UPDATED: M&S hearing - Thursday likely to see ruling over Scunthorpe retail park with new Marks and Spencer store
Thursday is now being seen as the likely date for a ruling in the legal challenge case being brought over a proposed retail park on the outskirts of Scunthorpe where a new Marks and Spencer store is planned.
A judge sitting in Leeds is due to hand down his judgement on the application on Thursday afternoon at 2pm.
Opponents of the controversial scheme to open a big new Marks and Spencer store in Scunthorpe yesterday (Monday Dec 17) launched a powerful legal challenge.
They claim that correct policy rules were not followed, that M&S should have been more flexible in choosing a suitable site.
Marks and Spencer pulled out of Scunthorpe in February last year, but now want to open a new 35,000 sq ft store at a proposed retail park on the site of Trent Valley Garden centre on Doncaster Road, Scunthorpe.
Plans have twice been approved by North Lincolnshire Council and the company has ruled out a suggested site at the former Scunthorpe Leisure Centre complex, a central area near the bus station.
The proposed move to an out-of-town site has attracted vigorous opposition, including from the Keep Scunthorpe Alive group.
M&S is working with Simons Developments Ltd on the scheme for the new Scunthorpe site.
The store in Scunthorpe High Street was closed because it was said to be no longer commercially viable.
The controversy has now surfaced at the Leeds Administrative Court, where a three-day judicial review is taking place before High Court judge Mr Justice Hickinbottom.
Objectors claim the way the M&S plan was dealt with by the council was flawed in four ways.
The council gave planning permission, on the casting vote of the planning committee chairman, after a split five-five vote on March 7.
Permission had previously been given on December 14 last year.
The application for a judicial review has been brought by Zurich Assurance Ltd, trading as Threadneedle Property Investments.
It represents the Foundry Shopping Centre, which includes 45 retail units around the pedestrianised High Street area of Scunthorpe.
Eleven of those units are said to be vacant.
Paul Tucker QC, representing Zurich Assurance, said of the new site: “This is an out-of-centre location. It is not close to an existing town centre.”
He said the decision to grant permission was “in the teeth of” opposition to the scheme, including claims that it would hit the “vitality of the town centre”.
Mr Tucker wants the planning permission to be quashed and claimed: “This is an unlawful consent.”
He claimed that Government policy had been breached over retail matters and permission should have been refused.
M&S had claimed that there were no other viable sites in the town centre, said Mr Tucker.
“National retail policy means that permission should be refused,” he said.
“This proposal is in direct conflict with national policy that permission should be refused.”
Mr Tucker claimed that, irrespective of any economic benefit from a new store, there was a “direct national policy” that the matter should have been refused by councillors.
Mr Tucker claimed that, just because a retailer was unwilling to go to a particular site, it did not mean that it would actually be unviable.
He claimed that M&S had made an “assertion” of unviability, “nothing more and nothing less”, rather than providing evidence.
There had been a ”misinterpretation” of Government policy and a “misrepresentation” to councillors, he claimed.
Mr Tucker claimed M&S had “not demonstrated sufficient flexibility” and could have gone elsewhere.
This was “crucially important”, he insisted.
“An untested assertion is not demonstrating flexibility by any means,” claimed Mr Tucker.
Vincent Fraser QC, representing North Lincolnshire Council, claimed that the “correct approach” was set out in a report to councillors.
He claimed that national policy was an “important material consideration” but was “not the only consideration” and it could be “outweighed” by other factors.
Mr Fraser claimed it had been decided that the “positive benefits outweigh the negative”, although there would be some impact on Scunthorpe town centre.
He added that a “balancing exercise” had been undertaken.
“It isn’t for the court to interfere,” said Mr Fraser.
A later report by officers to councillors drafted before the second permission was granted said that “there’s nothing here that changes our opinion,” he claimed.
Mr Fraser added that evidence for M&S’s claims that its previous shop was unviable had come from “clear statements” made by the company and it would be “perverse” to come to any other conclusion.
There was “absolutely no basis” to think that council officers had shown “misunderstanding” or “misapplication” of the situation.
Chris Katkowski QC, representing Simons Developments Ltd, said that councillors had decided that the “good things outweighed the bad things”.
He claimed the councillors “were not misled” and were “given perfectly good advice” that should easily be able to “withstand a judicial review”.