CO/521/2015Neutral Citation Number: [2015] EWHC 2571 (Admin)IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISION THE ADMINISTRATIVE COURT

Royal Courts of JusticeStrand

London WC2A 2LL

Wednesday 22 July 2015B e f o r e:

MR JUSTICE DOVE- - - - - - - - - - - - - - - - - - -

Between:THE QUEEN ON THE APPLICATION OF SAINSBURY'S SUPERMARKETS LTD

Claimantv

LONDON BOROUGH OF HILLINGDONDefendant

ALBEMARLE DEVELOPMENTS LTD First Interested Party

ARLA FOODS UK PROPERTY COMPANY LTD Second Interested Party

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Computer‑ Aided Transcript of the Stenograph Notes of WordWave International Limited

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Tel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)

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Mr David Forsdick QC (instructed by Dentons) appeared on behalf of the Claimant ‑ Mr Admas Hablelasie appeared for judgment only

Mr Craig Howell-Williams QC and Miss Melissa Murphy (instructed by Legal Department, London Borough of Hillingdon) appeared on behalf of the Defendant ‑ Mr Charles Streeton

appeared for judgment only

Mr Patrick Clarkson QC and Mr Simon Pickle (instructed by Shoosmiths) appeared on behalf of the First Interested Party - Mr Alistair Mills appeared for the judgment only

The Second Interested Party was not represented

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J U D G M E N T

1. MR JUSTICE DOVE:

2. Factual Background

3. The interested party owns land at South Ruislip which was formerly a dairy and which

has been vacant and unused since 2005. It lies beyond the boundary designated for the

South Ruislip local centre. Sited within the centre and anchoring it is the claimant's store.

The claimant's store trades exceedingly well and they have plans to redevelop and expand

it. The defendants are the Local Planning Authority. They produced a local plan, the

Hillingdon Local Plan Part 1 November 2012, containing the designated boundaries of

the local centre.

4. Part of the supporting evidence for the Local Plan was the Hillingdon Convenience

Goods Retail Study Up‑ date 2012. It was noted in the Local Plan that:i. "5.43 ..... This [the Study] concludes that there is no capacity for

additional convenience goods retailing in the years up to 2016, and that from 2016 through to 2021 capacity grows to 2,709 square metres. The Study notes that there could be a qualitative argument to support the provision of convenience goods floorspace in the northern half of the borough. This need will be taken into account on a case by case basis in the assessment of individual planning applications and as part of the Hillingdon Local Plan: Part 2 ‑Site Specific Allocations Local Development Document."

5. The policy for town and local centres within the Local Plan is contained within Policy E5

as follows:i. "Policy E5: Town and Local Centres

ii. The Council will accommodate additional retail growth in established centres, in accordance with the conclusions of the latest evidence base. Growth for comparison goods will be primarily accommodated in District Centres as set out in Table 5.5. If appropriate, specific locations for growth in convenience goods will be determined through the production of the Hillingdon Local Plan: Part 2 ‑ Site Specific Allocations Local Development Document.

iii. Planning decisions will be taken in accordance with the provisions of national guidance particularly the sequential and impact tests. Further, more detailed policies will be outlined in the forthcoming Hillingdon Local Plan: Part 2 ‑ Development Management

Policies Local Development Document."

6. It is to be noted that the Policy incorporated national guidance from the National

Planning Policy Framework ("the Framework"), in particular in relation to the sequential

and impact tests.

7. The Framework provides as follows in respect of these issues:i. "24 Local planning authorities should apply a sequential test to

planning applications for main town centre uses that are not in an existing centre and are not in accordance with an up‑ to‑ date Local Plan. They should require applications for main town centre uses to be located in town centres, then in edge of centre locations and only if suitable sites are not available should out of centre sites be considered. When considering edge of centre and out of centre proposals, preference should be given to accessible sites that are well connected to the town centre. Applicants and local planning authorities should demonstrate flexibility on issues such as format and scale.

ii. .....

iii. 26 When assessing applications for retail, leisure and office development outside of town centres, which are not in accordance with an up‑ to‑ date Local Plan local planning authorities should require an impact assessment if the development is over a proportionate, locally set floorspace threshold (if there is no locally set threshold, the default threshold is 2,500 sq m). This should include assessment of:

• the impact of the proposal on existing, committed and planned public and private investment in a centre or centres in the catchment area of the proposal; and.

• the impact of the proposal on town centre vitality and viability, including local consumer choice and trade in the town centre and wider area, up to five years from the time the application is made. For major schemes where the full impact will not be realised in five years, the impact should also be assessed up to ten years from the time the application is made.

i. 27 Where an application fails to satisfy the sequential test or is likely to have significant adverse impact on one or more of the above factors, it should be refused."

8. Consent for an extension of the claimant's store was granted in 2006. The consent was

implemented but not completed. On 22 April 2013, following consideration at the

defendant's planning committee on 7 March 2013, the claimant was granted permission

for a redevelopment of their existing store and a replacement with a store of 6,563 sq

metres net floorspace. This was a development designed to address deficiencies in the

extant store and the fact that it was over‑ trading. In that latter respect it was designed to

meet qualitative need in the centre, that is to provide a more satisfactory and attractive

shopping environment.

9. On 3 June 2013 the first interested party made an application for a mixed‑ use

development at the former dairy site. The proposal was for a 4,554 sq metre net

floorspace food store, a cinema, five restaurants and four unit shops which totalled 365 sq

metres in all together with 104 dwellings. In the course of these proceedings that

proposal became known as ARLA 1. The application was supported by a Retail and

Leisure Report ("RLR") which addressed the claimant's site and the sequential test as

follows:i. "5.73 In addition RPS has also considered Sainsbury's South

Ruislip. This site is not available to the applicant and indeed Sainsbury's are progressing their own proposals for a replacement store. The site is not physically large enough to accommodate the proposed food store together with restaurant units and cinema. Furthermore, it would not succeed in regenerating the application site and all the important economic benefits that would stem from the application proposals. In this respect, the Sainsbury's site cannot be considered sequentially preferable. It is not available. Only the application proposals will introduce a choice of main food operators into this part of the borough."

10. The RLR analysed capacity for additional retail expenditure as follows:i. "5.39 In relation to the proposed Asda store as previously

discussed, there is a need to increase choice of competition for the benefit of South Ruislip residents. Turley Associates' assessment of retail capacity ..... shows that there is sufficient expenditure for growth (including service expenditure) within the Study area to support the proposed replacement Sainsbury's store. In respect of convenience goods, in a large part this is due to a number of existing stores within the Study area being shown to trade in excess of company average sales densities. In particular, the existing Sainsbury's store is shown to be trading at 56 per cent above the benchmark. Even after the replacement Sainsbury's store becomes operational, Turley's assessment shows that the store is expected to continue to over‑ trade compared to benchmark, albeit at a lower rate. The proposed Asda store will

assist by addressing its own trading."

11. The proposed turnover of the new food store was assessed along with from whence its

trading would be drawn, so as to assess the impact on the existing retail facilities within

the catchment, including the claimant's proposed redeveloped store.

12. As a consequence of the retail economic model which was undertaken, it was concluded

that £16.02 million would be diverted from the claimant's expanded store to the ARLA 1

food store proposed to be operated by Asda, leaving a residual turnover for the claimant's

store of £70.85 million, representing an 18.4 per cent impact on their trade. The point

which was emphasised was that this left the claimant's store trading above benchmark or

the national average turnover for the claimant's stores as advised for the purposes of,

amongst other things, this kind of analysis in published data.

13. Officers addressed the retail planning issues in their report for a meeting of 11 February

2014. In relation to Need and Trade Draw, they observed as follows:i. "The council's retail evidence base does identify retail capacity for

additional floorspace. Whilst it did identify a qualitative need for further convenience floorspace, this should only be for new development that would 'anchor' and 'complement' the role of existing centres. It is considered that the design and location of the proposal will not strengthen an in‑ centre anchor facility. By likely drawing trade from Sainsbury's and other facilities in the local centre, the proposal will draw significant trade from in‑ centre facilities which is considered to be contrary to planning policy. The existing Sainsbury's store within the local centre plays an important role in anchoring the local centre. Therefore any adverse impact on this store is an important consideration in determining this application.

ii. In addition, the assessment of capacity undertaken in support of the Sainsbury's proposal (which has been relied upon by the applicant) identified convenience capacity of approximately £14 million. Much of this capacity (£10 million or 74%) will be met by the Sainsbury's development. Consequently, there is limited capacity to support further convenience floorspace within the catchment area (approximately £3 million). Importantly, this 'capacity' is for the catchment area as a whole (which includes higher order centres such as Ruislip district centre) and not just South Ruislip.

iii. .....

iv. The assessment undertaken by the applicant assumes that almost £34 million of additional retail expenditure will be attracted to South Ruislip as a consequence of the proposal at the ARLA site. By also taking into account the Sainsbury's extension the additional retail turnover directed to South Ruislip local centre increases to approximately £60 million (£29 million convenience goods and £31 million comparison goods). This equates to an approximate doubling of the retail turnover of South Ruislip local centre.

v. This further demonstrates that the scale of the proposal is inappropriate to the role and function of the local centre and the concerns raised by the Council/GLA of new development altering the role and function of South Ruislip local centre will clearly be realised should the ARLA site proposal come forward.

vi. In addition, should the high levels of clawback not be achieved, the effect on existing centres within South Ruislip will be much higher than that estimated by the applicant. We consider this issue later.

vii. The applicant also places significant emphasis on there being a qualitative need for improved provision in order to address overtrading of the existing Sainsbury's store in South Ruislip. Whilst we acknowledge that the existing Sainsbury's store is overtrading, as noted by the applicant, planning permission exists to redevelop this store and address the overtrading. Therefore, the overtrading of this in‑ centre store will be addressed without the need to permit a new store outside the local centre (as proposed), that will have adverse impacts on future investment and the vitality and viability of neighbouring centres.

viii. Whilst Sainsbury's anticipate that this store will continue to trade above company average level, the store is located in London where typically expenditure per capita and population density is greater than other parts of the UK. Furthermore, it is too simplistic to state that because a store is trading above company average level that it is overtrading. As acknowledged by the Practice Guidance, claims on overtrading should be backed up by corroborating evidence such as overcrowding and congestion rather than simply a comparison with a retailer's company average turnover. No such evidence has been presented.

ix. In this context, the redevelopment of the existing Sainsbury's store within the local centre will address the qualitative issues highlighted by the applicant. There will be no need for further provision to address overtrading as suggested by the applicant and therefore this issue has clearly been overstated and should not be used to justify the proposal.

x. Overall, reflecting the findings of the Council's evidence base, there is no capacity to support the application proposal (over and above the Sainsbury's redevelopment) and the qualitative need identified has been significantly overstated. Whilst the Council's Retail Study identified some qualitative need to improve existing provision this should be focused in improving 'in‑ centre' anchor facilities rather than permitting schemes outside defined centres (as proposed on the ARLA site) that will have the effect of drawing significant trade from the defined centre."

14. In respect of the application of a sequential test contained within the Framework, the

officers observed as follows: i. "As we have demonstrated, we do not believe that a need for the

scale of retail floorspace proposed has been demonstrated. The Council has accepted that there is a need to address overtrading. However, the Practice Guidance (paragraph 6.5) confirms that a key part of positive planning is: 'to identify those sites to be most appropriate to meet any identified need.'.

ii. It is our view that the redevelopment of the 'in‑ centre' Sainsbury's store will satisfactorily meet the need identified in a sequentially preferable location. This means that the development of an edge‑ of/out‑ of‑ centre site (as proposed) is not necessary. There is no pressing need in South Ruislip that justifies the application proposal on the ARLA site.

iii. .....

iv. The limited need identified by the application (which focusses on the overtrading of Sainsbury's) will be met by the proposed redevelopment of the existing Sainsbury's store in South Ruislip."

15. The officers' report went on to consider the assessment of retail impact, again pursuant to

the policies contained within the Framework. They observed as follows:i. "The applicant has failed to assess the potential impact of the unit

shops and therefore the full turnover of the retail element of the proposal has not been considered.

ii. The anticipated trade draw of the proposal is unrealistic and seeks to underestimate the potential turnover from the existing Sainsbury's and subsequently on the long‑ term vitality and viability of South Ruislip local centre. For example, the applicant has assumed that the bulk of the proposals turnover will be derived from facilities further afield and outside South Ruislip.

iii. Whilst it is accepted that there is some scope to claw back

expenditure from further afield, the scale of clawback identified to support both the Sainsbury's redevelopment and the new Asda is unrealistic. There is a limit to the level of retail expenditure that can be attracted to South Ruislip local centre (reflecting its role and position as a local centre in the hierarchy). The applicant has assumed that the proposal and the redeveloped Sainsbury's will draw approximately £50 million of additional expenditure to the local centre. Such a level of expenditure is considered unrealistic and inappropriate for a local centre. This includes the application proposal drawing almost £17 million of retail expenditure from outside the Study Area in addition to identifying that the Sainsbury's extension will draw £10 million from outside the Study Area. Not only is such a collective level of trade draw inappropriate for a local centre, it is unlikely that this level of expenditure from outside the Study Area will be achieved given the strength and proximity of competing provision. This includes new stores in Harrow (now open), Hayes (to be operated by Asda) and two new food stores are proposed in North Hillingdon. Should this level of expenditure derived from the Study Area not be achieved, the effect will be that a greater level of trade diversion will be derived from local facilities (namely the Sainsbury's at South Ruislip) than identified by the applicant.

iv. The applicant recognises that the application proposal will compete with the Sainsbury's store. However this is not reflected in the anticipated trade draw. For example, whilst the application has assumed that 45% of the convenience goods turnover of the proposal will be derived from the extended Sainsbury's, only 8% of the comparison goods turnover is identified to be derived from the extended Sainsbury's store. This level of trade diversion is identified to be comparable to the Argos store on Victoria Road Retail Park (7%). This is despite the fact that a number of comparison purchases from the Asda store will be ancillary to a food shop, the comparison goods turnover of the Asda (£17 million) will be comparable to the extended Sainsbury's store (£20 million), and that the comparison turnover of the Sainsbury's store (as extended) is identified by the applicant to be almost three times greater than Argos. Against this background it is considered inappropriate to assume that the proposal will draw such a low turnover from Sainsbury's when compared to that identified for Argos.

v. The above factors have the effect o[f] underestimating the impact on South Ruislip and importantly on the existing supermarket that anchors the local centre."

16. The report went on to consider the impact on existing permitted and planning investment.

It concluded as follows:

i. " ..... Despite this, the applicant has failed to assess the implications of the proposal on future investment as part of their assessment (ie the effect of the application on Sainsbury's commitment to extend the existing in‑ centre store).

ii. If permitted, the proposal at the Arla store is likely to undermine Sainsbury's planned investment for the existing store. Based on the applicant's trade draw figures, the effect of the proposal is for the turnover of the convenience goods element of the Sainsbury's store by 2017 to be less than currently achieved. Whilst it is accepted that the comparison goods offer of the Sainsbury's store will be improved, this element of the store relies on the footfall created by the convenience goods element in order for it to be successful. Furthermore, it is anticipated that the comparison goods element of the extended Sainsbury's store will trade at a much lower level than that identified by the applicant for the reasons outlined above.

iii. As a consequence of the proposal at the ARLA site, the proposed investment by Sainsbury's to strengthen an important anchor in South Ruislip local centre will be significantly undermined. It is likely that this significant and costly investment to redevelop the existing store will not arise if the outcome is that the store will trade at a comparable (or lower) level to that which they currently achieve."

17. Following this, the report then went on to consider the impact on town centre vitality and

viability and observed as follows:i. "It is estimated that the proposal will have an impact on South

Ruislip local centre of 17.5%. The applicant themselves suggest that this level of impact as being 'high'. Furthermore, should the redevelopment of the existing Sainsbury's store not come forward (due to the significant implications of the proposal) the impact on South Ruislip local centre is even higher at 21.2%. The impact figure identified by the applicant of 16.4% is incorrect and has been miscalculated. In this context, the applicant themselves identify that the retail turnover of South Ruislip local centre will reduce by over a fifth should the ARLA site come forward.

ii. The applicant seeks to justify that the proposal will have no adverse impact on the centre as a whole due to the Sainsbury's store (post Asda) continuing to trade at above benchmark levels. It is not considered that due to a store continuing to trade above expected levels that new development outside a centre would mean that the proposal will not have a significant adverse impact, as suggested by the applicant. The application proposal is likely to draw significant trade from in‑ centre facilities to a destination outside the local centre where the propensity for linked trips is

much less. The ARLA site proposal includes small unit shops and A3 uses. Consequently, the reason to visit the local centre may be lost. This reduction in trade will have knock‑ on effect in terms

of reduced footfall and spin‑ off benefits for existing businesses that over time will undermine the long term vitality and viability of the centre, which is contrary to planning policy."

18. Overall, the officers' conclusions on retail matters were drawn together as follows: i. "There are a number of concerns with the retail impact assessment

which undermine its reliability. Officers consider that the Retail Impact Assessment would underestimate the impact. Given the potential harm to in‑ centre committed development and disruption to the hierarchy of centres an underestimate of impacts is particularly problematic and little weight can be placed on the retail impact assessment."

19. The recommendation placed before the members was that the proposal should be refused.

They acceded to that recommendation. On 4 April 2014 permission was refused for four

reasons, two of which were related to retail planning policy. The first reason for refusal

was the failure of the proposals to meet the sequential test and the adverse retail impacts

which had been identified. The second retail‑ related reason for refusal was that the

proposal would result in a development which was out of scale with the position of the

South Ruislip local centre in the retail hierarchy.

20. On 8 May 2014 the interested party re‑ applied. This time the foodstore was some 3,717

sq metres, or 837 sq metres smaller than the previous ARLA 1 proposal. The unit shops

had been removed from the proposal and the amount of floor space devoted to restaurants

and cinema had been reduced. The residential element of the proposal had increased to

132 units.

21. Another RLR was produced in support of this application. It continued to argue that the

extent of the claimant's store's turnover above the benchmark figure should be considered

to be available to support other floorspace. In relation to the extent of available retail

expenditure capacity and the sequential test, the RLR observed as follows: i. "5.91 Turley's assessment of the existing Sainsbury's store

concludes having regard to the survey data that the store has a convenience sales density of £18,467 per sqm in 2012 rising to

£19,924 per sqm in 2017 (well in excess of the benchmark sales density for Sainsbury's as stated in Turley's assessment ‑ £11,818 per sqm in 2012 and £11,907 [per sqm] by 2017). The existing Sainsbury's store is shown to trade at £60.17M at 2017 (survey based turnover) compared to a benchmark turnover of £35.96M. All the other major stores within the study area are also considered to be trading well in excess of benchmarks albeit to a much lesser extent. Even so, if the existing Sainsbury's store were to trade at around benchmark sales densities then this would have the potential of releasing an additional surplus capacity of £16.8M in 2017 (assuming market share of 69.3% from the study area) which could be taken up by the new retail floorspace. In this way total surplus convenience goods capacity in 2017 would amount to £20.5M which is comparable 72% of the total convenience turnover of the proposed Asda store (£28M) of which 75% is expected to be derived from retail facilities located within the adopted study area consistent with the assumption made by Turley's in respect of the replacement Sainsbury's store (Table 10, Appendix 6 of the Planning and Retail Statement, December 2012). This serves to demonstrate that there is almost available expenditure to support the proposed Asda store in 2017.

ii. 5.92 It is quite normal for retail studies prepared as the evidence base for Local Plans to seek to redistribute such expenditure particularly where such stores are trading at levels which is making them congested etc. However consultants may be reluctant to do this in the absence of any hard evidence relating to the trading performance of individual stores. In this case however Sainsbury's has publicly confirmed that extent to which their existing store is performing.

iii. 5.93 In relation to comparison goods floorspace need, Turley Associates' assessment demonstrates that there remains a significant growing and unmet need (£25.45M) within the study area for additional comparison goods floorspace even with a replacement Sainsbury's store. The proposed Asda store will have a comparison goods turnover of £13.08M in 2017 of which 50% is expected to be drawn from existing retail facilities located within the study area consistent with the assumption made by Turley Associates (Table 11, Appendix 6, Planning and Retail Statement, December 2012). It is clear that in terms of quantitative need there is sufficient comparison goods capacity to accommodate the proposed turnover of Asda.

iv. .....

v. 5.158 In addition RPS has also considered Sainsbury's South Ruislip. This site is not available to the applicant and indeed Sainsbury's are progressing their own proposals for a replacement store. Furthermore, it would not succeed in regenerating the

application site and all the important economic benefits that would stem from the application proposals. In this respect, the Sainsbury's site cannot be considered sequentially preferable ‑ it is not available."

22. A revised economic model was produced to evaluate the trade‑ draw and impact of the

new proposal. The output of that model was that £14.04 million of trade would be

diverted by the ARLA 2 food store from the claimant's expanded store, leaving a residual

turnover at the claimant's store of £72.84 million representing a 16.2% impact.

23. The RLR observed as follows:i. "5.190 In conclusion these levels of impact, having regard to the

health of town centres, would not be significantly adverse. Indeed the proposals will have positive benefits for the vitality and viability of South Ruislip local centre and the wider local economy.

ii. 5.191 In order to maintain and increase market share, Sainsbury's are more not less likely to build out its replacement store in the event that planning permission is granted for the proposed Asda store.

iii. .....

iv. 5.217 Even after the effect of the proposed Asda store, Sainsbury's replacement store would continue to trade at around the benchmark. Given the anticipated growth in expenditure and the improving economy in general it would not be unreasonable to expect large stores to benefit from some of this additional growth in expenditure because it is where the majority of convenience goods expenditure is spent. This would increase the turnover in line with the growth in expenditure i.e. any impact felt from the proposed Asda store would be very short lived and in any event a modern store such as that planned by Sainsbury's for South Ruislip would be more than capable of accommodating the predicted levels of impact. Consequently there would be a negligible effect upon South Ruislip local centre as a whole.

v. 5.218 Finally, Sainsbury's existing store in South Ruislip would continue to trade at the convenience benchmark in 2017 even if up to 86% (£24M) of the total convenience turnover of the proposed Asda store (£28M) were to be diverted from Sainsbury's. This is a very significant conclusion which serves to demonstrate that any perceived impact on the existing Sainsbury's store would effectively be absorbed by current levels of reported exceptional trading (i.e. the existing Sainsbury's store trades at £24.2M above the benchmark of £35.96M in 2017). Even under this extreme

scenario this shows that the effect of the proposed Asda store would not render the Sainsbury's store unviable. It would continue to trade at acceptable levels.

vi. 5.219 Similarly, in relation to the proposed replacement Sainsbury's store, the convenience trade diversion to Asda could increase to 61% (from 45%) before the proposed replacement store would trade below the reported Sainsbury's benchmark in 2017 for this store (£50M). Nevertheless, having regard to the retail offer of the proposed Asda store, the study area and comparable convenience provision we consider that our assumed 45% trade diversion to be robust. If that diversion were to increase it is clear that Sainsbury's would continue to trade well in comparison to the benchmark. Furthermore, increased trade diversion from Sainsbury's (for either the existing or proposed replacement store) would mean that the trade draw of the proposed Asda store upon other convenience facilities would reduce meaning that impacts upon other local centres/facilities would reduce accordingly.

vii. 5.220 Benchmark sales densities as reported in company accounts are an average of a retailer's store portfolio. Accordingly they are not the lowest or highest rate but somewhere in the middle. It does not mean that a store would become unviable where it trades below the benchmark ‑ much will depend upon the composition of the local catchment area. In this case the South Ruislip catchment area is affluent and the introduction of healthy competition can benefit such stores particularly where they are located, as in this case, within an easy walking distance of each other as price‑ conscious consumers will seek to compare goods.

viii. 5.221 In summary, our impact assessment demonstrates that there would be no significant adverse impact arising from the application proposals upon town centres or committed development. In particular the proposed Asda store would not jeopardise Sainsbury's investment in a new store at South Ruislip. the replacement Sainsbury's store would have a competitive edge compared to the proposed Asda store. The replacement Sainsbury's store would comprise a sales area of 6,563 sqm compared to a sales area of 3,717 sqm for the proposed Asda store. In this respect Sainsbury's should reasonably have little to fear in terms of the retail offer of their replacement store being undermined by a competing smaller Asda store in South Ruislip."

24. This new proposal supported by a new RLR was known within these proceedings as

ARLA 2. In order to assist the defendants in assessing the application and in particular to

provide an independent review of the retail material which had been furnished to them,

the defendants commissioned Chase & Partners to provide a review of the retail work.

Chase & Partners provided a report to the defendants dated 3 October 2014. They

concluded that the sequential test analysis which had been undertaken in the ARLA 2

RLR was robust. But within Chase & Partners' report there is no specific mention made

about the comments set out above in respect of the claimant's site and their proposals.

Chase & Partners reviewed the reliability of the data which had been put into the model

and the trade‑ draw assumptions for the proportions of trade drawn from the different

existing shops to the ARLA 2 foodstore. The report noted that in common with the work

which had been done on behalf of the claimant to support their redevelopment

application, the larger trade draw percentages were drawn from similar scales of shop on

the basis that like competes with like.

25. The following conclusions were drawn by Chase & Partners in their report: i. "The cumulative impact of both the new Sainsbury's and Asda on

convenience retailing (individual stores and centres) is shown in table 13A [of the RLR]. When compared against table 7, it can be seen from table 13A that in stores where the cumulative impact results in them under‑ trading that they were already trading below their benchmark turnover prior to either the Sainsbury's or Asda. Notwithstanding, the levels of cumulative impact are not considered significant enough to undermine the future trading capability of these stores.

ii. It should also be noted that where the largest cumulative impacts fell on existing stores that these were already trading above company levels and most would continue to do so.

iii. .....

iv. The highest impact arising from the proposed Asda is on the Sainsbury's, South Ruislip (45%) which is a projected £12.60m. It is recognised that the Sainsbury's is significantly overtrading by 56% (£19m) and that the store has trading difficulties as a consequence. Since 2006 the company has had a series of planning consents to extend and rebuild the store but none have been implemented. The most recent permission was granted in April 2013, but no works started. However, it is acknowledged that they have recently submitted an application for a temporary store to facilitate them to maintain trading should they choose to close the existing for redevelopment.

v. Given the history of the Sainsbury's site and in light of it as a commitment it is considered that two scenarios exist for South Ruislip: (1) implementation of Sainsbury's consent; and (2) no development/change. There are a number of issues to consider in this respect and Chase & Partners have also requested RPS to provide some sensitivity testing to their predicted trade draw to the store.

vi. .....

vii. It can be seen from table 13A that the projected turnover of Sainsbury's at 2017 would be £67.68m compared to a benchmark of £36.24m (£35.96m at 2012). Therefore if the store maintained market share (69%) and continued to trade at its benchmark sales density then there will continue to be a surplus. In this scenario the applicants state that there would be an additional surplus of £16.8m at 2017 (paragraph 5.91 RLR). It appears that the applicants have then included the additional expenditure arising from the development of the residential at the Arla Dairy site of £3.12m (table 11) to give a potential surplus of £20.5m at 2017. This would amount to 72% available expenditure of the total turnover of the proposed Asda, of which it is assumed 75% would be derived from the study area. This suggests that there would be sufficient surplus expenditure at 2017 to support both schemes.

viii. Notwithstanding the above, it is considered that if the Sainsbury's permission was implemented that the level of trade draw to the Asda would not necessarily be as high. RPS have undertaken a sensitivity analysis of this and considered lower levels of trade draw to establish what the potential retail impacts would be ..... This exercise considers a 5% reduction in the potential trade draw from the Sainsbury's (40%), which would amount to £1.4m (a 10% reduction in the total trade draw from the Sainsbury's). In terms of convenience the retail impacts are shown to fall on stores within the study area, most of which are shown to keep trading above market share. This does demonstrate that even if the proposals did not achieve the full level of trade draw from the Sainsbury's (45%) as predicted that this would not result in a significant adverse impact elsewhere in the catchment. Other stores are trading at a level that means they can absorb the levels of impact projected.

ix. .....

x. To fully understand the extent of retail impact the combined level of convenience and comparison trade draw on centres must be considered. Table 15A shows the combined levels of impact on stores and centres. The highest impacts are identified to be in Ruislip (8.4%), Pinner (7.4%), South Harrow (7.6%) and South Ruislip (15.3%). Table 15A shows that with the exception of

Ruislip, that the residual turnover within these centres of 2017 would exceed the benchmark turnover of them. This suggests that the impact arises as a consequence of overtrading within them.

xi. .....

xii. Although the level of impact on South Ruislip is high it has been demonstrated that this would be as a consequence of the trade draw from the Sainsbury's. The applicants have looked at the designated centre in isolation and state that it would continue to trade above benchmark sales densities by £4.18m. Table 15A shows that the Sainsbury's would also continue to trade above benchmark by £3.13m. Whilst it has been demonstrated that the proposed Asda would draw trade from like‑ for‑ like stores it must be recognised

that the Sainsbury's is an 'in‑ centre' store. It is, however, considered that the trading aspects of the store are different to others in the catchment given its level of overtrading. The applicants have assessed the potential trade draw from the store and demonstrated that it would not undermine its ability to continue to perform at company levels.

xiii. .....

xiv. The RLR provides a detailed assessment of all town centres in the catchment and their audits show them to be healthy and demonstrating good indicators of their vitality and viability. The applicants have presented a comprehensive assessment of projected trade diversion from centres/stores within the catchment and Chase & Partners are satisfied that there would be no significant adverse impacts arising from the retail element of the scheme. Nor is it considered that the proposals would undermine the commitments identified."

26. Officers prepared a report for the members considering the ARLA 2 application for a

committee meeting on 21 November 2014. That report found its way into the public

domain on 13 October 2014. The officers' report noted the previous refusal of planning

permission and set out the reasons for refusal. The requirements of the Framework and in

particular those at paragraph 27 of the Framework were also set out. In terms of the retail

policy analysis, the report observed as follows, firstly, in relation to the sequential test:i. "SEQUENTIAL TEST:

ii. In terms of sequential testing, the RLR identifies 23 potential alternative sites. The applicants have assessed the availability, suitability and viability of the sites identified. They have

considered sites within and at the edge of higher order centres. The Council engaged an appropriately qualified independent Retail and Leisure expert to examine the sequential test and the expert has concluded that it is robust. Officers from the London Borough of Hillingdon and London Borough of Harrow have also considered the sequential test and consider it to be acceptable. In summary, there has not been another site identified which would be sequentially preferable to the application site."

27. In respect of retail impact, the officers concluded as follows:i. "The Council engaged an appropriately qualified independent

Retail and Leisure expert to examine the impact test and the consultant concluded that it is robust.

ii. The highest impact arising from the proposed ASDA is on the Sainsbury's, South Ruislip (45%). It is recognised that the Sainsbury's is significantly overtrading by 56% (£19m) and that the store has trading difficulties as a consequence. Sainsbury's have recently submitted an application for a temporary store to facilitate the redevelopment of the main store.

iii. The key concern is whether the proposal would result in unacceptable impacts on the viability of the existing or approved (committed) Sainsbury's store. It is considered by officers that the existing store would continue to be viable and trade (albeit at a lower overall turnover than [it] currently achieves) at a level consistent with the national average for Sainsbury's stores.

iv. The analysis shows that the proposals on the Arla Foods site would not necessarily prevent the committed development (expanded Sainsbury's) from coming forward. It is noted that Sainsbury's have lodged an application for a temporary store, which (if approved and implemented) will enable them to decant from the existing store whilst it is redeveloped.

v. Notwithstanding this, officers consider that there would be significant costs to Sainsbury's from building the expanded store and given the amount of trade draw to ASDA, officers consider that there is a risk that Sainsbury's find that it is not viable to build the expanded store. In such a scenario, the benefits of the Sainsbury's expansion (one time construction jobs and spending and ongoing jobs in the store etc) would not accrue.

vi. Officers have had to make a balanced decision, taking account of the regenerative benefits of redeveloping the Arla Foods site, the jobs in the commercial aspects of the scheme as well as bringing forward housing. It is the officers' view that there are very real material considerations to be taken into account which indicate that even if the committed development (i.e. the expanded Sainsbury's)

does not come forward as a result of the current application (i.e. the Arla development), the benefits from the Arla scheme would outweigh the disbenefits (in terms of impact on committed in centre development).

vii. .....

viii. The RLR provides a detailed assessment of all town centres in the catchment and analysis shows them to be healthy and demonstrating good indicators of their vitality and viability. The applicants have presented a comprehensive assessment of projected trade diversion from centres/stores within the catchment and officers (together with the independent retail consultant appointed by the Council to verify the study) are satisfied that there would be no significant adverse impacts arising from the retail element of the scheme. Nor is it considered that the proposals would undermine the commitments identified."

28. On 15 October 2014, after the officers' report had been placed in the public domain, the

claimant's agents wrote objecting to the application as follows:i. "Sainsbury's is committed to this investment, as evidenced by the

current planning application for a temporary store ..... but this has always been predicated on the authority resisting a major foodstore on a sequentially inferior site (Arla Foods) that is poorly connected to the Local Centre.

ii. Sainsbury's position is that if the planning application at the former Arla Foods site is now granted by the London Borough of Hillingdon, then it will not proceed with the redevelopment above.

iii. .....

iv. In addition, the identified impact of the Asda proposal on the sales turnover of South Ruislip Local Centre as a whole (in the scenario that the Sainsbury's store redevelopment does not take place) amounts to ‑ 18.1%.

v. This percentage impact figure is not reported in the committee report and is considered to be a major omission.

vi. .....

vii. In light of Sainsbury's position that it would not proceed with its proposals if the Arla development is permitted, committed investment in the centre will also not be delivered. The combined effect of these factors on South Ruislip as an allocated town centre benefitting from full policy protection is a significant adverse impact on the existing and future vitality and viability of the centre. This is notwithstanding the impacts on centres and

investments elsewhere within the catchment of the proposed Asda store.

viii. This significant adverse impact alone justifies the refusal of the application on the Arla Foods site and Sainsbury's is firmly of the view that this is the only proper outcome of the application in its current form."

29. The existence of this objection and other matters which have arisen since the compilation

of the committee report led to an addendum sheet being provided to members to update

the committee report. In response to the claimant's objection, the officers observed as

follows: i. "The application has been assessed in terms of the regeneration

benefits that it would bring about, including the additional housing and the bringing of a derelict site back into use. It is considered that such benefits would outweigh the compromise of committed development within the town centre."

30. At the meeting of the planning committee, Mr Moore spoke on behalf of the claimant.

His contribution was in similar terms to the letter of objection which I have quoted above.

The proceedings were recorded. Within the papers before the court there is a transcript of

Mr Moore's observations and also the responses of planning officers to the discussion.

So far as Mr Moore is concerned, the transcript records that he observed as follows:i. "Unfortunately, if planning permission is to be granted for the

ARLA scheme this evening, regardless of what the independent retail advisors say that investment will be foregone because it will be no longer commercially viable. I believe we've demonstrated significant commitment to the proposals in the past through securing planning permission. We currently have an application with yourselves for a temporary store that will allow us to undertake these works whilst still maintain a customer presence in South Ruislip. But that unfortunately will not be able to go ahead if the ARLA scheme is permitted here this evening.

ii. .....

iii. ..... The sequential test: is there a site that is sequentially preferable to the ARLA scheme? I would argue very strongly there is. There is a site with planning permission, that we have been working on for a considerable time, that is in centre as opposed to edge of centre. It is our store and I would suggest that represents a sequentially preferable site.

iv. The second test: will the proposed development impact on proposed development on sites which are available, viable and suitable? Again, I believe the ARLA scheme fails this test because there is proposed investment for South Ruislip with regards to our proposed store.

v. And finally the third test which looks at impact on existing centres. Please note this is not impact on individual stores which is covered by your officers' report, but impact on the overall centre. Now if there is a significant impact, retail impact, on an existing centre, planning permission, again, should be refused. The proposed ‑

‑ the impact that is ‑ ‑ set out by your own independent retail consultants, which unfortunately does not appear in the report, is 18.1% on South Ruislip centre. I find it very difficult to concede that is not a significant impact and if that is the case, again, planning permission should be refused.

vi. So in summary then members, I believe that the current planning application before you will prevent significant investment in South Ruislip. It will prevent Sainsbury's from redeveloping its central store to the great benefit of South Ruislip centre itself and I also believe that the planning application fails the three key test set out in National Planning Policy Framework in relation to the consideration of retail schemes."

31. After various contributions to the debate, the lead officer Mr Duigan advised members as

follows orally at the meeting:i. "Just beginning with the sequential test, I think it's fair to say that

there'd been a lack of evidence in the first application. What we've ended up with in the second application is actually, I'd say they've fully saturated the sequential testing, both in this borough and surrounding boroughs, looking for sites where even in a disaggregated form, in other words if you split the supermarket and the cinema and tried to find homes for them because it's a lot easy to do in a disaggregated form.

ii. .....

iii. So I do accept ..... that it's sequentially less preferable than say the Sainsbury's site which is inside the centre but that's again where we're coming back to whilst sequentially it's less preferable you're essentially being asked to balance the disbenefits of potentially not getting an expanded Sainsbury's store or a new Sainsbury's store of a larger size against the benefits that would accrue on the ARLA site which include a supermarket, cinema. And the advantage of the cinema is not only people going to the cinema, jobs and also the night time economy and the residential housing development as well as the regenerative benefits that would come from bringing

forward a derelict site.

iv. There's no mystery, Chairman, as to what we're balancing here. There's clearly an in‑ centre store which may or may not come forward in an expanded form. If that doesn't that's a disbenefit of this scheme which needs to be weighed against the benefits that come from the scheme. Its officers' view that those benefits accrue on the ARLA site outweigh the disbenefits of not seeing an expanded Sainsbury's store.

v. .....

vi. Now that comes back to the argument of is one site sequentially preferable? Yes it is by about sort of 250/300 metres, at the same time, we're doing that balancing act and planning terms in terms of are there material considerations that will dictate that we don't run strictly in accordance with the development plan. In this case I believe there are.

vii. The second point, Chairman, came to the 18.1% impact on South Ruislip center. Just to put that in perspective though, the lions share of around about the 18% is trade drawn from the Sainsbury's store, not drawn from the various other stores that are in the local centre. If I just ‑ ‑ to understand whether that seems reasonable, the stores which are in South Ruislip simply aren't going to be competing with the Asda."

32. The recommendation of the officers in their report that planning permission should be

granted was, after the discussion, accepted by the members. On 24 December 2014

planning permission was granted.

33. The Law

34. In the main, the relevant law in relation to this case is uncontroversial. The power to

grant planning permission is created by Section 70 of the Town & Country Planning Act

1990. Section 38 (6) of the Planning & Compulsory Purchase Act 2004 requires that

decisions about planning permission should be taken in accordance with the development

plan unless material considerations indicate otherwise. The Framework is an obvious

material consideration in this respect, representing, as it does, national government

policy. It is now well settled that the meaning of planning policy is a matter of law (see

Tesco Stores Ltd v Dundee City Council [2012] UKSC 13). In R (On Application of

CBRE Lionbrook (General Partners) Ltd v Rugby Borough Council and Another [2014]

EWHC 646, Mr Justice Lindblom observed as follows in relation to the sequential test:i. "164 The sequential test, which now appears in paragraph 24 of the

NPPF, is not new. It has been an essential part of government policy for retail development for a long time. The sequence is familiar: town centres first, edge‑ of‑ centre sites second, and

out‑ of‑ centre sites third. Out‑ of‑ centre sites can be considered only if 'suitable sites' in the town centre or on the edge of a centre are 'not available'. Suitability and availability are matters of planning judgment. They are not matters on which the court will substitute its own view for that of the decision‑ maker.

The decision‑ maker's exercise of judgment upon them will not be vulnerable to challenge except on Wednesbury grounds."

35. Previous decisions are capable of being material considerations if they have common

features which are relevant to the decision in hand. These common features may be that

they relate to the same site or to a similar type of development. They may involve the

interpretation of the same planning policy (see St Albans District Council v Secretary of

State form Communities & Local Government [2015] EWHC 655 paragraph 92).

36. There is clearly a public interest in consistency in decision making, and like cases should

be decided alike. That is not to say that earlier decisions are binding on the subsequent

decision‑ maker, and the subsequent decision‑ maker is perfectly entitled to depart from

them if an explanation is provided for why that should be the case. The seminal

statement of this principle, in particular in the context of planning decisions, is to be

found in the judgment of Lord Justice Mann in North Wiltshire v Secretary of State for

the Environment [1993] 65 P & CR 137, page 145, as follows:i. "To state that like cases should be decided alike pre‑ supposes

that the earlier case is alike and is not distinguishable in some relevant respect. If it is distinguishable, then it usually will lack materiality by reference to consistency, although it may be material in some other way. Where it is indistinguishable then ordinarily it must be a material consideration. The practical test of the inspector is to ask himself whether, if I decided this case in a particular way, am I necessarily agreeing or disagreeing with some critical aspect of the decision in the previous case. The areas for possible agreement or disagreement cannot be defined, but they will include interpretations of policies, aesthetic judgment and assessment of need. Where there is disagreement then the

Inspector must weigh the previous decision and give his reasons for departing from it. These can on occasion be short: for example, in the case of disagreement on aesthetics; on other occasions they may have to elaborate."

37. In the context of this particular case, in my view, care needs to be taken in relation to

reasons‑ type arguments. It needs to be borne in mind that the formal requirement for

providing reasons for the grant of planning permission by a local planning authority have

been removed from the law. Unlike, for instance, the circumstances of R (On

Application of Thompson) v Oxford City Council [2014] 1 WLR 1811, this is not a

situation where the statutory framework requires reasons to be given. Nevertheless, in so

far as an earlier decision is engaged by the consistency principle and therefore is material

to the decision‑ making process, in my view, it should be expected that as a material

consideration the analysis leading up to the decision should either expressly or by a

readily obvious inference explain why the decision has been reached.

38. The examination of the making of these types of decision and in particular the assessment

of the committee report, which will no doubt in every case underpin such a decision,

needs to be undertaken in the context of the legal principles before approaching such a

committee report which were aptly summarised by Mr Justice Hickinbottom in R (On

Application of Zurich Insurance Ltd T/a Threadneedle Property Investments) v v North

Lincolnshire Council [2012] EWHC 3708 at paragraph 15 as follows:i. "15 Each local planning authority delegates its planning functions

to a planning committee, which acts on the basis of information provided by case officers in the form of a report. Such a report usually also includes a recommendation as to how the application should be dealt with. With regard to such reports:

i) In the absence of contrary evidence, it is a reasonable inference that members of the planning committee follow the reasoning of the report, particularly where a recommendation is adopted.

ii) When challenged, such reports are not to be subjected to the same exegesis that might be appropriate for the interpretation of a statute: what is required is a fair reading of the report as a whole. Consequently:

ii. '[A]n application for judicial review based on criticisms of the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken.' (Oxton Farms, Samuel Smiths Old Brewery (Tadcaster) v Selby District Council (18 April 1997) 1997 WL 1106106, per Judge LJ as he then was).

iii. iii) In construing reports, it has to be borne in mind that they are addressed to a 'knowledgeable readership', including council members 'who, by virtue of that membership, may be expected to have a substantial local and background knowledge' (R v Mendip District Council ex parte Fabre (2000) 80 P & CR 500, per Sullivan J as he then was). That background knowledge includes 'a working knowledge of the statutory test' for determination of a planning application (Oxton Farms, per Pill LJ)."

39. Conclusions ‑ Ground 1

40. Central to the submissions made on behalf of the claimant by Mr David Forsdick QC in

respect of ground 1 was his interpretation of paragraph 27 of the Framework. He

submitted that once it had been concluded that either the sequential test or the impact test

had been failed then the proposal "should be refused" in line with the language of the

Framework. He submitted that there needed to be a definitive conclusion on both of the

policy tests, and that if it was adverse in either case the Framework's emphasis on “town

centre first” meant that this was not just a balancing factor for another material

consideration to be weighed up but that it must be the starting point triggering a strong

presumption against the proposals when the decision was being made.

41. In relation to the impact test, he submitted that the conclusion reached on the evidence

must have been that the claimant's investment would not occur if the ARLA 2 proposal

was granted consent. The claimant's evidence was, in effect, the only evidence of

substance on this point and the terms of the update report and the equivocation in the

committee report demonstrated that the conclusion under the impact test was, as a

consequence, adverse. If that was not the case, then his submission was that the

defendant had failed to grapple with the key question in relation to the test.

42. In respect of the sequential test, he submitted that officers had accepted that the

claimant's site was sequentially preferable. The only basis on which it was said to be not

available was that it was not available to the interested party developers, and that was a

mis‑ application of the policy. Again, he submitted the adverse conclusion to which that

gave rise should have triggered the strong presumption in paragraph 27, and merely

treating the failure of the sequential test as a balancing factor in the overall decision was a

misinterpretation of the policy. His submissions in these respects were, he said,

reinforced by the fact that Section 38 (6) applied to the provisions of the Framework in

this case as national planning policy had been incorporated within the relevant local plan

policy, Policy EC5.

43. The starting point for my consideration of this submission must be an understanding of

what conclusion the defendant actually reached in relation to the retail policy issues,

reading the officers' report fairly, as a whole, and as a practical decision based on the

documents. In my view the officers' report was clear. Stating that the retail impact

model would not necessarily prevent the claimant's permitted development coming

forward meant that the proposal was not likely to have a significant adverse impact on

committed and planned investment and that, in the light of that conclusion, paragraph 27

was not engaged. The conclusion was that the claimant's development was still likely to

be progressed.

44. The officers recognised that this was a judgment and they could not be absolute or

dogmatic about it. They, therefore, went on, having formed that primary conclusion that

the claimant's proposals were likely to proceed, to observe that there was a "risk" that the

claimant might find their proposal unviable and might consider that they no longer

wished to undertake this expansion which would, therefore, amount to a significant

impact on investment and would lead to paragraph 27 being in play in the decision-

making process. In those circumstances, which were in the nature of a fall‑ back, their

advice was that in any event the benefits for regeneration brought about by the ARLA 2

proposal ‑ in the form of creation of jobs and the development of housing ‑

outweighed the conflicts with retail policy. These conclusions from the officers' report

were reached before the defendants had the advantage of the claimant's letter of

objection. Did that objection change their conclusions? In my opinion, having examined

the documentation, it did not.

45. There is nothing either in the update report or the transcript (which I have set out above)

of the officers' advice to suggest the report's primary conclusion, which was based on the

retail impact analysis, had suddenly been abandoned or supplanted. Read sensibly and

alongside the other material which was produced in the course of this case, the views

which were expressed in the update report and to the members orally were in effect a

reiteration of the officers' fall‑ back position, namely that if (and it remained an if) the

claimant did not proceed and go ahead with its redevelopment proposals the benefits of

the ARLA 2 development outweighed such conflict with retail policy as might arise.

46. It follows from this factual conclusion as to what the defendant actually decided that the

claimant's submissions are without substance. There was a conclusion on impact. The

development was not likely to have a significant impact on committed and planned

investment. The assumption that the claimant's development would proceed obviously

excluded it as a candidate in the sequential analysis because it was to be deployed for the

claimant's own development. Thus, on the officers' primary conclusions, both the impact

and the sequential tests were passed.

47. Even if the case rested wholly on the officers' fall‑ back position, I would not have been

persuaded that there was an error of law based on a mis‑ application of the policy

contained within the Framework. Emphasis was placed by Mr Forsdick on the phrase

"should be refused". But I am not satisfied that that effectively means that there is some

kind of special presumption when paragraph 27 is engaged. The language of paragraph

27 is not unique in the Framework. For instance, at paragraph 64 the Framework

provides that poor design "should be refused". There is no doubt that for very good

reason the town‑ centre‑ first principle is the bedrock of national retail planning policy.

If proposals breach it, they should be refused. But that does not mean that the weight to

be attached to such a breach could not be outweighed on the facts of an individual case

by other matters. I am unable to accept that it was a misunderstanding of the policy for

officers to state on the facts of this case that the conflict with retail policy which might

arise in their fall‑ back position was outweighed by the benefits of the ARLA 2 scheme.

The exercise required balancing the weight attached to the retail policy conflict with the

weight to be attached to the benefits which arose. The Framework in my view does not

suggest that such an approach is illegitimate. The weight to be attached would be a

matter for the decision maker in each case, bearing in mind both the town centre first

principle and also the other material considerations in play.

48. There was debate during the course of argument about the meaning of the term

"available" and whether it had been misinterpreted by the defendant by saying that the

claimant's site was not available because it belonged to the claimant. In my view that

issue does not arise in truth because as I have already observed the defendant concluded

that the site was not available because the claimant would be implementing their

redevelopment upon it, and in the fall‑ back situation it was accepted that there would be

conflict in the sequential approach. The debate which occurred during the course of

argument about the meaning of "available" generated, in my view, far more heat than

light. Ultimately, "available" is a simple English word whose meaning does not require

any further qualification or explanation, and its application will require fact‑ sensitive

judgment in each case. In my view, guidance in the Planning Practice Guide is especially

apt to provide an understanding of the context in which the word is used. That guidance

provides as follows: i. "Can the identified need for main town centre uses land be

accommodated on town centre sites? When identifying sites, the suitability, availability and viability of the site should be considered, with particular regard to the nature of the need that is to be addressed."

49. That suffices to explain the use of the word and nothing which occurred in the context of

the decision under challenge in any way infringed that approach.

50. Mr Forsdick also submitted that there was no basis for the conclusion of the defendants

that the claimant's investment was not likely to be prejudiced because they did not

consider the effect of harm on the capital investment decisions involved in delivering the

claimant's retail store, and the defendants' position appeared to be solely based on

assertions and judgments in the RLR.

51. The answer to that submission is that, first, it is clear from the officers' report that there

was an appreciation of the "significant cost to Sainsbury's from building the expanded

store". Secondly, the defendant had to form a view based on such evidence as was

available to it. On the one hand, they had the judgment of the RLR, which was a

judgment which was based on the detailed retail impact work which I have set out in the

extract provided above. On the other hand, they had the view of the claimant that it

would not be prepared to proceed if ARLA 2 was granted permission. In my view, they

are not obliged to take the claimant's view at face value. They had evidence before them

to substantiate the conclusion which they reached in the form of the retail impact work

and the advice of the authors of the ARLA. The conclusion which they reached was, on

the evidence, one which was open to them and rational.

52. Ground 2

53. In this ground the claimant contends that the conclusion in relation to ARLA 2 was

inconsistent with the decision on ARLA 1, and if there were any reasons for the

difference in the decisions reached they had not been adequately explained. In relation to

the sequential test, it was submitted that the ARLA 1 proposals clearly failed the

sequential test because of the claimant's site being available and in ARLA 2 the opposite

conclusion was reached without any adequate reason. In relation to impact, the

arguments with respect to redistribution of overtrading at the claimant's store to support

ARLA 1 had been rejected whereas in ARLA 2 those arguments and a contention that the

claimant's store would not be in peril if it continued to trade at or above benchmark had

in fact been relied upon in order to decide to grant planning permission. Mr Forsdick

submitted that no explanation had been provided for this volte face.

54. Again, in appraising those submissions, the argument has to start with an appreciation of

facts and conclusions which underpin each of the decisions on ARLA 1 and ARLA 2.

The facts were not the same and they were, in truth, two different proposals supported by

two different analyses, certainly in so far as the quality and detail of the retail evidence

was concerned. First, so far as the retail element of the two schemes were concerned,

they were, as will be obvious from the facts I have set out above, different. ARLA 2 had

a smaller food store and no unit shops. Secondly, the RLR for ARLA 1 had been found

to be flawed and so flawed that it could be given little weight. By contrast, the RLR for

ARLA 2 had been the subject of detailed and independent assessment and found to be a

reliable basis for decision making. In particular, it is notable that its findings were not in

any way questioned by the claimant in their objections. Indeed the objections made by

the appellant in fact relied upon the forecast impact on South Ruislip contained within the

modelling analysis.

55. Thus, whatever the position in relation to benchmark turnovers and the shortcomings of

the ARLA 1 RLR, it is clear from facts I have set out above that the debate had moved on

substantially. True it is that the officers did not distinctly set out why a different decision

from ARLA 1 was being reached, but in my view the reasons are absolutely clear from

the material which was available and which forms the backdrop to the decision‑ making

process in ARLA 2, and which I have set out above.

56. In summary, ARLA 2 was a new proposal with a smaller impact, the detailed economic

modelling in support of which had been the subject of rigorous independent endorsement.

If further reasons were required they could have included that the conclusions of the

ARLA 2 RLR were apparently unquestioned by the claimant's expert retail advisers or

the claimant itself in making representations to the committee. Thus, despite the strength

of Mr Forsdick's presentational skills in advancing this argument, it is in reality, in my

view, of no substance. To the extent that there were similarities between these decisions,

the reasons for the differential conclusions are clear from the material which has been set

out above.

57. In relation to the sequential approach, the differences between the decisions are easy to

identify. In ARLA 1, officers concluded that the identified need for further floor space

would be met by the claimant's redevelopment. By the time of ARLA 2, more detailed

analysis had shown that the impact would not be likely to impact significantly on the

claimant's expansion and therefore, as set out above, the claimant's site was committed to

accommodate further floor space along with ARLA 2 as the conclusion which had been

reached was that both could be supported. In that scenario, predicated on the apparently

uncontested retail analysis, the sequential test was passed. Again, therefore, the

claimant's complaints in this respect have not been substantiated.

58. Conclusion

59. For the reasons which I have set out above, both of the grounds on which this judicial

review has proceeded must be dismissed.