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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Tesco Stores Ltd v Secretary Of State For Environment, Transport & Regions [2000] EWHC Admin 349 (25 May 2000) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2000/349.html Cite as: [2000] EWHC Admin 349

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TESCO STORES LIMITED v. SECRETARY OF STATE FOR ENVIRONMENT, TRANSPORT AND REGIONS [2000] EWHC Admin 349 (25th May, 2000)

Case no: CO/2297/2000

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Thursday 21^st December 2000

MR JUSTICE RICHARDS:

1. This is a claim by Tesco Stores Ltd ("Tesco") under s.288 of the Town and Country Planning Act 1990 challenging a decision of the Secretary of State for the Environment, Transport and the Regions contained in a letter dated 25 May 2000. By that decision, made on a call-in under s.77 of the 1990 Act, the Secretary of State refused planning permission for a proposed development of a supermarket on the site of a former bus depot at Quinton, Birmingham.

2. The application was for outline planning permission. The total area of the application site was some 2.4 ha, the gross floorspace of the proposed store was 3215 m² (1910 m² net) and provision was made for 284 parking spaces associated with the store. The proposed store was an out-of-centre development. Centres within the store's catchment area included Quinton, Halesowen, Bearwood, Blackheath and Harborne.

3. The local planning authority resolved to grant permission subject to conditions and a s.106 agreement, but the Secretary of State then called the application in. The inspector, after holding a public inquiry, submitted his report on 21 September 1999. In that report he recommended that permission be granted subject to conditions. In his decision letter the Secretary of State disagreed with a number of the conclusions reached by his inspector and rejected the inspector's recommendation.

4. The basis of challenge to the Secretary of State's decision is fourfold:

(1) that he failed adequately or at all to state what were his conclusions on the need for the development in terms of scale and location;

(2) that he failed adequately or at all to state how he applied the sequential approach in the light of his conclusion as to need and as to the centres in which the claimant needed to look in order to satisfy that need;

(3) that he failed to state adequately or at all his reasons for rejecting the claimant's submission that the application complied with the requirements of PPG6 and PPG13 regarding the issue of car use; and

(4) that he failed adequately or at all to state his reasons that the application would not result in a reduction in the number of car journeys; further or alternatively, that the decision on that issue was such that a reasonable Secretary of State properly directing himself could not reach on the evidence.

5. Grounds (1) and (2) are linked, as are grounds (3) and (4). I shall group them accordingly in considering the detailed submissions.

(1) and (2): need and the sequential approach

Background

6. At the outset of his report the inspector set out the matters specified in the call-in direction as those about which the Secretary of State particularly wished to be informed. They included "the adequacy of the sequential approach in determining the availability of alternatives sites" and "any other matters the Inspector considers relevant to the determination of the application". In relation to the latter the inspector considered inter alia "the need for the scheme, having particular regard to the Minister's statement of 11 February 1999".

7. The sequential approach is set out in PPG6: Town Centres and Retail Developments. The most important passage in PPG6 for present purposes is paragraphs 1.11 and 1.12:

"1.11 Adopting a sequential approach means that first preference should be for 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.

1.12 The Government recognises that the approach requires flexibility and realism from local planning authorities, developers and retailers. Developers and retailers will need to be more flexible about the format, design and scale of the development, and the amount of car parking, tailoring these to fit the local circumstances. Local planning authorities should be sensitive to the needs of retailers and other town centre businesses and identify, in consultation with the private sector, sites that are suitable, viable for the proposed use and likely to become available within a reasonable period of time."

8. The ministerial statement of 11 February 1999 (the so-called Caborn statement), to which the Inspector referred, sought to clarify Government policy on shopping and leisure developments, underlining the importance of showing need and of adopting the sequential approach. Paragraph 2 of the statement refers to the advice in PPG6 to local planning authorities, in preparing planning strategies and policies, to consider the need for new retail and leisure development and, having established that such need exists, then to adopt a sequential approach to identify suitable sites. Paragraph 3 concerns proposals for new retail and leisure development which accord with an up-to-date plan strategy or are proposed on sites within an existing centre. Paragraph 4, which is particularly pertinent to the present case, states:

"However, proposals which would be located at an edge-of-centre or out-of-centre location and which:

- are not in accordance with an up-to-date development plan strategy; or

- are in accordance with the development plan but that plan is out of date, is inconsistent with national planning policy guidance, or otherwise fails to establish adequately the need for new retail and leisure development and other development to which PPG6 applies,

should be required to demonstrate both the need for additional facilities and that a sequential approach has been applied in selecting the location of the site."

Paragraph 7 of the statement deals further with the sequential approach:

"In applying the sequential approach, the relevant centres in which to search for sites will depend on the nature and scale of the proposed development and catchment that the development seeks to serve. The scale of such proposals should also be appropriately related to the centre - whether town, district or local - the development seeks to serve."

The inspector's report

9. The inspector's conclusions on the sequential approach and the availability of alternative sites were set out at paragraphs 24.1-24.4:

"24.1 PPG6 makes it clear that ... when an out-of-centre development is proposed, the onus is on the developer to demonstrate that all potential town centre options have been thoroughly assessed. I am satisfied that through having carried out what I regard as a full and detailed examination of 26 sites in and adjoining the 5 centres identified by the Secretary of State, the applicant had done just that.

24.2 ... Somerfield's case makes reference to the site at Harborne currently being pursued by Marks & Spencer. This site is included in the applicant's appraisal, but as it is in the hands of another retailer, I do not consider it can reasonably be regarded as available insofar as the application in question is concerned ....

24.3 In essence, Dudley's concern is that the applicant has not shown the "flexibility and realism" mentioned in paragraph 1.12 of PPG6. I appreciate that this guidance may well imply an element of compromise on the part of retailers, but it also includes references to sites being "suitable" and "viable for the proposed use". In the light of this, I agree with the City Council's view that alternatives should be capable of accommodating a broadly similar form of retail development as the application proposal.

24.4 I am satisfied that the sequential exercise has been carried out in accordance with the relevant guidance in PPG6. The evidence does not point to there being any suitable alternative sites available in or adjoining the 5 centres identified ...."

10. The conclusion expressed in paragraph 24.3 referred to the view of Birmingham City Council, the local planning authority. The City Council had made clear that by "a broadly similar form of retail development as the application proposal", it meant "a food store with a sales area similar to that proposed" (report, paragraph 13.7). The inspector must have had that in mind when expressing agreement with the City Council's view.

11. It is part of Tesco's case that the inspector agreed with the City Council's view because he considered that the need could not be met in any other way. This takes one on to the inspector's conclusions on the issue of need for the scheme, which are set out in a later section of the report, at paragraphs 27.1-27.4:

"27.1 The PCA [Primary Catchment Area] and CCA [Core Catchment Area] identified by the applicant provide a reasonable and realistic basis for assessing the proposal. They have not been challenged. I have already indicated that the QHS [Quinton Household Survey] findings support the contention that a high proportion of the new store's trade is likely to come from bulk shopping. In addition, the QHS finding that 88% of the households in the PCA carry out a bulk food shop at least once a week does not appear exceptional to me. To my mind these factors provide a sound context for examining the position in the CCA which has a population of 23,000, not dissimilar to that of a small town. In effect, they point to a substantial demand for bulk food shopping in this area which currently lacks any facility for this type of shopping.

27.2 Both the findings of the QHS and the Sandwell shopping study indicate that the nearest centre, Quinton, does not satisfy this demand. Nor does the Halesowen Road KwikSave appear to do so either. Looking further afield, the provision within the PCA, which has a population of 83,000, comprises various stores on its fringes in the centres of Harborne, Bearwood, Blackheath and Halesowen, only one of which, Blackheath, has a modern superstore. I accept that a new store is not necessarily better, but in my view, the fact that some 35% of the households surveyed in the QHS do their main food shops outside the area suggests that shoppers' aspirations are not being fulfilled by the existing stores in the area. To my mind, this, coupled with the absence of a bulk food shopping facility in the CCA, is clear evidence of a qualitative need in the area. Some local residents find the shopping provision in the area adequate, but there is also a body of evidence which strongly suggests that a proportion of local residents, for instance elderly people and/or those without cars, are not satisfied with the existing facilities. I attach some weight to this.

27.3 .... The evidence points to a substantial outflow of convenience business expenditure from the PCA both in absolute, £36.74 million, and percentage, 33%, terms. Within the CCA, the proportion becomes much higher. Given the findings of the QHS regarding the amount of food shopping that takes place at a local level, I do not consider the applicant's estimated leakage of 97% unduly excessive. To my mind all this points to a strong quantitative need as well. As to whether the proposed store is too large as is claimed, as the likely turnover of £17.5 million would not absorb the capacity, a smaller one would not in my view be adequate to meet the need. It would be likely to result in a continuing large scale outflow of expenditure from the area, with the associated implications for travel.

27.4 I am mindful that the Minister's statement of 11 February 1999 indicated that the requirement to demonstrate need should not be regarded as fulfilled simply by showing there is capacity or demand. In this case while I am satisfied that both these elements have been fulfilled, my view is that the qualitative deficiency in provision in the CCA, coupled with the potential for reducing travel offered by the proposal, are sufficient to show that a need for the scheme exists."

12. Accordingly in his overall conclusions (paragraphs 30.1-30.2) the inspector stated that the applicant had demonstrated that there was a need for the development and the sequential approach had been applied thoroughly and vigorously. He accepted that there were no suitable sites available in any of the centres identified by the Secretary of State. For these and other reasons he saw no conflict with the guidance in PPG6.

The decision letter

13. In relation to the sequential approach and availability of alternative sites, paragraph 10 of the decision letter noted the inspector's conclusion at paragraph 24.1 that a full and detailed examination had been carried out, his support at paragraph 24.3 for the City Council's view that alternatives should be capable of accommodating a broadly similar form of retail development as the application proposal, and his conclusion at paragraph 24.4 that the sequential exercise had been carried out in accordance with the relevant guidance in PPG6. The decision letter went on:

"11. The Secretary of State does not agree with the Inspector's conclusions. The applicants' approach to the sequential test has been to reject sites not considered suitable for the type of supermarket proposed and in particular sites not able to accommodate around 3,000 sq m (gross) foodstore and associated facilities. The Secretary of State takes the view that this approach does not demonstrate sufficient flexibility within the meaning of paragraph 1.12 of PPG6 which states that 'developers and retailers will need to be more flexible about the format, design and scale of the development, and the amount of car parking, tailoring these to fit local circumstances.'

12. The Secretary of State considers that the applicants have not gone far enough in considering whether a site capable of accommodating a smaller store and/or different associated facilities would enable development on a site in or adjoining an existing centre to be developed. In this respect he has noted the proposal by Marks & Spencer to establish a town centre store in Harborne selling primarily food products from a 2,203 sq m (gross) retail unit on a 0.35 hectare site; he considers that this is an example of how it might be possible to make significant new food retail provision on a far smaller site than appears to have been considered by the applicants. It may also be possible to examine whether provision could be made other than by developing a single site.

13. The Inspector has suggested in paragraph 24.2 of his report, that a site in the hands of another retailer cannot reasonably be regarded as available insofar as the application in question is concerned. The Secretary of State does not consider that this is the appropriate test. Paragraph 1.12 of PPG6 refers to 'sites that are suitable, viable for the proposed use and likely to become available within a reasonable period of time'. That does not necessarily exclude sites in the hands of other retailers.

14. The Secretary of State considers that should a more flexible approach be adopted it is by no means certain that there are no such sites that would be suitable, viable for the proposed use and likely to become available within a reasonable period of time."

14. Later in the decision letter, in relation to the need for the scheme, paragraph 22 set out the following conclusions:

"22. The Secretary of State accepts that there is a need for additional food shopping facilities in the area. He accepts those findings of the QHS and the Sandwell shopping study referred to at paragraph 27.2 of the Inspector's report, although he considers that these are factors in this case in determining whether there is a need, rather than showing that there is clear evidence of a qualitative need as stated by the Inspector. The Secretary of State accepts what the Inspector has said about the views of local residents at paragraph 27.2, although, unlike the Inspector, he has not attached any more weight to this than the other factors showing need. The Secretary of State agrees with the Inspector's conclusions on capacity at paragraph 27.3 of his report, although he considers that this too is a factor in determining whether there is a need rather than pointing to a strong quantitative need. In the light of his comments in paragraphs 15 to 20 above [impact of travel and car use], the Secretary of State does not attach as much weight as the Inspector to the implications for travel likely to arise from not absorbing this capacity, and consequently does not attribute them much significance as a factor showing need."

The submissions

15. At the heart of the submissions advanced by Mr Clarkson QC for Tesco are the inspector's findings on the question of need. Tesco's detailed submissions on need, summarised at paragraphs 7.1-7.8 of the report, had shown the absence of satisfactory shops in the area and the existence of substantial surplus expenditure by residents in the area, with a resulting high degree of leakage into other areas. It had been emphasised in closing submissions that, in order to attract people back, the proposed store needed to be of an attractive quality and therefore of a minimum size to provide the range of facilities and lines that people would expect to find. It is submitted that by his findings on qualitative and quantitative need the inspector was accepting those submissions. He not only found that there was a need but also, at paragraph 27.3, that a store smaller than that proposed by Tesco would not be adequate to meet the need. Thus he accepted Tesco's case that the development needed to be of the scale proposed in order to attract people back to doing their bulk food shopping locally.

16. The first criticism of the decision letter is that it failed to make clear whether the Secretary of State accepted those conclusions of the inspector on the issue of need. In paragraph 22 of the decision letter the Secretary of State accepted that there was "a need" for additional food shopping facilities in the area, but did not say whether he was accepting the level of need found by the inspector or took the view that there was only a lesser (unstated) need. In the rest of the paragraph he qualified his acceptance of various of the inspector's specific findings but still did not explain where he stood on the basic point. It is submitted that the Secretary of State's reasoning on this, a principal important controversial issue, was simply inadequate. If there was a departure from the inspector's findings on qualitative and quantitative need, the nature of that departure and the reasons for it were not explained.

17. As to what was said in the decision letter about the sequential approach, Mr Clarkson submits that it failed to address the point that, as found by the inspector, the development needed to be of the scale proposed in order to attract shoppers back. It does not make sense to look at smaller sites, as the Secretary of State appeared to suggest should have been done as part of the flexible approach laid down by PPG6, if smaller sites would not be adequate to meet the need. Again, the decision letter did not say that a smaller site would meet the need or how that could be so. In short, the whole case on need and the sequential approach was run on the basis that a store of a certain quality and therefore scale was needed in order to attract people back; the inspector accepted that case; yet the Secretary of State rejected the inspector's conclusion without explaining what else would do or giving reasons in support. Here too, therefore, there was a failure to give adequate reasons on a principal important controversial issue.

18. A specific criticism is also made of the reasoning in paragraphs 12-13 of the decision letter concerning the Marks & Spencer store. If the Secretary of State's observation concerning sites in the hands of other retailers was intended to be of general application, then it is very extraordinary to expect developers to ask their competitors about the availability of their stores. If it was put forward as a specific point about the particular Marks & Spencer store, then the evidence before the inspector, and the finding of the inspector, were that the site was not available, and no reason was advanced in the decision letter to support a departure from that finding.

19. For the Secretary of State, Miss Lieven submits that the Secretary of State rejected the inspector's recommendation for two reasons: first, because sufficient flexibility had not been demonstrated in undertaking the sequential test, and secondly, because he considered that in terms of parking provision and the likely reduction in travel the proposal was not consistent with the objectives of PPG13 (an issue considered separately below). What is said about need at paragraph 22 of the decision letter had nothing to do with the sequential approach and did not affect the overall conclusions.

20. Paragraph 1.12 of PPG6 emphasises the importance of flexibility, including flexibility as to scale of development (which includes the size of the store and of the site). The point being made by the Secretary of State at paragraphs 11-12 of the decision letter was that in his view Tesco had not been sufficiently flexible. It is clear from the inspector's report, and clearer still from the evidence before the inspector, that Tesco's parameters of search for the purposes of the sequential approach were almost exactly those of the proposed development, i.e. a gross store of around 3,200 m² with associated car parking and other facilities, and a site of around 2 ha (see paragraph 7.2 of the proof of evidence of Steven Butterworth). Tesco had rejected anything that did not meet those parameters; and it was unsurprising that Tesco had not found any sites in the centre or on the edge of centre which did meet them.

21. Miss Lieven submits that the observations in paragraph 12 of the decision letter about the Marks & Spencer store were given by way of example of significant retailing on a much smaller site (0.35 ha), showing one way in which flexibility and realism could come to fruition. The same paragraph referred to the further possibility of developing more than a single site. Those were options of the kind that Tesco could have considered. As it was, however, nothing other than a site of the scale of the proposed development had been considered.

22. It is plain, submits Miss Lieven, that the Secretary of State was not accepting that the only appropriate form of development would be a single store of the scale proposed by Tesco. Nor did the inspector consider the question whether that was the only appropriate form of development, or whether more than one store might be appropriate. His statement at paragraph 27.3 of his report that "a smaller [store] would not in my view be adequate to meet the need" was simply by way of rejection of the argument that the proposed store was too large. The inspector was not addressing the different question whether a store of the size proposed was necessary in order to attract shoppers back or whether a smaller store would be able to compete effectively.

23. Thus, it is submitted, when the inspector accepted the City Council's view that for the purposes of the sequential approach "alternatives should be capable of accommodating a broadly similar form of retail development as the application proposal" (i.e. in terms of scale as well as type of development), this was not based on any finding that a store of this size was the only appropriate form of development. What the inspector was accepting was a particular interpretation of the policy contained in PPG6. The Secretary of State disagreed with that interpretation of the policy, taking the view that the consideration of alternatives should go beyond those capable of accommodating a broadly similar form of development and that insufficient flexibility had therefore been demonstrated in this case. The Secretary of State's reasons were clear and his approach was correct in law.

24. Miss Lieven further submits that the passage of the decision letter relating to the need for the scheme was independent of the conclusions on the sequential approach. Both PPG6 and the Caborn statement make it clear that a developer must show need and apply the sequential approach as necessary but separate requirements. The Secretary of State accepted that the requirement to show need had been satisfied (and it is clear that he accepted the existence of need in the area as a whole, i.e. both CCA and PCA). The fact that he went on to express doubts about particular points, thereby indicating that he did not necessarily accept that the need was as great as found by the inspector, does not mean that he was denying the existence of a need sufficient for the purposes of the proposed development. It was not necessary for him to define the precise level of need that he accepted. If there were a further application for permission in respect of the same site, the decision letter could be relied on as showing an acceptance of a sufficient need. If a new application were made in respect of some other site, then the question of need would have to be examined anew in relation to that other site. So the Secretary of State's reasoning on need was adequate; and if there was any deficiency in his reasoning, it has caused Tesco no prejudice.

Conclusion on issues (1) and (2)

25. Having set out the rival contentions at some length, I can state my conclusions relatively briefly.

26. I accept Miss Lieven's submissions on these issues. In my judgment the case advanced by Mr Clarkson for Tesco is based on an unjustified elision of the issues of need and the sequential approach, and on attributing to the inspector a finding that he did not make to the effect that nothing less than a development of the scale proposed would be capable of attracting shoppers back.

27. Both the inspector and the Secretary of State dealt with the sequential approach prior to and separately from the issue of need. As a matter of lay-out of the inspector's report and the decision letter, this was a natural consequence of the fact that the Secretary of State's call-in direction had identified the sequential approach as a matter about which he particularly wished to be informed, whereas need was picked out thereafter by the inspector as one of the other matters that he considered relevant to the determination of the application. I appreciate that the order in which they were considered does not exclude the possibility of a relationship between the two issues. I also accept that need is a precondition for an out-of-centre site and may often fall to be considered before moving on to the sequential approach (see e.g. paragraph 2 of the Caborn statement). But on a fair reading of the relevant passages in the inspector's report and in the decision letter, I do not consider the conclusions either of the inspector or of the Secretary of State on the sequential approach to be dependent on their conclusions on the issue of need.

28. It is plain as a matter of fact that for the purposes of the sequential analysis Tesco had limited its parameters of search to sites similar in size to the proposed development. It was Tesco's case that a store of the size proposed was the minimum necessary to ensure that residents of the area undertook their main shopping trips there. But in my view the inspector made no finding that a store of that size was necessary in order to attract shoppers back. His observation at paragraph 27.3 that a smaller store would not be adequate to meet the need had the limited ambit for which Miss Lieven contends. He was not considering whether some other store or combination of stores might be capable of attracting shoppers back. A fortiori he was not considering that point in the earlier section of his conclusions where he dealt with the sequential approach. His conclusion in paragraph 24.3 as to the kind of alternatives that should be considered for the purposes of the sequential approach was not based on any finding of fact, express or implied, that a store of the size proposed was the only form of development capable of attracting shoppers back. It was a conclusion about the test required by PPG6.

29. As to that, the Secretary of State was entitled to take issue with the inspector's conclusion about the test required by PPG6 and to take the view that insufficient flexibility had been demonstrated in this case. In so doing he did not misinterpret the policy. The decision letter on this issue was sufficiently clearly reasoned and based on a rational interpretation of the relevant policy. I do not accept, as contended by Mr Clarkson in reply, that the Secretary of State's interpretation would make it impossible to have an out of centre development. It just means that before an out of centre development is approved the sequential approach must have been adopted on a flexible basis and have thrown up no viable alternative solution.

30. The references in paragraph 12 of the decision letter to the Marks & Spencer store and to the possibility of developing more than a single site merely illustrated the general proposition that more could be done by way of considering whether development could be achieved in or adjoining an existing centre by means of a site capable of accommodating a smaller store and/or different associated facilities. Paragraph 13 was not intended as a finding of fact that the particular Marks & Spencer might be available, but as a general (and in my view legitimate) observation that the fact that a site is in the hands of another retailer does not necessarily exclude it from consideration under the sequential approach.

31. As to the separate issue of need, although the Secretary of State expressed doubts about points of detail in the inspector's reasoning, he did not dispute (and must in my view be taken to have accepted) the existence of a need sufficient to justify the proposed development. The doubts were expressed sufficiently clearly and it was not necessary for him to go on to say what precise level of need he considered to exist in the light of those doubts. I accept Miss Lieven's submission that the reasoning was adequate and that if there was any deficiency it has caused Tesco no prejudice. Further, the passage on need at paragraph 22 of the decision letter was not the basis of the Secretary of State's decision to refuse permission (paragraphs 26-27 support that view) and even if there were a legal shortcoming in his conclusions on need I would not quash the decision on that ground.

(3) and (4): car use and parking provision

32. A further issue on which, according to the call-in direction, the Secretary of State particularly wished to be informed was "the extent to which the proposal conflicts with national policy in PPG13 'Transport', in particular the proposed level of car parking provision".

33. The preface to PPG13 states that the key aim of the guidance is to ensure that local authorities carry out their land-use policies and transport programmes in ways which help to reduce growth in the length and number of motorised journeys, encourage alternative means of travel which have less environmental impact, and hence reduce reliance on the private car. Paragraph 1.7 states that development plans should aim to reduce the need to travel, especially by car, inter alia "by influencing the location of different types of development relative to transport provision (and vice versa)". Paragraph 1.8 states that to meet the aims laid down, local authorities should adopt planning and land use policies inter alia to "limit parking provision for developments and other on or off-street parking provision to discourage reliance on the car for work and other journeys where there are effective alternatives". Paragraphs 3.9-3.10 give advice in relation to retail development, referring across to PPG6. Paragraphs 4.4-4.11 deal with car parking, stating inter alia in paragraph 4.6 that:

"... in order to realise the potential of locational policies and to avoid disadvantaging urban areas through added congestion or because of their poorer level of car access, local planning authorities should:

- adopt reduced requirements for parking for locations which have good access to other means of travel than the private car ...."

The inspector's report

34. The inspector set out his conclusions under the heading "Policy Guidance in PPG13 and Parking Provision" at paragraphs 25.1-25.5 of his report. In paragraph 25.1 he stated that it was almost inevitable that an out-of-centre location would have a lower degree of accessibility than a town centre, but he referred to the existence of a frequent bus service, the likelihood that a good number of customers might come by foot, and the possibility that some could well be attracted to cycle. His opinion therefore was that the proposed store "would be very accessible by a choice of means of transport". He went on:

"25.2 To my mind the proposal also offers an opportunity to achieve a considerable reduction in the overall distance travelled by car, and as such would accord with one of the key aims of PPG13. As I see it, the methodology upon which the applicant's estimate of the overall saving in distances travelled is founded is soundly based. As the QHS points to a high proportion of non-linked main food shopping trips, I am unable to concur with the submission that the estimated savings are illusory. The forecast saving of some 1.7 million vehicle kilometres, or around a million miles, coupled with the likely reduction in CO₂ emissions that would be linked to this, would, in my view, be a significant benefit."

35. As regards parking provision, the inspector expressed the view in paragraph 25.3 that in order to help achieve a reduction in distances travelled the store needed to be reasonably attractive to car users so as to persuade them not to make longer journeys for food shopping. He continued:

"25.4 One of the means of meeting the aim to reduce travel, especially by car, advocated in PPG13 is limited parking provision. The PPG also advises that parking standards in local plans should be set as a range of maximum and minimum operational amounts. Similar guidance is contained in PPG6. RPG11 also advises that parking be kept to the operational minimum. The Council consider the parking provision adequate. At 284 spaces, the provision is slightly higher than their minimum requirement, said to be 277 spaces, but I do not find this difference material. The figure appears to be well in line with the scale of provision at other similar stores and more significantly, it is well below the requirement identified by the applicant."

36. The inspector's conclusion on these issues was:

"25.5 In the light of the foregoing I see no conflict with the current national policy as expressed in PPG13. On the contrary, in terms of both the proposed level of parking provision and the likely reduction in travel, I find the proposal consistent with the objectives of the PPG."

The decision letter

37. Under the heading "Impact of travel and car use", the Secretary of State expressed agreement with the inspector's main conclusions in paragraph 25.1 of the report. The decision letter went on, however:

"16. He does not agree with the Inspector at paragraph 25.2 that the proposal offers an opportunity to achieve a considerable reduction in the overall distance travelled by car although he accepts there would be some reduction in the length of motorised journeys. He agrees the likely reduction in CO₂ emissions that would be linked to this would be a significant benefit.

17. Planning Policy Guidance Note 13 (Transport) seeks, among other things, to reduce reliance on the private car. Paragraph 4.9 of Planning Policy Guidance Note 6 (Town Centres and Retail Development) makes it clear that the Government is seeking, through the location of development, to influence the overall levels of car travel. It goes on to say at paragraph 4.10 that arguments that more stores would lead to less overall travel or would prevent trade 'leaking' away to more distant centres should be considered in the light of whether a more central location and/or another store in a district or local centre would:

* ensure easier access to all customers;

* facilitate more linked trips;

* help achieve the overall aim of reducing reliance on the car for all trips.

Linked trips are more likely to happen on trips made to existing centres.

18. Whilst the Secretary of State accepts that the Quinton Household Shopping Survey points to a high proportion of non-linked main food shopping trips, the location of the store as an out of centre site is unlikely to provide the opportunity for such linked trips to occur and thus to contribute to an overall reduction in the number of journeys made by car."

38. The decision letter then turned to the issue of parking provision:

"19. Whilst the Secretary of State agrees in general terms with the Inspector's conclusions at paragraph 25.3 that the store still needs to be reasonably attractive to be car users, he does not agree with his conclusion at paragraph 25.5 that the proposed level of parking provision is consistent with the objectives of PPG13. In view of the 11,000 people said to live within 800 metres of the store - 3,000 within 400 metres - and the availability of alternative means of transport, he considers the level of car parking provision to be unnecessarily high. He takes the view that a town centre location would also result in levels of car parking below that proposed or, if not, provide the opportunity for shared parking spaces to serve the centre as a whole."

39. Those considerations led the Secretary of State to a different conclusion from that reached by the inspector on this issue:

"20. For these reasons the Secretary of State does not agree with the Inspector's conclusion at paragraph 25.5 that in terms of the proposed level of parking provision and the likely reduction in travel the proposal is consistent with the objectives of PPG13. In his view the proposal may well reduce growth in the length of motorised journeys and encourage means of travel which have less environmental impact but it is questionable the extent to which the number of motorised journeys would be reduced. He places more weight than does the Inspector on the need to address the issue of non-linked main food shopping trips."

Submissions

40. Mr Clarkson advances submissions both in relation to car use and in relation to parking provision. In relation to the former, reference is made to the evidence before the inspector. The QHS indicated that only 28% of households undertook linked shopping trips in conjunction with main shopping. It follows that 72% of journeys were not linked trips. Since the new site would shorten the average length of the journey (there was evidence that the average trip length of customers would reduce from 2.9 miles to 1.67 miles) and there was nothing to show that it would aggravate the linked trip problem, there was no reason to doubt Tesco's case that there would be a total reduction in car travel of over 1 million miles annually. The inspector was persuaded by that material (see paragraph 25.2 of his report). The decision letter gave no indication of whether and, if so, on what ground the Secretary of States rejected it.

41. The fact that the site would give rise to a greater opportunity for use of other means of transport also makes it likely that the number of motorised journeys would be reduced. Paragraph 18 of the decision letter did not face up to this, and paragraph 20 lacked clarity in stating that was "questionable" to what extent the number of motorised journeys would be reduced and why this was considered to outweigh the benefits referred to. Nor did the Secretary of State indicate what level of reduction would be required in order to secure compliance with the policy.

42. Overall it is submitted that since there existed a number of factors that accorded with the objectives in PPG13, it was incumbent on the Secretary of State to spell out clearly why he nevertheless rejected the inspector's conclusion that the proposal was consistent with PPG13. This he failed to do.

43. In relation to car parking there is a similar complaint about lack of clarity in the decision letter. Mr Clarkson submits that the Secretary of State gave no indication of why the provision for car parking was too high or what the right level would be. Since PPG13 does not contain car parking standards and the development is on the face of it consistent with the objectives laid down in PPG13, it was again incumbent on the Secretary of State to spell out clearly why he disagreed with the inspector on this issue.

44. As an alternative to Mr Clarkson's submissions on inadequacy of reasoning, it is contended that the conclusions reached on these matters in the decision letter were not reasonably open to the Secretary of State on the material before him.

45. I should put on record that Mr Clarkson did not advance any separate argument under article 6 ECHR; and Miss Lieven indicated that, had he done so, she would have sought an adjournment pending the determination of other cases then before the court on that issue. The only respect in which article 6 crept in was in Mr Clarkson's suggestion that clear reasons are required where, as here, the Secretary of State is out on a limb (the local planning authority and the inspector having found in favour of the proposed development); and the court, in its independent scrutiny of the case, should look with particular care at the reasons advanced. Miss Lieven accepted that the court should examine the Secretary of State's reasons with care, but submitted that no higher standard is applicable in this case than is laid down in authorities such as Save Britain's Heritage v. Secretary of State [1991] 1 WLR 153 and Bolton MBC v. Secretary of State (1996) 71 P&CR 309.

46. In response to the detailed case advanced on behalf of Tesco, Miss Lieven submits that the reasoning of the decision letter in relation both to car use and to car parking was clear and rational. In relation to car use, paragraph 16 of the decision letter accepted that there would be some reduction in the length of motorised journeys: the difference between this and the inspector's finding of a considerable reduction was not material to the overall reasoning or conclusions. It is in the following paragraphs that one sees the material departure from the inspector's approach. Paragraph 17 pointed out, with reference to the relevant policy guidance, that arguments as to a reduction in overall travel should be considered in the light of the effect of a development on linked trips. Paragraph 18 picked up on this, stating that the proposed development was unlikely to provide the opportunity for linked trips and thus to contribute to an overall reduction in the number of motorised journeys. The Secretary of State plainly took into account the evidence that 72% of shopping journeys did not involve linked trips. He referred to this at the beginning of paragraph 18. But he was interested not only in existing travel patterns, but also in the possibility of influencing travel patterns in the future. This is why he placed weight on the issue of the opportunity for linked trips - an opportunity that would exist with sites in the centre, but not with an out of centre store. Additionally, there was no acceptance by the Secretary of State that the number of motorised journeys would be reduced: in particular, no such acceptance is to be read into paragraph 20, which questioned the extent to which the number of such journeys would be reduced.

47. All those considerations, together with those relating to car parking, sustain the Secretary of State's rejection of the inspector's conclusion that the proposal was consistent with the objectives of PPG13. The decision letter was adequately reasoned on that point and the conclusion reached was a rational one. In terms of the basic objectives of PPG13, the Secretary of State was entitled to conclude that the proposed development would not reduce growth in the number of motorised journeys or reliance on the private car.

48. It is submitted that similar points about influencing future travel patterns and reducing reliance on the private car underlay the Secretary of State's conclusion with regard to car parking. The basis of the view expressed in the first part of paragraph 19 of the decision letter was that, since the location was within a short distance of a large number of residents (it was part of Tesco's own case that people could walk to the store), there was a potential for encouraging reduced reliance on the private car by providing less car parking space. The view expressed accords with the general thrust of PPG13, including the guidance in paragraph 4.6 that reduced requirements for parking should be adopted for locations which have good access to other means of travel than the private car. The point at the end of paragraph 19, that a location in the centre would result in lower levels of car parking or would provide the opportunity for shared parking spaces to serve the centre as a whole, was also consistent with policy. Against the policy background, it is submitted, the Secretary of State's conclusions, although brief, were adequate and rational. It was not necessary for the Secretary of State to say precisely what level of car parking would be acceptable.

Conclusion on issues (3) and (4)

49. Again I can state my conclusions relatively briefly, since here too I accept the main thrust of Miss Lieven's submissions. In my judgment the Secretary of State's approach towards the related issues of car use and car parking was adequately reasoned, in accordance with relevant policy guidance, and rational.

50. It is plain from paragraphs 16 and 20 of the decision letter that the Secretary of State accepted that the proposed development would lead to some reduction in the length (and in the growth of the length) of motorised journeys. It would have been better to spell out to what extent he differed from the inspector on the detail of this, in particular whether and on what basis he rejected the forecast savings of around a million miles annually; but I do not think that that omission was crucial for the overall reasoning of this part of the decision letter.

51. As to the number of motorised journeys, the main point made in the decision letter, at paragraph 18, was that the proposal was unlikely to provide the opportunity for a reduction in linked trips and to contribute in that way to an overall reduction in the number of journeys made by car. There was no factual disagreement between the inspector and the Secretary of State on that point. As stated at the end of paragraph 20, however, the Secretary of State placed more weight on this consideration than did the inspector. In so doing he was plainly concerned with the desirability of influencing future travel patterns, an approach that accorded with PPG13 and with the passages cited from PPG6.

52. The decision letter's treatment of the number of motorised journeys was not, however, entirely satisfactory, since there was an additional point which was not fully dealt with. Because the proposed store would be accessible by other means of transport (as accepted in paragraph 15), it seems likely that there would be some switching from car to walking or other forms of transport for at least some food shopping journeys. This point seems to have been reflected in the acceptance at paragraph 20 that the proposal "may well ... encourage alternative means of travel". Yet the same sentence went on to state that "it is questionable the extent to which the number of motorised journeys would be reduced". Thus there was no clear indication whether and, if so, to what extent the Secretary of State considered that the number of motorised journeys would be reduced by the use of alternative means of travel.

53. In order to assess the significance of that deficiency, however, I think it necessary to take account of what was said about car parking provision. The point made in paragraph 19 of the decision letter was briefly stated but clear enough. The Secretary of State took the view that the level of car parking provision was unnecessarily high, given the number of people who could access the store by alternative means of transport - and, as was implicit, given the desirability of discouraging car use and encouraging the use of such alternative means of transport. The level of car parking provision was also higher, or less satisfactory, than would result from a town centre location. The underlying concern in paragraph 19 was that the proposed store would not give rise to the reduction in number of motorised journeys to which a store in that location might give rise by limiting the number of parking spaces, nor would it give rise to the reduction in number of such journeys that would result from a town centre location. In my view that was a legitimate concern and one that the Secretary of State was entitled to take into account as a factor militating against compliance with the objectives in PPG13. It helps to explain why he thought it questionable to what extent the number of motorised journeys would be reduced.

54. The reasoning was a little ragged and lacking in precision, and it would have been more satisfactory if further detail had been given (in particular about the extent of the excess provision for parking); but I do not consider the deficiencies to have been so great as to render the decision unlawful. Moreover it was not necessary for the Secretary of State to deal with the balancing exercise in quantitative terms, i.e. saying precisely what weight he had given to the various factors telling for or against compliance with PPG13. Overall there was a sufficiently reasoned and rational basis for the result of that balancing exercising, namely the Secretary of State's disagreement with the inspector's finding that in terms of the level of parking provision and likely reduction in travel the proposal was consistent with PPG13.

55. Even if I had taken a different view as to the lawfulness of the Secretary of State's approach to the issues of car parking and car use, I would not have quashed the decision on that ground. In my judgment it is plain from the decision letter that the Secretary of State would have refused permission on the basis of what he said about the sequential approach even if there had been no point on car parking and car use.

Overall conclusion

56. For the reasons given, each of the grounds of challenge to the Secretary of State's decision letter fails and Tesco's claim is dismissed.

MR JUSTICE RICHARDS: I am handing down judgment in this case and for the reasons given in the judgment handed down, the Tesco's claim is dismissed.

Now, Ms Lieven --

MS PATRY: My Lord, I am not Ms Lieven, I am Ms Patry.

MR JUSTICE RICHARDS: Yes, of course. I am sorry, Ms Patry. Yes, for judgment only. Ms Lieven's substitute, Ms Patry. I received no amendments from either side to the draft judgment so what has been handed down, save for the header, is in identical form to the draft. I have copies here. I have two for each side.

MS PATRY: Thank you very much.

MR JUSTICE RICHARDS: One for the file, one for the shorthand writer, together with the judgment on disk. I have just been given a letter suggesting that there was going to be no representation for the claimant, but that does not look as though it is entirely right.

MR WHITE: No. My Lord, that was the previous position. Luckily I am now available, so forget that letter.

MR JUSTICE RICHARDS: Right.

MR WHITE: I apologise for that, my Lord.

MR JUSTICE RICHARDS: Well, let me hear then what follows.

MS PATRY: My Lord, I would simply like to make an application for an order that the claimant pay the defendant's costs in this case. The costs have been summarily assessed by an agreement between the parties and the sum is now some £7,099.50.

MR JUSTICE RICHARDS: Sorry, it is £7,000?

MS PATRY: 99 pounds and 50 pence.

MR JUSTICE RICHARDS: £7,099.50?

MS PATRY: That is correct.

MR JUSTICE RICHARDS: That is the agreed sum, is it?

MR WHITE: Yes, my Lord. I obviously cannot resist the defendant's application in this matter. I apologise, my Lord, but the fan heater makes the acoustics slightly difficult. I apologise for not hearing you earlier.

MR JUSTICE RICHARDS: It is quite a difficult court, I think, for hearing. I am having some difficulty myself, I am afraid. In that case, the claim is dismissed with costs which are summarily assessed in the agreed sum of £7,099.50. What about payment of that sum; 14 days?

MS PATRY: The usual order of 14 days would be acceptable.

MR JUSTICE RICHARDS: To be paid within 14 days.

MR WHITE: My Lord, could we ask for 21 days just because of the Christmas holiday?

MR JUSTICE RICHARDS: Of course. Yes, I think in the particular circumstances I will make it 21 days.

MR WHITE: Thank you, my Lord.

MR JUSTICE RICHARDS: I gathered, from the letter that I am now to ignore, that there is no further application.

MR WHITE: Yes, my Lord. There is no further application.

MR JUSTICE RICHARDS: Thank you all very much. There are some spare copies of this judgment which I will leave here just in case anybody has an interest in it. Thank you.