IN THE HIGH COURT OF JUSTICE                 			    CO/3791/99
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
  
                               Royal Courts of Justice
                               Strand
                               London WC2
 
                               Friday 17th March 2000
 
B e f o r e :
MR JUSTICE HIDDEN
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R E G I N A

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OXFORD CITY COUNCIL
EX PARTE (1) PENTITH LIMITED
(2) BRITISH RAILWAYS BOARD

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Telephone No: 0171‑421 4040 Fax No: 0171‑404 1424
(Official Shorthand Writers to the Court)

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MR M KINSTON QC & MR P GOATLEY (Instructed by Cannings & Connolly) appeared on behalf of the Applicant
MR DRUCE (instructed by Oxford City Council) appeared on behalf of the First Respondents
MR R GRIFFITHS QC (instructed by Vizard Oldham) appeared on behalf the Second Respondents

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J U D G M E N T
(As Approved by the Court))
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Crown Copyright 
	Friday 17th March 2000
1.	MR JUSTICE HIDDEN:  This is a renewed application for permission to apply for judicial review orally after the refusal of permission made on the papers by Jowitt J on 26th October 1999.
2.	The decision sought to be impugned is that of the Oxford City Council dated 1st September 1999 to grant planning permission to Oxford United FC to vary condition 39 attached to a planning permission, NOY/1754/94, to use as a multi screen cinema, maximum nine screens, 3,716 square metres on land adjacent to Oxford United FC Grenoble Road pursuant to application No 99/834/VF. The relief sought is an order of certiorari to quash the said decision and/or the variations of the condition of the planning permission which was then granted.
3.	Originally the applicants Pentith Ltd and British Railways Board applied jointly for permission but subsequently the British Railways Board decided to be separately represented, and an amended notice on behalf of the second applicant was filed on 1st December 1999 and amended grounds for relief of behalf of the first applicant on 4th November 1999.
4.	The case really concerns two possible sites for the erection of multi screen cinemas in the Oxford area,  the one the subject of the grant of the planning permission in respect of the site of Oxford United FC at Minchery Farm, out of the centre of Oxford, and the other a city centre site, known as Oxpens, in which the first applicant is the potential developer and the second applicant and the respondent council have proprietary interests.
5.	Conditions 39 of the outline permission provided that:
“Notwithstanding the provisions of class D 2 of the schedule to the Town and Country Planning use of Classes Order, 1987, the leisure development shall not be used as a cinema and no building shall be used for this purpose without the prior express permission of the local planning authority.” 
6.	The reason given for imposing that condition was:
“To allow further consideration to be given to ensuring that a cinema is complimentary to any development for leisure use for Oxpens. In accordance with the provisions of the local plan.” 
7.	The local plan policy RE7 states:
“The council proposes that land adjoining Minchery Farm adjacent to Oxford United’s proposed stadium, should be developed for built commercial leisure uses that are complimentary to any scheme pursuant to RE6 the proposed leisure development at Oxpens” 
8.	Mr Kingston, for the first applicant, attacked the decision of the respondent to grant permission on a number of grounds. Firstly, that the council’s director of planning report dated 7th July 1999, erroneously misinterpreted the terms of the local plan and in particular, RE7. RE6 and RE7 are promotional policies, the purpose of which is further explained in paragraphs 6.13 and 6.14 of the plan. There it is stated any scheme at Minchery Farm should not undermine that at Oxpens. Paragraph 6.14 of RE7 refers to the commercial leisure siting, and refers to the commercial use site at Minchery Farm, and says:
“This proposal should not be allowed to undermine the Oxpens scheme, RE6 and therefore the proposed uses will need to be carefully controlled.” 
9.	It is argued by Mr Kingston and Mr Steel for the second applicant that Mr Ford’s affidavit for the respondents, at paragraphs 19, 44 and 55 shows that there is no clear view held by the respondent of what may be accommodated on the Oxpens site, thus the council could not properly come to a view as to what scheme on the Minchery Farm site would be complimentary to that of Oxpens. It is further argued that the assumption made by the council that Oxpens could only accommodate nine screens was erroneous and could inhibit proper  consideration of the potential development of the Oxpens site.
10.	It would place a limit on the scale of the development which would come forward at Oxpens and in view of the government’s policy for concentrating as much key town centre and development in town centres which is contained in PPG 6, and in guidance given in a written Parliamentary answer of February 11th 1999 which show an incorrect order of priority for the appropriateness of development of an out of centre location at Minchery Farm.
11.	Thus the respondent, it is argued, has rejudged the consideration of the Oxpens site and reversed the order of priority contained in its local plan. Secondly the respondent acted without the requisite information with regard to the sequential approach referred to in PPG 6, and misinterpreted and failed to apply that consequential approach.
12.	In particular, the directors report to the Planning Committee, failed to identify that Minchery Farm was in terms of the national policy in PPG 6 an out of centre site. It also wrongly reported that Oxpens was not “immediately available”.
13.	The sequential approach is defined in paragraph 1.11 of PPG 6 in these words:
“Adopting a sequential approach means that first preference should be for the town centre sites, where suitable sites or buildings suitable for conversion are available, followed by edge‑of‑centre sites, district and local centres and only then out‑of‑centre sites in locations that are accessible by a choice of means of transport.” 
14.	The last sentence at paragraph 1.12 of PPG 6 requires planning authorities to identify in consultation with the private sector sites that are suitable and viable for the proposed use and “likely to become available within a reasonable period of time.”
15.	The information with regard to a sequential assessment in this case came from the respondent’s own consultant’s report, undertaken by DPDS which only looked at city centre sites, and did not look at any alternative edge of centre sites or a local or local or district site, or the Oxpens site and did not examine the Minchery Farm site.
16.	It was not a sequential analysis undertaken to evaluate the Minchery Farm site but was in effect a sequential site analysis undertaken to consider appropriateness of the Oxpens site development.
17.	Thirdly, it was argued that in view of local plan policy RE7, and the council’s previous approach, a legitimate expectation arose that the council would, as  a matter of consistency maintain its approach set out in the local plan to the two sites Oxpens and Minchery Farm, in the absence of material considerations to the contrary.
18.	Fourthly, the respondents failed to consider adequately or at all the impact of the Minchery Farm proposals on the vitality and viability of leisure developments close to the city centre including the Oxpens site. It was argued that Mr Ford’s affidavit at paragraph 37 accepted that there could be an adverse effect on the value of the applicant’s land at Oxpens which would justify the first applicant’s concerns as to investment decisions for solicitating the proper development of Oxpens. The view of the respondent on the likely  absence of harm was in the event based on Oxpens only accommodating a nine screen cinema which was an inappropriate assumption.
19.	Finally, the respondents had taken into account an immaterial consideration, namely that of enabling development. The report to the planning committee of 7th July 1999 introduced the topic of enabling development at paragraph 64 to 67. At paragraph 64 the report said:
“It is an accepted part of planning practice, established in legal precedent, that in appropriate circumstances a development may be allowed which in normal circumstances would not be allowed, if it helps  secure another important planning objective. That is often called enabling development.” 
20.	At paragraph 67, the report went on to say:
“The Council’s estate officers have been fully involved in the financial arrangements underlying proposals and can vouch for the necessity of a development involving a cinema if the Stadium is to be completed. In planning terms therefore it is an entirely reasonable decision to make to allow an enabling a development provided that Members are satisfied there are no unacceptable adverse consequences.” 
21.	The director’s report, at paragraph 37, and paragraphs 64 to 67, had misunderstood and misapplied the advice contained in PPG 17 with regard to enabling development. There was no reference in PPG 17 to enabling development whether expressly or by implication. Enabling development by its nature constituted development which would not otherwise be acceptable but for the achievement of another planning objective which was considered to be more important. No question of planning development arose unless there was some adverse aspect of the development proposed. That was not permitted save for the enabling development.
22.	There was no balancing exercise which needed to be carried out in this case by the planning committee which  had concluded that the development was in any event desirable.
23.	The first applicant had taken a point under section 106 of the Town and Country Planning Act but that was overtaken by the agreement of 24th February 2000, whereby Oxford United FC entered into a new section 106 obligation with the council to remedy a previous “oversight”, which rendered the point largely academic and so it was not now pursued.
24.	At the centre of the argument in this application has been the provisions of policy planning guidance circumstance, PPG 6, Town Centres and Retail Developments, and the Ministry Guidance issued on February 11th 1999, which was issued to “add to and clarify the guidance in PPG 6 in the light of a number of issues in recent litigation which concerned the interpretation of PPG 6 and government policy.”
25.	That policy was said to have had as its aims “to sustain and enhance the vitality and viability of our existing town centres by focusing new investment particularly for retail and leisure uses within city, town and district centres.”
26.	PPG 6, advised local planning authority, in planning, in preparing planning strategies and policies:
“To consider the need for a new retail and leisure development in the plan area, over the lifetime of the plan. Having established that such need exists, the local planning authorities should then adopt a sequential approach as explained in PPG 6 to identify suitable sites.
Proposals for new retail and leisure developments which accord with an up‑to‑date plan strategy or are proposed on sites within an existing centre should not be required to demonstrate that they satisfied the test of need, this should have taken into account in the development plan.
However proposals which would be located at an edge‑of‑centre or out of town location and which are not in accordance with an up‑to‑date development strategy or are in accordance with the development plan, but that plan is out of date, is inconsistent with national plan policy guidance, or otherwise fails to establish adequately the need for new retail and leisure development and other development to which PPG 6 applies. Should be required to demonstrate, both the need of additional facilities and that a sequential approach has been applied in selecting the location at the site.” 
27.	As was said by Dyson J in R v Hambleton District Council ex parte Somerfield Stores Ltd [1999] 1 PLR 66 at 80:
“An important change made by PPG 6 in June 1996 was the introduction of the sequential approach by the application of this approach, and the other safeguards of PPG 6, an applicant who seeks planning permission for a retail development out of a town centre faces a series of stiff hurdles.” 
28.	The importance of PPG 6 was considered again in Annek  District Council and the Secretary of State for the Environment Transport and Regions & others [1999] 4 PLR 43 at page 66, where Richards J said:
“It was sufficient that the overall absence of detailed investigation meant that the subject site had not been demonstrated to be in conformity with PPG 6.” 
29.	Mr Kingston submits that in this case no sequential approach has been adopted, and that is a clear error of law. The council should have sought from Oxford United FC a detailed assessment of the availability within a reasonable period of time of any sites in the town centre, edge‑of‑centres, local and district centres, and finally, out‑of‑centre which could provide for some or all of the uses proposed for a multiplex cinema site at Minchery Farm. On the basis of that information the respondents could have assessed whether there was a sequentially preferable site available to that proposed at Minchery Farm. If there was such a site that site could have been identified for development. Since that exercise had not been undertaken here, then the council was in no position in granting permission at Minchery Farm to know whether any such sequentially preferable sites existed and whether they would be available within a reasonable period of time. 
30.	Mr Kingston argues that the consequences of the respondents actions are that policies and approach of the Oxford local plan, policies RE6 and RE7, will be defeated by the council’s actions in granting permission for a multiplex cinema at Minchery Farm. The Oxford local plan is the development plan for the purpose of section 54(a) of the 1990 Act. By failing to follow the sequential approach contained in central government guidance which is also part of the local plan, the respondents have harmed the first applicant in that investment decisions relating to its city centre site, could well be adversely affected by the respondents’ decision in respect of Minchery Farm.
31.	In dealing with the sequential approach the report to the planning committee of 7th July 1999 referred to the report of the consultants DPDS as “a study of sites available for leisure development in the city centre and has been carried out for the council by independent consultants as part of preparing for the local plan review, and helping produce a revised brief for Oxpens site.”
32.	The report to the planning committee continued at paragraph 25:
“In summary, however, the consultants conclude that while some sites in or on the edge of the City Centre  could physically accommodate leisure facilities such as a 3 screen cinema, this is not the proposed use in the Local Plan and none is immediately available, even if the Council were prepared to override the Local Plan.
26 The study excludes the Oxpens site allocated in the Local Plan for leisure uses. However this site is not immediately available as the Council is reconsidering the brief for the site in the light of the Secretary of State’s decision on the previous application for the site and other considerations, which could well result in a wider range of uses on the site. The urban design study of the Western Central Area being carried out by consultants appointed by the Council will feed into this consideration in due course, and it is anticipated a revised brief be produced either later this year or more likely early next year for eventual incorporation in the review of the local plan.” 
33.	It is argued that the DPDS report in fact correctly refers not to a site being “immediately available” but to one “on which redevelopment could take place within a reasonable period of time” which is a correct analysis of the words in PPG 6 at paragraph 1.12 which state  “sites that are suitable, and viable for the proposed use and likely to become available within a reasonable period of time”.
34.	It is further argued that paragraph 28 of the report is also misconceived and inaccurate, in that at a meeting to discuss the first applicant’s outline planning application on 18th June 1999, (bundle page 257) the application had been acknowledged to contain an application for use as a multi screen cinema for 12  screens amongst other uses.
35.	Thus the words of paragraph 28 are in error in putting a limit of nine screens on to the Oxpens site:
“However, even if the Oxpens site were available, there would seem to be sufficient need to justify a multiplex both even at Minchery Farm and on the Oxpens site, provided that any cinema eventually approved at Oxpens is not significantly larger than the previous proposal (9 screens). In view of the Council’s stated intention to look for a greater mix of uses, possibly including housing, and the environmental constraints on the Oxpens site, a larger cinema would appear most unlikely to be acceptable in planning terms.” 
36.	It is argued by Mr Steel that the council itself had no idea as to the number of screens that could be accommodated on the Oxpens scene in the absence of a revised brief. Accordingly it was self evident that the effect of the restriction imposed on the Oxpens site of no significantly larger cinema than nine screens imposed by virtue of the provision of nine screens at Minchery Farm had turned the sequential approach on its head. The effect was that an out‑of‑town planning permission had been granted, in circumstances where the permission limited the provision of a similar development in the preferred location in the city centre. That was notwithstanding that the council itself did not know how  much the city centre could accommodate and what was a self evident failure to consider the sequential approach. That decision was totally contrary to what is set out in the explanatory text to RE7 to paragraph 6.14, when speaking of Minchery Farm, namely that:
“This proposal should not be allowed to underline the Oxpens scheme, RE6, and therefore, proposed uses, will need to be carefully controlled.” 
37.	In the conclusion and recommendation paragraphs of the report to the planning committee, it was said at paragraphs 73:
“Because of the scale of need for cinema provision in the Oxford area this requirement can be met provided the size of the multiplex at Minchery farm is limited to 9 screens. In terms of PPG6 the development has been shown to be broadly consistent with its requirements as there is a significant need; no more central site is available, as shown by the report on sites available for leisure use elsewhere on the agenda; and there would be a limited impact on the City Centre’s vitality and viability.” 
38.	The committee was therefore recommended to approve the application to vary the condition on the Minchery Farm provision which prevented cinema use so as to allow a multi screen cinema of up to nine screens and 3,716 square metres of floor space. 
39.	Both applicants argue that paragraph 73 is clearly wrong in asserting the Minchery Farm development had been shown to be broadly consistent with the terms of PPG 6 and, in particular, in that “no more central site is available as shown by the report on sites available for leisure use elsewhere on the agenda.” They argue further that the reference to the policy of enabling development was to introduce a matter which did not have to be considered.
40.	In what was said in the report to the committee and in its conclusions there was no suggestion that PPG 6 and the guidance of 11th February 1999 was irrelevant, indeed the respondent was suggesting that it had complied with PPG 6, and the guidance, when it clearly had not. There was no question of planning judgment here, but an error of law in not following the necessary guidance.
41.	Mr Taylor, for the respondent, says that there is no error of law shown in the decision of the planning committee, that it did not take in account any irrelevant consideration, and did take into account all relevant considerations. It did not misdirect itself, and it had before it material which entitled it to come to the conclusion it did on the sequential test. He submits there is no error of law here, but it is really  a matter of planning judgment with which PPG 6 is riddled. He submits the applicants are really attacking the planning judgments in the reports and that the committee reports are central to the whole case.
42.	Mr Taylor conceded the applicant’s point on the question of availability was superficially attractive that the respondent has misdirected itself as to availability. But Mr Taylor submitted that it had adopted the consultant’s report and even then had looked at the Oxpens site in paragraph 28, on the basis of what would happen if it were available. Mr Taylor asked what was the point of remitting the matter back since there was no error there and PPG 6 had not been disregarded and thus there was nothing wrong with the exercise done. As to the local plan he submitted there was nothing in that plan, which required priority to be given to Oxpens over Minchery Farm, he submitted no planning policy gave that priority. As to enabling development he said Oxford had a half built stadium and its completion was an important planning consideration which was relevant.
43.	Finally, Mr Taylor submitted that if I were against him on his arguments, in my discretion I should not grant the permission that was sought. There was not really here an arguable point of any substance, and the  end result would not be any different. He took me additionally to the statement of Mr Brown the club secretary of Oxford United FC at page 89 that:
“If planning permission for the multiplex were to be withheld, it would not be financially viable to complete the new stadium.” 
44.	Mr Taylor took me to a R v Monopolies and Mergers Commission ex parte Argyle Group Plc [1986] 1 WLR 773 at 774 where the court dealt with the need to approach its duties with a proper awareness of the needs of public administration.
45.	Mr Kingston and Mr Steel dealt with Mr Taylor’s arguments on discretion pointing out the importance of PPG 6, whereby a local planning authority could only arrive at a decision in favour of an out‑of‑centre site, if it were the case that there was no town centre option available after a sequential approach.
46.	As to the football club, he submitted that a sectional interest should not be allowed to override the wider public interest which included the proper use of land control. He pointed out that any difficulties in relation to the football club had to be looked in the light of the chronology. Taylor Woodrow had stopped work in January 1997, and it took from January 1997 until the middle of 1999 for any progress to be made on the  question of a stadium.
47.	Mr Steel adopted Mr Kingston’s submissions and urged that in my discretion the policy and planning system should be held to be uppermost. It is accepted by all parties that the sole question I have to decide in this application is whether or not there are arguable grounds for giving permission to the applicants, to proceed to seek to judicial review of the impugned decision.
48.	Despite Mr Taylor’s arguments, I am quite satisfied there are such grounds in the submissions of both Mr Kingston and Mr Steel and, in particular, in relation to the way the committee treated the sequential approach laid down in PPG 6 and the ministerial guidance of 11th February 1999 and in their approach as to whether the Oxpens site was or was not immediately available, rather than applying the test under 1.12 of PPG 6, of whether it was likely to become available in a reasonable period of time.
49.	I consider there are arguable grounds in the planning committee’s approach in the question of enabling development. I am accordingly satisfied that, in my discretion, it is right that the applicants have permission to bring their judicial review proceedings. I accordingly grant permission on these applications.
50.	MR GOATLEY:  My Lord, may it please, the correct order in these circumstances is for costs in the cause.
51.	MR JUSTICE HIDDEN:  Is there any opposition to that? Very well costs in cause.
(Submissions re:  expedition)
52.	MR JUSTICE HIDDEN:  Thank you. Mr Goatley, in the circumstances of the case I shall order expedition. The respondents affidavit to be delivered in 28 days.