Respondents granting planning permission for construction of out-of-centre food store – Proposed development to move town-centre store to out-of-centre site – Applicant seeking to quash decision granting planning permission – Whether respondents failing properly to apply PPG 6 – Application allowed
On February 27 1997 Hambleton District Council decided not to reconsider their resolution to grant planning permission to NUPM Ltd for the construction of a 35,000 sq ft food store at Willowbeck Road, Northallerton (the NUPM site). On that date the council also decided to issue planning permission subject to conditions and the signing of a section 106 agreement. Outline planning permission was granted to NUPM Ltd in March 1997. The NUPM site lay within an area defined as “the Secondary Commercial Area” in the Northallerton local plan. Somerfield (the applicant) operated a store within the same designated area, almost opposite the NUPM site. The proposed development was for Safeway Stores Ltd to move to the NUPM site from a town-centre site, which would have released that site for non-food retail use. Somerfield challenged the council’s decision on the ground that they failed to properly apply PPG 6 to the questions raised, namely; (i) whether there was a need for the development; and (ii) whether the development would meet the government’s objectives of sustaining and enhancing the vitality and viability of town centres.
Held The application was allowed.
1. If need were a material consideration in assessing all applications for planning permission for new retail developments, one would expect a reference to it in section 4 of PPG 6, which deals with that very subject. Additionally, if need were a precondition to the granting of permission, that would have undermined, or weakened, one of the stated objectives of PPG 6, namely to maintain an efficient and competitive retail market. Following the changes made to PPG 6 by the introduction of the sequential approach, an applicant who sought planning permission for an out-of-town retail development faced a series of stiff hurdles. Such an applicant did not have to demonstrate need as a precondition to the grant of permission, nor was it always a material consideration.
2. PPG 6 clearly stated that where out-of-town developments were proposed, the “key” considerations or tests set out in para 1.16, and elaborated in section 4, “should be applied”. The meaning of the term “impact”, and the whole thrust of para 4.3, was the extent of any likely harmful effect on a town centre. It could not be read as requiring an assessment of the benefit of the proposed development for an existing town centre. Ultimately, the question was what, if any, was the likely adverse impact of the proposed development on the vitality and viability of the existing town centre. It did not follow that an authority should not take account of the beneficial effect on its vitality and viability; it may be a highly material consideration. However, PPG 6 did not require beneficial impact to be shown nor that it be a material consideration in all cases.
Although the primary grounds of the application failed, the challenge suceeded on one point, namely the erroneous advice in an officer’s report as to the effect of PPG 6 on the sustainability of the previous grounds for refusing planning permsission.
Clive Newberry QC, Peter Village and James Strachan (instructed by Pitmans, of Reading) appeared for the applicant; Stephen Sauvain QC (instructed by Sharp Pritchard) appeared for the respondents; Duncan Ouseley QC and Christopher Katkowski (instructed by Berwin Leighton) apeared for Tesco Ltd; Michael Fitzgerald QC (instructed by Lawrence Jones) appeared for Safeway Ltd.
Sarah Addenbrooke, barrister
