarket represents a material consideration which could warrant a departure from Policy E4 of the TLP. However it has not been proven that this is the sequentially most favourable location. The use of the site for the provision of a supermarket will result in the loss of land allocated for employment with no proposals to secure alternative provision elsewhere to overcome this loss. As a consequence it is considered that the proposal is contrary to Policy E4 of the TLP and Policy ST20 of the DSP and that the material considerations identified are not sufficient to justify a departure from these Development Plan policies."

[10]On 20 June 2008, Tesco submitted its planning application in relation to the Lady's Mile site. That site is currently used for tourism purposes. I am told that that date was a Friday, and the Development Control Committee meeting took place the following Monday, that is 23 June 2008.

[11]It is clear that although the local planning authority did not have the formal planning application by Tesco before it when the officer's report was written, nevertheless the officers did have some knowledge of what might come and were able to refer to it in their report. It is also clear that they were able to report orally to the members of the Committee at the meeting which took place on 23 June about the Tesco application.

[12]I turn next to the minutes of the meeting of the Development Control Committee, which took place on 23 June 2008. Among other things, the minutes report that the letter of objection from agents representing Tesco had raised a number of issues about the Sainsbury's application, that there had been a letter from the applicant in response to the Committee report, and also that letter from Tesco, to which I have referred.

[13]It was proposed at one point during the meeting that the application should be deferred for consideration by the Committee, but this proposal was defeated on a vote by 13 votes to nine. In the minutes of that meeting there appears the following paragraph, which it is important to quote in full:

"Members considered that the application is acceptable because there is a need for a supermarket in Dawlish; customers use a vehicle to shop at a supermarket irrespective of how close they live because of the amount that has to be carried; employment opportunities will be made available at the supermarket; employment/industrial opportunities have not been forthcoming despite the site being allocated as such for the past 15 years."

[14]The minutes then record that the Committee resolved that, subject to the completion of a section 106 agreement to secure various financial contributions for the public benefit, permission should be granted, and then specified a number of conditions to be attached to that permission.

[15]On the evidence before me it is apparent that the minutes of 23 June meeting, to which I have referred, were subsequently approved by the Development Control Committee on 28 July 2008. There then followed correspondence between the parties, which it is not necessary, for present purposes, to recite. On 3 September 2008, the formal grant of planning permission took place. That is the decision which is the subject of challenge in the present judicial review proceedings.

[16]It is important to recite two matters in the text of the planning permission. The first is condition 5, which required that the entire access road shown on the relevant drawing referred to there, including both roundabouts and southerly spur road, had to be completed prior to the operation of the supermarket. The reason given in the text for this condition being attached was:

"In the interests of highway safety and to facilitate the development of the remainder of the site for employment purposes."

[17]The second matter appears towards the end of the document and is headed: "INFORMATIVE". It states as follows: "The proposal generally conforms with Policies ST1, ST3, ST4, ST5, ST15, ST17, ST20, CO1, CO6, CO9, CO13, CO15, CO16, TR1, TR2, TR4, TR5, TR7, TR9, TR10, SH1, and SH2 of the Devon Structure Plan 2001-2016 and Policies ENV9, ENV11, E1, E4, T6, T7, T13, T19, T23, T24, T28, C10, C15, C16, C22 and R26 of the Teignbridge Local Plan and it is considered that subject to compliance with any conditions attached to this permission, and having fully considered all representations received, there are no other material considerations that indicate that the decision should be at variance with these Policies."

[18]Before continuing with a chronological account of the facts, I should at this junction refer to a witness statement, which has been filed with this court by Mr John Collier-Marsh who is the Head of Development Control with the defendant Council. It is necessary to quote paragraphs 3 and 4 in full:

"3. As to the giving of reasons, I accept that the reasons that were added by way of informative were added in error and did not properly convey the reasons actually agreed by the Committee. I apologise for that error. At that time insufficient attention was paid to the reasons attached to grants of permission issued by the Council and, in effect, when the permission was produced (particularly one contrary to officer recommendation) the reasons were constructed by taking a list of policies from the body of the report to which a pro-forma wording was then added. I can confirm that this practice has now ended. 4. If the permission is not quashed the Informative will be amended accurately to reflect the reasons as given by the Committee, identify the two policies concerning employment land protection which were breached and the remainder of the policy framework."

[19]It is no criticism of the deponent, or the defendant's representatives in this case, to note that there has not been put forward any precise formulation of the statement of reasons, which would be enclosed with the planning permission if the court were otherwise minded to adopt the route which is mentioned in paragraph 4 of Mr Collier-Marsh's witness statement. It is important to note that the defendant fairly accepts that there was an error in the practice, which it appears to have adopted in the past, and it is right that the practice has now been ended.

[20]On 29 September 2008, there was a meeting of the Development Control Committee at which the Tesco application was refused. The principal reason why it was refused was because the need for a supermarket in the area had by now been met by the grant of permission to Sainsbury's.

[21]On 7 October 2008, those representing Tesco wrote a letter before claim to the defendant authority. It is not necessary to cite from that, but it is relevant to note that the possibility of legal proceedings was therefore notified to the defendant authority at that time.

[22]On 24 October 2008, in a letter which appears at page 242 of the bundle, the solicitor to the Council wrote to the solicitors for Tesco and said this:

"I intend to take this matter back to Development Control Committee in accordance with the advice of Mr Justice Sullivan in R(Wall) v Brighton & Hove City Council 2004. The purpose of this will be to ask the Committee to confirm the reasons for its decision, bearing in mind the minutes which have subsequently been approved, in particular the paragraph preceding the resolution. It is proposed to hold a special meeting to determine this matter and I will confirm the date to you as soon as it is arranged. I will also let you have a copy of the report as soon as it has been published and any representations made by you will be taken into consideration at that meeting."

An officer's report was prepared in anticipation of the meeting, which was to take place on 10 November 2008. That report begins at page 170 of the bundle. At paragraph 2.9 of the report the relevant part of the minutes of 23 June meeting was set out. There is therefore no need to quote it, as I have quoted it earlier. At paragraph 2.11 of the officer's report there appeared this:

"Members are asked to consider the above circumstances and to determine: (i) Whether they consider they can sufficiently recall matters so as to assist in identifying reasons for their decision. (ii)Whether the matters set out in the extract from the Minutes in paragraph 2.9 above did constitute, in part at least, the reasons why the majority of members voted in favour of granting permission. (iii)If so, whether they can recall whether they are an adequate summary of the reasons they discussed after the grant of permission, and if not what further matters should have been included in the minutes or other changes should have been made. (iv)Whether there were other reasons for the decision which led to their decision in June but which have not been dealt with in (ii)and/or (iii) above, having regard to the issues raised on behalf of Tesco in their solicitor's most recent letter, particularly at paragraphs 24 and 25 thereof."

[23](I interpose to note at this stage that subparagraph (iii) of paragraph 2.11 could, on analysis, itself be further subdivided into two parts. The first half envisages the scenario whether the members could recall whether the minuted reasons were "an adequate summary of the reasons they discussed". The second part was, "If not, what further matters should have been included in the minutes, or other changes should have been made?".

(b) )

[24]The meeting of the Development Control Committee then took place on 10 November 2008, as was envisaged by the documents, to which I have already referred. That begins at page 221 of the bundle. At page 222 of the bundle it is recorded in those minutes:

"The Solicitor to the Council also advised Members that it was extremely important that they bear in mind that: • They were present to consider the matter on the basis of their recollection and the information that was available at the meeting on 23 June 2008 and should not be swayed by any information and further thoughts that have come to light since the previous meeting. • It was not the purpose of the meeting to reconsider the decision or propose new reasons but to consider and confirm what the original ones were, and there was nothing to stop those reasons being given in more detail now. The notes of the meeting had been included in the agenda to assist Members' recollection. • Whilst the judicial review proceedings could not be ignored, the fact that they had been lodged could not alter what Members were present to do today."

[25]After a record of various discussions which then took place at the meeting, there appears this:

"Simon Barnes, Strategic Manager summarised that what had come out of the debate was that members considered that the minutes accurately reflected the reasons for approval. In addition to the reasons set out in 2.9 of the report, the members had identified three further matters that should have been included (1) that the sequential test argument was not strong enough to warrant refusal; (2) public consultation supported it; and (3) there was a need for a petrol station."

[26]A little later in the minutes it is recorded that a number of people present noted that in fact the petrol station point had not been taken into account at the June meeting, and this no doubt explains the terms of the resolution which the Committee then arrived at. I quote that:

"... the reasons for granting planning permission as set out at paragraph 2.9 of page 2 of the agenda be confirmed with the addition of the following two matters:- (1) That the sequential test was not strong enough to warrant refusal of the application. (2) That there was support through public consultation."

[27]It may be helpful at this juncture if I briefly refer to the procedural history of this case. The proceedings for judicial review were launched on 6 November 2008. On 3 March 2009, a decision was made upon the application for permission to seek judicial review by HHJ Mole QC in which he granted permission on the first ground that was then raised, in effect the reasons challenge, but refused permission on other matters.

[28]On 21 April 2009, there was written a letter from the solicitor to the defendant authority, which appears at page 273 of the bundle. At paragraph (iv) of that letter it stated as follows:

"Whilst this has been happening both Tesco and Sainsburys have submitted further planning applications for determination by the Council. Both companies have agreed that the applications should be considered at the same Development Control Committee meeting but there is disagreement over whether they should be determined prior to the substantive Court hearing of the Judicial Reviews."

[29]On 10 June 2009, there was a hearing of the renewed application for permission before Burnett J, although the order was sealed on 23 July. This granted permission generally and required certain matters to be clarified on behalf of the claimant. It should be noted that the related claim for judicial review, known as the "Geoffrey claim", with the reference number CO/11637/2008, with which this case was at one time to be heard, has in fact been withdrawn. I need not concern myself further with it. On 22 June 2009, a letter was written on behalf of the claimant providing the clarification required by the order of Burnett J, and that appears at pages 53 of the bundle. This stated so far as material:

"Further to the order of Mr Justice Burnett at the hearing on the 10 June in this matter, we confirm that the basis of the grounds of challenge to the reasons subsequently provided by the Council is set out below. ... The new 'reasons' do not enable the reader to understand whether applying the provisions of section 38(6) of the Planning and Compulsory Purchase Act 2004 the Council concluded that the proposals accord with the development plan such that permission should be granted unless material considerations indicate otherwise or (as the Claimant has submitted throughout) that the proposals do not accord with the development plan such that permission should be refused unless material considerations indicate otherwise, contrast the reasons set out in the planning permission itself which state in terms that the proposals conform with the development plan. 4. The new 'reasons' do not engage or grapple, even in summary, with the key issues raised by the Council's planning officer's report which recommended that the proposals should be refused nor with the main issues raised by the Claimant in correspondence with the Council prior to the decision to grant permission."

[30]After a letter, dated 25 June 2009, complaining that this was not adequate particularisation of the claimant's case, a further letter was written on behalf of the claimant, dated 26 June 2009, which appears at page 56. Although the claimant's representatives did not accept that their earlier letter was insufficient, nevertheless they set out further clarification in the following terms:

"The 'key issues' raised by the Council's planning officer's report upon which the Claimant relies are as follows: that the Sainsbury's scheme would result in a shortfall in overall employment land provision for the period to 2016; that on Sainsbury's own admission in terms of commercial viability there is a reasonable prospect that the whole site would eventually come forward for employment use; that the employment opportunities created by the supermarket would not be skilled jobs; that the proposal makes no alternative provision for the employment land that would be lost; that the Tesco site is a more favourable location sequentially to meet the need as it is closer to the town centre and more closely linked to the built-up residential areas of Dawlish, such that it had not been demonstrated that the Sainsbury's site is the most favourable on application of the sequential test. The 'main issues' raised by the Claimant in correspondence with the Council prior to the decision to grant permission upon which the Claimant relies are as follows: in DPP's letter dated 13th June 2008 ... it was drawn to the Council's attention that Tesco is pursuing a sequentially preferable site which is closer to the town centre and is significantly better located in relation to existing residential areas and caravan parks and is more accessible by non-car modes of transport. The grounds that we intend to advance are as originally pleaded and as added to by our letter dated 22nd June 2009."

[31]I will turn briefly now to set out relevant policies in the development plan. At page 106 of the bundle there appears Policy ST20 of the Devon Structure Plan, which was in the following terms:

"Re-assessment and Safeguarding Employment Land Local Plans should reassess all existing and allocated employment land in order to test whether it is necessary to meet the area's current or longer term economic development needs, taking into account the overall level of provision indicated by Proposal ST17 and the need to maximise opportunities for residential and mixed use development in sustainable locations. Subject to that reassessment, employment land and premises should be reserved for that use."

[32]In the text preceding that policy in the DSP, paragraph 3.89 noted that proposal ST17 provides for employment land sufficient to meet Devon's strategic needs in the period 2001 to 2016. It also noted that good sites for employment-related development in Devon are scarce, and it is important to ensure that land identified for employment development is effectively safeguarded for that use. Paragraph 3.90 continued, that Policy ST20 seeks to ensure that local planning authorities re-assess all existing and allocated employment land in order to test whether it is necessary to meet the area's current or longer term economic development needs. The same paragraph continued:

"Employment land and premises should be reserved for employment uses, except where such development is no longer sustainable or is not required to meet the area's current or longer term needs."

Turning to the local plan, the relevant policy was Policy E4, which appears at page 107 of the bundle. The policy itself stated:

"Proposals for the use of existing or allocated employment land and premises for retail purposes will be considered in accordance with Policy EMP3 of the Devon County Structure Plan Third Alteration. In addition proposals for other uses which result in a significant reduction in the supply of existing or allocated employment land and premises will be resisted."

In the supporting text paragraph 4.28 stated:

"In the past, allocated land suitable for employment use, has been used for other purposes such as retail or housing. This can give rise to shortages of suitable sites for employment uses, placing pressure for further employment land on less appropriate sites elsewhere within the district. Land allocated for employment will normally be appropriate for business uses, general industry or storage/distribution (Classes B1, B2 and B8 of the Use Classes Order)..."

As is well-known, retail use is not one of those classes. Finally in the policy context I should make reference to national policy in relation to shopping and, in particular, PPS 6, which appears on page 111 in the bundle. For present purposes it will suffice if I refer to paragraphs 3.4, 3.13 to 3.19, without setting them out in full, and note the cross reference in those passages to the sequential approach to site selection, which is described more fully at paragraph 2.44, which I will set out in some more detail: "A sequential approach should be applied in selecting appropriate sites for allocation within the centres where identified need is to be met. All options in the centre (including, where necessary, the extension of the centre) should be thoroughly assessed before less central sites are considered for development for main town centre uses. The sequential approach requires that locations are considered in the following

[33]Before me it has been common ground that both the Tesco site and the Sainsbury's site would fall within the third bullet point, namely out-of-centre sites, although the Tesco site is, to some extent, closer to the town centre and other residential development. Material Legislation

[34]The first provision which is relevant is section 70 of the Town and Country Planning Act 1990:(1) Where an application is made to a local planning authority for planning permission— (a) subject to sections 91 and 92, they may grant planning permission, either unconditionally or subject to such conditions as they think fit; or (b) they may refuse planning permission.

(2) In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations."

[35]Next I should refer to section 38 of the Planning and Compulsory Purchase Act 2004, which so far as material reproduces section 54A of the 1990 Act, which had been inserted by the Planning and Compensation Act 1991. Section 38(6) reads as follows:

"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."

[36]Before continuing with the citation of relevant legislation it is important to note the decision of the House of Lords in an authority which considered the equivalent provision to section 54A in the Scottish planning legislation: City of Edinburgh Council v Secretary of State for Scotland

[1997] 1 WLR 1447

. The equivalent to what is now section 38(6) and was section 54A was section 18A of the relevant Planning Act in Scotland, which dated from 1972, and it is to that provision that the opinions of the House of Lords referred. At pages 1449-1450 Lord Hope of Craighead said this:

"Section 18A of the Act of 1972, which was introduced by section 58 of the Planning and Compensation Act 1991, creates a presumption in favour of the development plan. That section has to be read together with section 26(1) of the Act of 1972. [I interpose to note that that is equivalent to section 70 of the 1990 Act, which I have quoted earlier] Under the previous law, prior to the introduction of section 18A into that Act, the presumption was in favour of development. The development plan, so far as material to the application, was something to which the planning authority had to have regard, along with other material considerations. The weight to be attached to it was a matter for the judgment of the planning authority. That judgment was to be exercised in the light of all the material considerations for and against the application for planning permission. It is not in doubt that the purpose of the amendment introduced by section 18A was to enhance the status, in this exercise of judgment, of the development plan. It requires to be emphasised, however, that the matter is nevertheless still one of judgment, and that this judgment is to be exercised by the decision-taker. The development plan does not, even with the benefit of section 18A, have absolute authority. The planning authority is not obliged, to adopt Lord Guest's words in Simpson v Edinburgh Corporation, 1960 SC 313, 318: 'slavishly to adhere to'it. It is at liberty to depart from the development plan if material considerations indicate otherwise. ... The presumption which section 18A lays down is a statutory requirement. It has the force of law behind it. But it is, in essence, a presumption of fact, and it is with regard to the facts that the judgment has to be exercised."

Lord Clyde in the same case said as follows at pages 1458 to 1459:

"Section 18A has introduced a priority to be given to the development plan in the determination of planning matters. ... By virtue of section 18A the development plan is no longer simply one of the material considerations. Its provisions, provided that they are relevant to the particular application, are to govern the decision unless there are material considerations which indicate that in the particular case the provisions of the plan should not be followed. If it is thought to be useful to talk of presumptions in this field, it can be said that there is now a presumption that the development plan is to govern the decision on an application for planning permission. It is distinct from what has been referred to in some of the planning guidance, such as for example in paragraph 15 of PPG1 [January 1988] as a presumption but what is truly an indication of a policy to be taken into account in decision-making. By virtue of section 18A if the application accords with the development plan and there are no material considerations indicating that it should be refused, permission should be granted. If the application does not accord with the development plan it will be refused unless there are material considerations indicating that it should be granted. One example of such a case may be where a particular policy in the plan can be seen to be outdated and superseded by more recent guidance. Thus the priority given to the development plan is not a mere mechanical preference for it. There remains a valuable element of flexibility. If there are material considerations indicating that it should not be followed then a decision contrary to its provisions can properly be given. Moreover the section has not touched the well-established distinction in principle between those matters which are properly within the jurisdiction of the decision-maker and those matters in which the court can properly intervene. It has introduced a requirement with which the decision-maker must comply, namely the recognition of the priority to be given to the development plan. It has thus introduced a potential ground on which the decision-maker could be faulted were he to fail to give effect to that requirement. But beyond that it still leaves the assessment of the facts and the weighing of the considerations in the hands of the decision-maker. It is for him to assess the relative weight to be given to all the material considerations. It is for him to decide what weight is to be given to the development plan, recognising the priority to be given to it. As Glidewell L.J. observed in Loup v. Secretary of State for the Environment and Another (1995) 71 P. & C.R. 175 at p. 186: "

What section 54A does not do is to tell the decision-maker what weight to accord either to the development plan or to other material considerations." ... As Lord Hoffmann observed in Tesco Stores v. Secretary of State for the Environment [1995] 1 W.L.R. 759 at p. 780:

"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."

In the practical application of section 18A it will obviously be necessary for the decision-maker to consider the development plan, identify any provisions in it which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it. He will also have to consider whether the development proposed in the application before him does or does not accord with the development plan. ... He will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it. And having weighed these considerations and determined these matters he will require to form his opinion on the disposal of the application. If he fails to take account of some material consideration or takes account of some consideration which is irrelevant to the application his decision will be open to challenge. But the assessment of the considerations can only be challenged on the ground that it is irrational or perverse."

[37]Before leaving that case I should observe that the present case does not seek to challenge the decision to grant planning permission on the basis that it is irrational or perverse. It does, as I will state later, mount the challenge principally on the ground that there is a breach of the relevant duty to give reasons. It is an important component of the submission, which I have heard on behalf of the claimant, that one of the functions of the duty to give reasons, in a context like the present, is precisely to enable a person to know whether the priority to be accorded to the development plan, in accordance with what is now section 38(6) of the 2004 Act, and in accordance with the principles set out in the City of Edinburgh has been properly accorded. The final statutory provision I need to cite is the crucial one, which imposes the duty to give reasons in the present context. It is not a duty to give full reasons, as is clear from the express context in which it appears, it is a duty to give a summary of the reasons for the grant of a planning permission. The relevant provisions in the Town and Country Planning (General Development Procedure) Order 1995 (SI 1995 No 419)(as amended) with effect from 6 December 2003 contained a requirement to set out a summary of the reasons for the grant of planning permission. The material provision is Article 22, which provides:

"(1)When the local planning authority give notice of a decision or determination on an application for planning permission or for approval of reserved matters and- ... (b) planning permission is granted subject to conditions, the notice shall:- (i) include a summary of their reasons for the grant together with a summary of the policies and proposals in the development plan which are relevant to the decision to grant permission; and (ii) shall state clearly and precisely their full reasons for each condition imposed, specifying all policies and proposals in the development plan which are relevant to the decision;"

It is interesting to note that subparagraph (c) requires that where planning permission is refused the notice shall state clearly and precisely:

"their full reasons for the refusal, specifying all policies and proposals in the development plan which are relevant to the decision..."

Grounds of Challenge

[38]In the skeleton argument on behalf of the claimant there are two grounds raised by way of challenge to the decision in this case. In oral argument before me counsel for the claimant told me that those grounds had in fact "morphed" into one argument. In essence, the reasons in this case were said to be inadequate, whether one takes the reasons as set out in the minutes of the meeting of 23 June 2008, or includes the additional matters set out in the minutes of the meeting of 10 November 2008. Analysis

[39]It is common ground before me that the notice of the grant of planning permission in this case was defective in that the reasons for it were not accurately recorded within it. There is an admitted breach of Article 22 of the 1995 order. The question which is raised for me is what, if any, relief the court should grant in its discretion? A number of authorities, particularly of this court, have been cited to me. I will refer to the main authorities now. The first is R (on the application of Wall) v Brighton and Hove City Council

[2004] EWHC 2582

Admin, a decision of Sullivan J, as he then was. It is important to note that on its facts that case was different from the present case in that it concerned a situation where officers had recommended the grant of planning permission, and that had indeed occurred.

[40]In his conclusions on the relevant ground of challenge, which begin at paragraph 51 of his judgment, Sullivan J said:

"In permitting paragraph 1 of article 22 to be substituted by the 2003 Order, Parliament clearly intended not merely that local planning authorities should give summary reasons for their decisions to grant planning permission, but that those reasons should be included in the decision notice itself. The requirement to give summary reasons in the decision notice can fairly be described as "procedural", but the importance of this procedural change, as from 6th December 2003, should not be underestimated."

At paragraph 55 he continued as follows:

"55. A failure to include the summary reasons in a decision notice will not render the grant of planning permission null and void ... On the other hand, such a failure could not be described as "so nugatory or trivial that the authority can safely proceed without remedial action" (see London & Clydeside above). [That was a reference to the well-known decision of the House of Lords in the case of London & Clydeside Estates Limited v Aberdeen District Council [1980] 1 WLR 182, which was considered at length by Sullivan J at paragraph 45 of his judgment, to which reference should be made. In particular, there is there a lengthy quotation of an important passage at page 189 by Lord Hailsham, the then Lord Chancellor in which he referred to "a spectrum of possibilities".] If the defective decision notice is challenged in an application for judicial review the court will have a discretion to quash the notice. How it exercises that discretion will depend upon the particular facts of the case, where it fits within the "spectrum of possibilities" referred to by Lord Hailsham in London & Clydeside."

In paragraph 57 of his judgment Sullivan J said this:

"57. The new requirement to give summary reasons for the grant of permission will be particularly valuable in cases where members have not accepted officers' advice, where the officer has felt unable to make a recommendation, where the officer's report fails to take account of a material consideration, but that omission is said to have been remedied by the members during the course of their discussions, or where an irrelevant factor has been relied upon by some members during the course of their discussions and it is important to ascertain whether it was one of the Committee's reasons for granting planning permission. In such cases -- and I emphasise that these are merely examples -- there would have to be very powerful reasons for not quashing a decision notice which did not include the local planning authority's summary reasons for granting planning permission. To allow extrinsic post hoc evidence as to what the local planning authority's reasons were in such cases would perpetuate the very problems that Parliament intended the substituted article 22(1) to address."

At paragraph 58 Sullivan J continued:

"58. While there can be no objection in principle to a local planning authority amplifying its summary reasons, since by definition they will not be its full reasons for granting planning permission ... it would equally frustrate Parliament's intention if local planning authorities were able to rely ex post facto on entirely different or wholly new reasons for granting planning permission ... It is difficult to see why a local planning authority which has failed to include any summary reasons for granting planning permission in its notice of decision should be placed in any better position."

At the end of paragraph 59 Sullivan J also had this to say:

"The fact that summary reasons for granting planning permission are provided for the benefit of the public, rather than for an individual applicant for housing assistance, does not lessen the need both to inform those concerned and to avoid sloppy decision making."

At paragraph 62 Sullivan J observed that:

"While the extent to which a claimant has been prejudiced by a local planning authority's failure to include summary reasons in a decision notice will be a relevant factor in the exercise of the court's discretion, there is no requirement that an applicant for judicial review must show that he or she has been prejudiced, or substantially prejudiced, by the unlawful act complained of."

At paragraph 65 Sullivan J said:

"65. I do not intend to suggest that in an appropriate case a local planning authority cannot remedy a failure to include summary reasons in the decision notice granting permission. The Clydeside case reminds us that each case will very much turn upon its own particular facts. The failure to include summary reasons in a decision notice might be no more than a typographical omission of reasons which have in fact been agreed. There might be cases, for example, where very substantial prejudice would be caused to the applicant for planning permission, or to others interested in the land, if the planning permission was to be quashed on this ground. Building work might have commenced on site; a change of use might have taken place; contracts might have been exchanged. ..."

At paragraph 67 Sullivan J continued:

"67. If there has been a failure to include summary reasons for granting planning permission in a decision notice, and the omission has occurred because the Committee has failed to agree upon the summary reasons for its decision, and the local planning authority wishes to make good that omission, then the proper course would seem to me to be for the officers to take the matter back to committee at the earliest possible opportunity so that the Committee can decide, in public session whilst members' recollection is still fresh, what were its summary reasons for granting planning permission. ... Adopting such a procedure would not necessarily persuade the court that a defective notice granting planning permission should not be quashed, but the fact that a local planning authority had adopted such a procedure would be a factor to take into account in the exercise of the court's discretion, since in practical terms the local planning authority would have undertaken the same exercise that it would have to undertake if the decision notice was quashed, although it would not have been free to change its mind and refuse planning permission. "

At paragraph 68 Sullivan J said:

"Standing back from the detail, Parliament intended that the defendant should set out its summary reasons for granting planning permission in the decision notice. This is not a case of summary reasons being inadequate because, for example, the planning authority has failed to mention a particular reason or reasons. No reasons at all were given. While it is true that the claimant cannot point to any specific prejudice having been caused by the defendant's omission, neither can the defendant or any interested party point to any particular prejudice if the decision notice is quashed and the Committee has to reconsider the matter. The defendant's case really amounts to no more than a submission that it should not be put to the administrative inconvenience of having to reconsider the application, but if the Committee's reasons are to be elicited after the event that should have been done by taking the matter back to the Committee and by the Committee discussing and resolving upon summary reasons in public session. Whether they do so following the quashing of a decision notice or as a means of trying to save a defective notice would seem to make little practical difference in terms of administrative burden, save that in the former case the members would retain the option of refusing planning permission on reconsideration."

[41]Before leaving that judgment I should also note that at paragraph 28 Sullivan J said:

"In principle there could be no objection to a local planning authority subsequently adducing evidence to amplify its summary reasons, since by definition they do not purport to be the local planning authority's full reasons for granting planning permission."

At paragraph 29 he referred to the well-known case of R v Westminster City Council, ex p Ermakov

[1996] 2 All ER 302

, which was a case under the Housing Act 1985. That is referred to later in the judgment of Sullivan J in the context of planning matters.

[42]I can deal with other authorities which have been cited, and which it is necessary to refer to more briefly. The next case is R (on the application of Tratt) v Horsham District Council

[2007] EWHC 1485

, a decision by Collins J. At paragraph 26 of his judgment Collins J said:

"It seems to me that reasons in relation to planning decisions must normally deal with the main issues that have been raised. That is again a clear basis upon which the adequacy of reasons should be judged. In this case, the officer's report indicates what were the main issues and they really are need, siting and possible health concerns, and in siting I include, of course, the visual impact of the mast. It seems to me that the reasons ought at least to have stated, albeit only in a sentence in each case, why those issues have been decided in favour of the applicants. ..."

[43]In relation to the statutory requirement to make reference to relevant development plan policies, it is important to cite from paragraph 18 of the judgment where Collins J said:

"it seems to me that there was a failure here to include a summary of the relevant policies. It is in my judgment insufficient simply to identify a policy without indicating what it concerns. What is required is a summary of the relevant policies, not merely a list of policies which are considered to be relevant. The summary need be no more than a few words identifying the relevant aspect of any policy but that in my view at least must be given."

[44]The Court of Appeal has had occasion, at least on a permission application, to consider Wall and Tratt in Smith v Cotswold District Council

[2007] EWCA Civ 1341

. The main judgment was given by May LJ, who at paragraph 8 and at paragraphs 14 and 15 referred to the cases of Wall and Tratt with apparent approval. At paragraph 16 he said in terms:

"I would adopt and approve the principles to be found both in Wall and Tratt ..."

[45]My attention was also drawn to a decision by Ouseley J in R (on the application of Midcounties Co-operative Ltd) v Wyre Forest District Council

[2009] EWHC 964 (Admin)

. At paragraphs 1 and 5 Ouseley J noted Tratt and the fact that it has been approved by the Court of Appeal, albeit on a contested permission application only in the case of Smith, to which I have referred. At paragraph 186 Ouseley J then said this:

"What is required is a summary of the conclusions on the principal issues. It is not of the degree required for reasons in a Secretary of State's decision letter. It cannot be intended to cover all the points. One paragraph in the reasons deals briefly and adequately with conservation areas. It contains no reference to traffic. True the impact of the proposal as a whole on the conservation areas was a principal issue. True the effect of traffic on them was a point raised by the objector but it was raised in a limited way. Of itself the traffic impact on the conservation area cannot be characterised as a principal point at issue and it has not become one merely because it is an aspect of a larger issue; otherwise reasons would cease to be summary and would become an obligation to give reasons for the conclusion on every material consideration, which is not even required in the Secretary of State's decision letter."

At paragraph 190 Ouseley J also said this:

"I accept that the requirement for reasons for a grant of permission does not envisage a clear division between the reasons for the grant and the reasons for the rejection of an objection. This may often be an unrealistic division, although in certain circumstances, and this may be one, the distinction has some force and may go to the degree of elaboration necessary. But the fundamental test is this: can an interested person see why planning permission is granted and what conclusion was reached on the principal issues? ..."

[46]Finally, in relation to the authorities, I should make reference to R (on the application of Ling Bridlington Limited) v East Riding and Yorkshire Council

[2006] EWHC 1064 (Admin)

, a decision of Sir Michael Harrison. It is only necessary to quote one passage in that judgment from paragraph 50:

"... the adequacy of reasons for the grant of permission will depend on the circumstances of each case. The officer's report to committee will be a relevant consideration. If the officer's report recommended refusal and the members decided to grant permission, a fuller summary of reasons would be appropriate than would be the case where members had simply followed the officer's recommendation. In the latter case, a short summary may well be appropriate."

[47]I would not attempt, nor would it be helpful for me to attempt, to summarise the principles from the relevant authorities, not least because, as the authorities themselves recognise, each case turns on its own facts. Nevertheless, some helpful guidance has undoubtedly been given in the authorities, to which I have referred. Although what is required is a summary and not full reasons, the principal issues must be addressed and the development policies, which are said to be relevant, must be referred to in brief terms.

[48]It is clear from the authorities I have cited that there is no need for a claimant to show prejudice, still less substantial prejudice, although the presence or absence of prejudice will be relevant to the exercise of the court's discretion, since this is a challenge by way of judicial review. It is also clear from the authorities I have cited that where officers recommend refusal, if members of the local planning authority do not accept that recommendation, very powerful reasons will be required to persuade the court not to quash the grant of planning permission. It will be more likely that the court will take the normal course and quash the grant of planning permission in its discretion.

[49]Turning to the facts of the present case, I observe first that this is a case where the members disagreed with the recommendation of the officers to refuse planning permission. Secondly, I observe that the reasons in the minutes of 23 June 2008 were approved as being correct, and (it would appear to be a reasonable inference) a complete record of those reasons at a meeting which took place on 28 July 2008.

[50]It would appear from the passages from the factual documents, which I have quoted earlier, to be a reasonable inference, from the way in which matters were then conducted, that the members of the Committee felt, when they met on 10 November 2008, that the case fell within what I have called subparagraph (iii)(b) of the officer's report at 2.11. This is set out at page 172 of the bundle, and which I have quoted in full earlier.

[51]I am not convinced, in the circumstances of this case, that it was open to the Committee to add the additional matters, which it did, on 10 November. However, it is unnecessary, in my judgment, to decide that point, for reasons that will become apparent. I will proceed on the assumption that the Committee was entitled to add those further matters, because, as has been submitted by counsel for the defendant and the interested party, they were not additional reasons, but amplification of the existing reasons.

[52]I have come to the conclusion that the reasons read as a whole were not adequate and would not comply with the requirements of Article 22 of the 1995 order. It would not, in my view, suffice for the court simply to direct that the defendant must set out a summary of the reasons in the terms recorded in the minutes of the two meetings on 23 June and 10 November 2008. This is for essentially the following reasons: first, the reasons, taking those minutes together, even now do not set out, even in the briefest of terms, the development plan policies which are said to be relevant. Next, this omission is particularly important in a case like the present where it is common ground that the grant of planning permission was in breach of certain policies in the development plan: ST20 of the Structure Plan and E4 of the Local Plan.

[53]It would not, in my view, be sufficient to note that the minutes of 23 June meeting record that the members of the Committee were well aware that the site in question was "allocated" for employment land. It seems to me that that word does not bear the burden which it is sought to place upon it by the defendant and the interested party.

[54]I have already mentioned the importance of the development plan in planning law as a result of section 38(6) of the 2004 Act, and the interpretation given to the equivalent provision in Scotland in the House of Lords case of City of Edinburgh, which I have quoted at some length earlier. I am also of the view that the submissions for the claimant are well-founded when it argued before me that the principal issues in the officer's report recommending refusal before the meeting of 23 June, and in Tesco's correspondence, were not dealt with adequately, even if briefly, in the reasons which were required for granting the permission.

[55]By way of example, counsel for the claimant submits, and I accept, there is not an adequate response to the point that there was inevitably, if planning permission was granted, going to be a shortfall in employment land, which was required by the development plan in the period right up to 2016; or the point that Sainsbury's, it would appear, accepted that a viable project for the allocated employment land might well come forward during the planned period; or the point that there was no alternative provision to make good the shortfall by Sainsbury's.

[56]So far as the sequential approach is concerned, taking the June reasons by themselves, I would have found it very difficult indeed to distil from them that there was any proper appreciation of the need to do any sequential exercise as between the Tesco site and the Sainsbury's site.

[57]Even taking a benevolent approach to the circumstances of this case, and even accepting, for the sake of argument, that the additional matters referred to on 10 November 2008 did bring within the summary of reasons reference to the sequential approach, nevertheless in the overall circumstances of this case I would not regard that fact as outweighing the other considerations. This leads me to exercise my discretion in the normal way, which is to quash the permission rather than to grant any lesser remedy, or no remedy, as has been urged upon me by both the defendant and the interested party. Conclusion

[58]For the reasons I have given, this claim for judicial review is granted and I will quash the grant of planning permission in this case.

[59]MR KATKOWSKI: I am grateful. I ask for an order in those terms and costs.

[60]THE DEPUTY JUDGE: Yes. Mr Findlay?

[61]MR FINDLAY QC: I cannot resist that order.

[62]THE DEPUTY JUDGE: An order will therefore be drawn up in the terms sought by the claimant, including an order that the costs of the claimant shall be paid by the defendant. Those costs are to be subject to detailed assessment, if not agreed. Is there anything else?

[63]MR FINDLAY QC: Can I make two submissions? First, I make a very brief application for permission to appeal; secondly ,(if your Lordship is against me on that) I ask your Lordship to make an order extending time for any further application to be made until 21 days after receipt of the transcript in this matter.

[64]THE DEPUTY JUDGE: Do you want to say anything about that?

[65]MR KATKOWSKI: I resist the first of those applications and I will not say anything about the second.

[66]THE DEPUTY JUDGE: What I am going to do is to refuse permission to appeal on the ground that, as the authorities recognise, this is essentially an exercise of discretion by this court. Obviously if I have erred in the exercise of that discretion, then that will be a matter that you will be able to persuade the Court of Appeal of, but I am not going to grant permission in this case. However, I will grant you an extension of time for any application to the Court of Appeal for 21 days from the date of receipt of the transcript, not least because the holiday period is going to intervene in the next few weeks.

[67]MR FINDLAY QC: I am much obliged.

[68]THE DEPUTY JUDGE: I am grateful to all counsel for all the help I have received in this case.

order

• first, locations in appropriate existing centres where suitable sites or buildings for conversions are, or are likely to become, available within the development plan document period, taking account of an appropriate scale of development in relation to the role and function of the centre; and then

• edge-of-centre locations, with preference given to sites that are or will be well-connected to the centre; and then

• out-of-centre sites, with preference given to sites which are or will be well served by a choice of means of transport and which are close to the centre and have a high likelihood of forming links with the centre."