Application for planning permission for out of centre non-food retail park – Secretary of State calling in application – Secretary of State adopting inspector’s recommendation to refuse application – Whether “sufficient doubt” as to effect of proposal on town centre was proper ground for refusing permission – High Court quashing Secretary of State’s decision – Appeal allowed
The applicant and the third respondent applied for planning permission for retail parks at Cirencester. The applicant proposed a 7, 000 sq m non-food retail development on land at Old Cricklade Road, Kingsmeadow, which was on the south-east edge of the town. The proposal included a large unit for DIY goods, with four smaller units for electrical goods, furniture and furnishings, car accessories and carpets. The third respondent proposed an 8,000 sq m development at Watermoor, which was significantly closer to the town centre. Both applications were called in by the Secretary of State for determination by him and an inquiry was held between July 30 and August 15 1996. The inspector recommended that the applications be refused. The Secretary of State, by a decision letter dated September 22 1997, accepted the inspector’s recommendation and refused the applications, although he differed from the inspector in relation to certain conclusions. The Secretary of State identified the main issues as the likely impact on the town centre and the relationship of the proposed development to the policies contained in PPG 6, which required development in town centres to be considered first, with edge of centre sites second and out of centre sites third. The applicant appealed under s 288 of the Town and Country Planning Act 1990. It was contended, inter alia, that the Secretary of State had not properly construed and applied government and structure plan policy in employing a “sufficient doubt” test for the purposes of judging the impact of the applicant’s proposals on the vitality and viability of the town centre. The High Court held that both the Secretary of State and the inspector had referred to “sufficient doubt” about the effects of the proposal on the town centre, which had warranted particular attention to be paid to the effects, but that they had not reached a determination as to whether there would be a “likely impact” and, following Sainsbury plc v Secretary of State for the Environment [1993] JPL 651, quashed the Secretary of State’s decision. The Secretary of State appealed.
Held The appeal was allowed.
The Secretary of State had taken the view that if the development was allowed there was sufficient doubt as to whether the proposed development would cause harm to the vitality and viability of Cirencester town centre. He had not been prepared to undertake that risk and therefore had refused the application. Although the former version of PPG 1 had contained a presumption that planning permission would be granted unless demonstrable harm could be shown, the current version only required that those making planning decisions should “take into account” whether the proposed development would cause demonstrable harm. Therefore, since it had not been shown that the Secretary of State had adopted a test that was not justified in law, his conclusion was one that he had been properly entitled to reach. Accordingly, the decision of the Secretary of State was to be restored.
Keith Lindblom QC (instructed by Eversheds) appeared for the applicant; Alun Alesbury (instructed by the Treasury Solicitor) appeared for the first respondent; the second and third respondents did not appear and were not represented.
Thomas Elliott, barrister
