Planning permission for out of town shopping centre including factory outlet centre – Whether decision failing to have regard to impact of proposal on existing retail centres – Whether condition imposed on factory outlet centre unreasonable – Application dismissed
In September 1995 the respondent planning authority received an application for permission to redevelop a substantial part of the site of the former Glasshoughton Colliery. The proposal was for the provision of leisure facilities, housing, a business park and office accommodation, an hotel and restaurant, and a factory outlet centre providing up to 90 units covering a total floor space of 250,000 sq ft. As the respondent had a financial interest in part of the site, the application was considered by their policy and resources committee. Outline permission was granted on June 28 1996.
Condition 16 of the conditions attached to the grant, stated that the factory outlet centre was to be used solely for the purpose of ‘retailing at discounted prices of seconds, end of line goods, and surplus stock, and for no other purpose’. The reason given was to preclude a change in the retail character of the development which might result in a materially greater impact on the vitality and viability of existing town centres. The applicant, Pearl Assurance plc, owned a substantial shopping development in Castleford, a little more than a mile away, and sought to quash the permission on the ground that the respondent had failed to consider planning policy guidance which as a matter of law it was required to consider, and that condition 16 was so wide as to be unenforceable and therefore Wednesbury unreasonable.
Held The application was dismissed.
1. The status of a PPG, which was not delegated legislation and did not have the force of statute, was that of guidance and not tramlines. PPGs were important as representing government policy in relation to planning but whether a piece of guidance amounted as a matter of law to a material consideration was to be judged by reference to the content of the guidance seen in the factual content of the particular case. There was a distinction between having regard to guidance and being bound to follow it. The new PPG 6 placed greater importance than its predecessor on the need to consider the likely impact of out of town shopping centres on the health of town centres . The only relevant or material consideration to be found in PPG 6 which bore upon the applicant’s challenge to the respondents’ decision was the requirement to consider an assessment of the economic impact on the viability and vitality of Castleford town centre. The criteria by which that assessment was to be made was for the respondents to decide and they had not been shown to have been Wednesbury unreasonable in their approach.
2. Surplus stock was not a term which had no meaning. In the context of a factory outlet centre its primary meaning was stock which was surplus to the requirements of the factory disposing of it. As such it had some affinity with goods which were end of line or seconds. It was not Wednesbury unreasonable to impose a condition which might be difficult to enforce. In a borderline case, the planning authority conducting an investigation of the source from which goods offered as surplus stock had come when seeking to enforce conditions, had power under section 171C of the Town and Country Planning Act 1990 to require the provision of information. Furthermore, the committee had been aware of the possible enforcement problem.
Robin Barratt QC and Thomas Hill (instructed by McKennas) appeared for the appellants;Christopher Lockhart-Mummery QC and Graeme Keen (instructed by the solicitor to the council) appeared for the respondent local authority.
