Applicant proposing out-of-centre location for retail foodstore development – Applicant objecting to council’s proposals concerning site – Inspector dismissing applicant’s appeal following public inquiry – Applicant seeking to quash inspector’s decision – Whether inspector misapplying “sequential approach” contained in PPG 6 and failing to give sufficient reasons – Application allowed
In October 1995 a local plan inquiry was held into objections to Windsor and Maidenhead Royal Borough Council’s (the council) local plan. At the inquiry the council contended: first, that it was appropriate to allocate a site for a food superstore development in the emerging local plan; second, that applying the “sequential approach”, there was no town centre or edge of town centre site that was suitable, viable and available for such development; and third, that an out of centre site, part owned by the council, at Stafferton Way, should be removed from the green belt and allocated for the food superstore development. The applicant contended that the appeal site should be allocated. The inspector concluded that, applying the “sequential approach”, there was no town-centre or edge-of-centre site that was suitable. He also concluded that the Stafferton Way site should not be allocated. However, he felt unable to recommend the appeal site due to insufficient evidence before him to demonstrate that the proposed development would be compatible with local resident’s amenities.
In June 1997 the council received a report from officers, which recommended the feasibility of developing a foodstore at either an edge-of-centre site (the football club site) or at an in-centre site (the Broadway car park site). In July 1997 the inspector’s report was considered by council officers, who concluded that, “out of centre locations should only be considered where there are no suitable sites firstly in the town centre, or, secondly, at the edge of the town centre. The test has been applied by [the local plan inspector] and there are no such sites available.” The applicant’s appeal was considered at a public inquiry in 1997. The council made it clear in their submissions to that inquiry that they were not contending that the football club or Broadway sites were suitable, but rather that they had begun to investigate whether either site could be said to be suitable. The applicant contended that neither site satisfied PPG 6 para 1.12. Dismissing the appeal, the inspector concluded that “it would not be sensible to permit this out of centre foodstore at this time given the possiblility that a more sustainable and accessible location . . . might be identified in the near future”. The applicant sought to quash the inspector’s decision on the grounds that he had misapplied PPG 6 and failed to give proper reasons for his decision.
Held The application was allowed.
1. The applicant’s interpretation of para 1.12 of PPG 6, namely that unless there was a finding by the decision-maker that a site otherwise meeting the criteria was likely to become available within a reasonable period of time, then he was obliged to give appropriate consideration to sites that were out of centre, was too strict and narrow. The inspector had taken into account the full aims and objectives of PPG 6. He was aware of investigations into other sites, which would not be in such conflict with the policies, and was concerned these investigations would be prejudiced if the appeal were allowed. Taking account of the wider objectives of the policy, the inspector’s findings were reasonable.
2. On a reasonable reading of the decision letter, however, it was impossible to discern the reasons why it was considered feasible to reinvestigate matters that had been thoroughly and comprehensively determined at the recent local plan inquiry. The real and fundamental error, therefore, was the failure to explain why a major issue raised by the applicant was not accepted. This fully justified the quashing of the decision.
Christopher Katkowski (instructed by Harold Benjamin & Collins) appeared for the applicant; Ian Albutt (instructed by the Treasury Solicitor) appeared for the first respondent; Mark Lowe QC (instructed by the solicitor to Windsor and Maidenhead Royal Borough Council) appeared for the second respondents.
Sarah Addenbrooke, barrister
Decision of Court of Appeal: [1999] PLSCS 192