“Where a local planning authority … has to decide under these Regulations whether Schedule 2 development is EIA development the authority … shall take into account in making that decision such of the selection criteria set out in Schedule 3 as are relevant to the development.”
“Where a local planning authority adopts a screening opinion under regulation 5(5) … – (a) that opinion … shall be accompanied by a written statement giving clearly and precisely the full reasons for that conclusion; and (b) the authority … shall send a copy of the opinion … and a copy of the written statement required by sub-paragraph (a) to the person who proposes to carry out … the development in question.”
“This is not a case of a document which is capable of being a screening opinion not being placed upon the planning register due to some error. There simply is no screening opinion in terms of the Regulations at all. Such documentation as there is, that is to say the summary screening table, was not placed in the register; it was placed in the planning file, it does not matter whether in July or September. And, it is accepted by [counsel], on behalf of [the local planning authority], that the applicant for planning permission was not given a copy of the screening opinion, no doubt for the simple reason that there was none. The applicant for planning permission was simply told informally that an environmental statement would not be required.”
“138. It would be a mistake in my view to read these cases as requiring automatic “nullification” or quashing of any schemes or orders adopted under the 1984 Act where there has been some shortfall in the SEA procedure at an earlier stage, regardless of whether it has caused any prejudice to anyone in practice, and regardless of the consequences for wider public interests. As Wells makes clear, the basic requirement of European law is that the remedies should be “effective” and “not less favourable” than those governing similar domestic situations. Effectiveness means no more than that the exercise of the rights granted by the Directive should not be rendered “impossible in practice or excessively difficult”
“Presently on the Site there is 15,788m 2 of Class A1 (retail) floor space of which the proposals include retaining 7,783m 2 and demolishing 8,005m 2 of the existing floor space. An additional 19,043m 2 of Class A1 floor space would be provided resulting in an increase of 11,038m 2. The total proposed Class A1 floor space would therefore be approximately 26,826m 2. The proposals also include an increase in Class A3 (restaurant) floor space from 255m 2 to approximately 831m 2, an increase of 576m 2. …”
“The fundamental test to be applied is whether this particular type of development and its specific effects, in this particular location, are likely to result in significant effects on the environment. Commentary on potential effects of the proposed Development on the environment is provided in Annex 2. Taking into account the present use of the Site and environmental enhancements proposed, it is expected that the overall effects of the proposed development would be minimal during the construction and operational phase of the Development. The proposals are for the redevelopment of an existing retail park for retail and associated uses which are wholly consistent with the existing type of development on the Site and in the surrounding area. The proposals only result in an additional circa 3,700m 2 Class A1 Retail at ground floor level, with the remaining net additional increase provided at mezzanine level (circa 7,300m 2). As such, it is considered that the nature of the Development is unlikely to give rise to significant environmental effects. The Site is also located in a flood risk area and an Air Quality Management Area (AQMA). However, given the existing uses on the Site and the scale of the proposals, it is considered that those aspects of the environment would be adequately addressed by existing planning policy requirements and legislative controls such that significant environmental effects would be avoided. For instance, flood risk will need to be managed in line with Planning Policy 25 [sic] and the Environment Agency’s requirements. In light of the above and particularly the commentary in Annex 2, it is our view that the development will not result in significant environmental effects, and thus an EIA is not required.”
“Although it is the opinion of the Council that the redevelopment of the retail park would be significantly greater in its scale than that of the existing and therefore be above the circular 02/99 thresholds/criteria, the development is to remain within the existing confines of the site to which such development in this location is accepted. The main characteristics of the development against which consideration of whether or not a EIA is justified are considered to be the impact of the increased retail floorspace particularly regarding increased noise and the effect on air quality due to increased traffic and the impact on the River Swift which runs through the site and Oxford Canal sited adjacent. With regards to these considerations the fact that the site is previously developed by retail units has been taken into account. The River Swift has been incorporated into the existing layout and from the indicative layout shown of the new proposal it is seen that some existing buildings and infrastructure close to the river are to be kept which would minimise any further impact on this natural feature. It has been indicated that surveys such as an ecological survey, air quality assessment, environmental risk assessment and flood risk assessment are to be submitted with an application … which would enable an assessment to be made on the potential impact of the development without the submission of an EIA. Having regard to the criteria in Schedule 3, it is considered that it would not be likely to have significant effects on the environment by virtue of factors such as the characteristics of the development, the environmental sensitivity of the location and the characteristics of the potential impact. In the circumstances an EIA is not required.”
“In my view the proposed development is not an EIA development under [the 2011 EIA regulations].”
“The current proposals are essentially the same scheme as that detailed above and which was previously considered by the Council. … The current proposals give rise to a net increase in Class A1 floorspace of 13,852sq m (GIA) and Class A3 floorspace of 464sq m, in addition to an uplift of 143 car parking spaces. Therefore, the current proposals give rise to a reduction in the Class A3 floorspace proposed from the previous scheme, and a slight increase in Class A1 floorspace. This increase in Class A1 floorspace is not considered enough to alter the Council’s previous conclusions re EIA. Furthermore, the environmental conditions on site are the same as that previously considered. As a result, it is our view that the Council’s EIA Screening Opinion remains valid and we do not propose to seek a fresh EIA Screening Opinion.”
“With regards to the EIA screening I have considered the matter and the differences in the proposed developments and I have concluded as you have that I don’t think it’s necessary … for you to submit a fresh EIA Screening Opinion.”
“Prior to any development commencing, the applicant shall submit to and have approved in writing by the Local Planning Authority, an assessment from a competent person to accurately assess the potential impact from the accumulative effect of noise emitted from vehicle movements, unloading/loading activities and fixed plant (including air handling plant) associated with the redevelopment[,]”
“not to carry out any development pursuant to the Permission without submitting to the Council a noise assessment from a competent person to accurately assess the potential noise impact of the Development and identify any necessary mitigation from the accumulative effect of noise emitted from vehicle movements, unloading/loading activities and fixed plant (including air handling plant) associated with the Development so that such noise complies with the Noise Levels and such noise assessment as having been approved by the Council”
“As recommended to be changed, the town centre policies (CS6 to CS9 inclusive) would be justified, effective and in accordance with national policy. The strategic retail allocations are in principle suitable and commensurate with the evidence, and there are no major impediments in terms of implementation of infrastructure. They would provide a clear, strong and soundly based strategic framework for the development of the town centre which would enhance Rugby’s sub-regional status, as well as providing facilities for the Borough’s planned new residents.”
“The Core Strategy works within, and takes account of, the national policy framework. This is largely provided through Planning Policy Statements (PPSs), or Planning Policy Guidance notes (PPGs) and Government Circulars which set out the Government’s policies on different aspects of planning. A key principle of this Strategy is that if an issue or subject is adequately covered in higher level guidance then this Strategy does not seek to repeat it. This does not mean that other such policies and guidance will not be rigorously applied in the determination of planning applications.”
“The location and scale of development must comply with the settlement hierarchy. It must be demonstrated that the most sustainable locations are considered ahead of those further down the hierarchy”
“Main Rural Settlements”, “Local Needs Settlements”, “Countryside” and “Green Belt”
“Proposals for new services and facilities that aim to serve more than a local community or neighbourhood must demonstrate that they cannot be located within or on the edge of the town centre before alternative locations will be considered.”
“The Evreux Way Development site is allocated for a retail led scheme where planning permission will be granted for a scheme that includes: 1. Approximate gross provision of 10,000m 2 A1 use class comparison retail floorspace. 2. Any application for redevelopment includes a masterplan for the site and is consistent with the Council’s Town Centre Area Action Plan DPD. 3. The proposals relate to the whole allocated site or if less do not in any way prejudice the implementation of the whole development.”
“4.11. The Rugby Retail and Leisure Study 2008 tested the comparison floorspace provision for the whole of the Core Strategy plan period and indicated that there is a need for 20,100m 2 by 2026. … 4.12. The two above mentioned allocated sites were identified within the Retail and Leisure Study as priority locations for retail development. The proposals are retail led allocations and benefit from being centrally located, highly sustainable, sequentially preferable and well connected to the existing core of the town centre. It is anticipated that the North Street site is likely to be capable of accommodating between 7,000 to 10,000 square metres of gross comparison retail floorspace whereas the Evreux Way site is likely to be capable of accommodating up to 13,000 square metres gross. The detailed capabilities of each site will be dealt with through the Town Centre Area Action Plan Development Plan Document and the relevant planning applications. 4.13. This strategy allows for further comparison retail development later in the plan period to meet the remaining strategic requirements through the Town Centre Area Action Development Plan Document. Any further retail development should be focused within or adjoining the Primary Shopping Area to further strengthen the retail core of the town centre and be in conformity with the Town Centre Area Action Plan Development Plan Document.”
“211. For the purposes of decision-taking, the policies in the Local Plan … should not be considered out-of-date simply because they were adopted prior to the publication of this Framework. 212. However, the policies contained in this Framework are material considerations which local planning authorities should take into account from the day of its publication. The Framework must also be taken into account in the preparation of plans.”
“ • any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or • specific policies in this Framework indicate development should be restricted.”
“Proposals for the redevelopment of the Clock Towers Shopping Centre incorporating the Evreux Way allocated site have been put on hold given the fact that the EFRP [proposal] is going to be determined, as it would have obvious implications for the opportunity to deliver further investment in the site.”
“The policies of the Core Strategy are silent as to how retail development proposals outside of the town centre will be judged however. It is therefore necessary to refer to the content of the NPPF when considering this application.”
“… We have … challenged the [officer’s] comments that ‘neither the Evreux Way or North Street sites are available sequentially preferable sites’[,] and we disagree with the repeated reference to the Evreux Way allocation being a ‘large complex site’, ‘significant restrictions’ as a result of ‘land assembly/ownership’ and other unspecified ‘complexities’. Our representations have confirmed that the Evreux Way Development Site is suitable, available and viable for development, and we have made the same points and presented our emerging plans in recent meetings with Senior Officers. Discussions have taken place with the other two parties who have interests in the Evreux Way site and all parties are keen to work together to bring forward a planning application for this site.”
“The starting point for consideration of the application is the adopted Core Strategy. The Core Strategy remains up to date. Policy CS1 confirms that the Rugby Urban Area is to be the primary focus for meeting strategic growth targets, whilst policies CS6 through to CS8 outline the strategy for the town centre. This includes the allocation of two sites for retail development over the plan period. However, the Core Strategy does not have specific policies which set tests for out of centre development, although explanatory text of the policy confirms that proposals for new retail and other development must demonstrate that they cannot be located within or on the edge of the town centre before other locations will be considered. The NPPF is also an important material consideration, particularly in those areas where the Core Strategy does not have specific policies, such as on applications for out of centre retail development. Paragraph 14 of the NPPF advises for decision taking where there is an absence of relevant local policies that the presumption in favour of sustainable development means that planning permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits. Out of centre development can be approved consistent with the Core Strategy, if it meets the sequential and other tests therefore, particularly where it complies with the guidance in the NPPF. This is the approach taken in the committee report[.]”
“Local planning authorities should apply a sequential test to planning applications for main town centre uses that are not in an existing centre and are not in accordance with an up-to-date Local Plan. They should require applications for main town centre uses to be located in town centres, then in edge of centre locations and only if suitable sites are not available should out of centre sites be considered. When considering edge of centre and out of centre proposals, preference should be given to accessible sites that are well connected to the town centre. Applicants and local planning authorities should demonstrate flexibility on issues such as format and scale.”
“When assessing applications for retail, leisure and office development outside of town centres, which are not in accordance with an up-to-date Local Plan, local planning authorities should require an impact assessment if the development is over a proportionate, locally set floorspace threshold (if there is no locally set threshold, the default threshold is 2,500 sq m). This should include assessment of: • the impact of the proposal on existing, committed and planned public and private investment in a centre or centres in the catchment area of the proposal; and • the impact of the proposal on town centre vitality and viability, including local consumer choice and trade in the town centre and wider area, up to five years from the time the application is made. For major schemes where the full impact will not be realised in five years, the impact should also be assessed up to ten years from the time the application is made.” • the impact of the proposal on existing, committed and planned public and private investment in a centre or centres in the catchment area of the proposal; and • the impact of the proposal on town centre vitality and viability, including local consumer choice and trade in the town centre and wider area, up to five years from the time the application is made. For major schemes where the full impact will not be realised in five years, the impact should also be assessed up to ten years from the time the application is made.”
“This practice guidance is not intended to be prescriptive or stifle innovation. Rather, it explains an approach that LPAs could take to develop town centre strategies and identify appropriate sites; the role and scope of need and impact assessments and the key data inputs, and how to use these to help guide and inform policy and decision making.”
“… • Availability – whether sites are available now or are likely to become available for development within a reasonable period of time (determined on the merits of a particular case, having regard to inter alia, the urgency of the need). Where sites become available unexpectedly after receipt of an application, the local planning authority should take this into account in their assessment of the application. • Suitability – with due regard to the requirements to demonstrate flexibility, whether sites are suitable to accommodate the need or demand which the proposal is intended to meet. • Viability – whether there is a reasonable prospect that development will occur on the site at a particular point in time. Again the importance of demonstrating the viability of alternatives depends in part on the nature of the need and the timescale over which it is to be met.”
“In any case, the significance of the proposed development … should be balanced against any adverse effects on planned investment in nearby centres. The policy status of the planned investment, progress made towards securing the investment, and the degree of risk to that investment will all be relevant considerations. Like many aspects of the assessment of impact, the effect of a proposal on planned investment in nearby centres is a subjective matter …”
“… The two edge of centre sites allocated in the Core Strategy represent large complex sites, both of which have existing buildings that are currently occupied. In particular Cemex House on the Evreux Way site comprises an office building of 9 storeys, providing in excess of 3,550m 2 of office accommodation. The [Rugby Borough Council Retail and Leisure Study] describes the building as “… one of the [centre’s] main office buildings with longstanding tenants”, and indeed the building continues to be well occupied today. As a result land assembly/ownership and availability is a significant restriction to the site’s ability to be fully vacated and redeveloped in a timescale necessary to support the requirements of the proposed development. The Core Strategy and its evidence base document, the [Rugby Borough Council Retail and Leisure Study], acknowledged these difficulties, and they have previously been accepted by the Council in a number of instances, specifically during the determination of the DIY store on the former Tribune Trading Estate in April 2008 and its extension of time in May 2011; the erection of 3 comparison retail units on the former Tribune Trading Estate in November 2011; and the redevelopment of the Tesco foodstore in July 2010”
“The retention of a greater level of retail spending in the Borough, combined with the introduction of prominent national retailers such as Debenhams, will increase the profile and investor confidence in Rugby generally, and may in due course assist complex sites such as Evreux Way to come forward. The town centre does not currently have the premises necessary to accommodate such modern retailers, but attracting retailers to the application site is likely to lead to a greater retention of retail spend in the local area, negating the need to undertake long distance journeys to competing centres, which is more sustainable.”
“Overall, the Evreux Way site has a number of complex land ownerships and site occupier constraints, and thus the site does not appear to be being actively progressed for redevelopment. It is therefore unlikely the site will come forward for redevelopment in the short term, regardless of proposals at EFRP. As a result, the application proposals are not considered to impact on investment at the site.”
“I am satisfied that the applicant has demonstrated there will not be a significant adverse impact upon investment within the catchment area as a result of these proposals; more specifically, the North Street and Evreux Way sites are not currently deliverable and this situation is not impacted by the proposed extension of Elliott’s Field.”
“The applicant has undertaken a sequential assessment. In assessing the suitability of alternative sites, [the Council] must have regard to the type of development that is being proposed by the applicant and the suitability of a site for this. The NPPF is clear however that the application of the sequential approach requires flexibility from developer, retailers and planning authorities. A total of 47 alternative sites were assessed to consider whether they were suitable and available to accommodate the proposed development within the required timeframe and whether there were any financial viability constraints present upon these sites. The assessment has been independently reviewed by Deloitte … who, together with officers, are satisfied that the approach taken to the assessment has been sufficiently flexible and that there are no suitable or available sequentially preferable sites within the town centre. None of the alternative sites subject to assessment could accommodate the type and quantum of development proposed within the required timeframe. This includes the two sites allocated for retail uses in the town centre which … have been given specific focus[:] Evreux Way and North Street. The applicant has argued that due to complex land ownership arrangements and existing active uses on both of these sites they will not become available within the timescales required for this proposal. Independent advice provided by Deloitte … has explained that comprehensive redevelopment of these sites, in line with the allocations made within the Core Strategy, will not be realised within the short to medium term by the land owners of these sites. The sites are not expected to be compatible with the demands of modern retailer requirements and this damages the likelihood of their development in the foreseeable future. Whilst there have been initial expressions of interest relating to the redevelopment of Evreux Way in recent weeks these proposals have not been put forward with the support of the current landowners.Officers remain satisfied that neither the Evreux Way [nor] North Street sites are available sequentially preferable sites for this development proposal. In accordance with paragraph 26 of the NPPF the applicant has demonstrated that there are no suitable or available sequentially preferable sites that can accommodate the proposed development. If this type of retail development is to take place in Rugby in the short to medium term, it will need to be located outside the town centre.”
“It is important to highlight the fact that EFRP already has the potential to compete with the town centre. It is an existing retail park which has an open non-food retail use. This means that at present any comparison goods retailer could locate to the retail park if a unit became vacant and this could include any retailer from the town centre or even Debenhams. This existing use will not be lost through the redevelopment as the A1 use stays with the land and not the buildings. The existing site holds 15,640m 2 of floorspace so it is only the addition of extra 14,035 m 2 that has to be considered.”
“ … Both Deloitte … and officers are satisfied that the applicant has demonstrated there will not be a significant adverse impact upon investment within the catchment area as a result of these proposals. More specifically, investment in … North Street and Evreux Way will not be compromised. This is because, at outlined above, these sites are not currently deliverable and this situation is not impacted by the proposed extension of Elliott’s Field Retail Park.”
“The Rugby Borough Council Retail and Leisure Study, undertaken by the Council in 2008, identified that at that time significant retail expenditure was lost to other locations outside the Borough. More recent research undertaken by the applicant demonstrates that only a limited proportion of people within the catchment area undertake main comparison goods shopping within Rugby Town Centre; the number of people that leave Rugby has increased since 2008. … It is anticipated by the applicant that the proposals at EFRP will claw back an element of the comparison retail expenditure lost beyond the catchment. Deloitte … agree that this argument is not without merit. It is therefore argued by the applicant that any trade draw from the Town Centre will not have a significantly adverse impact given the limited proportion of people that undertake such shopping activities in the town centre. The applicant has concluded that the proposed development will result in an impact figure of between 6.9% and 8% on town centre trade. Deloitte … has confirmed that the methodology utilised is satisfactory and officers are therefore satisfied that the impact upon comparison trade in the town centre has been appropriately tested. It has been demonstrated therefore that whilst there will be trade draw from the town centre there will not be a significantly adverse impact upon town centre comparison trade as a result of these proposals. Deloitte … have advised that there is reason to be concerned about the impact upon town centre vitality and viability but have referred to the significant opportunities available to the Council to recognise the changing role of the town centre and revise its town centre policies as part of the emerging Local Plan. Whilst this can only be given very limited weight as part of this decision making process it is a point that is worthy of note. It is inevitable that the proposals for development at EFRP will have an impact on the vitality and viability of Rugby town centre. However, given the reduction in the number of people that use Rugby Town Centre to meet their needs for comparison shopping and the fact that retailers and shoppers have moved away from the town centre in any event, it is not considered that this impact will be significantly adverse.”
“The proposed development at Elliott’s Field and the introduction of Debenhams in Rugby would undoubtedly have a positive impact upon consumer choice. A department store does not exist in the Borough at present and … it is unlikely that this type of development would come forward on allocated sites within the town centre in [the] short to medium term, The refurbishment and redevelopment of other units on EFRP is also likely to attract retailers that have previously not been present in the Borough. These positive impacts upon local consumer choice must be balanced against the potential for retailers that are currently located within the town centre to relocate to EFRP. However in recent months two long standing occupants of the town centre, Wallis and Evans, have left and relocated to the Warwickshire Retail Park which is located outside the Borough. … [The] applicant places a lot of emphasis upon the potential of the proposed development to claw back expenditure that is currently leaking from the Borough to other locations such as Coventry, Leamington Spa, Leicester and Fosse Park. Whilst some current occupiers of units in the town centre may relocate to Elliott’s Field the continuing loss of retailers from the Borough [altogether] would have a negative impact upon consumer choice and perpetuate the leaking of expenditure from Rugby. On balance, it is considered that the proposed development will have a positive impact upon local consumer choice.”
“It would not be appropriate to consider the turnover of the proposal in its entirety as this approach would ignore the fact that EFRP exists as a primarily open non-food retail facility that influences the market share characteristics of the catchment area. However, as a sensitivity test we have increased the uplift in turnover of the proposed development at 2018 by 10% to£48.4m and by 20% to£52.8m . Applying the same market share apportionments utilised in the Revised Retail Statement this would increase the forecast trade draw from Rugby town centre to£9.7m and£10.5m , which would increase the level of comparison goods impact against the estimated turnover of the town centre to 7.4% or 8.0% respectively. This results in [a] worst case set of assumptions, including that all mezzanine space is utilised (which may not all … be required subject to operator requirements), and the fact that the recently published Mintel Report (2013) forecasts reduced benchmark turnover rates to those set out in the 2012 report that were utilised in the Revised Retail Statement.”
“However, applying the above sensitivity test has shown that assuming an increase in the turnover uplift of 10% (£4.4m ) and 20% ([£]8.8m) the level of impact increases to 7.4% and 8% respectively based on a series of worst case assumptions which in reality are unlikely to materialise. This impact needs to be considered in the context of the town [centre] as a whole, as the assessment only reflects the comparison turnover of the centre – Rugby has a strong convenience, service and restaurant/café role, and thus when viewed in the context of the town centre as a whole the impact is not considered to be significantly adverse.”
“Overall, even after applying a sensitivity test on the development turnover, the proposal is not anticipated to have a significant adverse impact, particularly when considered in the context of the forthcoming revised town centre strategy and the positive benefits arising from the proposals …”
“Both the Core Strategy and the NPPF set a sequential test for retail development. In undertaking that assessment, it is important to understand the nature of the application proposals and what they are trying to achieve. A total of 47 alternative sites were assessed to consider whether they are suitable, available and deliverable to accommodate the proposed development within the required timeframe. In this case, the proposals respond to an acknowledged and evidenced outflow of expenditure from Rugby. The Council’s consultants Deloitte agree that a critical mass of retailing is necessary to claw back expenditure to Rugby and to secure the commitment of an anchor tenant[. So] in this context would the alternative sites be large enough to provide that critical mass, sufficiently attractive to the market and available within a reasonable period of time? It is in this context that Deloitte have advised on the suitability of the allocated town centre sites. The advice to the Council is that they do not expect those sites to be compatible with the demands of modern retailer requirements or to be developed within a suitable timescale to be sequentially preferable to the application site. Referring to the representations from Red Property Services consideration has been given to their points raised [sic] but there is nothing which causes officers to doubt the advice given by Deloitte. In accordance with paragraph 26 of the NPPF the applicant has demonstrated that there are no suitable or available sequentially preferable sites that can accommodate the proposed development. If this type of retail development is to take place in rugby in the short to medium term, it will need to be located outside the town centre.”
“Deloitte do advise that there are reasons to be concerned about the vitality and viability of the town centre, particularly in the light of its apparently declining share of spending. However, they advise that this is a product of wider changes in consumer behaviour, the relatively limited nature of the comparison goods offer in the town compared to higher order competitors and the absence of any real prospect of large scale comparison goods development in the short to medium term. They suggest that, if the application is approved, there would be considerable opportunity to address the issue of a revised town centre strategy which recognises its changing role as part of the local plan process. Deloitte also advise “it is not without merit Quod’s assertion that the EFRP proposal will retain retail expenditure currently lost beyond the Borough boundary as this may have positive indirect benefits for the town centre in terms of associated retail spend. Whilst this statement is largely speculation and should be treated with caution, this associated retail spend may serve to increase investor confidence in Rugby and over time assist complex sites such as Evreux Way and North Street to come forward.”
“In practical terms … where since the passing of the resolution some new factor has arisen of which the delegated officer is aware, and which might rationally be regarded as a “material consideration” for the purposes of section 70(2), it must be a counsel of prudence for the delegated officer to err on the side of caution and refer the application back to the authority for specific reconsideration in the light of that new factor. In such circumstances the delegated officer can only safely proceed to issue the decision notice if he is satisfied (a) that the authority is aware of the new factor, (b) that it has considered it with the application in mind, and (c) that on a reconsideration the authority would reach (not might reach) the same decision.”
“Without seeking to detract from the authority of the guidance in Kides, I would emphasise that it is only guidance as to what is advisable, “erring on the side of caution”. … The guidance must be applied with common sense, and with regard to the facts of the particular case”
“105. I … do not consider that the Cabinet Report of the3rd June 2013 relating to the Local Plan Discussion Document and its approval for public consultation constitutes a new material matter. The Cabinet Report was the result of a plan making process that was entirely separate to the determination of the EFRP planning application. This report indicates the intentions of the Council to amend local level planning policy, subject to the responses received following public consultation. The existence of the Local Plan Discussion Document will not be material in every case but was worthy of note as part of this application. The application was determined in accordance with the Development Plan applicable at the time and it would not be correct for that decision to give weight to emerging Local Plan policy that is at the very early stages of the plan making process. It is for this reason that the report to the Planning Committee states that whilst the opportunity presented by the Local Plan is worthy of note, it could only be given limited weight as part of the decision making process. 106. It is my view that the publication of this Cabinet Report does not constitute a material change in circumstances that required further consideration as part of the determination of the EFRP application. If this had constituted a material change I am not of the view that, when considered against the decision made by the Planning Committee, it is a change that is so material it would have altered that decision.”
“On any interpretation or application, the site at Evreux Way meets this test of “availability” and [the Council’s and Hammerson’s] position is not robust or justified. [The Council’s] approach puts the test too high and has effectively called time on the [core strategy] allocation within 24 months of its adoption. There is no coverage or mention by Officers of discussions that have taken place with representatives of [CBRE Lionbrook] in relation to its proposals for Evreux Way.”
“We can confirm that [CBRE Lionbrook, Cemex and Avenbury] have had ongoing discussions the result of which is that the parties intend to submit an application for the Evreux Way Site in the very near future, supported by all three parties and consistent with the CS Allocation. For the avoidance of doubt, this letter has been signed by appropriate representatives of [CBRE Lionbrook, Cemex and Avenbury] to demonstrate this firm intention. This represents a material development since the last discussion with Officers. The scheme proposal will be broadly the same as that which we have already discussed with you and your colleagues although we are in the process of revisiting it to incorporate office accommodation to retain [Cemex], an important existing employer for Rugby, in modern accommodation within the Town Centre. The scheme will also provide space for an anchor store and will provide additional benefits in terms of increased connectivity with the existing Town Centre and access to the existing car parking provision within Clock Towers. Having reached this point, we therefore request that arrangements are made for formal pre application discussions with Officers …”
“18. On17th June 2013 a letter was received bearing the signatories [sic] of all 3 parties, including Avenbury and Cemex. This arrived after the Planning Committee had resolved to grant permission for the Hammerson scheme. It is a relatively short letter and is short on any detail. It talks of making progress but there is no evidence of any concrete agreement between the parties. In fact, I spoke to Jeremy Knight-Adams (one of the signatories) who confirmed that no formal agreement existed and that he would respond to any proposals when they were put to him. 19. Beyond providing evidence that the situation had moved on since late April in that the landowners were now aware of [CBRE Lionbrook’s] intentions the letter was not considered to provide any new information. The letter contained little or no hard information relating to concrete proposals and how they would be brought forward relying instead on vague expressions of intent.”
“Following on from these conversations and taking on board the comments from [Mr Davis] which were passed on through [Ms Fisher], it was concluded that nothing in the letter impacted on the assessment of whether this alternative site was likely to become “available” within a reasonable timescale. The comments made by [Mr Davis] are explained in his evidence. Accordingly, no reason was identified for taking the application back to committee for reassessment.”
“… [At] the date when planning permission was granted in respect of the Elliott’s Field scheme, no evidence had been provided establishing that a scheme would actually come forward at Evreux Way. At that date and now, the Evreux Way site was in two separate ownerships, no anchor tenant had been identified or secured, no details of how car parking would be provided at a level attractive to the market were available and no evidence was provided to establish that an Evreux Way scheme was financially viable and would come forward.”