Mr Justice Fraser
Introduction
- This is a planning statutory review, namely an application to the High Court made under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") by the Claimant in respect of two decisions of an Inspector appointed by the Welsh Ministers, both of those decisions also being on appeal from decisions by the Interested Party. The Claimant seeks to quash those decisions. In the two decisions made by the Inspector, she dismissed the Claimant's two appeals, referred to as Appeal A and Appeal B, brought under section 78 of the 1990 Act from decisions of Neath Port Talbot County Borough Council, the Interested Party ("the Council"). Those two appeals were in relation to the Council's following decisions:
(A) the refusal of full planning permission for a roadside service area, comprising a petrol filling station and kiosk, 'drive-thru' coffee shop, car parking, access, landscape and associated works (this was referred to in the Inspector's decision as "Appeal A"); and
(B) the refusal of outline planning permission for a pub/restaurant, access, car parking and associated works on the same site ("Appeal B").
- The appeals were heard together on 8 February 2017, and dismissed in a single "Appeal Decision" which is dated 7 April 2017. Nothing turns on the fact that both appeals were heard together, and indeed this was agreed by the parties in the appeal before the Inspector; she made clear in her Appeal Decision that they would be determined separately and there is no ground of challenge in this court disputing the correctness of that approach. Both appeals relate to land at Glynneath Business Park, adjacent to the A465, Glynneath ("the Site"). The Site is 45m beyond the settlement limits of Glynneath.
- By way of further background to those section 78 appeals, and as the Appeal Decision itself makes clear, at the time of her Appeal Decision there was an extant planning permission for a development described as "a McDonald's Restaurant, Little Chef Restaurant, Esso Petrol Service Station and associated road works" on the site to which Appeal A related. This was referred to as "the 1999 permission". This was a full permission and the McDonald's Restaurant had been built and was operating. There was a dispute between the parties as to whether that latter element of construction pursuant to the permission meant that the remainder of the works under the 1999 permission could still be performed, or whether the permission had lapsed due to non-compliance with conditions precedent, but that is not relevant for the purposes of this judgment. However, this background does help explain that the Site, as at the date of the proceedings before the Inspector, already had certain facilities for motorists in that location.
- Three main issues were identified by the Inspector in paragraph 7 of her Appeal Decision. These were in summary as follows:
1. whether the proposed developments complied with local and national policy designed to restrict new development outside defined settlement limits;
2. whether the proposed developments complied with local and national policy related to new retail development and the effect of the proposals on the vitality and viability of the Glynneath district centre; and
3. if the proposed development failed to accord with local and national policy as set out in the preceding two issues which she referred to as "the first two main issues" whether there were any material considerations that would outweigh any harm identified in relation to the other main issues.
- The Appeal Decision was unfavourable to the Claimant and this challenge relies upon four separate grounds. They are said to be errors of law by the Inspector, and the Claimant seeks to have the Appeal Decision quashed as a consequence of them. It is common ground between the parties that the Site is outside the settlement limits. The grounds of challenge are as follows:
1. The Inspector came to the irrational conclusion that another site in the area, which is referred to as "the Park Avenue site", was sequentially preferable in retail terms even though the Claimant argues that it would not (and could not) be serving the same roadside service function as the facilities at the Site for which permission was being sought. Alternatively, the Claimant contends that the Inspector failed to consider the specialist function of the proposals before concluding that the Park Avenue site was sequentially preferable.
2. The Inspector was procedurally unfair in coming to her own conclusion that the Park Avenue site was sequentially preferable when the Council had accepted that it was not, and she gave no indication before issuing her decision that she was inclined to come to this view herself.
3. The Inspector misdirected herself by concluding that the scheme "conflicted" with the retail policies in the Local Development Plan ("the LDP") when those policies were silent about retail proposals beyond the settlement limits. Further and/or alternatively, the Inspector failed to consider that national planning policy states explicitly that out-of-centre retail proposals, beyond settlement limits, can be acceptable.
4. The Inspector's conclusion that the scheme did not amount to "infrastructure" for the purpose of criterion 9 of policy SC1 of the LDP was based on a misdirection as she only considered part of the definition of "infrastructure" in the LDP Glossary and overlooked the reference to "roads" in that definition. This ground was refined, expanded or amended (depending upon one's view of it) in the Claimant's skeleton argument for the hearing. This was because an argument was mounted in that skeleton that the scheme was "associated with infrastructure", rather than being "infrastructure", and this also fell within the wording of criterion 9. I gave permission during the hearing for what was essentially a new ground, ancillary to the existing ground 4 (which dealt solely with "infrastructure"). I will refer to this as ground 4A and further explanation is given in that section of this judgment below. It is additional to ground 4. The reason that I gave permission for this during the hearing was it seemed to me that it would be unsatisfactory to ignore an argument based upon the wording of the same criterion, criterion 9, and consider the Claimant's approach on a narrow part of that criterion ignoring the wider argument. However, the argument does face the difficulty that it was not argued before the Inspector, and I deal with that below also.
- These proceedings were issued in time on 18 May 2017. Permission for them was refused on the papers by Lewis J, who held that the challenge was not properly arguable and gave detailed reasons in respect thereof in his order of 15 June 2017. The Claimant renewed its application for permission and after an oral hearing, permission was granted on all four grounds (but not on ground 4A, which did not at that stage exist) by HHJ Jarman QC sitting as a Judge of the High Court in an order dated 28 July 2017. Although the Welsh Ministers do not seek to go behind that grant of permission at the oral renewal, they do rely upon the analysis of Lewis J as justifying dismissal of the application under section 288 of the 1990 Act. I will deal with the general approach of the Court to decisions of Inspectors and how they should be considered first, and then turn to deal with the separate grounds. Due to the close relationship between grounds 4 and 4A, which both deal with the wording of the relevant criteria within SC1, I shall deal with those two grounds together.
Generally
- Planning inspectors are specialists in planning and not all of them are lawyers, although this Inspector does have a legal qualification and is a non-practising solicitor. However, even though she is legally qualified I consider that her Decision should be approached in the same way as other, non-legally qualified Inspectors; they are decisions on matters of planning, which includes consideration of policy as well as legal principle. They are not legal opinions or judgments of a court, and they should not be analysed or studied as though they were. This is well-established. In South Somerset DC v Secretary of State for the Environment [1993] 1 PLR 80 Hoffman LJ (as he then was) said:
"The inspector is not writing an examination paper
One must look at what the inspector thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood a relevant policy
"
- Sir Thomas Bingham MR (as he then was) in Clarke Homes Ltd v SSE (1993) 66 P & CR 263 made the following statement, which is expressed in different terms but is to the same end:
"
the central issue
is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication".
A planning Decision should not be minutely studied as though it were a statute or a legal precedent. This would be the wrong approach.
- The Welsh Ministers rely upon the well-known summary of the principles applicable to a challenge under section 288 of the 1990 Act summarised by Lindblom J (as he then was) in R (Bloor Homes) v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin), paragraph 19. The relevant passages can be quoted here for convenience:
"(1) Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to "rehearse every argument relating to each matter in every paragraph" (see the judgment of Forbes J. in Seddon Properties v Secretary of State for the Environment (1981) 42 P. & C.R. 26 , at p.28).
(2) The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the "principal important controversial issues". An inspector's reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No. 2) [2004] 1 WLR 1953 , at p.1964B-G).
(3) The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, "provided that it does not lapse into Wednesbury irrationality" to give material considerations "whatever weight [it] thinks fit or no weight at all" (see the speech of Lord Hoffmann in Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759, at p.780F-H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector's decision (see the judgment of Sullivan J., as he then was, in Newsmith v Secretary of State for [2001] EWHC Admin 74 , at paragraph 6).
(4) Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration (see the judgment of Lord Reed in Tesco Stores v Dundee City Council [2012] PTSR 983, at paragraphs 17 to 22).
(5) When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question (see the judgment of Hoffmann L.J., as he then was, South Somerset District Council v The Secretary of State for the Environment (1993) 66 P. & C.R. 80, at p.83E-H).
(6) Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored (see, for example, the judgment of Lang J. in Sea Land Power & Energy Limited v Secretary of State for Communities and Local Government [2012] EWHC 1419 (QB), at paragraph 58)"
- A phrase that was used in argument on this statutory planning review before me was planning judgment. A Court on an application of this nature will not substitute its own views on such matters for those of the Inspector, nor will it pore over individual sentences and scrutinise parts of the Decision out of context. One of the cases cited by Lindblom J in Bloor Homes was South Bucks DC v Porter (No 2) [2004] 1 WLR 1953. In that case, Lord Brown had expressly approved the dicta both in South Somerset and Clarke Homes quoted in [7] and [8] above. It is convenient to set out the observations of Lord Brown in South Bucks DC as follows:
"36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."
- Although this application is not strictly what could be described as a "reasons challenge", namely one based on a failure to give adequate reasons, the above approach to a decision is applicable and in my judgment must be borne firmly in mind when considering the Decision in this case. This is because it is necessary first to understand what the Inspector did decide, before it can sensibly be said that she did (or did not) come to irrational conclusions, or act in breach of procedural fairness.
- Planning judgement, or rather an Inspector's exercise of her planning judgement, will usually, if not always (and did in this case) require consideration of planning policy, both national and local. It must be borne in mind that such matters are for the Inspector, not for the court. As Holgate J stated at [22] in Trustees of the Barker Mill Estates v Test Valley Borough Council [2016] EWHC 3028 (Admin):
"Moreover, many policies are framed in language the application of which to a given set of facts requires the exercise of judgment. Matters of that kind fall within the jurisdiction of planning authorities as decision-makers and their exercise of judgment can only be challenged in the Courts if it is irrational or perverse (paragraph 19). Therefore, in a case where the decision-maker has had regard to a policy which he was required to take into account, it is essential for practitioners to keep in mind the distinction between interpretation and application of policy and the very different functions of the court in each area."
The "Development Plan" for Wales, is defined in section 38(4) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act"). Pursuant to section 38(6) of the 2004 Act, decisions about whether to grant planning permission are to be made "in accordance with the plan unless material considerations indicate otherwise". It is well established that the legal meaning of policies that are initiated under the plan is a matter for the court. However, the application of those policies to particular circumstances or particular applications is a matter of the Inspector's judgement. As Lindblom J stated in Bloor Homes:
"the proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context."
- Before turning to the particular elements of the policies that are under consideration in this case, it must also be borne in mind that policies may "pull in different directions", to use the phrase of Sullivan J (as he then was) in R v Rochdale MBC, ex p Milne [2001] Env LR 22, himself quoting Lord Clyde. A different way of expressing the same principle is that the same facts may permit of more than one answer. There may be no clear cut answer to the question "is this proposal in accordance with the plan?". The weight to be given to competing characteristics and requirements is, in my judgment, a classic example of the exercise of planning judgement. This court is therefore not involved in substituting its own views for those of the Inspector, or attempting to exercise its own planning judgement to see if its answer accords with that of the Inspector.
- Finally, and this should be self-evident, this is a decision of the Planning Court in Wales, sitting in Wales, hearing a challenge to a Decision by an Inspector in Wales concerned with a Site in Wales, the Decision being defended by the Welsh Ministers. There are differences between the policies that apply to Wales, and those in England and/or Scotland. It is the former that must be applied. With those principles therefore very much in mind, I turn to the plan and the policies, before considering the Decision itself under challenge and the Individual Grounds.
The Plan and the relevant Policies
- National planning policy for Wales is contained in a document entitled "Planning Policy Wales" (9th edition November 2016) ("PPW"). Chapter 10 of PPW sets out what is called a sequential approach to Retail and Commercial Development. Relevant paragraphs of PPW are as follows. Paragraph 10.1.4 states "The Welsh Government adopts the 'town centres first' principle whereby consideration should always be given in the first instance to locating new retail and commercial development within an existing centre". It is important to remember that as a result of this being set down in PPW, this principle underpins retail policy in Wales. There are different justifications for this approach and in a sense, it does not matter what they are, given the clear statement in PPW of what is national policy but in broad terms, by doing so, existing town centres remain the focus of retail activity and spending. The spectre of what are sometimes called "hollowed out" towns is avoided, a term used to describe a situation where substantially all retail activity has left a town centre, with the consequential risk of town centre decline. The Welsh Government has decided to adopt its "town centres first" policy to avoid this.
- Under the heading "Retail and commercial strategies and support for existing centres" paragraph 10.2.1 of PPW states: "Local planning authorities should develop through their development plans a clear strategy and policies for retail development which seek to achieve vibrant, attractive and viable retail and commercial centres. They should set out a framework for the future of retail and commercial centres in their area which promotes a successful retailing sector supporting existing communities...".
- Paragraph 10.2.2 continues:
"If a need (see 10.2.9 10.2.12) for retail development has been established, the strategy will need to consider the most appropriate form and scale of provision which best matches the retail needs of the community. Planning applications, including out-of-centre developments, which do not accord with this approach should demonstrate why they have departed from it. Out-of-centre developments refer to developments outside designated retail and commercial centres and beyond edge-of-centre developments; they can be located both within and outside settlement limits."
- Paragraph 10.2.9 states, under the heading "Tests of retail need":
"In deciding whether to identify sites for comparison, convenience or other forms of retail uses in development plans or approving planning applications for such uses, local planning authorities should in the first instance consider whether there is a need for additional retail provision. Such need may be quantitative so as to address a quantifiable unmet demand for the provision concerned or qualitative. Qualitative considerations refer to issues such as the standard of existing retail provision in terms of the latest formats, range and mix of goods, distribution of retail provision and accessibility. Precedence should be given to establishing quantitative need before qualitative need is considered for both convenience and comparison floorspace, particularly as a basis for development plan allocations."
- Paragraph 10.2.12 states:
"If there is no need for further development for retail and commercial centre uses, there will be no need to identify additional sites. There is no requirement to demonstrate the need for developments within defined retail and commercial centre boundaries. This approach reinforces the role of centres as the best location for most retail/leisure/commercial activities. It is not the role of the planning system to restrict competition between retailers within centres."
(emphasis added)
- Paragraphs 10.2.13-10.2.16 PPW sets out a sequential approach to be applied by planning authorities when selecting new sites for development plans and in determining planning applications. Paragraph 10.2.13 makes it clear that this must be applied both when making site allocations in the development plan and when determining individual planning applications. Paragraph 10.2.14 states:
"Adopting a sequential approach requires the application of a sequential test whereby first preference should be for a site allocation or development proposal located in a retail and commercial centre defined in the development plan hierarchy of centres. The proposed use (see 10.1.4 above) is likely to determine what type of centre (i.e. higher or lower order centre) is most appropriate as a starting point for this process.
. If a suitable site or building is not available within a retail and commercial centre or centres, then consideration should be given to edge of centre sites and if no such sites are suitable or available, only then should out-of-centre sites in locations that are accessible by a choice of travel modes be considered."
- Paragraph 10.2.15 states that proposals which arise after the development plan has been adopted "should be determined in accordance with the criteria based policies in the development plan or in relation to other material considerations." Paragraph 10.2.16 also states the following:
"Some types of retailing, such as stores selling bulky goods and requiring large showrooms, may not be able to find suitable sites or buildings within existing retail and commercial centres. Where this is the case such stores should in the first instance be located on the edge of retail and commercial centres, where specific sites are defined in the development plan for such uses. Where such sites are not available or suitable, other sites at the edge of retail and commercial centres, followed by out-of-centre locations may be considered, subject to application of the needs and impact tests. Edge-of-centre or out-of-centre sites should be accessible by a choice of public and private modes of travel. New out-of-centre retail developments or extensions to existing out-of-centre developments should not be of a scale, type or location likely to undermine the vitality, attractiveness and viability of those retail and commercial centres that would otherwise serve the community well, and should not be allowed if they would be likely to put development plan retail strategy at risk."
(Emphasis added)
- It is therefore clear, at the risk of over-simplifying the process, that a crucial step in the process is the identification of need. It is a relevant consideration that the development plan retail strategy is not to be put at risk.
- The next relevant element in the planning hierarchy is the Local Development Plan, the full title of which is the Neath Port Talbot County Borough Council Local Development Plan 2011-2026 ("the LDP"). In particular in this case Policy SC1 of the LDP dealing with "Settlement Limits" is highly relevant. This is the policy relevant to Grounds 4 and 4A in particular. Policy SC1 at 3.0.12 states, in clear and unambiguous terms, the following:
"Development within settlement limits that is proportionate in scale and form to the role and function of the settlement as set out in the Settlement Hierarchy will be acceptable in principle.
Outside settlement limits, development will only be permitted under the following circumstances:
(1 8 do not apply)
9. It is associated with the provision of public utilities, infrastructure and waste management facilities that cannot reasonably be located elsewhere;"
(emphasis added)
There are further points at 10 12 but, similarly to those at 1 to 9, these do not apply. The only one that arguably could be said to apply is that at criterion 9.
- 3.0.16 states "Whether specific development proposals are appropriate or suitable outside settlement limits will be assessed with reference to the relevant topic policies within this Plan and national policy".
In my judgment and again, this is most clear proposals will only comply with the policy if any of the items listed at points 1 to 12 are met. That is clear from the words "will only be permitted under the following circumstances".
- There are then a number of policies under the LDP. The relevant ones for the purposes of this challenge are retail policies R1-R3. These are what are called "Topic Based Policies". Policy R1 Retail Allocations deals, as the name suggests, with site allocations for retail development. This includes different locations such as Port Talbot Town Centre but also, at R1/4, Park Avenue at Glynneath. The text at 5.2.42 makes it clear that this is a mixed-use development, and states that "the retail element [of a modest new size foodstore to serve the local catchment] will be expected to be as close as possible to the existing district centre which would enable linked trips." This is clearly to support and reinforce "the role of centres as the best location for most retail/leisure/commercial activities", as set out in Chapter 10 of PPW.
- Policy R3 is entitled "Out of Centre Retail Proposals". It states:
"Proposals for new retail development or additional retail floorspace within settlement limits but outside the defined retail centres or retail allocations will only be permitted where:
1. It is demonstrated that there is a need for the development; and [other requirements are listed at points 2 to 4, and at point 5 for the Coastal Corridor Strategy and point 6 for the Valleys Strategy Area, neither of which apply here]".
Paragraph 5.2.49 of the explanatory text states "Retail centres are defined as the identified town, district and local centres, not including any existing retail park. Proposals for retail development outside of the defined retail centres will be strictly controlled in accordance with national policy, in order to ensure that the retail centres are supported and enhanced as far as possible."
(emphasis added)
- It should be noted, and Mr Buley for the Welsh Ministers sets some importance upon this, that there is no particular policy that addresses "out of settlement" retail proposals. He puts it in this way. Paragraph 5.2.49 makes it clear that there are strict controls on any proposal that is not located in a retail centre (whether in or out of settlement). Policy R3 qualifies that, in relation to in settlement proposals, by providing for circumstances in which permission may nevertheless be granted. By contrast there is no such qualification for out of settlement proposals, in relation to which the general statement about strict controls is not qualified at all by means of any permissive policy or relaxation of those strict controls. Out of settlement proposals are, therefore, subject to SC1, incapable of coming within any of the exceptions to it, and also sit at the bottom of the hierarchy in PPW Chapter 10. He concludes this analysis by submitting that "notwithstanding the absence of any specific out of settlement retail policy, it is clear that out of settlement retail schemes find no support from, and run contrary to the thrust of, the LDP retail policies."
- I accept that analysis. The proposals the subject of this statutory challenge are agreed by the parties as being located out of settlement limits, and are also plainly (and are agreed to be) retail in nature. Even if that latter point were not agreed, they are obviously retail. There is no support for such proposals in any of the policies brought to the attention of the Court. To the contrary, in fact, "strict control" is required of any such proposals, and the role and function of retail centres has to be supported and reinforced as a direct function of applying the relevant policies. It is in that context that the Inspector came to consider and determine the two appeals before her, Appeal A and Appeal B.
The Decision
- Turning to the Decision itself, the Inspector identified the main issues in the two appeals to be as follows:
1. Whether the proposed developments complied with local and national policy that restrict development outside of settlement limits (issue 1);
2. Whether the proposed developments complied with local and national policy related to new retail development and the effect of the proposals on the vitality and viability of the Glynneath district centre (issue 2);
3. If the proposed development failed to accord with national and local policy as regards the first two issues, whether the proposals were justified on other material considerations (issue 3).
- Her finding on issue 1 is highly relevant to Grounds 4 and 4A, but it makes sense to recite that first, as that was the order in which she took the matter. After referring to Planning Policy Wales Technical Advice Note 18: Transport, and the definition of infrastructure in the LDP, the Inspector found that the roadside service area did not amount to infrastructure and so was contrary to policy SC1.
- On issue 2, the Inspector found that:
1. The permissive effect of policy R3 "does not extend beyond the defined limits of settlements." Further, the "amplification to the policy explains that the intention of the policy is to apply strict controls over retail proposals to ensure retail centres are supported and enhanced as far as possible. In the absence of any other relevant supportive retail policy it follows that the scheme conflict[s] with the LDP's retail policies";
2. It was common ground that there was an identified retail need in Glynneath, but that it could be met at an allocated site, Park Avenue, so that there was no need for it to be met on the Appeal Site. She made what effectively amounts to the same point in two different passages of her Decision in the following terms:
"17. It is common ground between the parties that there is an identified additional retail need for Glynneath. This is addressed in the LDP by the allocated regeneration site at Park Avenue. The proposed developments would therefore offer retail provision over and above the need identified in the LDP."
And
"19. The Council has identified a retail need and the need has been addressed in the development plan for the area. I acknowledge the appellant's arguments that the allocated site at Park Avenue is not readily deliverable, however, the Council's position is that the LDP is relatively newly adopted and there is no reason to suggest that the site would not be deliverable within the plan period. I also note that the allocated site is within the settlement limits and is promoted by the Council as having good connectivity to the district centre. For these reasons, the identified retail need can be met by a sequentially preferable site in accordance with the approach set out within PPW."
- Regarding the Council's argument that the proposal would harm the vitality and viability of the Glynneath district centre, the Inspector made the finding that "it is reasonable to conclude that there would be some trade diversion", which means diversion away from the district centre towards the proposed development at the Site. The Inspector concluded that the development would be harmful to the vitality and viability of the district centre.
- On the third issue, the Inspector considered whether a need had been shown for roadside services in the following terms:
"Even if I was satisfied that there was a need for roadside services in the area and that this was justified development outside settlement limits, I am not satisfied that there are no sites available that would be more closely related to the existing settlement, for example, at the hearing the Council referred to a recently submitted application for a PFS and associated development close to the appeal site, accessible from the A465 and within the settlement limits. Whilst this is not a determinative issue since the application is at an early stage of consideration, the appellant's arguments that the appeal sites are the only location for the development are somewhat reduced."
PFS means a Petrol Filling Station. It should also be recorded that one of the arguments for the Claimant was that the chosen Site was suitable for rest and recovery of motorists. The Inspector had in the introductory passages of her Decision identified that there was an existing McDonald's Restaurant on the Site under the 1999 Permission. Although not specifically recorded in her Decision, there is no doubt that tired motorists already had the opportunity of stopping to rest and recover at the existing facilities at the Site (whether availing themselves of the existing facilities or otherwise).
- The Council did not argue before the Inspector that the regeneration site at Park Avenue was appropriate for the proposed development. Mr Buley for the Welsh Ministers frankly accepted that before me, and in any event this is clearly demonstrated in the Inspector's separate decision on costs where she recited that "the Council acknowledged at the Hearing that neither the development related to appeal A or Appeal B would be appropriate for the allocated regeneration site at Park Avenue". This is relevant to Ground 2.
The Grounds of Challenge
- Mr Buley for the Welsh Ministers made an over-arching submission that the approach of the Claimant did not fully appreciate the importance of "need" in PPW, and adopted an approach more aligned to one that would be adopted under the policies of either England and/or Scotland. It is certainly correct that "need" is central to the application of the policies to which the Inspector had to have regard. This point really arises in relation to Ground 1, which itself has two components. The two authorities upon which Mr Lewis for the Claimant relies are, respectively, Scottish and English, namely Tesco Stores Ltd v Dundee City Council [2012] PTSR 983 and Warners Retail (Moreton) Ltd v Cotswold DC [2016] EWCA Civ 606.
- Rather than resolve that point in the abstract, in my judgment it is more readily digested when considering Ground 1 in both its component parts.
Ground 1
- This is that the Inspector came to the irrational conclusion that another site in the area, the one referred to as "the Park Avenue site", was sequentially preferable in retail terms even though the Claimant argued that it would not (and could not) be serving the same roadside service function. Alternatively, the Claimant contends that the Inspector failed to consider the specialist function of the proposals before concluding that the Park Avenue site was sequentially preferable.
- With respect to Mr Lewis, this ground is misconceived for two reasons. Firstly, that is not what the Inspector in fact did decide. The one single sentence upon which Mr Lewis focuses in this respect is the final one of paragraph 19 of the Decision, which states "for these reasons, the identified retail need can be met by a sequentially preferable site in accordance with the approach set out within PPW." She is not, in my judgment, saying in that sentence that there is a sequentially preferable site for the proposed development, namely a roadside service area. This isolated consideration of a single sentence of the Decision, out of context, is exactly what the court is not supposed to do when hearing a challenge of this nature. The fact that the Claimant is taking that final sentence out of context is clear from the first sentence of the same paragraph, which states "The Council has identified a retail need and that need has been addressed in the development plan for the area". What the Inspector then goes on to do is to explain that there is a retail need for the area, and that need can be met by the Park Avenue site. Given the importance of identifying need in order properly to apply the policy, this is not only wholly understandable but, in my judgment, undoubtedly right.
- I am fortified in my conclusion on that point by the fact that Lewis J read the Decision in exactly the same way when concluding that this Ground was not arguable. He stated, in his reasons provided with his Order of 15 June 2017 refusing permission, that "reading the decision as a whole and fairly, the inspector held that there was an identified retail [need] for Glynneath and that was to be met by a site at Park Avenue
the identified retail need would be met by a preferable site (ie the Park Avenue site); see paragraph 19 of the decision. Contrary to the claim of the claimant, the inspector was not deciding that the Park Avenue site was sequentially better for meeting any need for a roadside service area; she was deciding that Park Avenue was better for meeting the retail need that had been identified." Further support that the Claimant's interpretation was not what the Inspector was saying is found in her recitation in her Decision on Costs (also dated 7 April 2017) that it was common ground between the parties to the appeal that Park Avenue was not a more suitable location for a roadside services area. She plainly knew that the parties were agreed that the Park Avenue site was not more suitable for roadside services. She did not decide that it was. Any alternative conclusion would have been extremely surprising in any event, given the Park Avenue site is not a roadside.
- The second reason that this ground is misconceived is that the Claimant relies upon Tesco v Dundee [2012] PTSR 983 in this respect in terms of the meaning of the "sequential preferable" test. However, that case is a Scottish decision and is not considering the PPW policy at all. In fact, it considers Scottish policy and is not considering a sentence in a decision at all either. The ratio of the case as set out by Lord Reid in the Supreme Court is that the word "suitable", in the context of the sequential approach, referred to the suitability of a site for the specific development proposed, rather than suitable for retail development generally. Mr Buley argues that the case is not authority that the words "sequentially preferable" bear anything other than their ordinary meaning, which is a site which is preferable in sequential terms because it is a more central site than the one to which it is being compared. In particular, the English and Scottish policies do not require an applicant for planning permission to demonstrate a "need" for retail development, and in that context the sequential test has been interpreted to mean that an applicant for planning permission need only demonstrate that there are no sequentially preferable sites that are suitable for the specific development proposed.
- I consider that this case is of no assistance to the Claimant on Ground 1. Nor are the other authorities deployed by the Claimant to demonstrate, or attempt to substantiate, an error of law on the Inspector's part, such as the Warners Retail case or Aldergate Properties Ltd v Mansfield District Council [2016] EWHC 1670 (Admin). This is because the Inspector is not applying the so-called "sequentially preferable" test at all. Her use of the phrase "sequentially preferable", when read in context both in the remainder of paragraph 19 (and indeed the whole section of her Decision from paragraphs 14 to 20 which deals with Retail Policy), is referring to the better placed Park Avenue site for the meeting of the identified retail need, not as a site sequentially preferable for a roadside services area including a PFS. Paragraph 20 of her Decision makes this abundantly clear by stating that the proposals "would be harmful to the vitality and viability of the Glynneath district centre". When one correctly understands the term is applied by her to the existing retail need identified by the Council, the whole of this ground falls away. I can do no better than remind the Claimant that decisions are to be read in context, in a reasonable and common sense way, and as a whole.
- This Inspector did not come to an irrational conclusion that the Park Avenue site would be sequentially preferable for the proposed development; given that is not what she did, the second limb of the ground that she "failed to consider the specialist function of the proposals before" coming to that conclusion must also fail. Nor is there any error of law in terms of her conclusion in reaching her conclusion in paragraph 19, nor indeed in any part of the entire section dealing with the consideration of retail policy. Ground 1 therefore fails, in my judgment, and I find for the Welsh Ministers on that ground.
Ground 2
- This is that the Inspector was procedurally unfair in coming to her own conclusion that the Park Avenue site was sequentially preferable when the Council had accepted that it was not, and she gave no indication before issuing her decision that she was inclined to come to this view herself.
- This is a breach of natural justice argument, a phrase described by Jackson LJ as a "time-honoured phrase" at [46] in Secretary of State for Communities and Local Government v Hopkins Developments Ltd [2014] EWCA Civ 470. In that case the Court of Appeal formulated the principle of natural justice as having two limbs. Each party is entitled to know the case that the party has to meet, and is to be given a reasonable opportunity to adduce evidence and make submissions in relation to that opposing case. The phrase "procedural fairness" is probably synonymous with "natural justice". Although examples are given in the Hopkins case, the essence of the requirements are contained in those two limbs.
- However, this ground is really the obverse of the same coin as Ground 1. The complaint is that the Claimant was not given the chance to deal with the conclusion reached by the Inspector. Given my finding that the Inspector did not, when the Decision is read properly and in context, even reach or come to the conclusion complained of, it cannot have been procedurally unfair not to have given the Claimant the right to address her on it. This ground would only require consideration any further had the Inspector reached that conclusion. Given she did not, it can be dismissed shortly. I find against the Claimant and in favour of the Welsh Ministers on this ground too. Again, I find some support for this conclusion in the view of Lewis J at the permission stage who concluded that this ground was not properly arguable.
Ground 3
- This is that the Inspector misdirected herself by concluding that the scheme "conflicted" with the retail policies in the LDP when those policies were silent about retail proposals beyond the settlement limits. Further and/or alternatively, it is said that the Inspector failed to consider that national planning policy states explicitly that out-of-centre retail proposals, beyond settlement limits, can be acceptable.
- The origin of this ground is paragraph 15 of the Decision which states the following:
"Policy R3: Out of Centre Retail Proposals sets out criteria for retail developments outside designated town centres. However, its permissive effect does not extend beyond the defined limits of settlements. The amplification to the policy explains that the intention of the policy is to apply strict controls over retail proposals to ensure retail centres are supported and enhanced as far as possible. In the absence of any other relevant supportive retail policy it follows that the scheme conflict[s] with the LDP's retail policies."
- Mr Lewis submitted that a failure to deal with something which is what the parties are agreed applies in this case so far as developments outside settlement limits is concerned is not to be equated to being in conflict with it. In other words, the issue on this ground is whether the use of the word "conflict" means that the Inspector misdirected herself. I do not see how it could. Neither conclusion one that it conflicted, or the other that it failed to apply were positive factors in favour of the development before the Inspector.
- Firstly, no statutory challenge under section 288 should, in my judgment, concentrate on a single word in a single paragraph and concentrate upon that word in isolation from the remaining text. Such scrutiny is exactly what the cases identified in [7] to [10] above discourage. As Hoffman LJ said in South Somerset DC "The inspector is not writing an examination paper." In my judgment, in this respect Mr Lewis is doing exactly what Sir Thomas Bingham MR (as he then was) in Clarke Homes Ltd described as "excessive legalism or exegetical sophistication". It is construing the Decision in a wholly inflexible, and artificial, way to bring a challenge on this basis, as there is no support in the policies for such a proposal outside settlement limits. If there is no support in the policies, then the PPW applies. The fact that this is described as a "conflict" is not determinative. "Conflict" is a word that is in everyday use, as well as appearing in various planning legislation. The word should not be examined minutely and out of context. What is important is what the Inspector decided, and how she reached that view.
- In this case Policy SC1 of the LDP dealing with "Settlement Limits" is the correct place to ascertain the context for the Inspector's findings. Policy SC1 at 3.0.12 states:
"Development within settlement limits that is proportionate in scale and form to the role and function of the settlement as set out in the Settlement Hierarchy will be acceptable in principle.
Outside settlement limits, development will only be permitted under the following circumstances:" (emphasis added)
If none of those circumstances apply (and whether they do, or not, forms part of Grounds 4 and 4A) then it seems to me to be unhelpfully pedantic to complain of the use of the term "conflicts". Had the Inspector said "fails to comply with" the LDP's retail policies "for development outside settlement limits" then no complaint could be made, yet the sense of the paragraph would remain almost the same, if not wholly identical. That very phrase is actually used by her later on in paragraph 20 of the Decision, where she stated that the proposal "fails to accord with policy R3". The supporting text to Policy R3 in paragraph 5.2.40 uses the phrase "strictly controlled" for such developments. Mr Lewis could not complain about the terminology in paragraph 20, although he used the expression that paragraph 15 "fed into" paragraph 20.
- In my judgment, there is nothing in this ground whatsoever. I would repeat the exhortations in the cases to which I have already referred, that decisions of inspectors are not to be considered in this way, and should not be subjected to such minute textual analysis.
Grounds 4 and 4A
- These are very closely related. It is said that the inspector's conclusion that the scheme did not amount to "infrastructure" for the purpose of criterion 9 of policy SC1 of the LDP was based on a misdirection, as she only considered part of the definition of "infrastructure" in the LDP Glossary and overlooked the reference to "roads" in that definition. Alternatively and this is Ground 4A it is said for the Claimant that the scheme was "associated with infrastructure" and hence fell to be classified, and indeed should have been classified, as falling within criterion 9 of policy SC1.
- Mr Lewis advanced Ground 4, and what is the younger sibling to it of Ground 4A, most persuasively. The points can, however, be put most succinctly. Given the terms of Policy SC1, if a development proposal falls within one of the 12 different criterion listed then it falls within the circumstances where it will or may be permitted. The exact wording of paragraph 3.0.12 is:
"Development within settlement limits that is proportionate in scale and form to the role and function of the settlement as set out in the Settlement Hierarchy will be acceptable in principle.
Outside settlement limits, development will only be permitted under the following circumstances:
.9. It is associated with the provision of public utilities, infrastructure and waste management facilities that cannot reasonably be located elsewhere."
(emphasis added)
- These two grounds can be taken together. They involve, firstly, consideration of whether a roadside services area is infrastructure (or associated with infrastructure). But that is not all that would be required to bring the proposal within the ambit and scope of criterion 9. It is said by Mr Buley that there were two aspects of planning judgement involved in the Inspector reaching her decision on this particular topic. Firstly, whether the application concerns infrastructure (or is "associated with infrastructure" for Ground 4A), and if that hurdle is cleared, whether it could reasonably be located elsewhere.
- I do not agree with Mr Buley on the first of those hurdles, at least so far as it concerns Ground 4. Whether a proposal is for "infrastructure" is, in my judgment, a matter of definition, and not a matter of planning judgement. However, that does not avail the Claimant because in my judgment even approaching the matter as one of definition and not as a matter of planning judgement, a roadside services area is not infrastructure. In the definitions section of the LDP a definition is provided, and states inter alia "Infrastructure typically refers to matters such as roads, water supply, sewers, electricity and other social elements such as education, recreation and health facilities." So although I do not agree that planning judgement is involved under ground 4, when approaching the matter as one of definition is a roadside service area infrastructure? in my judgment the answer is that it is not.
- Turning to Ground 4A, however, it is clearly a matter of planning judgement whether a proposed development is one "associated with infrastructure". This argument by the Claimant, attractively presented though it was, was not argued before the Inspector at all. Taking a new point in the High Court that was not argued before the Inspector raises certain issues and difficulties for any claimant. Holgate J stated the following points at [77] in Trustees of the Barker Mill Estates v Test Valley Borough Council [2016] EWHC 3028 (Admin):
"In an application for statutory review of a planning decision there is no absolute bar on the raising of a point which was not taken before the Inspector or decision-maker. But it is necessary to examine the nature of the new point sought to be raised in the context of the process which has been followed up to the decision challenged to see whether the claimant should be allowed to argue it. For example, one factor which weighs strongly against allowing a new point to be argued in the High Court is that if it had been raised in the earlier inquiry or appeal process, it would have been necessary for further evidence to be produced and/or additional factual findings or judgments to be made by the Inspector, or alternatively participants would have had the opportunity to adduce evidence or make submissions (or the Inspector might have called for more information) (see e.g. Newsmith at paragraphs 13 to 16; HJ Banks Ltd v Secretary of State [1997] 2 PLR 50; R (Tadworth and Walton Residents' Association v Secretary of State for the Environment, Food and Rural Affairs [2015] EWHC 972 (Admin) paragraph 95; R (Kestrel Hydro) v Secretary of State for Communities and Local Government [2015] EWHC 1654 (Admin) paragraphs 66 to 67; Distinctive Properties (Ascot) Limited v Secretary of State for Communities and Local Government [2015] EWHC 729 (Admin) at paragraph 49)."
- Because the point was not raised before the Inspector, it is not dealt with in her Decision at all either, nor would one expect it to be in the circumstances. That alone is a powerful point for not upholding this ground of challenge. Quashing a Planning Appeal Decision on the basis of an error said to have occurred in the Inspector's conclusion on an argument not ventilated before her would be wholly perverse. But even if I were tempted to overlook that considerable obstacle (which for the avoidance of doubt I am not), were I to substitute my own view on the material before the Court (extremely sparse as it is, given the very late appearance of this point), a conclusion on the second element of planning judgement would still be required in any event, namely whether the development "could reasonably be located elsewhere". Without a favourable conclusion in its respect on that point, the Claimant could not bring the development within criterion 9 in any event. The High Court does not make such matters of planning judgment, and is not in a position to do so. There is therefore no finding of planning judgement that would entitle the Claimant to rely upon criterion 9.
- I granted permission to the Claimant to argue Ground 4A. This does not mean that such formidable obstacles to its success should simply be ignored. In my judgment, this development for a roadside services area is probably not in any event "associated with infrastructure". Doubtless that is why this ground only made such a very late appearance, namely in the Claimant's skeleton argument for the hearing before me. There is already a limited facility present on the Site under the 1999 permission. The expansion or replacement of that, which is the subject of the proposal under Appeal A and Appeal B, appears to be predominantly retail in character together with a restaurant, and other facilities. It is difficult to see how the kiosk, 'drive-thru' coffee shop, pub/restaurant, access, car parking and associated works could fall within the exception as being "associated with infrastructure".
- However, even if I were to be wrong about that and the proposed development did qualify under the first limb of criterion 9, I would not quash the Decision for that reason. The Inspector did not have this argument ventilated before her at all; she was not asked to consider as a matter of planning judgement whether it could be reasonably located elsewhere; there is no finding upon which the Claimant can rely that it cannot be reasonably located elsewhere, and as a result the court is not in a position to conclude that she misdirected herself on Ground 4A. It is an interesting irony that the court is being asked to conclude that the Inspector erred in law in dealing with an argument that was not argued before her at all.
- Both of these grounds, namely 4 and 4A, therefore fail and I find for the Welsh Ministers on these two grounds too.
Conclusion
- The application under section 288 of the 1990 Act therefore fails and the Claimant is not entitled to the relief which it seeks.
