“10. Peterlee is a new town which was built in 1948 under the provisions of theNew Towns Act 1946 . It is on the north-east coast in County Durham just to the south of Sunderland and well north of Teesside. Durham CC is the planning authority for the area as a unitary local authority. Within Peterlee town centre there is only one large retail shopping complex at Castle Dene Shopping Centre which is owned by Salford. The only large supermarket in the town centre is ASDA which is very close to the Castle Dene site. Durham CC has been desirous of expanding retail led regeneration schemes in the area for some while. It is part of the local plan (see District of Easington Local Plan 2001 which was adopted by the predecessor local authority prior to the creation of the county council as a unitary authority) [I shall call this ‘the local plan’ hereafter]. By June 2011 Durham CC had to decide upon, inter alia, three planning applications for major retail development in and around Peterlee. Those applications were: (1) The Castle Dene Site: this application was made by SE2 as part of the redevelopment of the Castle Dene Shopping Centre in the town centre. The plan was to construct a food superstore (12,802 square metres). No retail operator has been identified for this site. This application was made on13th September 2010 . (2) The Tesco Site: this application was made by Tesco to construct a Tesco Extra food superstore (10,815 square metres) at the periphery of the town centre although it is separated from it by a main road called Burnhope Way (which is also the B1320). This is the site of the former college. This application was made on23rd December 2009 . Tesco was additionally required to enter in to a Section 106 Agreement to provide underpass and other environmental advantages to Peterlee. (3) The Dalton Park Site: this application was made by Dalton to construct a food superstore (8,452 square metres) on an out of town factory outlet site called Dalton Park. The site is over 5 miles from Peterlee town centre and abuts the A19 arterial road. This application embraced a 90 room hotel, a cinema, food and drink outlets (including a drive-through arrangement) and a fuel filling station. This application was made on29th December 2009 . (4) The North Blunts Site: this application was made by North Blunts Limited and related to a former school site on the edge of the town centre. This was refused by Durham CC. I shall make further reference to this aspect of the case at paragraph 16 (infra). 11. On7th June 2011 Durham CC resolved to grant planning consent to the first three applications at the meeting of the County Planning Committee held at the County Hall in Durham. In respect of the Tesco site it was conditional upon a Section 106 Agreement being made (seesection 106 of the Town and Country Planning Act 1990 ). The Secretary of State for Communities and Local Government (Secretary of State) has decided, through the National Planning Casework Unit, not to call-in the decisions in relation to the Tesco and Dalton Park Sites. The decisions of the Secretary of State in respect of the Tesco site and the Dalton Park site were not made concurrently and that has caused the judicial review application about the Dalton Park site to be considerably delayed. Hence, it has not been possible to have a single hearing to consider both cases.”
‘where sites within the defined town centre (of Peterlee) are unavailable (shopping developments) on the edge of the town centre may be approved.’
‘Where there is an identified need for a major new retail development, proposals should be located within the defined town centre of Peterlee ----. If it can be demonstrated that suitable sites are unlikely to be made available within a reasonable period, then proposals may be located on the (edge of the centre), followed at local shopping centres within those towns and finally by sites elsewhere within those built up areas, provided that: (i) the proposal would not, either by itself or cumulatively, undermine the vitality and viability of (Peterlee) centre ----- or prejudice future investment or a planned proposal intended to sustain or enhance the vitality or viability of an existing centre." 32. The local plan plainly envisages the promotion and preservation of town centres and planning permission outside this area would only be granted when there is no alternative. 33. Prior to determination of the applications Durham CC sought advice from expert consultants in respect of retailing: GVA Grimley. The consultants produced 3 reports all of which were made available to the planning committee when they convened to decide upon the applications on7th June 2011 . It is also of note that each of the developers of the three sites (as well as the developer of the fourth site) provided expert reports for the committee. It is important to appreciate the import of these various reports. I have read them all with some care and extensive reference has been made to them in the course of argument. I shall simply summarise some of the salient points. Retail and Town Centre Study [GVA Grimley] 2009 34. This report encompassed an assessment of retailing within the Peterlee Catchment Area. It was a thorough report and pointed out the isolated nature of the town centre by reason of the road network. It was described as ‘lookingdated and not meeting modern expectations’
‘57. On the basis of the information currently available doubts remain regarding the deliverability of the Castle Dene scheme to meet the immediate need identified in the Durham County Council Retail and Town Uses Study. There is a current need for a new food store to provide competition for the existing ASDA store and to improve choice for residents, however, regarding the likely timing of the Castle Dene development, that scheme cannot be considered to represent a deliverable option to meet the identified immediate need. 58. This (Tesco) scheme is considered to accord with relevant development plan policies. With regard to sequential assessment, it is considered that there are no sequentially preferable sites in Peterlee town centre, or on the edge of that centre which are available, suitable and viable as alternatives to the (Tesco site) for the development of a food store to meet recognised immediate need. The impact assessment submitted by (Tesco) in support of the Tesco proposal is accepted; this details there will not be a detrimental impact on the current convenience and comparison retailing within the town’
‘---- there is also the risk of failing town centres within East Durham and the undermining of town centre regeneration objectives and recent successful regeneration projects’
‘--- if more than two new stores were allowed in the catchment area (meaning Peterlee and surrounding towns) there would be substantial adverse impact on the vitality and viability of Peterlee.’
‘The scheme represents significant investment in Peterlee which will widen retail choice and contribute to the regeneration of the area.’
‘The application has been approved notwithstanding the policy conflict identified in the Officer's report to Committee because of the weight members attach to the other material planning considerations referred to below.’
‘Having regard to the planning controls imposed via condition and the obligations contained in the legal agreement, the scheme would not cause an unacceptable impact on the vitality and viability of any nearby towns or other centres.’ 58. It has to be said the reasons given set out the basis of the members' decision with pellucid clarity. No one has sought to describe the reasons as anything but clear. The simple fact is the members felt this ‘stand alone’ scheme several miles from Peterlee and other areas of relevance provided much needed regeneration to a former coal field site and would not produce unacceptable problems.” The Local Plan ‘Where there is an identified need for a major new retail development, proposals should be located within the defined town centre of Peterlee ----. If it can be demonstrated that suitable sites are unlikely to be made available within a reasonable period, then proposals may be located on the (edge of the centre), followed at local shopping centres within those towns and finally by sites elsewhere within those built up areas, provided that: (i) the proposal would not, either by itself or cumulatively, undermine the vitality and viability of (Peterlee) centre ----- or prejudice future investment or a planned proposal intended to sustain or enhance the vitality or viability of an existing centre." Retail and Town Centre Study [GVA Grimley] 2009 Report on the Tesco Application [GVA Grimley] May 2010 Cumulative Impact Note [GVA Grimley] 2011 The Advice of Officers ‘57. On the basis of the information currently available doubts remain regarding the deliverability of the Castle Dene scheme to meet the immediate need identified in the Durham County Council Retail and Town Uses Study. There is a current need for a new food store to provide competition for the existing ASDA store and to improve choice for residents, however, regarding the likely timing of the Castle Dene development, that scheme cannot be considered to represent a deliverable option to meet the identified immediate need. 58. This (Tesco) scheme is considered to accord with relevant development plan policies. With regard to sequential assessment, it is considered that there are no sequentially preferable sites in Peterlee town centre, or on the edge of that centre which are available, suitable and viable as alternatives to the (Tesco site) for the development of a food store to meet recognised immediate need. The impact assessment submitted by (Tesco) in support of the Tesco proposal is accepted; this details there will not be a detrimental impact on the current convenience and comparison retailing within the town’ ‘---- there is also the risk of failing town centres within East Durham and the undermining of town centre regeneration objectives and recent successful regeneration projects’. ‘--- if more than two new stores were allowed in the catchment area (meaning Peterlee and surrounding towns) there would be substantial adverse impact on the vitality and viability of Peterlee.’
“62. It is entirely clear from PPS4 that the requirement to demonstrate need has vanished. Notwithstanding, Mr Tucker QC has submitted that Durham CC has acted unlawfully (perversely) and irrationally in making the decision to grant planning permission for three large retail outlets. His arguments are fully set out in his skeletal argument and I will not elongate this judgment by repetition of them. I trust I do him no injustice if I distil his arguments in this way: (1) The planning committee have acted irrationally by ignoring the advice of officers. (2) There was simply no information from any source as to the impact or assessment of the economic, or any other, situation, if the committee granted permission for the Castle Dene site, the Tesco site and the Dalton Park Site. In other words – all three. (3) He called attention to all the information in the various reports which tended to point against all three being granted permission. The high water mark being there was an acceptance of ASDA + 2 others, but not 3. (4) Members should have adjourned the meeting to obtain a report on the impact of approving all three applications plus ASDA upon Peterlee. (5) There was simply no material before the committee upon which it could form a judgment given the complex matrix of PPS material and the local plan the committee was required to digest and apply. 63. In fairness to Mr Tucker QC, he was not simply asserting the decision was irrational; rather more, the committee failed to take into account a material consideration namely the impact of the approval of all three applications. He disavowed any idea that the court is being asked to enter the arena of planning merits. He simply submitted that the committee fell into legal error when they did not seek further information and acted without it particularly when it was against the recommendations of officers. Members had no information and to act as they did meant they could not take into account a material consideration namely the impact of approving all three applications. 64. Mr Clarkson QC submitted that the judgment of members was a matter for them; and, unless they have acted irrationally, their planning judgment stands. He warned me against entering the planning arena and simply asserted that it was for the members of the planning committee to assimilate the enormous amount of information and decide whether a planning judgment could be reached on the information they had; and, in this case, there was no irrationality in declining to adjourn to seek more. He accentuated the catchy phrase – members know their own patch. He submitted that it was perfectly acceptable for members to prioritise the need for regeneration of the former Durham coalfields and the other matters set out in their decision. He described the decision to disagree with the advice of officers and to accentuate other factors as an entirely rational decision open to the planning committee. He reminded me that the members are the ones who have to answer for their decisions. 65. Mr Katkowski QC sought to emphasize that I am only asked to quash the Tesco decision in this case and urged me to decide that it was not in the least perverse for the committee to decide the Tesco application without the additional information. There was more than enough information before the committee to decide the Tesco application and the Dalton judicial review was for another day. The Tesco application was after all, he observed, recommended by officers. 66. I am very conscious I have much abbreviated the submissions of all counsel. I have reviewed all of their submissions made to me with conspicuous ability even though I have provided a pale shadow of their force in this brief summary of them. I apologise for the summary; I make no apology for declining to lengthen this judgment by more comprehensive recitation of what was advanced before me. 67. I am very aware the court must not stray into the forbidden territory of judging planning merits or exercising planning judgment. I reiterate what I said at an earlier part of this judgment about the role of this court in judicial review proceedings and the primacy of the judgment of the elected members of the planning committee. If the members make a bad decision that is not a matter for this court. The electorate may judge them adversely and they may be exposed to all manner of criticism, but in the final analysis the decision is for them to make providing they act lawfully. It is only when they have acted irrationally and reached a decision that no reasonable planning committee member could have reached; or failed to take into account a material consideration (or took into account an immaterial one) that this court becomes involved. It is important to emphasize the primacy of the elected members to make decisions, and for this court to state without equivocation, that providing they evaluate the situation, the weight they attach to information is a matter for them. Indeed, they may attach whatever weight they feel is right (or no weight at all) to a material consideration. The portcullis I mentioned at the outset of this judgment must remain firmly closed to provide the divide between issues of law and the exercise of planning judgment. 68. I use a cricketing metaphor: the captain of the team decides where to place his fielders. The captain may make good or bad decisions about this. He may or he may not have a fielder in place to take account of every batsman. That is a matter for his judgment – for good or bad. The captain might be exposed to all manner of criticism (valid or not) but he has acted within the rules. The umpire could only intervene if the captain brought on 14 players on to the field or otherwise breached the rules of the game. 69. The argument of Mr Tucker QC was very attractive, but I have to say there were times during his enticing submissions that I felt he was asking me to opine as to the location and positioning of the fielders. My analogy to cricket is, of course, not a complete answer and has its limitations. It is, of course, open to this court to say that a planning committee has not taken into account a material consideration and/or has acted irrationally. The court is much more nuanced in its approach to unlawful decision making than a cricket umpire. It was forcefully submitted that the planning committee failed to take into account a critical material consideration. This submission deserves examination. 70. In many respects it might have been wise for the committee to have commissioned further detailed work on the potential impact of approving all three applications (having eliminated the North Blunt application). Was it either: (i) irrational to decline to do that; or, (ii) a legal error to fail to obtain what might have been a material consideration? Mr Tucker's point is that the committee simply did not have any information upon a highly material consideration – the impact of granting all three applications. This was particularly so having regard to the local plan and the assessments needed to implement PPS4 and all that flows from it. 71. I am not persuaded this is a material consideration point at all. It is self evident that officers were against the Dalton Park scheme. Members plainly took that into account and formed their own judgment as set out in their reasons for the decision to grant permission. Members are entitled to form their own views and disregard the advice of officials. They are entitled to place in the decision making matrix their own view of the local situation providing it is a material consideration. The fact is the members knew the risk they were taking by granting approval. They expressly stated in their reasons the impact upon other local areas was acceptable (in their judgment). They are the decision makers; and, it is their judgment that counts. In the context of this case officials are the advisors and the members of the planning committee are the decision makers. Although axiomatic it is worth recording: advisors advise; decision makers decide. 72. I am completely un-persuaded that the committee fell into error by declining to obtain more information. I equally do not feel they failed to take into account any material consideration. Given the nature of the reports before them, they were only too well aware of the risks. The committee also had much information form other sources, all of whom made representations to the committee. One really significant factor was the potential for the creation of jobs in their bailiwick. I do not regard that as an insignificant issue or immaterial. It is highly material. 73. I do not intend to incorporate the entire minutes of the planning meeting in this judgment – but I have read them with some care. It is manifest there were many representations including the local Member of Parliament, a local group seeking to promote tourism and local councillors (including Peterlee Town Council). This was all in addition to the representations from the individual applicants. It is always invidious to refer to one contribution and not others, but there was clearly a very powerful submission made by Ward Councillor Laing who, inter alia, set out the case for more jobs in the locality. It is also clear the members of the planning committee had a vigorous debate about the proposals after submissions from GVA Grimley and officials. 74. I shall say more about the order in which the committee voted upon the proposals when I cover the issues relating to the Sequential Test Point (see paragraphs 81 et sequentia: infra). The planning committee voted upon the four planning applications. 75. I regard it as of importance that the committee took the view the Dalton Park scheme was a "stand alone" proposal. After all it was 5 miles from Peterlee and had many other components to it beyond what was on offer at any of the central or edge of centre sites (extant or proposed). 76. The reasons the committee gave were entirely cogent and, whilst some other committees might have sought more information, I do not regard it as wrong to have declined to seek more. The committee have not artificially restricted their view. They knew the advice and all the factors. They were prepared to accentuate other highly relevant and material considerations and attach less weight to the expert opinion and the advice of officers. They set out their reasoning for so doing with clarity. No one has sought to assert the reasons were inadequate. 77. I have well in mind the contentions of Mr Tucker on behalf of SE2. I feel he was in reality inviting me to stray into the forbidden territory of planning merits. He mounted a perfectly respectable argument, but stripped of much surplusage, the challenge was really about planning merits. I am most certainly not persuaded that the planning committee failed to take account of a material consideration or reached an irrational decision to decline to seek further information if they were minded to approve the three applications they in fact approved. It is plain to me that this experienced group of elected members (and it is accepted they were) were very familiar with the relevant Planning Policy Statements, the local plan and the various other highly material considerations when they reached their conclusions. I am far from persuaded they departed from a lawful course. 78. Whether they were right to decide as they did is a matter out-with the remit of this court. The councillors as elected members will have to answer for that to the electorate of Peterlee. Just because a decision may be wrong does not make it unlawful. I am in no position to say whether it was a wrong decision and could not do so even if I thought it was. That would be to stray – indeed plunge – into forbidden waters. Judges in the Administrative Court do not have a chart or compass for such a voyage. Much as Mr Tucker disavowed any suggestion of such a voyage of discovery, I feel in reality he was inviting me to make such a journey. I decline his offer. 79. If I am wrong about this, it must be remembered that the decision to allow the Tesco application was not against officers' advice, and that is the decision under review in this case. The view of the committee was that Dalton Park stood alone. Consequently, if there is any challenge to that decision, it must await the next case. 80. In the upshot, I reject the claim based upon the retail capacity point based upon either material consideration arguments or irrationality grounds”
“81. PPS4 makes it very clear that town centres are to be favoured and the sequential test must be applied to planning applications such as those in this case. There can be no doubt the members of Durham CC Planning Committee knew this. Mr Tucker has advanced the proposition that (i) officers have erroneously elided two concepts when tendering their advice to the committee in their reports, and (ii) the committee have failed to properly apply the sequential test. In oral argument Mr Tucker expanded upon the points he raised in paragraph 5.2 of his skeletal argument. 82. With respect to Mr Tucker, I am not overly attracted to his argument on this aspect of the case and I feel the matter may be resolved in short form. Mr Clarkson accepts there may be certain infelicities of language in the report, but there is absolutely no doubt the committee plainly had in mind the sequential test and applied it to the facts of this case. Mr Katkowski allied himself with the submissions of Durham CC and pointed out that members voted in order of sequential merit thereby demonstrably applying the sequential test. 83. The passage of which complaint is made is contained in the report relating to the Tesco site which has already been referred to and quoted (see paragraph 46 supra). The passages are paragraph 57 and 58 coupled with paragraph 56 (not quoted). The import of those passages is as follows: (1) There is a need for a mainstream food store in Peterlee comparable to ASDA. The Tesco store will meet this need. (2) There is doubt regarding the deliverability of the Castle Dene proposal, but there is a current need for such a store. Castle Dene cannot be regarded as an immediately deliverable option. (3) There are no sequentially deliverable preferable sites in Peterlee town centre or on the edge of centre that are as viable, suitable or available as the Tesco site to meet a recognised immediate need. 84. Policy EC15.1 of PPS4 provides: "In considering sequential assessments required under Policy EC14.3, local planning authorities should: a. ensure that sites are assessed for their availability, suitability and viability, b. ensure that all in centre options have been thoroughly assessed before less central sites are considered. c. ensure that where it has been demonstrated that there are no town centre sites to accommodate the proposed development, preference is given to edge of centre locations which are well connected to the centre by means of easy pedestrian access" 85. There was no doubt Castle Dene do not have an operator of a shop for their Castle Dene site. I do not feel it can be seriously doubted that officers were entitled to report to the committee the Castle Dene proposal was not immediately available. Furthermore, there was an immediate need for such an outlet. I am entirely satisfied that the "in centre" proposal for the Castle Dene site was thoroughly assessed. I am equally clear that officers made an assessment of availability too. There is no challenge to the fact they assessed suitability and viability. 86. The most that can be said is that officers did not set out the sequential test with as much clarity as they might. I am far from persuaded the members were under any misapprehension as to their approach to the issues before them. 87. It is as plain as plain could be that the members approached this complex and interrelated series of planning applications with two very clear concepts well in focus: (1) they decided to consider all the applications together so that all views could be advanced fairly; and, (2) when the issues fell for a vote (that is to say a decision) the committee expressly voted on the applications in order of their sequential merit. Mr Tucker described this as being singularly unreal. I beg leave to doubt that. It is perfectly permissible to consider matters together and then vote on the individual decision in a particular order. There is nothing inconsistent in that at all. Courts do it all the time (particularly in the Court of Appeal, Criminal Division) where a group of related appeals are heard together and then: either single judgments are given on each case; or a leading judgment with separate judgments on the other cases; or separate sections of one judgment. Joint consideration means the committee viewed the issues arising in all the interrelated applications concurrently, but when it came to the vote to decide the individual applications they were arranged in a sequentially preferred order for voting purposes. It was an eminently sensible approach. The sequential voting order was specifically minuted. 88. It is plain to me the planning committee decided the applications in this way: (1) Castle Dene Site: this was the sequentially preferred site as it was in the town centre, but there were real doubts about whether it would actually materialise in a sufficiently speedy timeframe to meet an immediately identified need. Notwithstanding, it was approved. (2) Tesco Site: this was edge of centre and was immediately available, thus it was second choice using the sequential test, but it had many other factors in its favour. (3) North Blunts site: this was not the preferred edge of centre site (see officers report). The committee plainly felt that one edge of centre development was right, but not two. This application was refused by the committee. (4) Dalton Park Site: regarded as a "Stand alone" out of town development; and, despite the advice of officers, there were countervailing arguments that won the day as material considerations and it was therefore approved. 89. I am entirely satisfied the planning committee applied its collective mind to the sequential test and that officers addressed the issues (as did the members) in accordance with sequential test in PPS4. They voted upon the issues in their sequential merit. 90. I have not referred to it specifically, but I have had well in mind the Practice Guidance 2009 relating to the sequential test. No useful purpose would be served by extensive or any recitation of the material. I am satisfied there was no legal error for the reasons I have given. 91. I reject the challenge based upon an assertion of the misapplication of the sequential test.”
"It is important to remember I am only deciding the case about the Tesco site. For the reasons I have given in this judgment that claim must fail. However, the decision I have reached in this case (the First Judicial Review Application) has considerable impact upon the case about the Dalton Park site (the Second Judicial Review Application). I propose to determine that case as soon as possible as a paper application for permission to apply for judicial review. In view of the fact that I do not regard the overall decision of Durham CC about this trio of inter-related planning consents to be either unlawful or irrational it may be thought the next case has little chance of success. I await the arguments in that case. However, I have no intention of revisiting what has already been decided by this case, but if there are other matters not canvassed in this case that have specific relevance to the Dalton Park site decision, I will consider them. I will, and must, keep an open mind. I do not intend for there to be a re-match on the fundamental issues resolved by this case."
"Having regard to the planning controls imposed via condition and the obligations contained in the legal agreement, the scheme would not cause any unacceptable impact on the vitality and viability of any nearby town or other centres."
"The developer will not normally be entitled to his costs unless he demonstrates a separate issue not covered by the Secretary of State or a separate interest, an interest requiring separate representation"