Subregional shopping centre — Outline planning permission granted by Secretary of State — High Court challenge — Appeal against failure to quash decision — Changes in circumstances — Whether Secretary of State failed to take into account material considerations — Whether reasons in decision letter inadequate and unclear
The second
respondents, Manchester Ship Canal Co Ltd, had made three applications to the
local planning authority to develop a large area of land in their ownership at
Barton Dock Estate, Dumplington, Greater Manchester, which formed part of a
wider urban development area. The first two applications were for a subregional
shopping centre; the third was for a similar subregional shopping centre
together with a regional sports complex. The first respondent, the Secretary of
State for the Environment, called in the first two applications for his own
decision and the second respondents appealed against the failure of the local
planning authority to give a decision on the third application within the
prescribed period. A joint inquiry into these and other applications was held
between September 1987 and February 1988 resulting in a recommendation by the
appointed inspector that outline planning permission should be granted in
response to all three of the second respondents’ applications and that the
other applications should be refused.
In an interim
decision letter dated August 23 1989 the Secretary of State agreed with the
inspector’s conclusion, namely that the building of one major shopping centre
on the western side of Greater Manchester would not cause unacceptable harm to
the regeneration of the conurbation or to the vitality and viability of any
existing town centre and that the second respondents’ application was to be
preferred over the others. However, he considered that there remained a problem
of ensuring that the traffic generated by the second respondents’ development
should be able to gain access to the M63 motorway safely and, in view of the
potential traffic hazards identified at the inquiry, he was not prepared to
grant planning permission without being satisfied in this respect. (The
Department of Transport had adopted the view that, in order to ensure that
traffic from the second respondents’ proposed development could be accommodated
on the M63 motorway safely, a fourth lane southbound between junctions 2 and 3
would be necessary. The department was not prepared to construct this, however,
even if the second respondents gave the necessary land.)
The Secretary
of State invited further representations on this matter and in a letter dated
November 4 1991 decided that, before he could reach a decision, the inquiry
should be reopened for the sole purpose of
meantime, the Department of Transport had changed their attitude and concluded
that a fourth southbound lane was no longer required.)
The
appellants, a consortium comprising Manchester City Council and the
metropolitan borough councils of Bolton, Bury, Oldham, Rochdale, Stockport,
Tameside and Wigan, sought to persuade the Secretary of State to widen the
ambit of the reopened inquiry to enable the whole question of the acceptability
of the second respondents’ proposed development to be reconsidered in the light
of what were alleged to be changed circumstances. On the Secretary of State
declining to do so, the appellants sent to him extensive written
representations to the effect that, since the time when the first inquiry was
held, there had been changes of Government policy in a number of important
respects and that many of the important factual assumptions upon which the
inspector had based his report had proved to be unfounded.
In his report
on the renewed inquiry, the inspector made it clear that he was restricting
himself to the limited issues which the Secretary of State had asked him to
investigate. By a decision letter dated March 4 1993, the Secretary of State
granted outline planning permission in respect of the second respondents’ three
applications.
The appellants
applied to the High Court under section 288 of the Town and Country Planning
Act 1990 challenging the validity of the Secretary of State’s decision and in a
judgment given on October 15 1993 Schiemann J dismissed that application. The
appellants appealed on grounds which related to the following three subjects,
namely: (1) the likely increase in the
volume of traffic on the M63 after 1997 (the intended year of opening the
second respondents’ proposed development); (2)
the effect of the development on urban regeneration in the Greater
Manchester conurbation and on the ability of shops in shopping centres in the
towns throughout the conurbation to continue to trade; and (3) the desirability
of reserving the site for a different use, ie some use associated with high
technology.
The appellants
contended in relation to all three matters that the Secretary of State had
failed to have regard to material considerations. In relation to the second
matter, they contended also that he had arrived at a decision which was
perverse. Alternatively, they contended that his reasoning in his eventual
decision letter was so obscure that it was not possible to ascertain whether he
did have regard to material considerations or not, and that the appellants were
thereby prejudiced.
was allowed.
A decision
letter must, in order to give proper and adequate reasons, refer to each
material consideration and explain why, because or despite it, the eventual
decision is reached: see p76G.
In many
important respects the facts and other material submitted to the Secretary of
State by the appellants appeared to show that between 1988 and 1992 the
advantages of the development had decreased and the disadvantages had
increased. The failure of the Secretary of State to give adequate reasons for
his decision to grant planning permission despite this shift in the balance
lead to the conclusion that, in some
considerations and, in relation to retail impact, had reached a decision to
which he could not properly come on the material before him; see p77A-B.
The range of
issues on which the reasoning in his decision letter was inadequate or unclear
was such that either the Secretary of State did not reach his decision within
the powers of the Town and Country Planning Act 1990 or the interests of the
appellants had been substantially prejudiced by his failure to give proper and
adequate reasons: see p77D-E.
Appeal under
section 288 of the Town and Country Planning Act 1990
This was an
appeal by the appellants, a consortium of local planning authorities within
Greater Manchester, against a decision of Schiemann J dated October 15 1993
dismissing an application by the appellants under section 288 of the Town and
Country Planning Act 1990 to quash the decision of the first respondent, the
Secretary of State for the Environment, to grant outline planning permission on
appeal to the second respondents, Manchester Ship Canal Co Ltd, for a
subregional shopping centre and a regional sports complex on land at Barton
Dock Estate, Dumplington, Greater Manchester.
to in the judgments
Hope v Secretary of State for the Environment (1975) 31 P&CR
120; [1976] EGD 823; 240 EG 627, [1976] 2 EGLR 147
London
Residuary Board v Lambeth London Borough Council
[1990] 1 WLR 744; [1990] 2 All ER 309; (1990) 61 P&CR 65; [1991] 3 PLR
1, HL
Poyser
and Mills’ Arbitration, In re [1964] 2 QB 467;
[1963] 2 WLR 1309; [1963] 1 All ER 612; sub nom Poyser v Mills [1963]
EGD 421; (1963) 185 EG 609
R v Secretary of State for Trade and Industry, ex parte Lonrho plc [1989]
1 WLR 525; [1989] 2 All ER 609, HL
Save
Britain’s Heritage v No 1 Poultry Ltd [1991]
1 WLR 153; sub nom Save Britain’s Heritage v Secretary of State for
the Environment [1991] 2 All ER 10; (1991) 62 P&CR 105; [1991] 3 PLR
17, HL
Westminster
City Council v Great Portland Estates plc [1985]
AC 661; [1984] 3 WLR 1035; (1984) 50 P&CR 34; [1985] JPL 108; sub nom
Great Portland Estates plc v Westminster City Council [1984] 3 All
ER 744, HL
QC and Meyric Lewis (instructed by Sharpe Pritchard) appeared for the
appellants, Bolton Metropolitan District Council, Bury Metropolitan District
Council, Manchester City Council, Oldham Metropolitan District Council,
Rochdale Metropolitan District Council, Stockport Metropolitan District
Council, Tameside Metropolitan District Council and Wigan Metropolitan District
Council.
Sullivan QC and Christopher Katkowski (instructed by the Treasury Solicitor)
appeared for the first respondent, the Secretary of State for the Environment.
QC, Brian Ash QC and Paul Stinchcombe (instructed by Stephenson Harwood)
appeared for the second respondents, Manchester Ship Canal Co Ltd.
respondents, Trafford Metropolitan Borough Council, did not appear and were not
represented.
Hamilton QC and Sebastian Head (instructed by Nabarro Nathanson) appeared on
behalf of the fourth respondents, Trafford Park Development Corporation.
GLIDEWELL
LJ: The second respondents to this appeal,
Manchester Ship Canal Co Ltd (Ship Canal Co), are the owners of a large area of
land at Barton Dock Estate, Dumplington, in Trafford Metropolitan Borough. Ship
Canal Co made three applications for planning permission, two for the
construction of a subregional shopping centre on some 61 ha and a third for a
similar subregional shopping centre together with a regional sports complex on
a total area of some 120 ha. The first respondent, the Secretary of State for
the Environment, called in two of the applications for his own decision. Ship
Canal Co appealed against the failure of Trafford Borough Council to give a
decision on the third application within the required time. By a decision letter
dated March 4 1993 the Secretary of State allowed the appeal and granted
outline permission for the development proposed in all three applications.
The present
appellants, a consortium comprising Manchester City Council and the
metropolitan borough councils of Bolton, Bury, Oldham, Rochdale, Stockport,
Tameside and Wigan (all the local planning authorities in Greater Manchester
except the borough councils of Trafford and Salford), made application to the
High Court under section 288 of the Town and Country Planning Act 1990
challenging the validity of the Secretary of State’s decision. In a judgment
given on October 15 1993 Schiemann J dismissed the application. The consortium
now appeal to this court.
Site and
the proposed development
The 120-ha
site lies at the western end of the industrial area known as Trafford Park. It
is bounded on its northern side by the Manchester Ship Canal and on its
south-western side by the M63 motorway. Roads serving the site give access to
the motorway at two existing junctions, nos 3 and 4. The subregional shopping
centre (the Trafford Centre) is intended to be constructed on an area of 61 ha,
which adjoins the motorway between these two junctions. The proposed regional
sports complex is intended to be constructed on the remainder of the larger
site, between the Trafford Centre and the Ship Canal.
Trafford Park,
including the 120-ha site, has been designated as an urban development area
under section 134 of the Local Government, Planning and Land Act 1980. The
fourth respondents, Trafford Park Development Corporation, were established by
the Secretary of State under section 135 of the 1980 Act for the purpose of
regenerating the UDA.
Inquiries
and other procedures which led to the Secretary of State’s decision
At approximately
the same time as the three applications were made by Ship Canal Co, other
applications were made by other companies for development of retail centres
broadly similar to the Trafford Centre on other sites in the area. One of these
was in Trafford and three in Salford. The Secretary of State constituted a
joint inquiry into all eight applications and appeals. The inquiry was
conducted by an inspector, Mr Brundell, together with an assessor and was held
between September 22 1987 and February 26 1988. In his report Mr Brundell
recommended that outline planning permission should be granted for the Trafford
Centre and the regional sports complex on all three of Ship Canal Co’s
applications. He also recommended that the other five competing applications
should all be refused.
In an interim
decision letter dated August 23 1989 the Secretary of State said:
[He] agrees
with the Inspector’s conclusion that the building of one major shopping centre
on the western side of Greater Manchester would not cause unacceptable harm to
the regeneration of the conurbation or to the vitality and viability of any
existing town centre. He also agrees that more than one such centre would be
harmful and should not be permitted. In the light of the Inspector’s
conclusions, he considers that there are no grounds concluding that such a
centre is likely to have an unacceptable impact on other centres when
considered in conjunction with the proposed shopping developments he has
permitted at Cheadle and Handforth.
Having reached
this overall conclusion, the Secretary of State accepted the inspector’s
recommendation that of the competing applications for a major shopping centre,
the Trafford Centre was to be preferred over the others. However, the Secretary
of State also decided that there remained a problem of ensuring that the
traffic generated by the Trafford Centre should be able to gain access to the
M63 safely. He said:
In view of
the potential traffic hazards identified at the inquiry the Secretary of State
is not prepared to grant planning permission for the proposed development
without being satisfied about the safety of traffic joining the M63 at junction
3. Therefore, he feels unable at present to accept the Inspector’s
recommendations that planning permission be granted.
The Secretary
of State invited further representations about this issue. In the meantime, he
refused one of the other applications, but made no decision on the remaining
three, pending the resolution of the problem he had identified with regard to
the Trafford Centre.
There then
ensued a lengthy period of time in which all interested parties made
representations to the Secretary of State. Until August 1989 the attitude of
the Department of Transport, which is of course the department responsible for
the M63, was that in order to ensure that traffic from the Trafford Centre
could be accommodated on the M63 safely, a fourth lane southbound between
junctions 2 and 3 would be necessary. However, the department also concluded
that they were not
if Ship Canal Co gave the land necessary for the construction of such a lane.
Thus, the department at that time recommended that planning permission for the
Trafford Centre should be refused.
However, over the
next 21 months the Department of Transport changed their attitude to these
matters. In a letter dated May 7 1991 the Secretary of State for the
Environment enclosed a further statement he had received from the Department of
Transport, which concluded that a fourth lane southbound between junctions 3
and 4 was no longer required, but that a substantial improvement at junction 3
was required for traffic joining the M63 northbound, including an additional
lane from that point northwards to junction 2, which would involve the widening
of Barton Bridge by which the M63 crosses the Ship Canal. The department also
required other improvements at junction 3 for southbound traffic.
In the event,
after receiving further representations, in a letter dated November 4 1991 the
Secretary of State decided that before he could reach a decision it was
necessary for him to reopen the inquiry. In that letter he described the
matters which he wished to have investigated at the reopened inquiry in the
following terms:
(a) Whether roadworks are necessary to allow
traffic from the proposed Trafford Centre to be accommodated safely on the M63;
(b) The extent and timing of such works;
(c) Whether the planning advantages of Trafford
Centre are such that permission should be given for it without a condition
requiring the provision of all or some of those roadworks and
(d) Whether the prospects of the work being
provided when required are sufficiently reasonable as to enable permission
conditional upon their provision to be granted.
The consortium
tried to persuade the Secretary of State to widen the ambit of the reopened
inquiry to enable the whole question of the acceptability of the proposed
development of the Trafford Centre to be reconsidered in the light of what were
alleged to be changed circumstances. The Secretary of State, as he was entitled
to do, declined to widen the ambit of the reopened inquiry, which was therefore
held with the terms of reference referred to in his letter of November 4 1991.
That inquiry lasted from June 9 to July 17 1992 and Mr Brundell delivered his
further report to the Secretary of State in September 1992. He again
recommended that permission should be given for the Trafford Centre subject to
conditions.
Before the
Secretary of State made his decision on the applications, the consortium sent
to him in October and November 1992 extensive written representations. In
summary, the effect of these was that since the time when the first inquiry was
held in 1987-88 there had been changes of Government policy in a number of
important respects and that many of the important factual assumptions upon
which the inspector based his first 1988 report had proved to be unfounded. The
concluding paragraph of the summary of these representations read:
We consider
the changes since 1989 and the current national and local policy context, the
likely environmental and economic impact of the proposals and the experience of
the effects of other centres, the impact of the proposals on the road network
and other material considerations set out in our representations all point
towards the refusal of planning permission for these proposals. We therefore
urge the Secretary of State to refuse both applications.
As an
alternative, the consortium urged the Secretary of State to reopen the inquiry
yet again in order to enable the matters set out in their representations to be
considered. I should perhaps comment at this point that, in my view, if the
Secretary of State decided that the matters set out in the consortium’s representations
might lead him to decide to refuse permission, he would have been obliged to
give Ship Canal Co the opportunity to have these matters considered at a
reopened inquiry.
In the event,
as I have said, the Secretary of State decided despite the representations to
grant planning permission in his letter of March 4 1993.
Principles
of law to be applied
These are not
in dispute between the parties, but it is necessary to summarise them briefly.
On an application under section 288, the court may quash the Secretary of
State’s decision if it is satisfied either:
(i) that the decision was not within the powers
of the Act; or
(ii) that the interests of the applicant have been
substantially prejudiced by failure to comply with any of the relevant requirements
relating to the decision.
In reaching
his decision on an application called in or on an appeal, the Secretary of
State is required to have regard to the provisions of the development plan so
far as material to the application and to other material considerations, making
his decision in accordance with the development plan unless other material
considerations indicate the contrary: sections 54A, 70(2), 77(4) and 79(4) of
the 1990 Act. A failure by the Secretary of State to comply with these requirements
may render his decision outside the powers of the Act.
Rule 17(1) of
the Town & Country Planning (Inquiries Procedure) Rules 1992 (S1 1992 No
2038) requires the Secretary of State to
Notify his
decision on an application or appeal, and his reasons for it, in writing . . .
This is a
‘relevant requirement’ within section 288.
The classic
statement of what a duty to give reasons requires is that of Megaw J in In
re Poyser and Mills’ Arbitration [1964] 2 QB 467 at p478:
Parliament
provided that reasons shall be given, and in my view that must be read as
meaning that proper, adequate reasons must be given. The reasons that are set
out must be reasons which will not only be intelligible, but which deal with
the substantial points that have been raised.
That was
expressly approved by the House of Lords in Westminster
In Save
Britain’s Heritage v No 1 Poultry Ltd [1991] 1 WLR 1531,
Lord Bridge of Harwich, in a speech with all other of their lordships agreed,
also quoted with approval a passage from a judgment of Phillips J in Hope v
Secretary of State for the Environment (1975) 31 P&CR 120 at p123,
where he said:
It seems to
me that the decision must be such that it enables the appellant to understand
on what grounds the appeal has been decided and be in sufficient detail to
enable him to know what conclusions the inspector has reached on the principal
important controversial issues.
1Also reported sub nom Save Britain’s Heritage v Secretary
of State for the Environment [1991] 3 PLR 17.
In his speech
in Save Britain’s Heritage, Lord Bridge gave further helpful guidance at p166H.
The three
criteria suggested in the dictum of Megaw J in In re Poyser and Mills’
Arbitration [1964] 2 QB 467, 478 are that the reasons should be proper,
intelligible and adequate. The application of the first two of these presents
no problem. If the reasons given are improper they will reveal some flaw in the
decision-making process which will be open to challenge on some ground other
than the failure to give reasons. If the reasons given are unintelligible, this
will be equivalent to giving no reasons at all. The difficulty arises in
determining whether the reasons given are adequate, whether, in the words of
Megaw J, they deal with the substantial points that have been raised or, in the
words of Phillips J in Hope v Secretary of State for the Environment,
31 P&CR 120, 123, enable the reader to know what conclusion the decision-maker
has reached on the principal controversial issues. What degree of particularity
is required? It is tempting to think
that the Court of Appeal or your Lordships’ House would be giving helpful
guidance by offering a general answer to this question and thereby ‘setting the
standard’ but I feel no doubt that the temptation should be resisted, precisely
because the court has no authority to put a gloss on the words of the statute,
only to construe them. I do not think one can safely say more in general terms
than that the degree of particularity required will depend entirely on the
nature of the issues falling for decision.
Whatever may
be the position in any other legislative context, under the planning
legislation, when it comes to deciding in any particular case whether the
reasons given are deficient, the question is not to be answered in vacuo. The
alleged deficiency will only afford a ground for quashing the decision if the
court is satisfied that the interests of the applicant have been substantially
prejudiced by it. This reinforces the view I have already expressed that the
adequacy of reasons is not to be judged by reference to some abstract standard.
There are in truth not two separate questions: (1) were the reasons adequate? (2) if
not, were the interests of the applicant substantially prejudiced thereby? The single indivisible question, in my
opinion, which the court must ask itself whenever a planning decision is
challenged on the ground of a failure to give reasons is whether the interests
of the applicant have been substantially prejudiced by the deficiency of the
reasons given. Here again, I disclaim any intention to put a gloss on the
statutory provisions by attempting to define or delimit the
substantial prejudice, but I should expect that normally such prejudice will
arise from one of three causes. First, there will be substantial prejudice to a
developer whose application for permission has been refused or to an opponent
of development when permission has been granted where the reasons for the
decision are so inadequately or obscurely expressed as to raise a substantial
doubt whether the decision was taken within the powers of the Act. Secondly, a
developer whose application for permission is refused may be substantially
prejudiced where the planning considerations on which the decision is based are
not explained sufficiently clearly to enable him reasonably to assess the
prospects of succeeding in an application for some alternative form of
development. Thirdly, an opponent of development, whether the local planning
authority or some unofficial body like Save, may be substantially prejudiced by
a decision to grant permission in which the planning considerations on which
the decision is based, particularly if they relate to planning policy, are not
explained sufficiently clearly to indicate what, if any, impact they may have
in relation to the decision of future applications.
Finally, it
was agreed between all parties, in my view correctly, that the Secretary of
State was required to make his decision upon the basis of policies which were
current and of facts which existed at the time of the making of the decision.
In other words, the material considerations to which he was required to have
regard were those which existed at, or as close as possible to, the time of the
making of the decision, not those which existed at some earlier date.
Grounds of
appeal
The five
grounds of appeal relate to three subjects, which I summarise as follows:
1. The likely
increase in the volume of traffic on the M63 after 1997 (the intended year of
opening of the Trafford Centre).
2. The effect
of the development and opening of the Trafford Centre on urban regeneration in
the Greater Manchester conurbation and on the ability of shops in shopping
centres in the towns throughout the conurbation to continue to trade.
3. The
desirability of reserving the site for a different use, ie some use associated
with high technology.
In relation to
all three matters the Secretary of State is alleged to have failed to have
regard to material considerations. In relation to the second he is also alleged
to have arrived at a decision which was perverse. Alternatively, it is said
that his reasoning in his eventual decision letter is so obscure that it is not
possible to ascertain whether he did have regard to material considerations or
not and that the authorities in the consortium are thereby prejudiced.
I will
consider these grounds under these three headings.
1. Growth of traffic on the
M63 after 1997
The relevant
part of the M63, ie between junctions 2 and 4, was originally constructed as a
dual two-lane motorway. However, it has now been widened to dual three-lane.
The work of widening was taking place at the time of the 1987-88 inquiry. It
was completed before the renewed
The Department
of Transport characterises motorways as being designed to rural or urban
standards. The adjectives appear to be unrelated to the nature of the terrain
through which the motorway is passing. An urban motorway is defined as one on
which there is imposed a speed limit of 60 mph or less. By this standard, the
M63, which is subject only to the national 70 mph limit, is a rural motorway.
At the 1987-88 inquiry the department estimated that the opening of the
Trafford Centre would result in increased flows of some 12,500 a day on the M63
north of junction 3 and 6,500 vehicles a day south of that junction. The view
of the department expressed at that time was that the addition of this extra
traffic would result in a requirement for an additional lane southbound from
junction 3, but that this was not practicable. Various objections were also
raised to the inadequacy of the proposals for the roundabouts at and slip roads
giving access to and from the motorway. As a result the department urged that
the Trafford Centre should not be permitted.
In his report
on the first inquiry, the inspector said:
21.11.16 Even without the Trafford Centre, daily flows
on the M63 would be mainly outside its design flow standards as a rural
motorway between junctions 2 and 4 but mainly within those standards between
junctions 4 and 6. The addition of the traffic generated by the Trafford Centre
would take flows wholly outside rural standards between junctions 2 and 4 and
largely outside them between junctions 4 and 6. There would however be no link
on which urban standards would be breached as a result of the Trafford Centre.
I do not therefore consider that there is a substantial objection to the
Trafford Centre in terms of flows on the motorway.
In relation to
the problems caused by traffic from the Trafford Centre joining the motorway,
the inspector said:
21.11.18 The merging proposals put forward by the
applicants at junction 3 were accepted in principle by the Department with the
exception of the fact that the weaving distance between junctions 3 and 4 would
be too short. This would be outside the standard even without the Trafford
Centre but would, in the view of the Department, become unworkable with the
additional traffic generated by the new Centre. This problem would be overcome
if the M63 southbound were widened to four lanes south of junction 3. Since
there was no dispute that this would be necessary even without the Trafford
Centre and the applicants have given an undertaking to provide the necessary
land at no cost to enable the widening to be carried out, I do not consider
that this issue is sufficient in itself to justify refusing planning permission
for the Trafford Centre.
21.11.19 In reaching this conclusion I have taken into
account the acceptance by the Department that an industrial development at
Dumplington would create greater problems on the M63 during the morning peak
hour when conditions were worse than in the evening peak. Since the Department
accepted that the site is likely to be developed for either industry or
shopping the development now proposed appears to me to have substantial
advantages in reducing the impact on peak hour flows while at the same time
releasing land for an improvement to the motorway.
I recognise
that a retail development would generate greater daily flows than an industrial
development but the Department accepted that if a road could cope with peak
hour flows it would be able to accommodate daily flows.
One of the
other proposals examined at the 1987-88 inquiry was for a superstore to be
constructed by Asda/Varity on a site immediately adjoining the Trafford Centre
site to the north. The inspector recognised that if both the Trafford Centre
and the Asda/Varity proposals were approved, this would produce yet additional
traffic on the M63. However, he concluded that the opening of both developments
would have an unacceptable effect on the livelihood of nearby shopping centres
and therefore recommended that the Asda/Varity development should be refused.
As I have said, he recommended that permission should be granted for the
Trafford Centre.
In para 8 of
his interim decision letter of August 23 1989, the Secretary of State said:
With regard
to the proposed Trafford Centre, the Secretary of State agrees with the
Inspector’s conclusions except for his comment, at paragraph 21.11.18 of his
report, that there was no dispute that the addition of a fourth southbound lane
between junctions 3 and 4 of the M63 would be necessary even without the
Trafford Centre. Since the close of the inquiry the Secretary of State has
received from the Department of Transport a statement indicating that they
would be unwilling to carry out that work even if the applicants were to
provide the necessary land. In view of the potential traffic hazards identified
at the inquiry the Secretary of State is not prepared to grant planning
permission for the proposed development without being satisfied about the
safety of traffic joining the M63 at junction 3. Therefore, he feels unable at
present to accept the Inspector’s recommendations that planning permission be
granted.
It will be
seen that the Secretary of State was there expressly accepting and adopting the
conclusions arrived at by the inspector in his paras 21.11.16 and 21.11.19. As
I have said the Secretary of State sought representations on the new material
contained in the Department of Transport’s statement. In a further statement
circulated in May 1991, the Department of Transport said:
General
Principles
8. The
Department’s normal practice when assessing the need for, and design standards
appropriate to, proposals for new construction of improvement on its motorway
and all purpose road network is to take account of forccast levels of traffic
fifteen years after the expected construction completion date. This fifteen
years after opening date is often referred to as ‘the design year’.
9. The
Inspector did not accept the Department’s suggestion at the inquiry that the
traffic implications of the shopping developments should similarly be
considered over a period beyond the date of opening of the proposed
development. He concluded that no evidence had been produced that a
fifteen-year period as adopted for highway design purposes had ever been
considered relevant to a planning inquiry.
10. The
Department remains strongly of the view that assessments of the
generating developments such as the Trafford Centre should in principle take
account of traffic conditions fifteen years after their opening. . . .
The basis
adopted in this particular case
11.
Exceptionally in this case and in the light of the Inspector’s wishes, the
Department has addressed the question of improvements required as a consequence
of the development by reference to opening year (1996) forecast flows . . .
16. Despite
the construction of the proposed Greater Manchester Western and Northern Relief
Road, traffic levels on this already busy section of M63 are expected to
increase considerably — probably reaching over 100,000 vehicles per day by the
early part of the next century.
17. Major
developments such as this create additional demand on the motorway network over
and above that associated with general traffic growth. They thus tend to bring
forward the date by which the motorway would reach its maximum practical
capacity.
18. In this
case the Department notes the prospective effects of the development on the
motorway but is content for the development to proceed provided it is not
brought into use before the improvements at 3(B) and (C) have been made.
The improvements
there referred to were the construction of a fourth lane, northbound, from
junction 3, over Barton Bridge, with suitable construction at the point of
entry of the slip road and the improvement of the southbound exit slip at
junction 3.
By the time of
the 1992 resumed inquiry the widening of the M63 to dual three-lane had been
completed. No doubt as a result of this, the department said at the inquiry
that traffic on the motorway had increased by some 50% over the last five
years, which was far beyond that expected even in 1986. Despite this, the
department at the inquiry continued to maintain the attitude set out in the May
1991 statement.
In his report
on the renewed inquiry, the inspector made it clear that he was restricting
himself to the limited issues on which the Secretary of State had asked him to
report. These issues did not include the question whether in the light of the
current flows of traffic on the motorway or those to be anticipated in the
future, the development of the Trafford Centre could still properly be
permitted.
Having
concluded on the first issue that there was no doubt works would be needed to
accommodate traffic from the Trafford Centre on the M63, the inspector turned
to consider the extent and timing of the works. He said:
9.3.1 All parties except the consortium accepted
that the effect of the proposed development should be assessed at 1997. The
need to consider the position fifteen years after the date of opening of
proposed road improvements is now set out in Road Circular 6/91. This statement
of government policy has been published since the Secretary of State for the
Environment accepted following the first part of the inquiry that a
fifteen-year assessment should not be used: consequently I recognise that there
has been a change in circumstances which should be taken into account.
9.3.2 The consortium was unable to identify any
planning inquiry in which this point had been disputed and the Secretary of
State for the
only limited relevance bearing in mind that no decisions have been issued in
the light of the new circular. On the other hand, there was no evidence that
traffic generated by the Trafford Centre would increase after 1997 in spite of
the consortium’s view that this would happen; this means that all, or at least
the bulk, of the traffic growth after 1997 would be a result of general traffic
growth not attributable to the development now proposed. In these
circumstances, I have sympathy with the applicants’ submission that it would be
contrary to the advice of Circular 6/91 to impose a requirement to cater for
growth after 1997.
9.3.3 In any event, paragraph 4 of the guidance
note attached to Road Circular 6/91 simply states that the Department of
Transport . . . normally considers that new and improved accesses should be
designed to cope with a fifteen-year period. This is not an inflexible
requirement and in this case the Department is not pursuing a fifteen-year
assessment. In these circumstances, I see no justification for looking beyond
1997.
By the time of
the renewed inquiry, although the inspector had recommended in his earlier
report that permission should be refused for the Asda/Varity development,
permission had in fact been given for a similar development on the same site.
At the second inquiry the inspector therefore had to take this into account.
Under the heading The extent and timing of the works — the proposed
improvements he said:
9.4.5 . . . I
have taken into account the importance of maintaining the strategic role of the
M63 which has been emphasised by the Secretaries of State in approving
improvements to it. I accept that the M63 is a crucial part of the road network
in the north-west but Salford also accepted that it was logical to locate a
sub-regional shopping centre close to such a motorway. As the Department of
Transport recognised that the M63 could cope with its daily traffic load if it
could cater for its peak hour demands, I see no reason why its strategic role
should be prejudiced as long as adequate provision is made for the peak hour
flow generated by the Trafford Centre in combination with Asda.
At the end of
that section, he concluded that there was no justification for the provision of
an additional lane northbound over Barton Bridge, that a ghost-island for the
northbound merge at junction 3 would suffice and that works proposed by the
consortium south of junction 4 were not required.
The inspector
concluded:
9.8 Summary
9.8.1 Having considered all the matters set out in
the Secretary of State’s letter, I consider that roadworks would be required to
allow traffic from the proposed Trafford Centre to be accommodated safely on
the M63. Those works should be confined to the improvements proposed by the applicants
and not extend to the provision of an additional lane northbound over Barton
Bridge. While the planning advantages of the proposed development are not
sufficient to justify granting permission for it without a condition requiring
these works, I am satisfied that the prospects of their being provided when
required are sufficiently reasonable to enable a permission conditional upon
their provision to be granted.
In his
decision letter of March 4 1993, the Secretary of State quoted that paragraph
from the inspector’s report. He then said:
10. The
Secretary of State agrees with the Inspector’s conclusions about highway issues
as set out in the report of the 1992 inquiry. He notes that in this case the
Department of Transport have not pursued their normal policy which, in
considering development proposals which might increase the amount of traffic
using the trunk road network, is to seek to secure highway improvements which
accord with current design standards and would accommodate traffic levels forecast
to arrive up to fifteen years beyond the date on which a development comes
fully into use. The Secretary of State agrees with the Inspector that there is
no evidence to suggest that the traffic generated by the Trafford Centre would
increase after 1997 and, therefore, that most if not all of any traffic growth
after 1997 would be as a result of general traffic growth not attributable to
the Trafford Centre. He agrees that in the circumstances it would not be
appropriate in this case to impose a requirement to cater for growth after
1997, the estimated year of opening of the Centre, should planning permission
be granted.
11. The
Secretary of State also agrees that in view of the underlying characteristics
of this stretch of the M63, where the Department of Transport themselves have
not always found it practicable to design improvements to meet fully their
current design standards, there is no fundamental reason to rule out the
implementation of further improvements which do not meet fully current rural motorway
standards, provided that they do not prejudice road safety. In this regard, the
Secretary of State agrees with the Inspector that the works proposed by the
promoters of the Trafford Centre which were discussed at the 1992 inquiry would
allow for traffic generated by the Trafford Centre to be accommodated on the
M63 without an unacceptable risk to highway safety . . .
13. For these
reasons the Secretary of State considers that the works in question would allow
traffic generated by the Trafford Centre to be accommodated safely on the M63
and that there are reasonable prospects of those works being carried out.
Therefore, the one problem which prevented him from accepting the Inspector’s
recommendation following the 1988 inquiry has been overcome.
After considering
other issues, he set out his decision to grant permission for the Trafford
Centre subject to conditions.
General
considerations
It is a matter
of common observation that the volume of traffic on the roads of England has
increased over the years. Where a road is a major part of the highway system of
a region, as is the M63, the prediction that traffic volumes will continue to
increase in the future can be made with confidence. The design capacity of a
road is the volume of traffic which can travel on it without unreasonable delay
or interruption. If this volume be exceeded, the road will carry more traffic,
but there is bound to be congestion. Eventually the stage will be reached at
which, at peak periods, the road can carry no more traffic.
If a development
is proposed which will generate substantial additional flows of traffic on a
given road, as will be the case with the Trafford
1. Will the
road have sufficient capacity to take the additional traffic without causing unacceptable
congestion for other road users?
2. Will it be
possible for traffic leaving the road to travel to the proposed development and
joining the road from the proposed development to do so without causing
unacceptable delay and danger to other road users and without that traffic
itself being endangered?
These are
different but related questions. Both are material considerations to which
regard should be had when considering whether permission should be given for
the proposed development and the answer to either question, or both, may lead
to the conclusion that permission should be refused. If, however, the
development has other great advantages and is thus desirable in the public
interest, this may justify a grant of permission even at the expense of some
additional road congestion.
When
considering the two questions, the decision maker will often not only be
concerned with traffic flows on the road and on the access to and exits from
the road as they would probably be when the development is first opened, but
also as they will be some years ahead. If the road has some spare capacity at
the opening date, the addition of the traffic from the development will take up
some or all of that capacity and thus bring forward the time when the road becomes
unacceptably congested or the accesses to it become unsafe. This is no doubt
why the Department of Transport in 1991 adopted a policy, promulgated in their
Circular 6/91, that:
It is
normally considered appropriate by the Departments to design new or improved
accesses, or other necessary trunk road works, to cope with traffic up to
fifteen years after the opening of the development or longer if there is
significant phasing associated with the development which also gives rise to
further increases in traffic. This design horizon is consistent with the
Department’s practice in designing road schemes which they initiate themselves,
where the level of traffic fifteen years after the opening of a new road is
taken as an initial guide to the appropriate standard that is likely to be
justified. Current provision can frequently be far in excess of that
(fifteen-year) requirement.
Submissions
The
submissions of Mr Purchas for the consortium, can be summarised as follows:
(i) The effect of future growth in traffic flows
was a material consideration to which the Secretary of State was required to
have regard. However, he specifically declined to do so. He made his decision
without taking account of increase in traffic on the M63 or on the accesses to
and from the M63 after 1997 and thus acted outside the powers of the Act.
(ii) Alternatively, the Secretary of State’s
reasons were so inadequately expressed that it is not clear that he did have
regard to this factor and if so, why he discounted it.
In expansion,
Mr Purchas submits:
(iii) In his first report, the inspector expressly
concluded that, although
traffic flows on the M63 between junctions 2 and 4 would exceed those
appropriate by the standards of a rural motorway (ie the appropriate standards
for the M63) nevertheless urban standards would not be breached as a result of
the Trafford Centre. He therefore did not consider that there was substantial
objection to the Trafford Centre in terms of flows on the motorway: see para
21.11.16 of his report. However, by the time of the second inquiry the
expectation that urban standards would not be exceeded with the addition of the
traffic from the Trafford Centre had proved to be incorrect. At the second
inquiry, the inspector summarised this part of the case for the Department of
Transport in para 5.1.2 as follows:
Current flows
between junctions 2 and 3 were in the region of 96,000 vehicles AADT (a day) as
compared with a design standard of 50,000 to 79,000 vehicles and a design year
forecast for 2001 of 76,000 to 93,000 vehicles. Traffic growth on the M63 had
been much greater than the national average recently, but some of this had been
due to suppressed demand which had been released by the improvements to the
M63; these had increased its peak hour capacity by some 58 per cent. This
growth might not continue and work by GMTU had led the unit to suggest that
traffic growth on the motorways had begun to decline; it was however difficult
to identify a reliable trend.
(iv) The issue of the effect of future traffic
growth on traffic flows on the M63 was not considered at all by the inspector
in his report on the second inquiry, since he restricted himself to the
specific questions posed to him by the Secretary of State.
Counsel
appearing for the respondents do not accept these submissions, but in
particular none of them agrees that the second inquiry report did not consider
the effect of traffic from the Trafford Centre on flows on the M63. Thus, Mr Keene
submits that the first question posed for the second inquiry by the Secretary
of State, namely:
Whether
roadworks are necessary to allow traffic from the proposed traffic centre to be
accommodated safely on the M63
necessarily
involves consideration of whether the additional traffic flows from the centre
could be accommodated on the M63 itself without causing unreasonable
congestion. This indeed was the reason why at the second inquiry the Department
of Transport urged that there should be a requirement for the construction of a
fourth lane on the M63 northbound between junctions 3 and 2.
My conclusion
on this last issue is that at the second inquiry the inspector was specifically
attempting to answer the questions posed to him — that is what he said. Inevitably,
however, answering those questions involved the canvassing of, and the
reception of evidence about, matters which were relevant to the broader
question, ‘Could the M63 take the additional traffic flows without undue
congestion?’ The inspector, however, did
not attempt to answer that question directly.
It must be
remembered that, as the inspector reported, the
had increased very substantially by the time of the second inquiry. The figures
they recited made it clear that the road was already suffering from some degree
of congestion. Nevertheless, the Department of Transport themselves were not
objecting at the second inquiry to the development of the Trafford Centre, provided
that the junction works which they desired were carried out. The Secretary of
State must have been well aware of all of this. Moreover he must have been
aware, as the inspector had reported, that if high technology industrial
development took place on the site instead of a major shopping centre, this
would be likely to result in even greater traffic flows at peak hours, which
would make congestion on the M63 even worse.
Schiemann
J’s judgment
The learned
judge dealt with these issues in the following passages in his judgment. At
p19D of the transcript he said:
Alternatively,
the applicants complain that the Secretary of State concentrated on the
anticipated year of opening — 1997 — rather than looking to a number of years
ahead and that he concentrated on safety overlooking the undesirability of the
Trafford Centre because of anticipated congestion. They submit that in
principle it was wrong, at any rate without a rehearsal and acceptance of
competing considerations, to look only at traffic in the year of opening and
that the Secretary of State was perverse in not looking beyond that.
The judge then
quoted paras 10 and 11 of the Secretary of State’s eventual decision letter and
said at p21G of the transcript:
I accept that
on a fair reading of the decision letter the Secretary of State can be said
only to have addressed the position in detail as at 1997. It is clear and was
perfectly clear to the Secretary of State that he has permitted a development
which is likely in the foreseeable future to make significantly more congested
a motorway which was likely to be congested quite apart from that development.
The Secretary of State addressed the safety implications of this state of
affairs and came to a conclusion which, in its safety aspect, cannot be attacked
as perverse. So far as congestion is concerned, it was common ground at the
inquiry that the M63, even at the date of the inquiry, did not meet the normal
appropriate design standards and that a rise in traffic was to be anticipated
which would make congestion worse. The grant of planning permission for a huge
traffic generation in such circumstances, submit the applicants, amounts to
perversity, at any rate in the absence of a reasoned examination.
In the
present case, as is almost invariably the case when the Secretary of State has
to consider a planning application for a huge development, there were a number
of factors which weighed in favour of the grant of planning permission and a
number of factors which weighed against. It is trite law that the relative
weight to be given to those factors is a matter for the Secretary of State and
not for the courts. It is, in my judgment, clear that the Secretary of State
appreciated that one result of the grant of planning permission would be
increased congestion on the M63 and that the position would get worse after
1997 and that he chose not to let this congestion factor outweigh what he saw
as the advantages of the proposed
the decision letter in the context of the two inspector’s reports and the
interim decision letter. In my judgment, he was legally entitled to adopt this
approach and he explained his reasoning adequately.
It has not
been submitted to us, as it was to Schiemann J, that in this part of his
decision the Secretary of State acted perversely. We are concerned with the
question whether he failed to have regard to a material consideration.
Nevertheless, with this in mind the question we have to consider is whether we
agree with the judge’s reasoning on this issue. I do agree that the Secretary
of State must clearly have appreciated and indeed made it clear that he did
appreciate, that traffic on the M63 would increase after 1997. Thus, I do not
accept that the Secretary of State failed to have regard to the effect of this
increased traffic after 1997, as alleged in the first ground of appeal. He was
not obliged to accept the Department of Transport’s preferred practice of
looking forward to a date 15 years after the opening of the proposed
development and trying to assess the effect of the development on traffic flows
at that date. Indeed, so far as I can make out nobody attempted to put before
the inspector figures of suggested traffic flows for the year 2012 (15 years
after 1997). It was sufficient for the Secretary of State to have well in mind
the fact that after the Trafford Centre opened, if it were permitted, traffic
on the motorway would most probably continue to increase and thus that the
congestion on the M63 after that date would, in the absence of any relief from
other roads, become worse.
The second
ground of appeal, alleging failure to give adequate reasons for his decision on
this issue, troubles me more. The argument for the consortium that the actual
growth in traffic between 1986 and 1992 on the M63 as disclosed at the second
inquiry meant that the inspector’s reasoning in para 20.11.16 of his first
report was no longer valid appears to be correct, or at the least is nowhere
said in the decision letter not to be correct. If that is the case, then some
other reason was necessary if the issue of traffic congestion after 1997 was
not to lead to a refusal of permission.
If in his
decision letter the Secretary of State could have said something like:
I recognise
that permitting the development will cause congestion on the M63, which will
increase in the years after 1997 until some relief is given by another road
scheme. Nevertheless it is very desirable that this site is developed as soon
as possible, and the other likely form of development would cause even greater
traffic congestion. In my view therefore the desirability of the development
outweighs the detrimental effect of it on traffic flows on the M63.
A conclusion
in these terms might have been disappointing for the members of the consortium,
but would have been one properly open to the Secretary of State.
The Secretary
of State did not say this, or anything close to it, in terms. The question is
whether an expression that this was his opinion can be spelt out from the two
decision letters and the inspector’s report.
Mr Purchas
submits, basing himself on the passage from the speech of Lord Bridge in Save
Britain’s Heritage, to which I have referred, that if the Secretary of
State’s reasoning on this issue is not clear, the consortium are prejudiced in
two ways:
(i) Even if (as I have concluded) the Secretary
of State did have regard to traffic growth and congestion after 1997, it is not
clear why he did not give it weight in the decision-making scales, nor is it
clear what outweighed this factor in the other half of the scales.
(ii) His failure to have regard to post-1997
traffic flows would make it more difficult for the members of the consortium,
as local planning authorities, to refuse planning permission in future on the
ground that traffic from a proposed development would cause unacceptable
congestion at some future date.
Provided that
the Secretary of State’s reasoning was on the lines I have suggested above, I
do not accept the second argument. This decision in those circumstances would
clearly be based upon the particular merits of the development and thus would
not provide any precedent which would normally limit a planning authority’s
power in future to refuse permission on this ground. So it is the first of
these two submissions which is important. Before I attempt to deal with it, it
is necessary to consider the Secretary of State’s reasoning in relation to the
other issues raised in this appeal.
I propose to
consider the other two broad grounds of challenge together before considering
what the Secretary of State said about them. They are:
2. Urban
regeneration and the effect of the development on shopping centres in Greater
Manchester
and
3. The
desirability of reserving the site for some use associated with high
technology.
In his
judgment, starting at p27E, Schiemann J summarised the argument for the
appellants in the following summary, which I gratefully adopt:
Since the
first report, a number of matters had changed in particular:
(a) Whereas at the time there was a general
presumption in favour of development proposals, by reason of changes in Government
policy this general presumption no longer applied.
(b) Since the first inquiry some development had
already taken place in the Urban Development Area and in consequence the need
for further development was less.
(c) The leisure facilities discussed at the first
inquiry had taken the form of an arena which was anticipated to generate a
considerable amount of employment whereas that proposal had been abandoned in
that form by the time of the reopened inquiry.
(d) There was no legally binding agreement on the
Manchester Ship Canal Co to give financial aid towards the provision of an
extension to the Metrolink.
(e) There had been a change in the economic
climate since the first report and in the underlying facts affecting the
economic aspect; less money was being spent and there were more shops in
existence in which to spend it, and in consequence there was likely to be less
activity in the Trafford
transactions at the Trafford Centre and greater damage to existing centres
which were themselves being adversely affected by the economic climate.
(f) There was no shortage of industrial land at
the time of the first inquiry whereas by the time of the decision letter there
was. The objection of the use of the appeal site for high technology employment
purposes (namely that it would give rise to greater traffic problems) had less
force at the time of the reopened inquiry because there were then on the
horizon, admittedly distant, prospects for a Greater Manchester Western and
Northern Relief Road.
Mr Purchas
does not pursue the Metrolink point. With that exception this is a useful
summary of the issues argued on this appeal. I propose to deal with them
however in a somewhat different order.
A Urban regeneration and
relevant policies
The phrase
‘urban regeneration’ relates of course to the regeneration of all areas in the
Greater Manchester conurbation. Thus, what is in issue is the extent to which
development on, and thus regeneration of, the Trafford Park UDA including the
appeal site will lessen the prospects for regeneration of other parts of the
conurbation.
In 1988,
national policy with regard to shopping development was contained in PPG6 — Town
Centres and Retail Developments — issued in January of that year, ie during
the course of the first inquiry. Para 7 of that note under the heading Policy
Guidance on Planning and large new Retail Developments, quotes part of an
answer given by the then Secretary of State to a parliamentary question on July
5 1985. He said:
Since
commercial competition as such is not a land use planning consideration, the
possible effects of a proposed major retail development on existing retailers
is not in this sense a relevant factor in deciding planning applications and
appeals. It will be necessary, however, to take account in exceptional
circumstances of the cumulative effects of other recent and proposed large
scale retail developments in the locality and to consider whether they are on
such a scale and of a kind that they could seriously affect the vitality and
viability of a nearby town centre as a whole — for example whether they seem
likely to result in a significant increase in vacant properties, or a marked
reduction in the range of services the town centre provides, such as could lead
to its general physical deterioration and to the detriment of its future place
in the economic and social life of the community. Town centres need to maintain
their diversity and activity if they are to retain their vitality, but the
range and variety of shops and services will change, as they have always done,
in response to changing conditions.
In para 11 the
note said:
Only in the
case of developments which either individually or cumulatively are very large
relative to the size of nearby centres . . . are the effects likely to be so
substantial as to raise serious questions about the future of nearby town
centres.
In paras 15
and 16 the guidance was to the effect that if proposals for development
exceeding 100,000 sq ft were under consideration, they might be acceptable
Where their
effect on established town centres is likely to be very diffuse or where
existing centres do not provide good facilities and do not lend themselves to
modernisation. Schemes of a similar scale within urban areas but outside
established town centres will need to be considered having regard to the
guidance given in paragraphs 7-14 above.
At the time of
the first inquiry the general policy with regard to planning applications was
that there was a presumption in favour of development proposals. This was set
out, among other places, in the then current version of PPG 1.
In his first
report the inspector referred to this at para 21.2.3 when he said:
While I
recognise that the basis for renewed confidence in Greater Manchester is still
fragile, I cannot accept that it would be correct in principle to refuse any
shopping development in Greater Manchester outside centres simply on the
grounds that this would create uncertainty and destroy confidence. Such an
approach would be contrary to the general presumption in favour of development
proposals.
In this case
there is also a major statutory reason for favouring development which would
regenerate the area. By section 136 of the Local Government, Planning and Land
Act 1980:
(1) The object of an Urban Development
Corporation shall be to secure the regeneration of its area.
(2) The object is to be achieved in particular by
the following means . . . namely by bringing land and buildings into effective
use, encouraging the development of existing and new industry and commerce,
creating an attractive environment . . .
The relevant
policies of the development plan, both at the time of the first inquiry and at
the time of the decision, were those of the approved structure plan. The
policies of particular relevance were recognised by the inspector as being:
Themes of
the Plan, Policy G1
In putting
into effect the policies and general proposals of the plan regard will be had
to the following themes or guiding principles: to secure urban concentration
and regeneration, to redirect development and investment towards the inner core
of the conurbation, to maintain the regional centre, to improve the environment
and conserve amenity, to conserve resources and maintain unused existing
infrastructure.
The Local
Planning Authority will have a presumption in favour of proposals that support
the themes of the Plan.
Priority
areas, Policy G2
In putting into
effect the policies and general proposals of the plan
Central Government may from time to time indicate are areas to which government
aid is to be directed bearing in mind the priorities according to those areas
by Central Government; second, of the economic and social problem areas listed
below, insofar as they may differ from the areas to which Central Government
aid is to be directed, and where there is a choice preference will be given to
proposals likely to help meet those needs.
The economic and social problem areas shall comprise
the following:
(a) The inner city areas of Manchester and
Salford
(b) The inner parts of older towns of the County
namely . . . Old Trafford (including Trafford Park) . . .
All other new shopping, Policy S4
The Local
Planning Authority will normally require all new shopping development to be
located in or immediately adjacent to existing shopping centres, and to be
appropriate in scale and character to the requirements of the areas which such
centres serve, except where it is to meet purely local needs. In the case of
development primarily for the type of retailing for which a large single floor
or external sales and storage area, substantial adjacent customer car park and
good road access are normal requirements, the Local Planning Authority will
consider whether an exception to the normal requirement should be permitted by
assessing the balance of advantage and disadvantage of the proposal having regard
particularly to the following criteria:
(i) the effect on urban regeneration; and
(ii) economic effects, including employment and
impact on existing centres within or outside the area of the Local Planning
Authority; and . . .
(vi) need for, and suitability of, the proposed
site for other land uses.
Development
for this type of retailing will not normally be permitted on land outside
existing urban areas.
In his report
of the first inquiry, the inspector reached his conclusions in a 69-page
section of the report, which summarised the relevant evidence and arguments
impeccably. At the end he concluded under the heading:
Drawing the
strands together.
21.13.1 In considering the various issues explored at
the inquiry I have concluded that the building of one major shopping centre in
the western sector of Greater Manchester would not cause unacceptable harm to
the regeneration of the conurbation, nor would one such centre damage the
vitality and viability of any existing town centre. I do consider that the development
of more than one major centre would cause unacceptable damage to existing town
centres and prejudice the strategic role of the motorways.
In para 6 of
his interim decision letter of August 23 1989 the Secretary of State expressly
accepted this conclusion. Logically, the conclusion was repeated and adopted in
para 18 of the regional planning guidance for Greater Manchester (RPG 4), which
the Secretary of State published in December 1989.
Between the
time of the Secretary of State’s interim decision letter and his final decision
there were the following relevant changes in planning policy. First, what is
now section 54A of the 1990 Act was inserted by the Planning and Compensation
Act 1991 from September 25 of that year. That sector for the first time
introduces a statutory requirement that the determination of an application for
planning permission
Shall be made
in accordance with the (development) plan unless material considerations
indicate otherwise.
Second, there
was a move away from the former presumption in favour of development. This is
reflected in the new version of PPG 1 — General Policy and Principles —
which was issued in March of 1992, the part of the note relating to Determining
Planning Applications and Appeals reflects this change. It says that
section 54A:
In effect . .
. introduces a presumption in favour of development proposals which are in
accordance with the development plan. An applicant who proposes a development
which is clearly in conflict with the development plan would need to produce
convincing reasons to demonstrate why the plan should not prevail.
Moreover, at
the time of the Secretary of State’s decision a revised draft of PPG 6 had been
circulated in October 1992. This contained the following passage which was
relevant to the Trafford Centre:
Major new
developments
37.
Experience has shown that regional out-of-town shopping centres (more than
50,000 sq m of floor space) can have a substantial impact over a wide area.
They should normally be allowed only where they would fulfil an important
retail need, taking full account of all the likely impacts. Such centres would
not normally be appropriate in areas where
— there is
unlikely to be a significant growth in population or retail expenditure;
— continued
investment in nearby town centres is likely to be seriously jeopardised . . .;
— public
transport could not adequately serve a wide population; or
— the effect
on the road network and on the overall level of car travel would be unacceptable.
When the final
version of the revised PPG 6 was issued in July 1993, after the decision of the
subject of this appeal, the substance of the draft para 37 was repeated in
similar words in para 46.
B Development already carried
out in the UDA
On this issue
it is only necessary to refer to one paragraph of the inspector’s report on the
second inquiry, namely para 9.6.11, which read:
The fact that
implementation of the Trafford Centre has already taken far longer than
envisaged at the first inquiry and that progress has been made in the
redevelopment of Trafford Park has undoubtedly reduced the potential benefits
of the proposed development as perceived in the first
previously preferred industrial development on the application site now
believes that the Trafford Centre would bring substantial benefits to the Park,
primarily because it wishes to see it developed quickly but also because it
would provide a prestigious western entrance and would enhance the Park as a
place in which to work.
C Retail impact
In the report
of his first inquiry, the inspector said at para 21.2.2:
While there
can be little doubt that the greatest benefit to the inner city is likely to
result from investment within that area, it is equally clear from the evidence
that a development such as those proposed at this inquiry could not be
accommodated in Manchester City centre or any other existing centre. There is
no evidence that it could be located within the inner city area.
I comment
that, since the Trafford Centre was intended to have about 1m sq ft of retail
space, nobody suggests that this is still not correct, but as I shall say
later, a planning permission has now been given for a development in the city
centre of Manchester at Schudehill, for a retail development of about 500,000
sq ft.
In the section
of his report dealing with the economic effect of the proposed development on
other shopping centres, the inspector expressed disappointment that the parties
had not been able to come nearer to reaching agreement on the need for the
provision of new shopping floorspace in Greater Manchester up to 1996. He said
that the range of estimates submitted to him was so wide that it was, ‘Of no
value in deciding the issues in this inquiry’. Not surprisingly he was
therefore tempted to disregard it entirely. However, he said:
Nevertheless,
many of the assumptions which contribute to the final estimates are significant
in forming a view as to the likely effect of the proposed development.
He then
proceeded to make his own best estimate, starting with the assumption that
growth of spending on the type of goods which are likely to be sold in the
Trafford Centre (which in the jargon are known as comparison goods) would be
less in Greater Manchester than the national average. He estimated that up to
1986 expenditure on such goods in the primary trade draw area for the Trafford
Centre would increase between 1986 and 1996 by the sum of £ 622m. He estimated
that the Trafford Centre would attract some £ 125m of this and that about £
314m additionally would be attracted by what he called the ‘hard commitments’,
ie the retail shopping developments for which planning permission had already
been granted, but which had not yet been completed. This sum left a further £
183m which ‘Would be available for increased spending in existing shops’. He
said at para 21.3.14:
While the
estimate of future spending set out above does not represent a forecast to
which great weight should be attached, it suggests that there is likely to be
sufficient growth in spending to allow for some growth in
centre were built.
21.3.16 The
estimate set out above should not be interpreted as demonstrating a need for a
new sub-regional shopping centre or for any particular increase in shopping
floor space. It is however more significant to note that they do not suggest
that the introduction of a new centre on the scale now proposed would attract
trade on such a scale as to absorb more than 20 per cent of the likely growth
in available spending. On this broad scale, I am therefore satisfied that there
are no grounds on which to justify a refusal of planning permission in terms of
comparison goods trade.
He said later:
21.3.30 The
three centres which would be most directly affected by the proposals would be
Manchester City Centre, Bolton and Altrincham Although the largest trade
diversions would be from the City centre it was accepted at the plenary session
that its role would not be seriously affected . . .
21.3.58 While
I have found no evidence that any centre would be so seriously affected as to
justify refusing permission one of the major centres both Eccles and Urmston
are, in my view, vulnerable centres which would be damaged.
This again led
him to his conclusion at para 21.13.1, which I have already quoted and which
was specifically accepted by the Secretary of State in his interim decision.
Alleged
changes
In their
representations submitted to the Secretary of State in writing after the second
inquiry, the consortium placed before him evidence by which they hoped to
persuade him of the following matters:
(i) That between 1988 and 1992 the increase in
retail expenditure, especially on comparison goods, which had been anticipated
at the time of the 1988 inquiry had not taken place. Indeed in some years it
seemed that there had been a decrease and overall the suggestion was that
expenditure in 1992 was no greater than it had been in 1988.
(ii) Nevertheless, the greater part of the retail
developments for which permission had been given by 1988 had been carried out,
so that it was estimated that the new shops in existence by 1992 had absorbed
some £ 400m worth of retail spending (as opposed to the £ 314m, which the
inspector in his estimate had attributed to the ‘hard commitments’). In
addition to the amount of new shopping development constructed — some 4.5m sq
ft — a further 6m sq ft were the subject of planning permissions granted
between 1988 and 1992. This included the 500,000 sq ft of the proposed
Schudehill development in Manchester City centre. The consortium estimated that
if all this permitted shopping space were built, it could absorb a further £
500m worth of trade. Thus, by 1992 the developments completed since 1988 plus
the new ‘hard commitments’ could absorb some £ 900m worth of trade in total,
exceeding substantially the inspector’s estimate of some £ 622m increase in
trade. This is of course without any diversion of trade to the Trafford Centre.
(iii) The effect of other new subregional shopping
centres. The
centres since there were only two operating in the United Kingdom, namely Brent
Cross and the Gateshead Metro Centre. Since that date however two further
centres, namely Meadow Hall at Sheffield and Merryhill at Dudley had been
opened and the consortium submitted a variety of estimates of the detrimental
effect which it was alleged the opening of these two centres had had on the
vitality and viability of town centres close to them.
D Asda/Varity store
One of the
proposals which the inspector considered at the first inquiry was for a
superstore with this name on a site immediately adjoining the Trafford Centre
to the east of it. In his first report the inspector said:
21.13.11 The
Asda/Varity development depends on the proposed superstore. While the impact of
this alone would be acceptable I am concerned that the development of a major
centre attracting primarily comparison goods trade and a superstore attracting
convenience goods trade would damage Eccles or Urmston both of which were
recognised as being vulnerable centres. I have considered limiting the
cumulative effect of the Asda store and the Trafford Centre by the imposition
of a condition limiting the floor space devoted to convenience trade at the
sub-regional centre. This . . . could impose a limit which effectively ruled
out the superstore at present proposed at the Trafford Centre.
21.13.12
While such a condition would be acceptable to the applicants I am not satisfied
that it would reduce the scale of convenience goods sales to such an extent as
to overcome the problem.
He therefore
decided that the regeneration of Trafford Park ‘could be better achieved by the
Trafford Centre if it included a superstore’ and recommended that permission
should not be given for the Asda/Varity proposals.
In the event
the Secretary of State accepted this advice and refused permission for the
application made by Asda/Varity, which was the subject of the 1988 inquiry.
However,
before the inspector gave his 1993 decision — indeed, before the reopened
inquiry — the local planning authority had granted planning permission for an
Asda store on the site immediately adjoining the Trafford Centre site. The
applicants made it clear that they would not object to the permission for the
Trafford Centre including a condition that the centre should not include a
superstore. The Secretary of State, however, made no reference to this planning
permission in his decision letter, nor did he impose such a condition.
E Shortage of industrial land
It is a
relevant consideration that there is an appropriate alternative use to which a
site under consideration can be put if a proposed development — in this case
the Trafford Centre — should not be permitted. The consortium have always
suggested that on the Dumplington site, development for industrial purposes,
particularly for
development. Such development would accord with the structure plan policies and
in general terms with para 5 of RPG 4.
In his
original report the inspector noted a submission made by Trafford Borough
Council to the effect that:
The objectors
must show that if permission were refused for retail development at Dumplington
the site would effectively be put to the suggested alternative use. (Westminster
City Council v British Waterways Board [1984] 3 All ER 737)
However, since
that decision the House of Lords had decided in London Residuary Board v
Lambeth London Borough Council [1990] 1 WLR 7441 that there
was no requirement in law that the so-called ‘competing needs tests’ ought to
be derived from the Westminster City Council case or should be applied;
and that the only legal requirement was to have regard to other possible
developments if they complied with the development plan: see especially Lord
Keith at p750.
1 Also reported at [1991] 3 PLR 1.
I have already
noted that the development corporation changed their attitude to industrial
development on the Dumplington site between the two inquiries, for the reasons
referred to by the inspector in his second inquiry report. I have also noted
the disadvantage of industrial development, that it was likely to create even
greater problems of congestion on the M63 during the morning peak hour. Overall
it seems clear that the inspector took the view, as he was entitled to do, that
if industrial development did come about it would most probably do so later
than would development for the Trafford Centre.
However, a
major point made by the consortium in their representations to the Secretary of
State was that whereas in 1988 there was no shortage of land for industrial
development in Greater Manchester, it seemed that this situation had reversed
by 1992, and such land was becoming scarce.
F Omission of the arena
At the time of
the first inquiry the Ship Canal Co were proposing that the development on the
north-westerly part of the site for leisure purposes should include an arena
for some 14,000 spectators, which would house both sports and other major
events. Suggestions were horse shows, ice dancing and pop concerts. The inspector
reported the Ship Canal Co as submitting at that inquiry that there was a
deficiency of such facilities in Greater Manchester.
In his first
report, having recorded the demand for such an arena, the inspector said:
21.9.11 . . .
I consider that the leisure proposals put before the inquiry would benefit
Trafford Park not only in terms of the opportunities for leisure and recreation
which they would provide but also in terms of their effect on the regeneration
of the Park. The arena would attract up to 2m
of Trafford Park, a matter to which the investment strategy attached
considerable importance.
21.9.12 I
note that the applicants have prepared a draft section 52 agreement which
requires them to implement either the original or the revised leisure proposals
if the Trafford Centre is built. They would also accept a condition requiring
that the leisure proposals be implemented. The detailed form of the leisure
provisions is not a matter on which it would be right for me to express a
preference since the original proposals were not examined at the inquiry.
Nevertheless the revised proposals including the Trafford Arena would meet a
latent demand and would contribute to the regeneration of Trafford Park. They
therefore contribute, in my view, a substantial benefit to Greater Manchester.
However, by
the time of the second inquiry the Ship Canal Co no longer proposed to build
the arena. The inspector therefore commented in his second report:
9.6.17 The
recreation content of the proposed development is now likely to be more limited
than that on which the applicants placed the greatest weight in the first part
of the inquiry. . . . It is very unlikely that an arena would be constructed at
Dumplington. While I accept that this reduces the potential benefits of this
part of the development, it does not eliminate them. The alternative Regional
Sports Centre would itself bring benefits as was recognised in the first part
of the inquiry and was not disputed in this session.
It will be
remembered that what the inspector was considering in the second inquiry was
whether the planning advantages of the Trafford Centre were so great that they
rendered it unnecessary for a condition to be imposed on any planning
permission that improvements should be made to junction 3 on the M63. He
concluded that:
While some
(of the planning advantages) have reduced in importance they still remain valid
for the most part. However, in terms of the issue identified in the Secretary
of State’s letter, I do not consider that they are sufficient to outweigh the
harm that will be caused if the Trafford Centre were constructed without any
improvements to junction 3 of the M63.
Secretary
of State’s decision
It is to be
noted that in his decision letter of March 4 1993 the Secretary of State relied
upon and quoted what the inspector had said in his second inquiry report only
in relation to highways. In relation to other issues, he referred back to the
inspector’s original report and related that to the representations made by the
consortium and by Salford.
The decision
letter contains the following relevant paragraphs. In relation to the
application of policy:
4. In line
with longstanding policy and practice each application and appeal must be
considered on its own merits on the basis of the best available guidance and
information currently available. Appropriate weight must be given to any
relevant national policy, development plan policy and
1990 Act, applications and appeals should be determined in accordance with any
relevant development plan unless material considerations indicate otherwise.
5. A revised
and updated PPG1 ‘General Policy and Principles’ was issued in March 1992, and
in October 1992 a draft revised PPG6 ‘Town Centres and Retail Development’ was
issued for consultation. While accepting that policy guidance relating to town
centres and retail development is still evolving, the Secretary of State does
not consider that this means the proposals before him should be refused
planning permission on grounds of prematurity.
In relation to
the issues other than congestion on the M63 generally:
15. The
Secretary of State considers that the issues raised in those representations,
either individually or cumulatively, do not clearly demonstrate that changes
which may have occurred since the 1988 inquiry should be accorded much weight.
He considers that the representations do not provide sufficient information to
show that circumstances have altered to such an extent that the balance of
planning advantage between the Trafford Centre, Dumplington, and the Regatta
Centre, Barton Locks, has changed since the 1988 inquiry. Nor does he consider
that the representations show that it is necessary or appropriate to re-open
the inquiry to provide opportunity for the issues raised to be debated or to
withhold permission for development which he has already concluded is acceptable.
The Secretary of State’s comments on the issues raised in the representations
are set out below.
In relation to
urban regeneration:
16. With
regard to the likely effects of the Trafford Centre on urban regeneration, it
is considered that this issue was fully debated at the 1988 inquiry, following
which the Inspector concluded, for the reasons set out in his report, that he
could find no evidence that the proposals would have an unacceptable impact on
the regeneration of Greater Manchester. The view is taken that the additional
representations do not provide any reasons to doubt that the Inspector’s
conclusions on this issue remain valid.
In relation to
retail expenditure:
17. In the
additional representations it has been argued that the decline since the 1988
inquiry in retail activity and the permissions granted since then for retail
development in existing centres or other appropriate urban sites should be
taken into account. In considering those issues the Secretary of State has had
regard to the approach adopted by the 1988 inquiry Inspector in assessing the
economic effects of the proposed Trafford Centre as set out at section 21.3 of
his report. In particular, he notes the comments made by the Inspector at
paragraphs 21.3.4 to 21.3.15 about the difficulties in quantifying spending,
turnover and floorspace assessments, and the limited weight which he concluded
should be attached to those considerations. It is accepted that since 1988
retail spending has not risen at the average rate envisaged by the Inspector,
and that the Inspector gave some weight to this element of the forecasting.
However, it is considered that the assessment provided in support of the
additional representations, which is based on information forthcoming since the
1988 inquiry, does not
assessment of the wide range of information about the likely economic effects
of the Trafford Centre debated at the 1988 inquiry is no longer valid or to
believe that re-opening the inquiry or refusing permission for the Trafford
Centre is justified.
Para 18 deals
apparently with Government policy generally and with that particular aspect of
it which discourages increases in the production of carbon dioxide. It reads in
part:
The
additional representations argue that the Trafford Centre should not be
permitted because it does not accord with emerging Government policy on
shopping developments as set out in the draft revision of Planning Policy
Guidance Note PPG6 and because it would encourage additional car usage, which
would increase the production of carbon dioxide. However, from the evidence
contained in the representations it is considered that, in reaching a decision
on the Trafford Centre, little weight can be accorded to those issues.
After some
sentences dealing specifically with CO2, the paragraph concludes:
In this case
the development may not proceed as quickly or change the image of the Park as
envisaged by the Inspector in his report of the 1988 inquiry. However, the Secretary
of State considers that the regeneration benefits which the proposed Trafford
Centre would bring to Trafford Park should still be accorded considerable
weight and, in his opinion, those benefits amount to special circumstances
which justify permission being granted.
19. The role
of the development plan in determining planning applications and appeals has
been emphasised by section 54A of the 1990 Act and PPG1. The Secretary of State
has considered the arguments advanced about the relationship of the proposed
development to published and proposed planning guidance and development plans.
In summary those were that . . . the Trafford Centre site should be reserved
for development as a high amenity site for high technology industry which, it
has been argued, Strategic Guidance for Greater Manchester suggests merits
greater weight than the building of a sub-regional shopping centre in the
western sector of Greater Manchester . . . The Secretary of State remains of
the view that, although those matters were not debated at either the 1988 or
the 1992 inquiries in the form advanced in recent representations, the
strategic effects of the development of a major shopping centre in the western
sector of the conurbation have been sufficiently debated . . .
After dealing
with another point, he said:
Nor does he
accept that weight should be attached to the possibility of reserving the site
for some alternative form of development . . .
In para 20 the
Secretary of State concluded:
For those
reasons the Secretary of State considers that the representations made to him
do not provide sufficient reason to justify delaying further a decision on the
proposals before him or to justify refusing planning
permission should be granted for the Trafford Centre.
Schiemann
J’s judgment
The judge
expressed the following views about the submissions made to him on the issues
which have been argued in this appeal. The judge made a general point
initially:
It is fair to
say that whereas at the beginning of para 10 of the decision letter the
Secretary of State states that he agrees with the inspector’s conclusions about
highways issues as set out in the report of the inquiry, in relation to other
issues about which representations were made during the reopened inquiry
(which, it will be remembered, had rather limited terms of reference which the
applicants had sought in vain to extend) the Secretary of State, while stating
in para 14 of the decision letter that he has given consideration to the
representations made during the inquiry, does not state whether or no he agrees
with the inspector’s conclusions in the second report about the planning
advantages of the Trafford Centre.
In relation to
the presumption to be derived from the development plan, the judge said:
There had
indeed been changes in relation to Government policy as regards presumptions in
development control. In part I discuss these in the section of this judgment
dealing with the structure plan point. However, in the context of a huge
development of the type with which we are presently concerned presumptions
hardly have any part to play. Further, in the context of an urban development
area it hardly makes sense to speak of a presumption against development.
In relation to
development which had already taken place in the UDA:
The inspector
points out in his Second Report that the delay has meant that progress has been
made in the redevelopment of Trafford Park and that this undoubtedly reduces
the potential benefits of the proposed development as perceived in the first
inquiry. He goes on to point out that the development corporation, which at the
first inquiry had supported high technology and been against shopping, had now
changed sides. The Secretary of State had read the second report and although
he does not in terms say that he accepts the first of these two points it is,
in my judgment, fanciful to postulate that he did not consider it and even more
fanciful to postulate that he rejected it to the detriment of the consortium’s
case.
The judge
dealt with retail impact at some length. His judgment included the following
passages:
After the
conclusion of the reopened inquiry the consortium placed before the Secretary
of State material which asserted that:
1. There had
been some years in which expenditure, far from growing, had shrunk.
2. The hard
commitments were at the time of the representations trading and absorbing not £
314m but £ 400 of expenditure.
3. Further
planning permissions for retail development had been granted since the first
inquiry.
4. Since the
first inquiry further experience about the effect of huge shopping developments
such as the Trafford Centre had been gained elsewhere in the country and this
indicated that the draw of such a development was significantly greater than
had previously been supposed.
The receipt
of this material placed the Secretary of State in a position in which he had to
consider what to do next. It is common ground that he was not obliged to reopen
the inquiry although he could not refuse permission on the strength of this new
material without first giving the Manchester Ship Canal Co an opportunity to
ask for the reopening of the inquiry, an opportunity I have no doubt whatever
they would have taken . . .
I have looked
at the additional material with care. Much of it is so general as not to be
capable of any detailed application to the facts of the case without further
exploration. However, it is clear, and must have been clear to the Secretary of
State, that since the first inquiry there had been some substantial further
retail permissions granted which had not been implemented. There was no reason
why that should be regarded as a significant factor the more so since he was
not told what part of these further permissions related to the relevant segment
of the retail trade. So far as the implemented permissions are concerned these
are broadly identical to the hard commitments to which reference had been made
in the first report. Although the amount of trade absorbed by them had,
according to the consortium, amounted to £ 400m rather than the £ 314 envisaged
by the inspector at the time of the first inquiry this, on the projections
adopted at the time of the first inquiry, still left a residual £97m of anticipated
growth available to be spread around existing centres . . .
In my
judgment, the Secretary of State was entitled to say that he had absorbed the
points made on behalf of the consortium but that this does not lead him to
alter his conclusion that the balance of advantage lies in granting planning
permission for the Trafford Centre. Indeed Mr Purchas does not seek to argue
that the only lawful course for the Secretary of State to adopt was to refuse
planning permission. The additional material placed before the Secretary of
State does not seek to analyse the effect of the changes since the first
inquiry on the specific centres likely to be most affected and the Secretary of
State was entitled to take the view that further exploration of this point by
all parties, possibly at yet another inquiry, was not worth the delay and cost.
The Secretary of State was entitled to take the view that exploration of the
relevance of the experience which had been gained elsewhere in the country, at
Meadowhill [sic] and at Merryfield [sic], particularly at a time
of recession, was not worth the delay and cost.
In my
judgment, Mr Purchas’ strongest point so far as this part of the case is
concerned, is that the Secretary of State did not express himself with the
clarity which the law requires of him but dealt with the matter too briefly. In
my judgment, however, the point is not a good one. I return to the question of
reasons at the end of this judgment.
In relation to
the shortage of industrial land, the judge quoted part of para 19 of the
Secretary of State’s decision letter and said:
Those
conclusions are expressed to an adequate degree of clarity and do not betray
any error of law.
As to the
omission of the arena the judge said:
So far as the
arena is concerned, the inspector points out in his second report that it is
unlikely that the arena will now be constructed on the appeal site and that
this reduces the potential benefits of the development. Again, although the
Secretary of State does not in terms say that he accepts these two propositions
it is, in my judgment, fanciful to postulate that he, to the detriment of the
consortium’s case, did not consider the first proposition or that he disagreed
with his inspector’s acceptance of the second.
Finally, in
relation to reasons generally, the judge said:
There can be
nothing wrong in reaching a preliminary view on the material currently before
the person working on a draft at any one time. What is important is that an
open mind is kept to any subsequent material arriving on the decision-maker’s
desk before the decision letter is issued. It is not alleged in the present
case that such an open mind was not kept
. . . In my
judgment the decision letter read as a whole leaves one in no doubt that the
Secretary of State looked at all matters which were before him at the time when
he issued his decision, apprehended that a number of matters had changed since
the first inquiry, perceived that the proposal had a number of disadvantages
but nevertheless took the view that its advantages were such as to outweigh the
disadvantages. That view is not a perverse one as such. The decision letter is
expressed with sufficient clarity to show to the applicants that the Secretary
of State had grappled with the problems to which the implementation of the
planning permission might give rise. In so far as there is any lack of fuller
exposition of the reasoning the applicants have not been substantially
prejudiced thereby.
Conclusion
I entirely
agree with Schiemann J that there is nothing wrong in a decision maker reaching
a preliminary view on the material currently before him. However, if he adopts
this course and before he reaches his final decision there have been changes
either in the relevant policy current at the time of the preliminary decision,
or in the material facts upon which the interim decision was based, the
decision maker is then obliged to consider these changes fairly, to decide
whether they alter his preliminary decision and to explain, at least briefly,
why he has adhered to or altered that decision. Does the Secretary of State’s
final decision letter show that he satisfied these criteria?
The
requirement that a decision maker shall not reach a decision which, on the
material before him, he cannot properly reach and shall have regard in reaching
his decision to all material considerations and the requirement that he shall
give proper, adequate reasons for his decisions are different obligations which
nevertheless interrelate. Thus, in R v Secretary of State for Trade
and Industry, ex parte Lonrho plc [1989] 1 WLR 525 at p540 Lord Keith said:
The only
significance of the absence of reasons is that if all other known facts and
circumstances appear to point overwhelmingly in favour of a different decision,
the decision-maker, who has given no reasons, cannot complain if the court
draws the inference that he had no rational reason for his decision.
I add that, in
my judgment, the same principle applies to a failure to
not material — the inference may be that the decision maker has not fully
understood the materiality of the matter to the decision.
In relation to
the increase in traffic on the M63 after 1997, I have already said that I agree
with Schiemann J that the Secretary of State did have regard to the effect of
this increased traffic. What he did not do was to say that, having taken this
disadvantage of the proposed development into account, he concluded that it was
outweighed by the advantages and explain briefly why he reached this
conclusion. Nevertheless, on this issue I agree with Schiemann J that it is
possible to infer from the two decision letters and from some parts of the
inspector’s second report, that this was his approach. If this were the sole
matter in issue, I should consider his exposition of his reasoning adequate,
though certainly not better than adequate.
As I have
already said, in his second report the inspector was not concerned with the
other issues raised in this appeal, save in the most limited way. The Secretary
of State was therefore not able to refer to the inspector’s views on these
issues when writing his final decision letter. In this respect the facts of
this case differ from those in Save Britain’s Heritage, where the
inspector’s reasoning for recommending a grant of planning permission was clear
and the issue was whether the Secretary of State agreed with and adopted that
reasoning in reaching the same conclusion.
In paras 4 and
5 of his decision letter the Secretary of State referred to section 54A of the
Act, the new PPG1 and the draft PPG6. His conclusion that he did not consider
he should refuse planning permission on the grounds of prematurity does not, in
my view, deal adequately with the argument advanced by the consortium, namely
that the changes in policy had tilted the balance against any permission for a
subregional shopping centre to the west of Manchester. Nevertheless, I do not
dissent from the judge’s comment that in relation to development in an UDA,
there may well not be a presumption against development.
How then did
the Secretary of State deal with the new, or altered, factual material placed
before him by the consortium?
In relation to
retail expenditure and the impact of the Trafford Centre on the shopping
centres of the towns within the conurbation, it is true that at the first
inquiry the inspector had reservations about the value of estimating growth in
available retain expenditure. Nevertheless he made his own best estimate and it
was clearly a matter of some significance in his decision: see his paras
21.3.14 and 21.3.16. The figures placed before him by the consortium relating
to developments completed and planning permissions granted were factual — there
was no suggestion that they were inaccurate. Their translation into likely
adoption of retail expenditure depended on assumptions. Nevertheless, the
material generally did appear to show that the inspector’s original
conclusions, in the paragraphs to which I have referred, were no longer
justified. I therefore do not understand how the Secretary of State could say
that the material ‘does not provide sufficient reason to show that (the
inspector’s original assessment) is no longer valid’.
I think Mr
Purchas is correct in submitting that, in the part of his
£ 400m of trade to the ‘hard commitments’ in 1993, when this was the figure
suggested as attributable to the development already carried out, to which the
planning permissions granted, within the meaning of ‘hard commitments’, would
clearly add substantially.
The judge said
that the Secretary of State was entitled to take the view that further
exploration of this point and of the material relating to the effect of the
opening of the Meadowhill and Merryfield centres on nearby town centres (to
which the Secretary of State did not refer at all) ‘was not worth the delay and
cost’. But the Secretary of State did not say that — it is the judge’s
reasoning, not his.
In my
judgment, Mr Purchas is correct in his submission that in relation to this
important issue, the Secretary of State has given no proper reason for his
conclusion, nor for his failure to make any reference to the evidence as to the
effect of other subregional centres. Thus, in the absence of reasons, we are
entitled to infer that he had no valid reasons — that either he failed to have
regard to this very material consideration or that he reached his decision on
the issue without any good reason, ie perversely.
To this, which
I regard as the most important point made by Mr Purchas, his other criticisms
of the reasoning in the decision letter add. The view expressed in para 16 of
the letter relating to urban regeneration is not explained, unless it is intended
to be explained by para 17, the passage dealing with retail expenditure, on
which I have already commented. It is unclear whether para 18 was intended to
deal with the whole subject of urban regeneration or the particular subject of
CO2 emissions. As to the use of the site for high technology
industry, the inspector made it clear that this would have disadvantages.
Nevertheless, the consortium argued that the shortage of land for such
industrial development was a new feature, which counterbalanced the disadvantages.
To say, as the Secretary of State did, that he did not accept that weight
‘should be attached’ to the suggestion that the site should be used for high
technology industry apparently ignores the point about the shortage of land, or
fails to explain why the point is not material. As to the omission of the arena
from the proposals in 1992 the Secretary of State made no specific reference.
In relation to
two of these issues, Schiemann J in the passages I have quoted said that it is
‘fanciful to postulate’ that the Secretary of State did not take these matters
into account, nor give them appropriate weight. With all respect to a judge
with great experience in this field, I do not think this is a proper approach.
A decision letter must, in order to give proper and adequate reasons, refer to
each material consideration and explain why, because or despite it the eventual
decision is reached. At the least, if there is no express reference to some
matter, it must be possible for the reader to infer that the words used implied
such a reference.
The learned
judge’s phraseology can only lead to the conclusion that the decision letter
made no reference to these matters, expressly or impliedly. If it did not, what
the Secretary of State might have said or intended to say is guesswork.
In summary,
the case advanced by Mr Purchas is that in many important respects the facts
and other material submitted to the Secretary of State by the consortium at the
second inquiry and in their written representations appeared to show — in
lawyers’ terms, at least established a prima facie case — that between
1988 and 1992 the advantages of the Trafford Centre had decreased and the
disadvantages had increased. The failure of the Secretary of State to give
adequate reasons for his decision to grant planning permission despite this
shift in the balance leads, he submits, to the conclusion that in some respects
the Secretary of State failed to have regard to material considerations and in
relation to retail impact reached a decision to which he could not properly
come on the material before him. Alternatively, the Secretary of State failed
in the respects to which I have referred to give adequate or proper reasons for
his decision and the local authorities comprising the consortium are prejudiced
because, to use Lord Bridge’s words, ‘the reasons for the decision are so
inadequately or obscurely expressed as to raise a substantial doubt whether the
decision was taken within the powers of the Act’.
In my
judgment, this submission by Mr Purchas is correct. It has been necessary to
canvass in detail in this judgment the various respects in which he criticises
the Secretary of State’s decision-making process. If there had been a failure
to give adequate reasons in relation to only one or two of those areas, in the
context of a development of this size, that failure might not have invalidated
the decision as a whole. But, in my view, the range of the issues on which, as
I have sought to say, the reasoning in the decision letter is inadequate or
unclear is such that I conclude that either the Secretary of State did not
reach his decision within the powers of the Act, or that the interests of the
member authorities of the consortium have been substantially prejudiced by his
failure to give proper and adequate reasons.
I would
therefore allow this appeal and quash the Secretary of State’s decision.
HOFFMANN
LJ: I agree.
HOBHOUSE
LJ: I also agree.
GLIDEWELL
LJ: For the reasons set out in the judgments that
have been handed down this appeal is allowed and the Secretary of State’s
decision is quashed.
Appeal
allowed.
