Closing speech from the QC representing the Audley Avenue

If you have five minutes to spare, this is the closing speech from the QC representing the Audley Avenue (Classic Furniture/ Indigo) at the recent hearing.

 

IN THE MATTER OF AUDLEY AVENUE, NEWPORT

CLOSING SPEECH ON BEHALF OF APPELLANTS

1. The main issue in the appeal is whether or not Station Road (SR) is a sequentially preferable site

to the proposal at Audley Avenue (AA), associated with that issue although to some degree

separate, is whether AA is a locationally acceptable site.

2. The order of this closing will be;

a. Need for a new superstore (SS)

b. Impact

c. Locational policy issues

d. Sequential test;

i. Policy

ii. Walking

iii. Cycling

iv. Buses

v. Car

e. Other material considerations;

i. Employment land

ii. CO2 emissions

Need for new superstore

3. There is no dispute between any of the principal parties to the inquiry (or Mr. Brierley) that

there is a need for a new superstore (SS) in Newport. There is a very considerable amount of

convenience shopping leaking out of the catchment, primarily to stores in Donnington Wood,

Telford and Stafford. There is a need to address this pattern of shopping for a number of

reasons – it is a reflection of the fact that residents of Newport currently have a limited choice

of convenience shopping; it is unsustainable in terms of CO2 emissions; it means that Newport is

not meeting the weekly shopping needs of its residents. Subject to the issue of impact, it is

clearly desirable that residents of Newport be given the benefit of a new SS in the town.

4. There is however a dispute between the Appellant and St Modwen about whether the scale of

store at AA does appropriately meet that identified need. MR’s argument is that in order to

clawback trade from the large stores elsewhere, most of which are out of centre, it is necessary

to have a store in Newport which is close to those other stores in terms of scale and has a wide

range of comparison goods. This argument is wrong for a series of reasons.

5. As a matter of fact the AA store is proposed (by condition) to provide up to 2644m2 net

convenience floorspace, and up to 661m2 net comparison. As SM made clear, and MR just

about accepted, 2700 net is sufficient floorspace for somebody to do a full weekly shop. An

operator can provide their full convenience range. The difference between such a store and say

Asda, DW, will be that there may not be so many varieties of (for example) paper towels (or

possibly not so many different sizes of pack) and there will not be as much comparison goods.

6. People’s choice of where to do their main food shop will be largely dependent on being able to

do a full convenience shop, not on the comparison range. This is confirmed by MRRP’s RIA

(F5/E8) at para 5.7 where he said “it is the food and grocery offer that primarily draws

customers”. It is also relevant that he said at para 6.15 that 80% of shoppers undertake main

food and grocery shopping at least once a week. Why should the decision as to where to go

each week be driven by whether you can purchase items that you would only need once or

twice year, such as bicycles, TVs and school uniform ? Shoppers may continue to go to Asda

because they like the prices and have a loyalty to Asda, but they are unlikely to do so on a

weekly basis because it sells a very wide range of comparison goods.

7. Further, it is necessary to consider the logic of MR’s argument. The proposal at SR is already a

large store (8000m2) for a relatively small market town (12,000) people. MR’s argument appears

to end at the situation that many similar towns will need such large stores on the justification

that they are clawing back from even larger OOC stores, which would no longer be policy

compliant and will often have been granted in a very different policy environment. This is a

recipe for ever increasing “size inflation” of stores, most of which will then be very difficult if not

impossible to place close to town centres. It is difficult to see how this fits in with the need for

developers to be flexible, or for there to be much realistic prospect of a town centre approach.

8. CY in xx put RSS policy RR3, and suggested that SR was “needed” to ensure that Newport’s

residents needs were met at the store. However, RR3 cannot be interpreted to mean that every

town of 12,000 people needs a large SS providing a wide range of comparison goods. The needs

referred to must be weekly shopping needs, rather than wider comparison goods where it is

entirely appropriate that shoppers go to a higher order centre. CY’s argument appears to ignore

the retail hierarchy and again lead to inevitable size inflation in what will be OOC stores around

smallish market towns.

9. It is notable that KN did not raise any concern about the size of store at AA being inadequate to

clawback an appropriate amount of trade. Notably his trade diversion percentage figures were

the same for both AA and SR, indicating that he did not see there as being a material difference

in terms of the level of clawback despite the difference in their size.

10. MR also suggested that AA would not generate operator interest, and relied on the fact that no

operator had signed up to the store. Again this is not a point raised by KN, who was happy to

accept that the main operators could trade from the store. MR’s argument suggests an

unrealistic and totally inflexible approach. SM gave evidence that big 4 operators successfully

trade in, and promote, stores of this size, for example Saffron Walden had total net 3031. It is

MR’s case that there is considerable operator interest in Newport with 3 of the 4 main operators

wishing to locate in the town. However, with Sainsburys signed up to SR the other operators will

obviously wait to see what happens at this inquiry, and with SR before deciding on their next

move. SR is an unconstrained green field site, where an operator need show no flexibility, so can

have as much space, including car parking as they want. It is hardly surprising that operators will

prefer that site over a BF site, but that says nothing about whether AA is an appropriate site and

store. Again it is not realistic for MR to suggest that operators are not acutely conscious of the

fact that SR is owned by the Council, whereas the Council is opposed to AA. That will

undoubtedly be part of their thinking.

11. There is nothing in CY’s point about the potential for the net sales area being 3305 m2 (scenario

2). WYG assessed the scheme on scenario 2; Waitrose and the Coop are fully aware of the

3305 figure, and there is not the slightest evidence of anyone being prejudiced. The threat of

challenge (CY clo para 90) is empty. It might be noted that the SR draft conditions in the report

provide no clarity on gross/net (CD C/28 p.61).

12. For all these reasons the store is plainly of a scale and form which is both appropriate for

Newport, allows residents to do their main food shop at the store, and is attractive for

operators.

Impact

13. The three retail experts all agree that the impact on the TC is acceptable and does not cause any

significant harm. Newport is a healthy TC (SM app 9) and this was agreed by the Mere Park

inspector. All the experts agree that the impact on Waitrose and the Co-op is acceptable.

14. On Waitrose, SM predicts an impact on the Waitrose of 16.6% and 9% on the Coop. KN predicts

23.5% and 13.3% respectively (table 1 KNO6). On SM’s analysis Waitrose would still trade avove

its company average. Both stress that the household survey shows a very large number of

people visiting the TC regardless of where they do their main food shop (SM app 14 q15) and

this applies equally to those who do their main shop in DW and Telford (there is a somewhat

lower number of those who do main shop in Stafford, see Q1/Q15).

15. In terms of the Co-op , the assessment of the level of impact from both AA and SR proceeds on

the basis that the store is largely providing a top-up function (Robeson’s’ RIA on SR ). This is

entirely supported by the household survey where 14% of all respondents are top up shopping

at the Coop, as opposed to 7.6% of main food shoppers (Q9).

16. Therefore the impact on the TC is agreed to be acceptable, and the impact that there is, to be

outweighed by the benefits of having a new store. If people are visiting the TC even if they do

their main shop in Telford or DW, then it is difficult to see why they would not continue to visit

if their main shop was either at AA or SR.

Cumulative impact and the two schemes

17. In respect of Mere Park and cumulative impact it is the common and strongly held view of all

three retail experts that a major food store could not be operated from MP within the LDC and

existing pp. This is set out in detail in the three notes. Mr. Brierley has placed reliance on a

“commitment” from Morrisons, but has adamantly refused to produce evidence of that

commitment, either by himself giving oral evidence, or by producing documentary evidence of

that commitment, and now chosen not to put in any further response. In those circumstances

you should not give any weight to the suggestion that Morrisons will trade from MP under the

LDC. The Council are clearly opposed to MP being developed as a main foodstore. Therefore

there is no prospect of there being any cumulative impact between a main foodstore at MP and

AA.

18. The position in respect of SR is more complicated. In SM’s view it is highly unlikely that two SS

would be developed, at AA and SR. The level of competition between them (like affects like)

would be such, that it simply would not be commercially sensible to develop both. MR said it

would be inconceivable. However, from your point of view you need to consider the residual risk

of the experts being wrong. In those circumstances SM accepts that the potential risk to the TC

of having two such large stores opening does exist.

19. The current position with SR is that the Council cannot grant pp until the SoS has decided

whether to call-in, and it is impossible to know whether (a) he will call it in; (b) when he will

make a decision. The Council’s position in respect of granting pp on SR is also very unclear.

There have been a number of indications during the inquiry that they will take SR back to

committee before granting permission, and in my submission they would be obliged to so in the

light of a number of matters that have arisen during the inquiry. If you allow the appeal, then

the Council would undoubtedly have to take SR back to committee, and in the light of KN’s

evidence on cumulative impact on behalf of the Council, it impossible to see how lawfully the

Council could then grant pp for SR.

20. ID now says on behalf of the Council there will only be one pp granted (ID clo para 4). Therefore

if you allow the appeal before SR is granted pp then there is no concern on cumulative impact.

Whether the Council could lawfully grant pp at SR before you issue your decision is not a matter

for you.

21. Where all this gets to is that the critical point for you is that you need to be kept informed of the

position on SR before you issue your decision.

Policy support for AA

22. AA is a BF site, whereas the site that the Council suggests is preferable and should lead to the

refusal of pp is a GF site. The starting point in policy, both national and local is plainly that BF

land should be developed before GF land. As with all planning considerations this is not a single

“knock-out” point, but it is a very weighty consideration in this appeal. The NPPF is entirely clear

that BF land should be developed first (para 17 bullet 8 on core planning principles) and para

111, as well as the strong policy support for the protection of open land.

23. CY’s approach in closing para 65 that the fact that SR is GF “hardly makes the development

objectionable” is hardly consistent with the NPPF.

24. The Core Strategy at para 5.1 says “Brownfield sites should be developed before Greenfield

sites”. [CDB6]. At para 8.4 it says that in line with the RSS the proposed approach seeks to

develop, inter alia, brownfield land in preference to Greenfield land.

25. The Council’s approach to the BF/GF issue, is to say that they have taken it into account, but

then effectively give it no weight. This is completely wrong. It would be a surprising situation,

and one that would require a very high level of justification, to find that a GF site should be

developed for a use where there was a BF site suitable and available. On the facts of this case,

in the overall planning balance, this would mean that SR would have to be clearly and

demonstrably better in sequential terms, for that factor to outweigh the BF first policy position.

26. As well as SR being GF it is also of course well used by local residents as informal open space. I

will return to this under the sequential test and the suitability of SR, but it should be noted here

that the strong policy support for BF over GF must be given even more weight, where the GF site

is important to the amenity of the residential area.

27. There are also regeneration benefits at SR, in terms of reusing vacant or largely vacant land, and

lifting the area to assist adjoining land. No such benefits flow from a GF site at SR.

Sequential test

28. This can be broken down into the following sub-headings

a. Policy analysis

b. Links to the town centre;

i. Walking to town centre

ii. Cycling

iii. Buses

iv. Cars.

c. Is SR a “suitable” site ?

Policy

29. The policy issue is whether SR is a sequentially preferable site, and even if it is whether the

sequential benefits of SR over AA are sufficient to refuse pp on AA despite the clear policy

support for it as BF land. It is common ground here that there are no sequentially preferable

sites which are capable of meeting the identified need in TC or edge of centre sites. Therefore

the relevant guidance in the NPPF is “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” [para 24]. It is entirely clear from these words that there are not two tests i.e.

accessibility and connection to the TC, but one test, whether the site is accessible to the TC.

Further , this is supported by para 6.2 of the Practice Guide and the purposes of the seq test, i.e.

support to the TC, both because of TC accessibility and supporting the v&v. Therefore the issue

of whether the location is accessible from residential areas, although relevant to general

locational factors (i.e. what was PPG13 issues) it is not relevant to the sequential test itself.

30. CY places great reliance on the Worksop decision (doc 1). The Inspector appears to have relied

on the residential catchment as being a locational advantage, but not as part of the sequential

test (IR10.30). CY refers to the Secretary of State’s decision letter, but this is just cross referring

to that section of the IR and is not expressing any view as to whether every part of that section

of the report is relevant to the sequential test. Further, the argument was expressly dealt with

by the Wells Inspector at para 118 (SM app 19) where he expressly rejected the submission

because “as logically a wholly suburban residential area would therefore be preferred,

regardless of the relationship with the city centre.” [SM app 19].

31. It is important to note that para 23(6) of the NPPF states “It is important that needs for retail…

and other main town centre uses are met in full and are not compromised by limited site

availability”. This indicates very clearly that if there is no sequentially preferable site available

then pp should be granted for AA, in order to meet the retail need. ID’s submission at para 70

closing, that the cure is worse than the disease simply cannot be correct. How can the Council

rationally say this when they accept that (a) AA meets the need; (b) it causes no unacceptable

impact on the TC and (c) it saves a very considerable amount of journeys and co2 emissions (d)

provides appropriate bus access. The submission is simply wrong.

32. Finally, in respect to the correct approach, it must be the case that for SR to be sequentially

preferable within para 24 NPPF, it must be a materially more accessible site, and that must be

judged against the reality of access to the TC and not simply by the distances. There is no

dispute that SR is closer to the TC, whatever points one measures from. There is also no doubt

that few people will link trips between the TC and AA by foot. The issue therefore becomes not

whether SR is closer to the TC, but whether there is any material difference in terms of likely

pedestrian linkage. ID made repeated reference to “the opportunity” for people to walk, but if

the evidence suggests that only a minimal number of people are likely to take that opportunity,

then it ceases to be a material consideration.

Walking to town centre

33. The distance from the middle of the SR car park to the PSF is approx 950m. This is probably the

most relevant distance for the purposes of considering the likelihood of linked trips with the TC.

34. Policy guidance on walking distance to TCs is clear and has been consistent for many years. The

Practice Guide at para 6.8 refers to an easy walking distance for retail purposes being up to

300m. This entirely accords with the figures given in the CIHT Guidelines at CD/A4. Much

reliance was placed by ID and CY on the preferred maximum distance of in table 3.2, but it is

apparent from reading the document and the Carly and Donaldson (doc 34) extract to which it

refers, that the longer distances refer to distances from city centre car parks to city centre

shopping and has little or no relevance to likely walk distances in a town such as Newport. As

3.34 says “acceptable walking distances depend on the quality of the shops, the size of the

shopping centre and the length of the stay of the shopper”. Each of those factors would indicate

that in Newport a lesser distance was acceptable. Although perfectly healthy it is not a TC which

is going to tempt people to walk long distances. Perhaps most importantly there is no charge for

parking in the TC, and there does not appear to be any particular difficulty in finding a space, so

there is absolutely no incentive on shoppers to leave their cars at SR (or AA) and walk to the TC.

The attractiveness of the TC must be relevant to whether people will walk, regardless of

whether they already know the TC nor not, therefore ID’s point at clo para 40 cannot be right.

35. In reality it is enormously difficult to imagine people walking between the TC and the store. The

vast majority of main food shoppers to SR will go by car, and these are the people being “clawed

back”. If they have a car, they will either drive to the TC and then on to the store, or vice versa.

It would be a bizarre behavioural choice to walk past your car at the SR car park and to then

walk into TC and back. Such people would obviously drive between the two, and Mr. Millington

accepted this (although it is difficult to see why it is a matter of “expert” evidence). Some

people might be tempted, despite the distance, if it was a strikingly pleasant walk, but in fact it

is along a moderately busy road with no particular features along the way. In this respect I

would suggest that AA is a much pleasanter walk, albeit longer. CY is incorrect in relation to the

point I was putting on walking linked trips to the TC. I did suggest people would trudge

backwards and forwards with their shopping, the walk to and from the TC is equally unlikely for

those unencumbered with shopping.

36. CY again places great reliance on Worksop where the Inspector said “ Although it is unlikely that

large numbers of people would make a linked trip by these modes transport modes to the town

centre from a superstore at Kilton there must be a reasonable prospect that a small but

significant number would.” [10.27]. However, (1) that actually refers to walking and (bus usage;

(a point I should have noted earlier) it therefore does not support the weight CY places upon the

sentence. (2) Worksop is a much larger centre, with something like 3 times as much floorspace

and multiples. Therefore the retail core referred to by the Inspector will be utterly different

from Newport; (3) Worksop will play an entirely different role in the shopping hierarchy of the

area from Newport and (4) given the very different nature of Worksop to Newport there is very

little that can be learnt from relying on a distance given in one case to a totally different town,

for example there is a reference to areas of deprivation (and thus possibly low car ownership),

which has no relevance to Newport.

37. The question of whether people will walk to SR from their homes does not go to the sequential

test issue, however it is convenient to deal with it here, to see if there is actually sufficient

advantage to SR, to mean AA should be refused on locational grounds. CY at para 44(5) places

great emphasis on AK’s position in the Travel Assessment, but it should be noted that when he

referred to significant numbers walking, he then said “particularly staff” (CD C6 para 2.2.3).

38. The vast majority of main food shopping being undertaken once a week or less will be done by

car, because of the ease and convenience of doing so. This is apparent from the household

survey (SM app 14) where 86% of main shoppers go by car, and the figure is much higher for all

the large superstores (Q1/Q3), except Stafford Sainsburys which seems to have good bus

provision.

39. It is accepted that there are no residential dwellings within 400m of AA and very few within

800m. Therefore very few people are likely to walk to the store.

40. However, the issue is whether there is any material difference between that position and SR,

the implications for the TC if SR does divert a significant number of shoppers from the TC, and

therefore whether there is any genuine locational advantage.

41. There are approximately 60 people living within 400m of SR. There might be a handful more if

shoppers were to use the track at Springfields, or the paths round Milwood Mere, but neither of

these are attractive or appropriate routes for shoppers, as opposed to dog walkers, or children

going out to play football.

42. There are undoubtedly more people within 10 minutes (800m) walk of SR than AA (although

the housing is low density) . However, 800m is a long way to walk with shopping and the

numbers who will be prepared to do that will be very limited. As importantly, virtually everyone

who is within 800m of SR, is also within 800m of the Coop and most within 800m of Waitrose.

Therefore for those people who are currently willing and able to walk further than 400m to do

shopping, whether top –up shopping or split main food shopping, all that SR will do is divert

them from the TC. Therefore SR is not giving such people a new opportunity to walk to shop, it is

merely giving them an opportunity to shop out of centre, when they were almost certainly

previously shopping in the TC, with all the advantages for linked trips and benefiting the TC v&v.

43. KN placed considerable reliance on people walking to SR to do top-up shopping, and then

described top-up shopping as potentially involving two bags of shopping, and not just the

traditional milk and bread. As far as milk and bread and actually quite a wide range of

convenience goods, these can be purchased at the Springfield Store, which virtually anyone

walking to SR will have to walk past (twice).

44. KN’s evidence on top-up shopping ran counter to MR’s RIA, where he said the proposal was for a

superstore designed to cater mainly for food shopping trips (E9 para 6.21), and MR’s oral

evidence that top up shopping would be less than 10%, and indicated much less. The SR RIA

showed a minimal impact on the Coop precisely because it was used by a greater proportion of

frequent top up trips. This is confirmed by the household survey, where 14% of all shoppers in

the catchment were topping up in the Coop and 25 % in Waitrose. It is equally relevant that a

high proportion of those who were doing main food shopping in the Coop and Waitrose, were

doing so more than once pw (36 % and 25% respectively). This doubtless explains why a

relatively high proportion of main food shoppers at these stores walked (40% and 14.6%)

because as their main food shopping was split into smaller segments they could carry it.

However, if it is now being said that a significant number of people will walk to SR either to do

top-up shopping or split main food shopping then that should have been reflected in the retail

impact figures, and must necessarily mean that there is a greater impact on the TC from SR than

has been assessed by MR and then considered by WYG.

45. The true position is likely to be closer to that assumed by MR i.e. the vast majority of people

shopping at SR will be main food shoppers. Given the site’s location and configuration an

insignificant number of people will walk.

46. Mr. Millington suggested that people might walk and then get a taxi home. For all those people

who are being clawed back, this is virtually inconceivable. They necessarily have a car, and

therefore it would be illogical to leave the car at home, walk to the store and then pay for a taxi

home. If they are a one car family, then they will arrange their affairs for the car to be used for

shopping, often on a Friday pm or Saturday.

47. If you are a shopper without a car, then again all SR offers is the choice to divert from the TC to

a location with no potential for linked trips.

48. It is also worth noting that there is a real locational advantage to AA, because there is the

opportunity for people to combine shopping trips with their employment trips, and trips to pick

up children from the school. The fact that not many people do this at the moment is completely

irrelevant because there is no opportunity to do so, contrary to what ID said. There is also a

locationally logic in placing the SS near existing retail at the Countrywide, and other smaller

units around AA, and the vacant Focus unit which hopefully will be relet. Such a juxtaposition of

uses entirely accords with NPPF para 37. There is no such potential for journey savings around

SR. These locational factors entirely accord with the Travel Plan pyramid in the Guidance,

because of the “proximity to existing facilities and services” (Blair app E).

49. The conclusion in respect of the walking is that SR has minimal or no genuine advantage over

AA.

Cycling

50. Cycling is largely irrelevant for shoppers, save for the very hardy. But in any event the stores are

highly comparable in this regard. SR is closer to the TC, but AA is a quieter and pleasanter cycle

ride. For employees who live in Newport the time difference for cycling between the two sites

is minimal.

Buses

51. It is very important that there are appropriate bus linkages both to the town centre and the rest

of the town, in order to ensure that there is a genuine choice of mode of transport for those

without access to a car. In this regard both sites are very similar and there is no material

difference between them. In the case of both stores the s.106 which is being proposed can

ensure a 30 minute service to the store from the town centre and then the service continuing

round the town mainly on a 30 minute service. There are some slight advantages and

disadvantages between the Millington and Kenyon services, but in practice no material

differences. Mr. Blair accepted that an appropriate service could be provided to either site.

52. Mr. Millington places some reliance on the fact that there is an existing service that goes past

SR, but in reality that makes no difference. The stretch of the route back along SR is simply a

method of getting the bus back to the TC. The density of residential development on SR does

not suggest that there is likely to be a material amount of bus patronage along that stretch.

53. There are however two significant advantages to our scheme in terms of bus usage. Firstly, our

bus service is predicated on the bus stopping at the front of the store. This is enormously

important to the users of the bus. Many of them will be elderly and all of them on the return

trip will be carrying shopping. Therefore having a bus stop directly outside the store will be of

real benefit, and will have an impact on the attractiveness of the service. In contrast, the SR

scheme not just does not have the bus coming to the store entrance, but leaves the stop on SR,

so passengers on at least one of their trips will have to cross the quite fast and busy SR and then

walk 160m across the car park. It is all very well for Mr. Millington to say he finds it easy to cross

the road, but he is not wholly representative of the elderly person with shopping.

54. CY’s point at the end of the closing is completely wrong, because condition 8 ties us to the bus

stop in front of the store.

55. Secondly, because AA is the main employment area of the town, and has the town’s secondary

school, there is considerable scope to widen the patronage beyond shoppers. This will help to

ensure the bus is used outside the main shopping times, and will assist with viability. It is not

possible to predict how many people will use the bus to get to work, or indeed school, but given

that it will serve most of the town it will clearly be attractive to people within the town. There

are about 700 people employed around the AA area. This also gives the opportunity for people

to use their cars less (and even perhaps for some families not need a second car).

Driving

56. The AA site is between 1 and 1.5 minutes further drive time to the TC than SR. Therefore for

linked trips by car there will simply be no difference. MR referred to people needing to get to

know Newport TC, but in a rural area where Newport is the local town and 93% of those in the

household survey saying they visited the TC, it is apparent that shoppers within the catchment

will be well aware of the merits of the TC. 46% of respondents to the on-street survey were

from outside the study area, so they obviously already know the TC (SM app 10).

Conclusions on locational issues and the sequential test

57. There is no material difference in terms of accessibility to the TC between the two sites. To the

degree that there is any difference at all (60 people within 400m), this does not begin to

outweigh the policy support for developing BF before GF, and the unsuitability of SR.

Is SR available and suitable ?

58. In terms of availability, there are considerable hurdles for SR to pass to overcome, with little

certainty as to outcome.

59. In terms of suitability you should completely reject CY’s argument that you must assume SR is

suitable because the Council have resolved to grant (clo para 54). This is not the approach of the

Council’s own witnesses, nor can it possibly be correct on the policy in the NPPF and the facts.

You must decide suitability for yourself.

60. To be a sequentially preferable site SR has to be suitable for the development proposed (NPPF

para 23 and 24). This is plainly not the case. The starting point is the development plan. NPPF

para 17, has as the first core planning principle that planning should be plan led. That principle

is fundamental to any commitment to localism, because without a plan led approach local

peoples’ views about their own community are ignored. That is precisely what has occurred with

the Council’s determination to develop SR in the face of massive local opposition –in fact almost

universal local opposition.

61. There is not one single piece of site specific policy which supports the development of SR for

retail development, or indeed any development at all.

62. The starting point is that SR is outside the settlement boundary as set out in the adopted Local

Plan. Although the Plan was adopted in 2000 the relevant policies were saved in September

2007, so certainly at that date the Council did not consider these policies to no longer apply. In

the Local Plan the site is plainly covered by OL6, which states;

“Throughout the District, the council will protect from development locally important

incidental open land within or adjacent to built-up areas where that land contributes to

the character and amenity of the area, has value as recreational space or importance as

a natural habitat.”

63. The Council’s position on this has changed on a number of occasions. The SR application was

treated as a departure from the Plan because of conflict with OL6, but GT said this was an early

administrative decision, which seems rather surprising. In the OR dated April 2012 (CD C28) it

was treated as a departure. In his proof GT accepted it was a departure, but argued it was not

locally important, however by the time he gave evidence GT tried to argue that it was not open

land at all because of limited public access and OL6 had never applied. Mr. Hill in his proof said

that SR was in breach of OL6 (para 5.21). In the care home OR the Council did rely on the site

being outside the settlement boundary as a departure from the Local Plan and Core Strategy

(doc 33 p62 ).

64. It is plain that OL6 applies to this site, and that OL6 remains a policy to which significant weight

attaches;

a. The words of the policy are clear that it can apply to land within or outside the

settlement boundary;

b. The proposals map designates sites within the settlement boundary, it does not purport

to designate sites outside.

c. The supporting text refers to many of the sites being within Newport (para 8.3.22) so

obviously some will be outside.

65. The evidence is overwhelming that this is open land which is of public importance. A large

number of local residents, both orally, in written representations and through the village green

application have stated that parts of the land, particularly the wooded area and the pony

paddock have been used as informal open space for many years. There are photos of local

residents on the site, including the pony paddock, for example planting trees. ID places great

emphasis that the only legally established public rights over the land is one footpath, and says

that any other access is trespass. That is plainly incorrect, there is a permissive path (very

recently blocked by the Council) that runs parallel to the houses, that has obviously been used

for many years, with no attempt to stop access by the Council. Equally there is no evidence of

the Council ever trying to stop public access to the pony paddock by the public, until the

erection of the footpath fences a few months ago. The Council has acquiesced in public access

to this land over many years. In any event OL6 has nothing to do with legal rights. If the land is

open land which is locally important, then it can fall within OL6 whether the public accessed the

land by right, with acquiescence (here by their local council) or without the knowledge of the

owner.

66. As well as the amenity value to local residents for letting their children play on the land, dog

walking and other activities, the land has a high visual amenity to residents close by. It is clearly

a much treasured open area close to housing in this part of Newport. The very access round

Milwood Mere that the Council suggests people will use to walk to the SS, has been used for the

local residents accessing the open land for many years. The tracks and paths that the Council

rely on for pedestrian access to the SS have been far more appropriately used for residents

accessing the open space for many years.

67. GT tried to argue that the amenity value of the land was lessened by the bypass and that the

bypass had materially affected the approach to the settlement boundary, but a visit to the site

shows that this does not accord with reality. The site remains an attractive rural area, with flora

and fauna, and has no sense of being “urban fringe” whose character has been degraded by the

bypass. The area and its landscape is undoubtedly important to local people, with the wooded

area and a large prominent oak tree all adding to its amenity value. Indeed the construction of

the bypass makes the open land more important for local residents, because without it they

would have to cross the busy bypass to access the rural land. The Local Plan was adopted in full

knowledge of the bypass (it had been constructed about 5 years before). Further the present

proposals map has the bypass on the base map, and the Council did not suggest to the Core

Strategy Inspector that the settlement boundary would need to be redrawn up to the bypass.

68. ID suggested that less weight should be attached to OL6 because of NPPF para 215. However

the key issue there is whether the policy in question is consistent with the policies of the NPPF,

and in fact OL6 entirely accords with policies in the NPPF.

69. In respect of open land the relevant NPPF paragraphs are;

a. Para 17(7) conserve the natural environment, by using land of less environmental value;

b. Para 74 – existing open space should not be built on unless the three tests in that

paragraph are met. Notably the first test is if an assessment has been undertaken which

clearly shows that the open space is surplus to requirements, which would undoubtedly

not be met in Newport.

c. Para 75 – protect and enhance public rights of way. It is difficult to see how diverting the

Hutchison Way across a superstore access and car park could be said to protect or

enhance it.

d. P.54 – the very wide definition of open space “All open space… which offer important

opportunities for sport and recreation and can act as a visual amenity.”

70. In fact the Core Strategy and the PPG17 open space assessment merely serve to emphasise that

considerable weight should be given to OL6. Both the CS and the PPG17 (CD/B21) assessment

make clear that Newport lacks open space, particularly informal/semi-natural open space. The

passage CY quotes at clo para 59 expressly refers to links between the town and the countryside

should be maximised. This is one aspect of the appeal and the approach to SR which makes the

Council’s position truly extraordinary. There is a well recorded lack of open space in Newport,

but despite that fact the Council wishes to put a large retail store on a piece of land which is

well used open space and which the Council owns and therefore where the Council could

remedy at least part of the open space deficiency. This situation is made even more

extraordinary by the fact that there is an available BF site for the retail proposal which the

Council as opposed to St Mods, accepts is suitable to meet the retail need. It is difficult not to

conclude that the Council has somehow lost its way here. Even if the Council does genuinely

believe that SR is sequentially preferable to AA, any sequential benefit can only be minimal, but

a harm in terms of damage to open space around Newport is manifest. Therefore the outcome

of a proper planning balance should plainly be in favour of preserving the open land, rather than

relying on a minimal sequential preference (if it is even that).

71. The PPG17 assessment plainly did extend beyond the settlement boundary (doc 19 plan) and did

assess part of the SR site. It is very difficult in these circumstances to see how the tests in para

74 can be met at SR. CY is wrong at clo para 63 to suggest that the Appellants were unaware of

this assessment, SM refers to it in the proof, but we did not appreciate that the Council were

relying on this for the purposes of para 74.

72. Further the SR proposal is not in conformity with the Core Strategy. Firstly, this is because of the

support for BF first and the open space deficiency in Newport, which is referred to above.

Secondly, SR is not in Newport by any definition and therefore the development is contrary to

CS7. It is not within the present Newport settlement boundary and it is not physically within

Newport, that is plain from a site visit. I was criticised for taking an overly semantic approach to

CS7. However the words of a policy are always a good starting point. The Council argues that the

CS has to be read with the Inspector’s report and that it is clear from that that land outside the

settlement boundary would have to be released in the future. That is correct in respect of two

specific housing sites, and one employment site. There is nothing in the IR that suggests she was

endorsing in any terms a wholesale change to the settlement boundary to the south of

Newport. It is possible that housing land supply demands would lead to a need to revisit that

boundary, but that should be done through the plan process. It is not possible to argue that

because future development needs might occur, which could not be met within the settlement

boundary, that means the settlement boundary in the adopted Plan no longer applies.

73. In any event the reliance on the CS IR is completely misconceived, because in relation to housing

and employment she was considering a situation where there were no sites being put forward

to meet the need within the settlement boundary. But in respect of retail, there is a site within

the settlement boundary which is being promoted to meet the retail need, and which the

Council accepts could meet that need. So the reliance on the CS Inspector’s comments get the

Council nowhere.

74. The Council seems to be suggesting that reliance cannot be placed on the words in CS7 because

there is no spatial plan. However, the CS has spatial development issues and these plainly do not

support development on Greenfield land when BF land is available

a. Bullet 6 states “Newport has a shortage of open space it is important to recognise that

land on the edge of the town is often not accessible”

b. Bullet 13- “brownfield sites should be developed before Greenfield sites”

c. para 8.15 on the spatial development strategy para 8.15 4th bullet – protecting open

space.

75. In addition to all these issues, SR is at least in part grade 2 and 3a arable land – best and most

versatile – and the NPPF para 112 makes clear that this is yet another reason to prefer the

brownfield development at AA.

76. Therefore development plan policies point unequivocally to SR not being a suitable site for a SS.

Other Benefits

Employment

77. The use of the site for a SS will create 295 jobs (SM proof para 12.12). The NPPF glossary makes

clear that retail should be treated as an employment generation use, and these jobs are a major

gain for Newport. Therefore even if there was some point about the loss of employment on the

site, this would be massively exceeded by the gain on jobs, and in accordance with the NPPF

those jobs would outweigh any loss of employment land.

78. S9 predates the change in approach in national policy to retail jobs. The Council described the

use at SR in the OR as “development for employment purposes” (CD/C28 p.62). and the Council

accepted in relation to S9 in the bulky goods condition report (D6) that “there was no current

take up of identified employment site”, which continues to be the case.

79. In terms of loss of any employment use on the site, the council did not raise this as a reason for

refusal and Mr. Thomas in said in answer to a direct question from you, that he was not

objected to any loss of employment land, so it is difficult to see why it then was raised in the

Council’s case. There is nothing in the OR (CDC/28) to suggest any concern about loss of

employment land. It is difficult not to see this an enthusiasm of ID’s rather than the Council. The

land is not an allocated employment land or area within the Local Plan. It is odd for CY to place

reliance on the Local Plan in this regard, given his emphasis elsewhere on its age, and the fact

that in regard to retail and employment uses it is plainly not in accordance with the NPPF.

80. Thirdly, the site already has a bulky goods consent upon it, so any loss of employment land has

been accepted by the Council.

81. Fourthly, the number of jobs on the site is minimal – 5/6 at the Ravenhill unit. To the degree

there is any use on the rest of the land it is a very low level of storage with no related

employment. There is therefore no evidence of any material displacement of jobs. Ravenhill has

said it can and will relocate its use within Newport, and Classic Furniture has got new premises

in AA, and in Whitchurch.

82. ID advanced a slightly strange argument that one should net off the potential jobs on the AA site

against the job creation, whereas because SR was a Greenfield site and therefore had nobody

employment upon it there was no netting off. This apparently meant that SR should be favoured

on job creation grounds. I have never heard this argument advanced, it has no policy support

and is inherently wrong because it builds in an advantage to GF sites which is wholly contrary to

policy. If you are going to do a comparative exercise between the two sites on employment

generation, then both SS would produce jobs (SR slightly more because of is larger footprint) but

AA is plainly a more appropriate place to put those jobs.

Journey Savings and CO2 emissions

83. There is no dispute that AA will lead to a very substantial level of clawback from outside the

catchment and therefore a very substantial amount of journey savings and CO2 savings. As you

know the calculations are broad brush and by their nature can be challenged on a series of

grounds. The important point here is the scale of the savings, AK calculated 74,400kg per week

(AJK 11 para 4.1.3).

84. ID and CY urge you to carry out a comparative exercise with SR. It is difficult to see analytically

how this can be correct, you need to compare the sites in locational terms and then consider the

“suitability” of SR because of the sequential test, but in respect of other material considerations

the benefits (or disbenefits) of AA stand on their own. However, as you have been asked to do

so I will briefly deal with relative merits.

85. SR will probably clawback slightly more trade, because of its larger size and therefore there will

may be some greater journey savings. The difference between KN’s trade diversion figures for

the two stores are some 11% (CD C19 tables 4.8 and 5.7) and this roughly equates to the higher

level of clawback. Even this figure may exaggerate the journey savings, because it may relate to

people spending more in SR, and to diversion from TC stores, where there are unlikely to be any

journey savings. The analyses relating to the TRICS data and the traffic generation ultimately

probably have very little to do with journey savings, because they do not relate to clawback, and

simply are a reflection of the gross sizes of the store. As AK explained this is the way that

highway authorities require traffic generation to be calculated in order to give a robust figure

for junction capacity. It is not an analysis which was ever intended to relate to journey savings,

and it does not give an accurate picture for the purpose of precise calculations of journey

savings.

86. AK explained why he used sites within TRICS with petrol filling stations, because if he had

excluded those he would only have been left with one site on a Saturday am peak. The fallacy in

ID and CY’s arguments are that neither KN nor MR thought it necessary to revisit their retail

analysis in the light of the withdrawal of the PFS from SR, yet they now argue that that will make

a material difference to clawback and to journey savings. That is wholly inconsistent with their

retail cases. It would also be an unsafe basis in any event, given the very real possibility that the

PFS will resurface at SR as the space exists for it and there is a fairly obvious way to overcome

the EA’s concerns about groundwater.

87. There is an issue about the routes chosen and whether they give an accurate reflection of the

routes to AA and SR. However, given the very high level of journey savings in both cases, and the

impossibility of really tying down customer origins and routes, the figures produced by AK give

an appropriate sense of the level of savings and the level of differences.

88. ID refers to Blair’s figures showing an additional saving at SR of 100,000kg per year (clo para 27).

But that has to be seen in the context of AK saying 74,600kg per week. So even if AK’s figures

are too high, the relative difference remains marginal.

89. If the bulky goods scheme was built there might be some savings, but as AK explained because

bulky goods are generally subject to shoppers comparing goods (ie comparison goods) the level

of journey savings will be very much less than from weekly food shopping trips.

Conclusion

90. AA is the plainly more acceptable store in policy terms. It is a BF site, with a retail pp, with the

potential to regenerate the site and the surrounding area. On the other hand SR is a GF site,

which is currently well used by local residents in a town which is deficient in open space within

the Core Strategy. In truth SR is not sequentially preferable to AA, and any locational advantage

is much more theoretical than real. The appeal should be allowed.

NATHALIE LIE VEN QC

LANDMARK CHAMBERS

29 MAY 2012

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