Property law reports
TOWN AND COUNTRY PLANNING: RETAIL DEVELOPMENT
Planning permission - retail development - respondent granting planning permission for supermarket within conservation area lying partly in appellant council's borough - whether test of need and sequential approach to be applied to retail development in neighbourhood centre - appeal dismissed
Wandsworth London Borough Council v Secretary of State for Transport, Local Government and the Regions and another: CA (Lords Justice Ward, Laws and Jonathan Parker): 19 February 2003
The interested party applied to Lambeth London Borough Council for planning permission to build a supermarket within a conservation area.
The land around the application site fell partly within the appellants' borough and partly within the borough of Lambeth.
Lambeth categorised the shopping units within their area as a 'neighbourhood centre', whereas the appellants classified those within their borough as 'important local parades'.
The respondent secretary of state called in the application, and an inquiry was held before an inspector.
Applying the guidance in Planning Policy Guidance 6 (PPG 6), Regional Planning Guidance 3 and the Caborn statement (a written Parliamentary answer of 11 February 1999, the thrust of which was that planning authorities should, when deciding planning applications for retail and leisure developments outside town centres, take into account the need for the development) the inspector found that the area did not constitute a 'town centre', as defined in annex A to PPG 6, since it did not 'provide a broad range of facilities and services and...
fulfil a function as a focus for both the community and public transport', but was instead a neighbourhood or local centre.
Accordingly, he concluded that it was not a preferred site for retail development, and that the test of need had to be met and a sequential approach taken to site selection.
Applying those tests, he found that there was a need for the development and that no preferable alternative site was available, but he recommended that planning permission be refused on conservation grounds.
The secretary of state rejected that recommendation and granted permission, concluding that the area formed a 'site within an existing centre' in the terms of the Caborn statement, which excluded such centres from the requirement to fulfil the test of need or to apply the sequential approach.
The appellants failed in a challenge to that decision after the judge found that the phrase 'existing centre' in the Caborn statement was not confined to town centres, but also covered other types of centre.
The appellants appealed.
Stephen Morgan (instructed by Argles Stoneham Burstows, Maidstone) for the appellants; Nathalie Lieven (instructed by the Treasury Solicitor) for the respondent; Patrick Clarkson QC and Scott Lyness (instructed by Berwin Leighton Paisner) for the interested party.
Held: The appeal was dismissed.
The word 'centre' in the Caborn statement, when read in context, was clearly capable of bearing a meaning that extended beyond that of town centres, so as to include neighbourhood or local centres, and the secretary of state had been entitled so to find that R v Secretary of State for the Environment, Transport and the Regions, ex parte Tesco Stores Ltd [2001] JPL 686 applied.
His decision was not vitiated by his failure to make any express reference to the function and role of the area in the local community, since the inspector had expressly considered those factors and found the area to be a neighbourhood or local centre.
It was sufficient for the secretary of state to say that he agreed with him; he was not required to revisit the reasoning that had led the inspector to that conclusion.
The secretary of state had given sufficient reasons for his decision.
NEGLIGENT VALUATION: ADMISSIBILITY OF EVIDENCE
Negligent valuation - evidence - admissibility - appellants purchasing filling station after obtaining valuation from respondents - further report showing remedial works needed - whether report admissible as evidence of respondent's negligence - appeal allowed
Sunley and another v Gowland & White (Surveyors & Estate Agents) Ltd: CA (Lords Justice Clarke and Longmore): 10 February 2003
The appellants purchased a petrol filling station after obtaining a mortgage valuation report from the respondent, valuing the property at the asking price of 162,000.
After exchange of contracts, and a few days before completion, the mortgagor requested a further survey to check for ground contamination.
The report was produced after completion, and indicated that the appellants might have to carry out substantial remedial works at a cost of up to 30,000.
The appellants claimed damages from the respondent, alleging that it had been negligent in failing to recommend the further report or to reserve or qualify its valuation until one had been obtained.
The appellants relied on the report as evidence by which to prove their claim, and the respondent did not dispute its authenticity or admissibility.
However, the recorder, trying a preliminary issue as to admissibility, ruled that the report could not be presented as evidence.
On an appeal against that decision, the appellants contended that it was not necessary, for the purpose of admissibility, to prove that the report's contents were objectively correct; and they could rely upon the mere existence of the report because of the effect that it would have had on a reasonably competent valuer.
Philip Butler (instructed by Merritt & Co, Yarm, Stockton-on-Tees) for the appellants; Ivor Collett (instructed by PI Brokerlink) for the respondent.
Held: The appeal was allowed.
Since the report had been accepted as genuine, and since both parties had been content to treat it as part of the evidence and to cross-examine expert witnesses on it, there was nothing to prevent it from being admitted as evidence.
The judge could then have assessed its reliability with the assistance of experts from both sides.
He had not provided clear reasons for his decision on admissibility, and that decision should therefore be overturned.
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