Retail development — Vitality and viability of town centres — Applications for food stores, housing and retail warehouse and park — Whether adverse impact — Whether demonstrable harm — Whether material considerations sufficient to justify retail elements in planning proposals contrary to development plan — Inspector and Secretary of State refusing planning permission — Refusal upheld in High Court
Two applications were made for planning permission: one related to retail developments including a food store with shops, filling stations and car parking over some 22ha of land; the second related to retail development, including a food store, development of 17ha of land for housing, but including a retail warehouse and park. The land was at Lower Road, Aylesbury, outside the town centre. Broadly, the applications were dealt with together. The inspector found that the proposals did not accord with the fundamental aim of national, regional, strategic and local policies in that they would not enhance or bolster the town centre: see, inter alia, Buckinghamshire county structure plan, Aylesbury local plan, PPG1 and PPG13. In particular, the structure plan stated that the local planning authorities would seek to “maintain and enhance the role of [their] centres as the main foci for shopping activity” including Aylesbury town centre. However, the inspector also stated that the proposal for housing would meet basic aims and in other respects the planned development was not against environmental amenity; nor would it have had an adverse impact on the town centre. In conclusion however, he stated that although the competing considerations were finely balanced, the objection of the proposals based on the development plan and regional and national guidance was to be given greater weight.
The Secretary of State agreed that there were no material considerations sufficient to justify the retail elements of either scheme contrary to the development plan. The applicant contended that the fact that development, according to the inspector would not enhance or bolster the town centre, did not support a conclusion that demonstrable harm had been shown. The respondent contended that demonstrable harm was a policy and not a legal concept that it had to be a matter of fact or degree as well as planning judgment as to what constituted demonstrable harm.
Held The applications were refused.
1. The court was wholly unpersuaded that the inspector or the Secretary of State misdirected themselves in the interpretation of demonstrable harm: see, inter alia, St Albans District Council v Secretary of State for the Environment [1990] 1 PLR 88 and R v Canterbury City Council, ex parte Springimage [1993] 3 PLR 58.
2. The court could not accept the submission that there was an important distinction between the wording of the policy and underlying aims and objectives, which the policies were designed to prevent.
3. What the inspector and the Secretary of State had to do, and had done, was to look at all the material in the local plan, the county plan, section 54A of the Town and Country Planning Act 1990 and the various policy guidance and decide whether as far as Aylesbury was concerned out of town development was consistent or otherwise with the development plan and, if it were not, to do a balancing exercise in respect of the other material.
4. Their conclusion that there were no material considerations sufficient to justify the retail elements of either scheme contrary to the development plan was not open to challenge before the court.
William Hicks QC and Stephen Morgan (instructed by Denton Hall) appeared for the applicants; David Holgate (instructed by the Treasury Solicitor) appeared for the Secretary of State; the second respondents, Aylesbury Vale District Council, did not appear and were not represented.
