Application for planning permission for redevelopment of out of centre location – Council granting permission – Redevelopment to include multi-screen cinema – Operator of nearby cinema challenging council’s decision – Whether council properly applying policy tests of need and sequential approach – Application dismissed
In December 1999 the respondent council resolved to grant planning permission to Turnstone Estates Ltd for the redevelopment of the Cattle Market site Cambridge, subject to the signing of an agreement under section 106 of the Town and Country Planning Act 1990. Such an agreement was approved by the council in February 2000. The approved redevelopment involved a mixed-use development to provide leisure facilities, a multi-storey car park, a hotel, housing, auction rooms and some retail use. The leisure facilities were to include a multi-screen cinema with 1,700 seats and seven screens, a bowling alley, a health and fitness centre and some restaurants.
The applicant, which owned and operated an eight-screen multiplex cinema in the Grafton Centre in Cambridge town centre, sought judicial review of the council’s decision to grant planning permission, in particular in relation to the multi-screen cinema. It was submitted that the council, in its resolution of December 1999, had failed properly to apply the required policy tests of need and the sequential approach.The relevant policy was contained firstly in a Parliamentary Answer given on 11 February 1999 by the Planning Minister and, secondly, in PPG 6.
Held: The application was dismissed.
1. Against the background of high attendances and the ability to retain attendance per seat above the national average, the director of planning had been in favour of a further choice of venue similar in size to the applicant’s cinema. He had concluded that there was a need in the city for an additional cinema facility of the size proposed at the site. It had been open to the council to accept that conclusion, which was not only a conclusion that there was a need for a further 1,700 cinema seats, but also that those seats needed to be provided at one venue in order to provide a choice of venues of similar size.
2. The general thrust of the relevant policy statements was to seek to accommodate leisure and retail developments within the town centre if it was possible to do so. Flexibility and disaggregation were tools to help to achieve that objective. However, it did not follow that it was necessary or appropriate to break down or disaggregate a facility into smaller parts when there was need for a facility of the size proposed. In the instant case, the director of planning had advised the council that there was a need for a multiplex cinema of the size proposed. In those circumstances, the sequential approach required a thorough assessment of town-centre and edge-of-centre sites in order to ascertain whether they could accommodate a development of that size. The council had carried that exercise out in a thorough and comprehensive manner and there was no evidence that it had misapplied or failed to understand the relevant policy guidance.
3. The draft section 106 agreement considered by the member of the planning subcommittee in February 2000 was not as effective as might have been expected from the advice given to them by the director of planning at a previous meeting. Nevertheless, it was an agreement lawfully reached between the developer and the respondents which was also signed by the county council as highway authority. It was unfortunate that the brief report by the planning subcommittee in February 2000 did not explain to members the way in which the agreement would work in practice. However, they had not been misled about the effect of the agreement. Accordingly, there was no error of law involved in the council’s decision to approve the agreement.
William Hicks QC and Robert White (instructed by Berwin Leighton) appeared for the applicant. Vernon Pugh QC and Harriet Murray (instructed by Cambridge City Council) appeared for the respondent. Roy Martin (instructed by Hewitson Becke & Shaw, of Northampton) appeared for Turnstone Estates Ltd, as an interested party.
Thomas Elliott, barrister
