Shropshire planning officers recommend Rocks Green supermarket for approval next week – they fear appeal costs

Planning officers have recommended that the application for a large supermarket off Dunn Cow Road is approved. They argue that although the scheme is a departure from the local plan, it will expand retail choice in the town and will not have a significant impact on the town centre. They say they will not be able to defend of any appeal and worry about the costs.

The South Planning Committee will decide whether to award planning permission to the scheme next Tuesday. This article summarises the arguments planning officers have put forward in favour of the scheme in the committee paper.

The officers’ report, begins by reminding committee members that there are costs associated with the council defending an appeal and the council could also be required to pay an appellants costs. Officers considered the previous reasons for refusal to be indefensible at appeal and warn that if they application is refused, they will not support any appeal.

The scheme has been revised. The applicant has calculated the impact of the smaller store on the town centre will be between 9% and 9.6%, down from the 10.5% and 11% on the original scheme. The report says most of this impact will be on Tesco and the impact on smaller retailers in the town centre will be around 1.2% to 1.6%.

An extended transport assessment states the roundabout on the A49 will continue to operate well within capacity after both the supermarket and 200 homes behind the Nelson built. Moreover, “the applicant has offered to restrict delivery hours out of school drop-off and pick-up times, employ a school crossing person on site and provide acceleration [sic] lanes to mitigate speeding on the A4117.”

The report summarises the objections of Ludford and Ludlow parish council, and Hope Bagot parish meeting. 49 objections have been received since the October planning meeting, along with 4 letters of support and two petitions with a total of 57 signatures. Love Ludlow and Ludlow Civic Society have renewed their objections.

One reason the South Planning Committee gave for refusing the application was it lies outside the SAMDev development boundary. Officers say this is not in itself sufficient grounds for refusal. They say that local planning policy requires that development is located where opportunities for sustainable transport can be maximised “not necessarily where there is already the ability to access the site by sustainable means.” Future housing behind the Nelson and improved pedestrian access over the A49 will increase opportunities.

Moreover, “the proposed food store is intended to provide for weekly or main food shopping trips and these are less likely to be done by sustainable means such as walking or cycling.” Committee members are instructed to take this into account.

“Overall it is officers opinion that the proposed development would generate significant levels of traffic but that there are currently opportunities for walking and cycling and these will be developed further with the construction of the housing allocation site and the associated crossing of the A49.”

The South Planning Committee raised concerns about the impact of the scheme on residents of Rocks Green. This is an outline application for the principle of a store, petrol filling station, car parking and access, not the details of the scheme.

“The agent has since submitted a revised layout plan which they consider will reduce the impact on the amenities of the residents of Rocks Green Crescent. However, members should not place any weight on the amended plan, or the originally submitted plan… The layout of the site, the position of the food store and associated service area would need to be submitted for approval at a later date as a separate application.”

Officers are unhappy with the layout of the scheme:

“Officers remain of the opinion that a different layout could be achieved which moves the store and service yard further from the existing dwellings and also retains the existing landscaping along the A49.”

But the officers warn: “Matters which are not before the Council for determination at this time should not be used to support a refusal.” That means that any aspect of positioning of the store within the site and its landscaping cannot be considered.

Oddly enough, the matters seem to me to be a significant component of the applicant’s case and the officers’ argument that the scheme can be accommodated on this site.

Officers note that the footprint of the store has been increased. The previous layout included a partial second floor for storage but this is no longer part of the proposal. The revised scheme is for single floor. The officers report says: “The footprint of the store could be reduced by reinstating the first floor area, without increasing either gross floor area or sales area.”

This is an outline proposal. That means the layout and design of scheme “are not for consideration at this time”.

The planning committee report then turns to the impact of the proposed store on Ludlow town centre:

“The new table suggests a revised impact of between 9% and 9.6% on the whole of the town centre and an impact of between 1.2% and 1.6% without Tesco. Since the publication of that table Councillor Boddington raised queries with the agent and a newly revised table has been submitted. This table amends the impact on the town centre, without Tesco, to 2.3% to 3.1% (but does not alter the impact with Tesco).”

Referring to national planning policy, the report then spells out the critical point in the decision that the South Planning Committee is expected to make next Tuesday:

The decision to be made is therefore whether an impact of between 9% and 9.6% is a significant impact on one or more of the factors referred to in paragraph 26. Members need to acknowledge in their consideration of impact that the majority of this impact will be on the existing Tesco store.

Officers then refer to the health of our town centre as evidenced in a ten-year-old survey and the developer’s evidence that the town centre remains healthy:

“Officers remain of the view that the revised impact would be more than minor and not insignificant… but accept that there would be an impact on the town centre. However, officers also remain of the opinion that, taking into account the health of the town centre and the positive benefits that would be gained, from trade clawback and increased consumer choice, that the revised level of impact is unlikely to result in a significantly adverse impact on the vitality and viability of the town centre.”

So, does this mean that the application can be refused at all? Officers say yes, but as I read it, they say rather reluctantly:

“Officers do accept that this is an opinion and that members are entitled to reach a different opinion based on the information and facts in front of them. Members should be wary of attempting to suggest that the impact would be greater than that shown by the agent without further evidence in accordance with [national planning policy paragraph 26]. However, member’s opinion on the significance of the shown impact against one or more of the factors to be considered in paragraph 26 may be different to officers. If members remain of a view that the impact, even as revised down to 9.6%, would result in significant adverse impact on the vitality and viability of Ludlow town centre as a whole then your officers would advise that this could possibly be justified as a reason for refusal…”

The planning team then conclude:

“Officers retain their strong advice given at the October committee meeting that the draft reason for refusal… would not be defensible if challenged at appeal and furthermore that pursing the draft reason for refusal may put the council at risk of an award of costs.”

“Officers also remain of the opinion that the impact on the vitality and viability of Ludlow town centre would not be significantly adverse. However, members could, on this issue reach a different conclusion as officers acknowledge that the impact is not minor and the significance of an impact is a subjective matter. Therefore if members are minded to continue to refuse the application, as amended, officers would advise that the reason for refusal focuses solely on the significance of the impact on the vitality and viability of Ludlow Town Centre.”

Then the report returns to the matter of costs to the council should an appeal be launched by the developer. Having advised that a refusal can only be made on the significance on impact, officers say:

“There is a risk that a refusal could be appealed. Such an appeal could not be defended by any of the officers recommending approval of the application as their professional view would be supportive of the scheme. As such it is likely that external professional advice would be required to defend the appeal which itself have a cost implication. Furthermore a refusal on the significance of the impact may also not stand up to scrutiny if challenged and could also put the Council at risk of a costs award. This is a decision which members will need to make based on the evidence and facts in front of them.”

That decision will be made next Tuesday, beginning at 2pm in Shirehall.

Officers’ report to the South Planning Committee, 7 February 2017.

Reacting to the application

It is still not too late to submit comments to Shropshire Council on this scheme. You can lodge them online (14/05573/OUT). You can also email planningdmsw@shropshire.gov.uk. But please don’t leave comments until the last minute. Members of the South Planning Committee consider late comments but they only hit home if new information or perspectives are presented.