Via http://planning.cornwall.gov.uk:8181/rpp/showimage.asp?j=PA14/02920&inde... [please note this has been run through an OCR so check original]

Ashfords LLP www.ashfords.co.uk
Ashford House
Grenadier Road T: +44 (0)1392 337000
0 S h S Exeter F: +44 (0)1392 337001
5x1 3LH DX 150000 Exeter 24

16 December 2014

Your Ref:

Our Ref. .JWB/GJC/235988-00009

E.Mail: j.bosworth@ashfords.co.uk

Direct Dial: 01392 33 3842
Direct Fax: 01392 33 3174

Karen Jackson
Group Manager
Cornwall Council
Dolcoath Avenue
Camborne
Cornwall

By email and post: kjackson@cornwall.gov.uk

Dear Madam

Hayle Rugby Club site - application PA14/02920
SECOND LETTER BEFORE ACTION

We are instructed by Hayle Community Rugby Facilities Limited (HCRFL) in respect of the above
site. We have already written to you in connection with irregularities in the Transportation
Assessment for the scheme that has been submitted by Cranford on adjacent land under reference
PAM/00532. We now write additionally in connection with retail issues. Both applications are
presently due to be reported to Committee on Thursday, although we have invited the Council to
consider deferral.

We have significant concerns about the Council's interpretation of retail planning policy in the
determination of both schemes and the associated implication for the recommendations made on
both proposals. in summary, despite the applications both proposing an identical quantum of
retail sales floorspace (including an identically sized department store) and both applicants being
prepared to accept identical planning conditions restricting the use of that floorspace, the
applications have not been appraised consistently and this has led to officers making differing (and
in our view erroneous) recommendations to Committee.

Both planning applications were reviewed by GVA Grimley (GVA) on behalf of Cornwall Council.
GVA prepared a detailed response on the Cranford application (draft provided to HCRFL on
24.11.14 and final version on 9.12.14) and a short response on the HCRFL application (dated
1.12.14 but only provided to the applicant on 8.12.14). lt is relevant to note that GVA concluded
that the Cranford application fails to satisfy the sequential test, demonstrated significant adverse
impacts on Penzance and would be likely to lead to significant adverse impacts on Falmouth. They
reached similar findings on the HCRFL application.

Cornwall Council has recommended the Cranford application for approval yet has recommended
the HCRFL application for refusal for four reasons including reason for refusal one which relates to
the sequential test, retail impact and the fact that the applicant has used out of date information
(that being the Council’s own Retail Study which has been used as an information document for
various retail schemes throughout Cornwall and has yet to be replaced).

The GVA appraisal of the HCRFL application assumes that the entire scheme is for unrestricted
comparison floorspace. This is despite the fact that in email correspondence of 24.11.14
(attached), Matthew Morris of GVA wrote to Mark Scoot (Amethyst Planning acting as planning
consultant for HCRFL) noting the similarities between the two schemes. At no point was any
clarification sought on any matters by GVA or the Council despite their awareness that the two
schemes are in direct competition.

In contrast. we understand that GVA/Cornwall Council have entered into a protracted dialogue with
Cranford to review retail issues and discuss potentially suitable planning conditions. HCRFL was
offered no such opportunity and indeed the GVA report was only made available on 8.12.14 (the
week before Committee) despite the application having been registered in March 2014.

In terms of the GVA appraisal of the HCRFL scheme, we understand that it did not consider the
additional information submitted on behalf of HCRFL in respect of the sequential test (submitted
1.12.14 and attached) although during a subsequent telephone conversation with Mark Scoot,
Jeremy Content stated that he agreed that the HCRFL application satisfied the retail sequential
test.

The GVA appraisal of the HCRFL application was first provided via email timed at 14:17 on 8.12.14
to Mark Scoot by Jeremy Content of Cornwall Council. The attached email demonstrates that Mark
Scoot replied at 14:31 on the same date to re-affirm that the applicant anticipated the consent
being subject to restrictive planning conditions (predominantly fashion). This was clarified further in
correspondence dated 9.12.14 from Mark Scoot to Jeremy Content, as also attached. The
applicant has made all reasonable endeavours to address the issues raised in the short timeframe
available. To date no response on these points has been provided to the applicant or its advisers
by Council officers.

The commitment by HCRFL to restrict the range of goods by condition (and planning obligation if
necessary) and to restrict unit sizes means that in retail planning terms the two applications should
be treated identically.

The implication of this is that draft reason for refusal one has no validity and that the Council would
be perverse to agree to the restriction on one site and not on the other. In the absence of that
draft reason for refusal it is highly likely that the recommendations for approval of the Cranford
scheme and refusal of the HCRFL scheme would be reversed. The reason for this is that by
virtue of the removal of that reason for refusal, the HCRFL site would demonstrate that it is suitable
and available for retail development and therefore the Cranford application would fail the flood risk
sequential test. This much is confirmed at Summary Paragraph 8 of the Cranford report to
committee.

For all of the above reasons we consider that there has been a material error in the officer’s
decision to support the Cranford Scheme. That error is fundamentally linked to the
recommendation of officers. It is not clear on what basis the officers have taken this stance and
whether any bias is involved. If the error remains uncorrected we consider that our client will have
additional grounds to challenge any decision to grant planning permission, in addition to those
already raised in our letter regarding the Transportation Assessment.

We therefore request that the Council corrects these errors before reporting the applications to
Committee.

Yours faithfully

Ashfords LLP
cc by email Elizabeth Dunstan
Jeremy Content
Phil Mason

Hayle Community Rugby Facilities Ltd

Planning Application Reference PA14/02920

Retail Assessment - Additional Information

November 2014.

This note has been prepared to address the request made by Cornwall Council for the
applicant to consider additional sites as part of the sequential assessment exercise.
Specifically, the request related to considering the sites listed at paragraph 5.16 of the Retail
Assessment submitted in support of planning application reference PAM/00532. This
additional information should be read in conjunction with the submitted Retail Assessment
(dated March 2014) which was prepared before the Rushden decision was issued by the
Secretary of State.

The note therefore addresses the policy context within which the sequential assessment
should be applied, confirms how the applicant has demonstrated flexibility and considers the
additional sites set out above.

i) The requirements of the sequential assessment as set out in the NPPF

The requirements of the NPPF are set out in paragraph 24, This includes the requirement for
flexibility to be demonstrated on issues such as format and scale. As set out below, the test as
established through recent case law is for flexibility to be demonstrated. This is a gateway test
in that flexibility is either demonstrated or it is not - there is no requirement to demonstrate a
certain amount of flexibility and it is therefore not consistent with case law to conclude that
whilst flexibility has been shown. the level of flexibility shown is not adequate.

The site is in an out of centre location and therefore the assessment must consider whether
any in centre or edge of centre opportunities can accommodate the proposed development.
These issues have all been fully considered in the remainder of this section.

ii) The need for the assessment to be undertaken in the real world

The requirement to undertake the sequential assessment in a real world approach is
confirmed in the Dundee and Zurich judgements, Where any sites are appraised in the
sequential assessment, the suitability of such sites must be considered in terms of their
physical ability to accommodate the development proposed by the applicant. This is entirely
consistent with the legal judgement on the sequential approach in Tesco Stores Ltd vs
Dundee City Council Supreme Court Judgement (21 March 2012). As stated by Lord Hope at
Paragraph 38:

“the criteria are designed for use in the real world in which developers wish to operate, not
some artificial world in which they have no interest in doing so”.

In Zurich, Mr Justice Hickinbottom stated at paragraph 61 that:

“it is also important to mark that developers, and planning authorities, work in the real
world. . .As Lord Reed said in Tesco v Dundee at 29:

“Provided the applicant has (given consideration to the scope for accommodating the
development in a different form and to have thoroughly assessed sequentially preferable
locations)... the question remains... whether an alternative site is suitable for the proposed
development, not whether the proposed development can be altered or reduced so that it can
be made to fit an alternative site"

To which Lord Hope perceptive/y added, at (38):

“(T)he context indicates that the issue of suitability is directed to the developer’s proposals,
not some alternative scheme which might be suggested by the planning authority. / do not
think that this is the least surprising, as developments of this kind are generated by the
developer’s assessment of the market that he seeks to sen/e. If they do not meet the
sequential approach criteria, bearing in mind the need for flexibility and realism to which Lord
Reed refers. . ., they will be rejected. But these criteria are designed for use in the real world in
which developers wish to operate, not some artificial world in which they have no interest
doing so"

The High Court of Justice judgement in respect of Warners Retail (Moreton) Limited v
Cotswold District Council v Minton Health Care Ltd, Glamar Leisure Limited, Sainsburys
Supermarkets Ltd dated 22 July 2014 confirms at Paragraph 34 that suitability is directed to
what the developer is proposing rather than any identified deficiencies in retail provision in the
area and goes on to state at Paragraph 35 that the Dundee decision applies to England and
makes specific reference to the Rushden decision as reviewed in this section. Paragraph 36
goes on to confirm that there is no longer any requirement to consider retail need within the
sequential test:

“The policy statement in Scotland that was under consideration in that case is substantially
the same as that in England. To the extent that there is a difference, it is not, in my view,
material. What is important is that Lord Reed (with whom Lord Brown, Lord Kerr and Lord
Dyson agreed) construed the word “suitable”, in the first criterion of Retailing Policy for the
structure plan and the corresponding Policy 45 of the Local Plan, as meaning “suitable for the
development proposed by the applicant”, and not "suitable for meeting identified deficiencies
in retail provision in the area” (para 24). Lord Hope (at para 38) added that "the whole
exercise” in respect of the issue of suitability “is directed to what the developer is proposing,
not some other proposal which the planning authority might seek to substitute for it which is
for something less than that sought by the developer

Observing that it is important to note that developers, and planning authorities, work “in the
real world”, Hickinbottom J in Zurich Assurance cited with approval (at para 61) statements
from Lord Reed in Tesco (at para 29) and Lord Hope (at para 38) on the issue of suitability.
reject Mr Warren’s submission that the Tesco decision does not apply in England. Both the
decision in Zurich Assurance, and decisions of inspectors relating to retail development in
Sheffield (at para 35, which was referred to in the Officers’ report, see para 22 above), and
more recently land at Rushden (EN/12/00010/Ful), suggest it does.

Provisions in the Guidance should not be interpreted in a rigid, mechanistic fashion. As this
court has emphasised, they are guidelines not tram lines. Further “any decision maker would be entitled (and, indeed well advised) to use the Practice Guidance conscious of the fact that,
in some parts of its detail, it is directed towards a differently formulated policy test” ( Borough
of Telford and Wrekin v Secretary of State for Communities and Local Government [2-13]
E WHO 1638 (Admin), per Turner J at para 17). The references in the Guidance at paragraph
6.37 to “need” in relation to availability and sustainability are, as Mr Lewis submits, 'out of
step’ with national policy that no longer has a requirement of need (albeit, as Mr Warren
observes, the guidance was left intact)."

The recent appeal decision APP/G2815N/12/219075 (dated 11 June 2014) in respect of land
adjacent to the Skew Bridge Ski Slope, Northampton Road, Rushden provides clarification on
the application of the sequential assessment. At paragraphs 15 to 17 of the Decision Letter
from the Secretary of State, the principles set out above are confirmed:

“The Secretary of State agrees with the Inspector that the application site is out of centre and
that the sequential test would be satisfied if “suitable (in or edge of centre) sites are not
available”, albeit that that involves consideration of the question of “flexibility” (IR8. 43).
Furthermore, having regard to the arguments put forward by the Inspector at /R8.48, the
Secretary of State agrees with his conclusion at IR8.48 that the sequential test relates entirely
to the application proposal and whether it can be accommodated on an actual alternative site
(eg a town centre site). The Secretary of State agrees with the Inspector’s conclusions on the
sequential test in lR8.48. He notes that the Framework requires developers to demonstrate
flexibility on issues such as format and scale (IR8.49); and that the new Planning Guidance
asks decision-makers to consider whether there is scope for flexibility in the format and/or
scale of the proposal, making it clear that it is not necessary to demonstrate that a potential
town centre or edge of centre site can accommodate precisely the scale and form of
development being proposed, but rather to consider what contribution more central sites are
able to make individually to accommodate the proposal.

Having regard to this, and for the reasons in IR8. 50, the Secretary of State agrees with the
Inspector that the applicant has demonstrated flexibility on format and scale and that the
whole scheme could not be realistically be moved to another location. He agrees with the
Inspector that there is no requirement to disaggregate (lR8.47 AND 8.51) and for the reasons
in IR8.51, he also agrees that it would be inappropriate for a significant part of the Rushden
Lakes scheme to be located in Northampton.

For the reasons in /R8. 52 - 8.53, the Secretary of State agrees with the Inspector (IR8. 54) that
it is sensible to identify an area of search for sequentially superior sites encompassing zones
9-11; and, for the reasons in lR8. 55 - 8.57, he agrees (IR8. 58) that there is no suitable and
available sequential/y superior site."

The Inspectors Report addressed the sequential test at paragraphs 8.43 to 8.48. At paragraph
8.43 the Inspector makes it very clear that the terms to be applied are in the real world and
that a suitable site must be suitable for the development proposed by the applicant:

“..that the terms are to be construed (and therefore applied) in the real world of real
development is beyond argument. The real wofld is the context”

This is further clarified at 8.44 and 8.45:

“The Supreme Court has told us in Dundee what ‘suitable‘ means and it has expressly
rejected the approach advocated by the LAC and Legal & General that the concept relates to
need and / or identified deficiencies in retail provision in the area in question; and it has expressly
rejected the notion that “suitable” means that one should alter or reduce the proposal so as to fit
onto an alternative site. The policy concerning the sequential approach as
set out in the NPPF, and (to the extent that it is still relevant) the non-policy PG that
accompanied PPS4, must be applied in a manner which complies with the legally binding
case law on the meaning of the sequential approach. Plainly the case in question (Dundee) is
of seminal importance.

In summary it establishes (a) that if a site is not suitable for the commercial requirements of
the developer in question then it is not a suitable site for the purposes of the sequential
approach; and (b) that in terms of the size of the alternative site, provided that the Applicant
has demonstrated flexibility with regards to format and scale, the question is whether the
alternative site is suitable for the proposed development not whether the proposed
development could be altered or reduced so that it can be made to fit the alternative site.
These points although related are distinct. Although much was made of the fact that the
Dundee case was a Scottish case the Supreme Court‘s decision applies in England (the
Supreme Court is the Supreme Court for England too) as the High Court ruled in terms in the
North Lincolnshire case at (61) and (62) in which it was read across and applied to the English
sequential test then found in PPS4 (2.64, 3.37, 444-474, 5. 59-5. 80).

At paragraph 8.46, further confirmation is provided that the Dundee decision clearly applies to
the NPPF:

“It is important to bear in mind that the sequential test as set out in NPPF (24) require
applications for main town centre uses to be located in town centres and it then runs through
the sequence, edge and then out-of-centre. This makes good the very simple point that what
the sequential test seeks is to see whether the application ie what is proposed, can be
accommodated on a town centre site. There is no suggestion here that the sequential test
means to refer to anything other than the application proposal. So Dundee clearly applies to
the NPPF (2.67, 444-4. 74, 5.59-5. 80).

Paragraph 8.47 of the Rushden decision addresses the concept of requiring the
disaggregation of applications and confirms that there is now no such requirement:

“A related submission concerns the differences between national policy as now stated in the
NPPF and as previously stated in PPS4. The last sentence of NPPF (24) states that:

“Applicants and local planning authorities should demonstrate flexibility on issues such as
format and scale.” This contrasts striking/y with what was said previously in PPS4 and in
policy EC15.1 at (d) (iv) and 15.2 which contained an explicit requirement for disaggregation.
There is no longer any such requirement stated in the NPPF. It is no answer to this to refer to
the words “such as" in the last sentence of NPPF (24). These words cannot be read so as to
imply that a major, and extremely controversial, part of previously stated national policy lives
on by implication in the NPPF. Had the Government intended to retain disaggregation as a
requirement it would and should have explicitly stated this in the NPPF. If it had been intended
to carry on with the requirement, then all that would have been required is the addition of the
word “disaggregation” at the end of NPPF (24) (2.68, 4.44-4. 74, 5. 59-5. 80)”.

At paragraphs 8.49 and 8.50 the Inspectors Report considers what demonstrates flexibility. It
is important to recognise in considering these paragraphs that the PPS4 Practise Guide was
cancelled and archived on 7"1 March 2014, approximately four months after the Inspectors
Report was issued in November 2013:

“The NPPF requires developers to demonstrate flexibility on issues such as format and scale.
No indication as to what degree of flexibility is required is contained in the NPPF. Such a
requirement was previously contained in PPS4 and so any relevant PG advice continues to be
material. PPS4 PG is of assistance: flexibility in a business model, use of multi level stores,
flexible car parking requirements or arrangements, innovative servicing solutions and a
willingness to depart from standard formats. No serious complaint by the LAC or by Legal and
General has been made in respect of these matters (2. 72-2. 76, 3. 38, 4.57, 5. 73-5. 75).

In relation to flexibility the Applicant has demonstrated flexibility on format - a large part of the
retail element of the scheme, namely the two anchors and the associated unit shops
anchors B8 and C1 and terraces B and C have full cover mezzanines thus reducing very
significant/y indeed the footprint of the development. Mr Burnett also referred to flexibility in
relation to “scale” and explained that the Applicant could readily have placed far more retail
floorspace on the site than has been proposed - in this way the floorspace of the
development is reduced. It is clear from the layout that this is correct. A significant part of the
scheme is taken up by the hotel and leisure club and various lakeside buildings i.e by non-
retail uses. it is absolutely clear that the whole scheme could not realistically be moved to
another location (2. 73)

Paragraph 8.51 provides definitive confirmation that there is no requirement to consider the
potential to disaggregate proposals. This was endorsed by the Secretary of State in
Paragraph 16 of the Decision Letter dated 11 June 2014 which postdates the PPG:

“Having regard to this, and for the reasons in IR8.50, the Secretary of State agrees with the
Inspector that the applicant has demonstrated flexibility on format and scale and that the
whole scheme could not realistically be moved to another location. He agrees with the
Inspector that there is no requirement to disaggregate (lR8.47 and 8.51) and, for the reasons
in /R8.51, he also agrees that it would be inappropriate for a significant part of the Rushden
Lakes scheme to be located in Northampton (8.51)”

The application proposal - demonstration of flexibility

Significant flexibility has also been demonstrated in terms of the area of land needed to
accommodate the application scheme. Over 45% of the A1 floorspace is proposed above
ground floor level. This serves to reduce the area of land needed to accommodate the
development. This clearly demonstrates the application of flexibility in the real world scenario
and indeed the Rushden decision specifically covers this issue as quoted above. On this
basis, it is clear that flexibility has been demonstrated.

The overall level of car parking proposed is at 1 space per 25 sq.m. a compromise on what
institutional investors seek (around 1 space per 20 sq.m.). Staff parking has been located so
as to make the best use of available ‘infill’ areas which further reduces the need for additional
land take.

Therefore, the site area is the realistic minimum area possible to deliver the application
proposed. Further reductions in size would make the scheme operationally unsuitable in the
context of the above.

The remainder of this section considers the additional sites put forward for consideration by
Cornwall Council:

Sequential Conclusions

In summary, the application satisfies the NPPF Sequential Assessment requirements in that:
i) The applicant has demonstrated flexibility in the scheme proposed;
ii) There are no sequentially preferable sites available;
iii) The application is fully in accordance with paragraph 24 of the NPPF.