Town and country planning – Presumption – National Planning Policy Framework – Defendant local authority granting planning permission for mixed-use development – Adjacent site owner applying for judicial review of decision to grant permission – Whether para 90 of National Planning Policy Framework creating presumption in favour of refusing out-of-town developments likely to have significant adverse impact on town centre vitality and viability – Application dismissed
The interested party applied for planning permission for the construction of an out-of-town mixed-use retail-led development on a 5.9 ha site at the former Benyon Centre, Middleton Ring road, Leeds (the site).
The claimant was the owner and operator of a large retail store on the site adjacent to and immediately to the south of the site. The Middleton District Centre, as defined in Leeds Unitary Development Plan, lay to the immediate west of the claimant’s store and both the Asda store and the site of the proposed development lay outside that centre. The site lay to the east of the store and all three areas lay around the arms of the Middleton ring road roundabout and was within the edge of centre as defined in the National Planning Policy Framework (NPPF).
Paragraph 89 of the NPPF (2019 version) stated that when assessing applications for retail and leisure development outside town centres, which were not in accordance with an up to date plan, local planning authorities should require an impact assessment if the development was over a proportionate, locally set floorspace threshold. That should include assessment of the impact of the proposal on town centre vitality and viability, including local consumer choice and trade in the town centre and the wider retail catchment. Paragraph 90 stated that where an application failed to satisfy the sequential test or was likely to have significant adverse impact on one or more of the considerations in para 89, it should be refused.
The claimant applied for judicial review of the decision to grant permission contending that the defendant had misapplied para 90 of the NPPF and failed to give adequate reasons for its decision. In any event the decision was manifestly unreasonable.
Held: The application was dismissed.
(1) This case concerned the interpretation and not the application of policy. At the heart of the claimant’s case was a submission, in reliance on the decision in Zurich Assurance Ltd v North Lincolnshire Council [2012] EWHC 3708, that the defendant misinterpreted policy in para 90 by not treating it as a presumption in favour of refusing permission for a development that was likely to have a significant adverse impact on a town centre. The claimant accepted that planning committee members were properly, and fully advised, as to the wording of para 90 and it could not be argued that they did not take into account the policy, and were not fully aware of it. Furthermore, pursuant to section 38(6) of the Planning and Compulsory Purchase Act 2004, it was open to members to depart from the NPPF, and any breach of the NPPF could be outweighed by other factors, including those that the members set out in their reasons. The issue was solely whether they were misdirected and misunderstood the policy because they believed the weight to be attached to the material considerations was a matter for them and they were simply applying an unweighted balance, rather than some form of tilted balance.
(2) The NPPF had to be read as a whole, and in a way that made sense of the document as a whole. In para 11-14 of the NPPF the secretary of state used the specific term “presumption” in relation to sustainable development, and set out a structure by which that presumption was to be applied, and in particular circumstances outweighed. That included footnote 6 which explained how the presumption worked in particular types of case (not including those within para 90). Paragraphs 11-14 created a “tilted balance” which gave effect to the presumption: Secretary of State for Communities and Local Government v Hopkins Homes Ltd [2017] UKSC 37 [2017] PLSCS 27 followed.
By contrast, in para 90 the word “presumption” was not used, nor was there any suggestion of a tilted balance; or any attempt to tell decision makers that they should put more weight on one factor rather than another. Paragraph 90 was not one of the paragraphs in the NPPF which indicated, as a matter of policy, that particular weight should be given to particular matters. Thus, the claimant’s argument could not be correct on a textual analysis of the NPPF as a whole. Moreover, its approach would create a legal minefield for decision-makers, with potentially different presumptions pulling in different directions. It was not entirely clear whether the secretary of state could lawfully mandate a decision maker to accord a particular factor particular weight, given the words of section 38(6) of the 2004 Act that it was always a matter for the decision maker. However, it was clear that the secretary of state had not tried to do so in para 90 and the committee members had not misinterpreted that paragraph: Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314; [2017] PLSCS 174 followed.
(3) It was clear from a full reading of the history of the matter that committee members were fully aware of the significant adverse effect on the town centre, and did not dispute that finding. When they referred to the application scheme having the potential to boost the centre, they could only have meant boost after the significant adverse effect. To find otherwise would be to take the members’ reasons completely out of context. The conclusion that para 90 did not create a presumption in favour of refusal was not inconsistent with Zurich Assurance where the court used the language of “presumption” in relation to a provision which was in identical terms to para 90. However, it was important to note that the word “presumption” had been advanced by counsel and there was no consideration of the consequences of the policy being described as a presumption, or how that would work in the wider policy context; and the court seemed to accept that the decision-maker would continue to undertake a balancing exercise in which the ascription of weight was a matter for him: Zurich Assurance considered.
Paul Tucker QC and Sarah Reid (instructed by Addleshaw Goddard LLP) appeared for the claimant; Stephanie Hall (instructed by Leeds City Council Legal Services) appeared for the defendant; Rupert Warren QC (instructed by Birketts LLP) appeared for the interested party.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Asda Stores Ltd) v Leeds City Council
