“UPDATE NOTE TO BUSINESSES MARCH 2010”
1. Introduction
This note concerns Project Jennifer and provides an update on the current position regarding Tesco’s challenge to the Planning Inspector’s decision.
2. Background
2.1. Tesco submitted an outline application in 2008 for a Class A1 Superstore (8,457 sq m) plus space for indoor and outdoor markets. The scheme had a similar footprint to the approved scheme but without many of the District Centre facilities such as a library or a new health centre.
2.2. Tesco appealed against the non determination of their application and this resulted in a Public Inquiry held in October 2009. The Planning Inspector dismissed Tesco’s appeal on 1st December 2009 and refused consent for their scheme.
2.3. On 11th January 2010 Tesco lodged a statutory challenge with the Administrative Court, claiming that the Planning inspector’s decision was flawed on a point of law and should be quashed. The Defendant in the proceedings is the Secretary of State for Communities and Local Government. The Council is able to take part in the case as an Interested Party.
2.4. Although a report about the challenge appeared in the Liverpool Echo on 9th January, the Council only received official confirmation of it when the court papers were served on 11th January. The Council issued a press release about the challenge in the same week.
2.5. Information on the implications of the challenge was issued via e-mail to the businesses affected by the scheme by Liverpool Vision on 15th January.
3. Present position
3.1. The Treasury Solicitor has confirmed that they will defend Tesco’s challenge on behalf of the Planning Inspectorate. The Council has also informed the Court that it wishes to take part in the proceedings and has filed witness evidence in support of its case.
3.2. The Council has also applied for the proceedings to be transferred from London to the Court in Manchester as it is hoped that this will speed up the process. A hearing date has not yet been set and it is uncertain at this stage when this will be.
4. Implications of the challenge
4.1. If Tesco were successful in their challenge and the Inspector’s decision was quashed the Public Inquiry would have to be re-run creating a further delay.
4.2. If Tesco lose they could seek leave to appeal to the Court of Appeal, but only on the grounds that the decision of the Administrative Court was wrong in law. There is then the possibility of a further appeal to the Supreme Court.
4.3. If Tesco win, both the Secretary of State and the Council will also have recourse to the same avenues of appeal.
4.4. The principal concern with this challenge is that it further delays progress on the scheme. St Modwen is unable to raise finance that would allow further significant expenditure on preparations for the making of the CPO needed for their scheme until the challenge from Tesco has been removed. St Modwen argue that if Tesco were to be successful in obtaining planning consent for their scheme it would increase the value of the land that Tesco own within the site and thereby damage the viability of Project Jennifer.
5. Timescales
5.1. It is hoped the challenge will be considered and dismissed by the Court by early summer. If Tesco accept that decision (or are refused leave to appeal) the Council and St Modwen could move to “make” the CPO by mid summer.
5.2. It is expected that there will be objections to the CPO and that there will therefore be a need for a further public inquiry which will probably not be held until mid 2011. On that basis a start on site by early 2012 should be possible. Negotiations to acquire properties affected by the CPO would re-commence as soon as the decision to make the CPO was made, although, as has been explained previously, where possible the Council and its partner, St Modwen, would seek to enter into conditional agreements where acquisition would only take place once the CPO was confirmed.
5.3. If Tesco’s challenge fails and they seek and are given leave to appeal, it will take at least 12 months to get a decision from the Court of Appeal. Any subsequent appeal would further delay progress on the scheme.
5.4. If Tesco are successful in their challenge and the Inspectors decision is quashed then, as noted above, the Administrative Court is likely to order that the planning inquiry is re-run, with a potential delay of 12 months. Assuming the decision still comes down in favour of the Project Jennifer scheme the CPO process as outlined above would then recommence.
6. Next steps
6.1. The next key date is the date for the Administrative Court hearing. As soon as this is know it will be circulated to all interested parties.
6.2. In the meantime St Modwen has recently announced that they have signed an agreement with Sainsburys on the pre-letting of the foodstore in their scheme.
6.3. St Modwen have pledged to provide regular updates on the project on the website for the scheme – www.greathomerstreet.co.uk
Colin Green
Development Team
9 March 2010
"FREQUENTLY ASKED QUESTIONS REGARDING CPO'S"
