Development — Proposal to extend floorspace — Refusal of permission — Adequacy of reasons — Overtrading — Quantitative and qualitative need — Failure to accept inspector’s recommendations — Whether secretary of state giving adequate reasons for decision — Appeal allowed
The respondent applied for planning permission to extend an existing out-of-town retail store centre by introducing an additional 1367.5m2 floorspace. The extension was designed to improve facilities, to decrease overtrading within the store and to increase the range of convenience goods available to customers.
The council considered the planning application in the light of a retail assessment provided in support of the application, a critique of that assessment and further retail evidence. In the absence of any retail objections, they decided that a need existed for the development.
The appellant secretary of state directed that the planning application should be referred to him, rather than the local planning authority pursuant to section 77 of the Town and Country Planning Act 1990. The application was considered in the light of PPG 6 and with regard to parliamentary guidance on qualitative and quantitative need. The inspector had found a substantive quantitative need for the proposed development. Moreover, qualitative considerations further strengthened the case for the proposed development on grounds of need.
The appellant concluded that planning permission should not be granted on the single ground that he was not satisfied that a quantitative need that is, a demonstrated surplus of spending potential in the store’s catchment area had been established and that the proposed development would not injure existing retail provision in the town centre or on the edge of town. The respondent applied, under section 288 of the 1990 Act, to quash that decision. The High Court held that the appellant had erred in failing to regard the overtrading as a possible indicator of quantitative need and that his decision letter had lacked proper reasoning. The decision should therefore be quashed: [2004] EWHC 1726 (Admin); [2004] PLSCS 165. The appellant secretary of state appealed.
Held: The appeal was allowed.
In all the circumstances, the decision letter was not deficient and the appellant had not erred in law by excluding overtrading as an indicator of quantitative need. Subject to well-established legal constraints, it was for the planning inspector,and not the appellant, to decide what evidence to accept. The appellant’s power had lain in deciding what rationally to make of the inspector’s findings and advice and then to explain his decision intelligibly.
Moreover, government ministers had both the power and the obligation to apply their policy on a case-by-case basis, balancing the countervailing principles that a policy was not a rule, but, rather, a guide and that like cases ought to be treated alike.
It was not the court’s task to rescue executive government by reading into its decisions something more coherent than was actually there. However, neither was it for the court to strike down a decision that was intelligible and free from any errors that would prejudice the respondent.
The appellant had rejected the respondent’s evidence because, although it showed an established growth, over the intervention period, in convenience-spending within the catchment area, that estimate was not matched with up-to-date evidence of local spending power. Accordingly, the appellant was not satisfied that there was unmet demand for increased floorspace in the area.
Natalie Lieven (instructed by the Treasury Solicitor) appeared for the appellant; Timothy Corner QC and Lisa Busch (instructed by Denton Wilde Sapte) appeared for the respondent; the local planning authority did not appear and were not represented.
Eileen O’Grady, barrister
