Glenbrook Industrial Limited, R (on the application of) v Wigan Metropolitan Borough Council

Deputy High Court Judge Karen Ridge:

1. The Claimant renews its application for permission to apply for judicial review of the Defendant’s decision of 5 February 2025 to grant outline planning permission (the OPP) to the Interested Parties (“IPs”) for B2/B8 warehouse development.

2. The Claimant and the IPs own adjacent sites within an larger area of land allocated for employment land (the Primary Employment Area Land allocation). The issue of the points at which internal access roads connect onto the main highway network are matters for each of the respective planning applications which were expected to come forward on the various land parcels within the allocation.

3. The Claimant was granted outline planning permission for its own land parcel by a Planning Inspector on appeal on 5 May 2023. Within that permission all matters, including the internal access roads, were reserved for future approval save that access from Bolton Road to the site was part of the approval. The Claimant’s permission was conditioned to be carried out in accordance with the submitted plans which included a Travel Plan Framework and a Masterplan which was indicative only (condition 2).

4. Paragraph 98 of the Planning Inspector’s decision letter explained that both the Claimant (as developer) and the local planning authority had agreed that it was also possible to join the site to the highway network on Lockett Road to make a through route but that this would require third party land (the IP’s) and co-operation and a condition could be imposed to safeguard that potential connection. As things stood, the Claimant’s approved access was from Bolton Road, with a potential for a connection from the site to Lockett Road which was to be protected.

5. The Inspector went on to impose condition (5) on the Claimant’s planning permission which set out the details to be submitted in relation to reserved matters: “5. Any reserved matters application submitted in respect of layout shall be accompanied by a connectivity and implementation plan, the details of which shall include: - Detailed plans to scale, including levels (to an agreed off site datum) showing a continuation of the estate road beyond the details shown on plan reference - Site Access - Priority Junction Drawing No 19479-02-GA Rev C, including footways and cycle routes within the site, including a connection between the development site indicated on plan reference Location Plan B9812-AEW-SI-XX-DR-A-501 Rev P1 and the remaining Primary Employment Area Land allocation (accessed off Lockett Road) to the north west terminating at the most northern point.”

6. The planning application leading to the OPP under challenge was submitted by the IPs. It was in outline form with all matters reserved, save for the access point onto the wider highway network, which was to be from Lockett Road.

7. The OPP application was accompanied by a series of plans including the following: • Parameters Plan 2387-2005 Revision F which depicted height zones, primary access to the highway network, landscaping and proposed internal roadways. The internal roadway depicted runs along the internal north-western boundary up to the red line north-eastern boundary which is contiguous with the Claimant’s site boundary. That is what the Defendant considered to be the safeguarded connection point referred to in condition 5 of the Claimant’s OPP; • Site Boundary Plan with Proposed Site Access Arrangement Plan 3578-F07 which showed the connection from the IP’s application site to Lockett Road; • Site Access Plan 3578-F05 Revision A which depicts the geometric details of the access point onto Lockett Road; • Illustrative Site Masterplan 2387/2001/Revision H: • Site Plan 2387-2001 Rev F contained within the flood risk assessment.

8. The application was publicised for consultation with the plans published on 18 June 2024. The Claimant had been aware of the application since 26 July 2024 and had entered into discussions with the Defendant about it. Internal Consultation and External Discussions during the Application Process

9. The Claimant’s professional advisors had been asked to monitor the OPP application and advise. In conjunction with this, the Claimant’s were intending to bring forward the first development plot in their adjoining site via a reserved matters application which included a proposed connection as required by condition (5). Their email of 6 August 2024 to the Defendant’s planning officer explains this and also says that they are aware of the IPs application which did not include a connection through the site. This was followed by a Teams meeting between the advisors and the planning officer at which the absence of the connection was referred to by the Claimant’s advisors and the planning officer said that he was waiting comments from the Transport Policy Officer.

10. On the 14 August 2024 the Defendant’s Transport Policy Officer made his first comments on the proposal. In a section headed “Site Access Arrangements” the response notes that it is proposed that Lockett Road is extended into the site to serve the development and the wider employment allocation. It goes on to note: “The current proposals include a service road to the rear and east of the building connecting the car park to the west and the service area to the north. The section of road to the east should be repurposed to provide a vehicular connection from the development to the adjacent land that was granted planning permission in 2023 . This connection is required to deliver the councils long term aspiration for new road infrastructure connecting the A58 and A49, including a bypass of the A49 / Bryn Road / Downhall Green Road junction.” (my emphasis)

11. A proposed site access plan 3578-F01 Revision K was produced and was later published on the Council’s website on 20 September 2024. That plan depicted an area of hatched land in the north-eastern corner of the site, adjacent to the internal road and marked as “land to be safeguarded for future pedestrian footway”. The Defendant’s internal consultee raised an objection to the perceived lack of a vehicular connection to the Claimant’s land, advising that the hatched land should effectively be repurposed to provide such a connection. That appears to be what is reflected in the 14 August 2024 internal consultee response.

12. A second internal consultee response was received from the Defendant’s Transport Policy section dated 16 October 2024. Under the heading ‘Accessibility’ that response notes again that it is proposed that Lockett Road is extended into the site to serve the development and the wider employment allocation. It goes on to explain the importance of consistent standards to enable internal roadways to become adopted highways: “The land to the immediate east which has planning permission includes a 3m shared facility for pedestrians and cyclists on one side of the access to the A58 Bolton Road. There is a standard 2m footway on the other side of the carriageway. This standard of infrastructure is required to serve the proposed development and any future parcels of land that come forward as part of the wider employment allocation. Furthermore, this is also the standard required for the access road to become adopted highway.”

13. The response goes on to consider the projected capacity at various junctions before concluding: “ Summary In view of the above, there are outstanding issues queries and issues relating to car parking, access to bus services via Woods Lane, a vehicular connection to land to the immediate east and a commitment to deliver improvements at the A58 Gerard Street/A49 Warrington Road/A58 Liverpool Road/Bryn Street junction that must be addressed.”

14. The IPs’ transport consultant responded to the Transport Policy consultation response dated 16 October 2024. It sets out the IPs position on the provision of a link road in the following terms: “The capacity assessments contained within the submitted Transport Assessment have indicated that such a vehicular link is not required to mitigate any highway capacity issues, this is not disputed by the highways authority - the highways impact is not ‘severe’ and there is no justification to refuse planning permission on highways grounds. Notwithstanding, the highways officer has indicated that a planning condition is required and that it should have the same wording as Condition 5 which is was attached to the neighbouring ‘land to the east’ planning application (LPA ref: A/21/92036/OUTMAJ)’. We do not agree with the officer’s conclusion – as such condition is clearly not necessary to make the development acceptable in highways terms. Further, the applicants have confirmed their willingness to accept a condition to ensure that pedestrian / cycle access is provided between the two sites and safeguard the opportunity to provide a vehicular route through both sites if required in the future.”

15. Importantly it does not appear that the Technical Note was uploaded onto the Defendant’s website until 15 January 2025. The note contained as an appendix the second consultation response of the Defendant’s Transport Policy Officer’s of 16 October 2024. It appears that this was the first time that the second consultation response had been published.

16. On the 20 December 2024 the IP submitted two amended plans: Proposed Site Access Plan 3578-F05 Revision B and Site boundary Plan with Proposed Site Access Arrangement Plan 3578-F07 Revision A. The changes to both plans shows the box depicting the geometry of the internal road extended up to the site boundary and the internal site road running up to the boundary. Those plans were not published.

17. Following a meeting on the 19 December 2024 between the IPs, the Defendant and the Claimant’s representatives, the Claimant sent a final and formal letter of objection on 30 January 2025. That objection set out the background to the imposition of condition 5 on the Claimant’s permission which sought to ensure that connections were built up to the site boundary. The objection raised issues regarding the interpretation of condition 5 and the point of connection from the IP’s site to the Claimant’s site. After setting out the Claimant’s position on condition 5, the letter goes on to say: “Thereafter, the wording ‘most northern point’ corresponds with the earlier drafting of the condition in respect of building up to the application site boundary to avoid any gap or ransom strip. If taken literally, the ‘most northern point’ would be the top corner of the pink highlight in the image above, directly into the adjacent industrial estate, so it wouldn’t make any sense to interpret the condition wording as fixing the access to be via Plot 3 (i.e. the pink line) as this wouldn’t align with the access to Lockett Road. If it had ever been intended that a connection would have been made further north, and where the Applicant is now indicating an illustrative point of access , the wording of the condition would have been much different.” (my emphasis) The Officer’s Report (OR)

18. The OR was dated 30 January 2025 and it notes that the future internal access roads are depicted on the illustrative masterplan and the parameters plan. The OR further sets out the Claimant’s objection in some detail and under the section entitled ‘Access (Lockett Road)’ the Officer sets out the acceptability of the geometry and alignment of the road and goes on to consider the connection with the wider employment site. It records: “The parameters plan shows how access can be continued within the development site, which shows a continuation of the road network running almost parallel to the north-western boundary of the application site. The internal arrangements on the parameters plan also show a point of connection up to the north-east and south-west boundaries of the application site, which will not prejudice the new road junction arrangement at Lockett Road and will provide potential links to the wider PEA land, ensuring permeable connections can be made in combination with the consented appeal development site to the east, and remaining undeveloped land to the south-west of this application site. In overall terms, these connectivity arrangements, which are to be controlled via condition, will achieve good planning from a design perspective for the PEA allocation, providing potential alternative routes of travel in the future, which in turn will provide highway network operation betterment around the application site and PEA allocation locally (than without a connecting through road in the PEA), and it will also safeguard future development on the remaining SLIE land within the PEA allocation.”

19. The Highways Policy Officer’s comments were reported under the Accessibility section: “Footways are located on Lockett Road and the B5207 Bryan Road in the vicinity of the application site. These footways have a minimum width of 2 metres and are located on both sides of the carriageway. It is proposed for Lockett Road to be extended into the site to serve the development and the wider employment allocation. The land to the immediate east which has planning permission includes a 3m shared facility for pedestrians and cyclists on one side of the access to the A58 Bolton Road. This standard of infrastructure will also serve the proposed development, providing a connection to Lockett Road and any future parcels of land that come forward as part of the wider employment allocation.”

20. The importance of a connection between the application site and the Claimant’s site was referenced: “To complete the bypass a vehicular connection from the proposed development to the adjacent land to the east that was granted planning permission in 2023 is required. The importance of this connection was referenced in the Appeal Decision for land to the immediate east with the Inspector including a condition to ensure any future reserved matters application in respect of layout shall be accompanied by a connectivity and implementation plan, the details of which should include a connection between the development and the remaining PEA allocation (accessed off Lockett Road) to the north west terminating at the most northern point. This connection has been secured via planning condition.”

21. Under the section Public Representations, the OR summarises the representation made by the Claimant: “Condition 5 of A/21/92036/OUTMAJ (planning permission reference), granted on appeal was suggested and worded to ensure the estate road would make a connection through to Lockett Road, once proposals for the wider allocation came forward. The main reason was to achieve routes through the allocation, preventing a cul de sac arrangement or a potential ramson situation as a result of not building a connection up to the site boundary. The key point is that a condition was required to ensure a road connection was constructed up to the application site boundary, the neighbouring land. Reference is made to the drafting and wording of the planning condition, “terminating at the furthest edge of (the) application site on the northwest boundary of the development site, with the aim of providing a future connection to Lockett Road”. Whilst the wording does not fix a specific point on the 353 boundary (subject to RM proposals), the reference to the northwest boundary directly relates to the boundary indicated yellow in the image below: (Image from Representation) The wording of Condition 5 in reference to ‘most northern point’ corresponds with earlier draftings of the condition in respect of building up to the application boundary to avoid any gap or ransom strip. If taken literally, the ‘most northern point’ would be the top corner of the pink highlight in the image above, into the existing industrial estate. This would not make any sense, as this would not align with the access to Lockett Road. If it had ever been intended that a connection would have been made further north, and where the Applicant is now indicating an illustrative point of access, the wording of the condition would have been much different. The Glenbrook masterplan for the whole allocation has always illustratively shown the point of access to be roughly at the point of the blue dot as shown above. Reference is made to the submitted illustrative layout plans within the accompanying Design and Access Statement of Glenbrook’s consented scheme. This is also indicated in the Highways Scoping Note, which shows a link through to Lockett Road. Therefore, there has never been any suggestion of running the estate road through Plot 3, and that the condition was therefore never intended to be interpreted in such a way.”

22. The OR continues with the officer’s own analysis of the access on Lockett Road: “There is no objection from the Highways Policy Officer on the access arrangement. The parameters plan shows how access can be continued within the development site, which shows a continuation of the road network running almost parallel to the north-western boundary of the application site. The internal arrangements on the parameters plan also show a point of connection up to the north-east and south-west boundaries of the application site, which will not prejudice the new road junction arrangement at Lockett Road and will provide potential links to the wider PEA land, ensuring permeable connections can be made in combination with the consented appeal development site to the east, and remaining undeveloped land to the south-west of this application site.”

23. It goes on: “The scheme includes an internal access road shown on the parameters plan which formed part of the original submission. A further internal arrangement plan was submitted detailing the access road, with a termination point at the north-eastern boundary of the application site. The north-eastern provision would align with the planning requirements of the Appeal Decision site to the east, which requires under the consented scheme a continuation road / pedestrian/cycle link to the remaining PEA land within the allocation.”

24. The report then sets out condition (5) of the Claimant’s permission and records that: “The representation received on the application refers to the above planning condition. The content of the representation has been considered within the overall assessment of this application, with the main issue being the interpretation of the planning condition and its specific wording. The representation refers to a connection point along a north-west boundary within the consented scheme, which when compared to the Caddick application would be along the south-east boundary of the Caddick application site (in the interpretation of the representation and image provided). This is where the difference in the interpretation exists. The applicant (Caddick) for this application have submitted a parameters plan to conform with the wording of the above planning condition, based on their interpretation of the above condition, with an internal access arrangement extending up to the north-eastern boundary of their application site. Following Counsel advise sought by the Local Authority, it has been advised that the internal road layout at this stage, as shown on the submitted parameters plan reference Land Use and Building Height Parameters Plan Ref: 2387/2005/Rev F under this application (Caddick), would adhere with the wording of the above planning condition and its requirements, and therefore does not form conflict with the wording or the objectives of the condition. It is also key to note that the existing condition also forms a requirement of the consented scheme and not one of this current application.”

25. The OR concludes that there is no conflict between the internal access connection as depicted on the Parameters Plan and condition (5).

26. Outline planning permission was then granted on the 5 February 2025 subject to a number of conditions, one of which was development to be carried out in accordance with the approved plans listed as: • Location Plan Ref:2387/2000/Rev D • Site Boundary Plan with Proposed Site Access Arrangement Ref 3578 F07 Rev A (the revised unpublished plan) I have corrected the acknowledged typographical error; namely the incorrect reference to F01, to the correct reference to F07 • Proposed Site Access Plan Ref 3578-F05 Rev B (the revised unpublished plan) • Land Use and Building Height Parameters Plan Ref: 2387/2005/Rev F.

27. Condition 8 required connectivity requirements to be in accordance with the (unrevised) Parameters plan, as follows: “Any reserved matters application submitted in respect of layout shall be accompanied by a site-specific connectivity plan, the details of which shall include: Detailed plans to scale, showing highway, pedestrian and cycle connectivity up to and including the application site south-west boundary as shown on plan reference - Land Use and Building Height Parameters Plan Ref: 2387/2005/Rev F”

28. Condition 34 provided: “No development hereby approved shall be brought into first use, until the vehicle access provision from Lockett Road, into the application site as shown on plan reference - Site Boundary Plan with Proposed Site Access Arrangement Ref 3578-F01 Rev A and Proposed Site Access Plan Ref 3578-F05 Rev B, up to and including the application site's north-east boundary and the full extent of the land in the applicant's control in this location, has been implemented in full.”

29. The reasons underpinning both of these conditions are to provide ‘permeable connectivity’ to the wider allocation and the safeguarding of a connection to the wider Primary Employment Area. Grounds of Challenge

30. The challenge is brought on the basis that a change was made to the planning application during the course of the local planning authority’s determination of it, without the Claimant and others being properly consulted on it.

31. The claim was initially brought on 5 grounds. Ground 4 was withdrawn by consent and at the hearing the Claimant confirmed that ground 5 was not to be pursued. Grounds 1-3 are based on procedural unfairness and they are linked. Ground 1 alleges that the public had no opportunity to make representations on the amended application. Ground 2 similarly alleges that the Claimant had no opportunity to make representations. Ground 3 also contends that the public’s legitimate expectation of re-consultation was breached.

32. It is firmly established that a submitted planning application can be amended during the application process and prior to final determination as per R (Holborn Studios Ltd) v Hackney LBC [2017] EWHC 2823 (Admin) . In all planning applications there is a statutory duty of consultation. It is for the planning officer to exercise his judgment to decide whether a subsequent amendment to the application requires re-consultation. Some amendments will be minor and uncontroversial and further consultation deemed unnecessary. Other amendments, even minor ones, could be more consequential and may be controversial and re-consultation will undoubtedly be necessary. It is for the Officer to decide on the particular circumstances of the application whether fairness demands that the amendment is re-consulted upon.

33. In this case it was for the Officer to decide whether re-consultation was necessary given the nature of application; the nature and implications of the revisions to the two plans and the consultation responses already received. The key context in which any amendments fell to be considered was that this application was in outline only, with access onto Lockett Road to be determined. The internal road layout was not for approval but the application contained an indicative internal road system shown on the plans. That internal road was depicted on the original and revised plans as running along the top northern boundary of the IP’s site. The Parameters Plan which remained unchanged depicted a possible connection to the Claimant’s site in the north-eastern corner.

34. On the revised Site Boundary Plan with Proposed Site Access Arrangement, the detail on one branch of the inset T diagram was extended to the boundary. The alignment of the internal roads were not materially changed. The internal roads were instead depicted running up to the boundary as opposed to ending just short of it. Those amendments need to be viewed in the context of events and the evolution of the planning application from submission to determination. Both plans were important given that condition 34 required vehicle access from Lockett Road to provided up to the site’s north-eastern boundary.

35. The Parameters Plan sets out the parameters or limits of development. In this case the Parameters Plan was not altered and both original and revised plans remained consistent with this Parameters Plan which contains the possible location of the internal roadways. However, the Parameters Plan could also be said to be consistent with Site Access Plan 3578- F01 Revision K which depicted an area of hatched land safeguarded for a future pedestrian footway and which did not have a vehicular connection.

36. An important contextual point when considering the fairness of the decision not to reconsult is that the Claimant was aware that there had to be a connection from the IPs’ site to its own site since that matter had been the subject of the safeguarding condition (5). The claim is put on the basis that the submission of the revised plans fixed the point of connection with the Claimant’s site and the Claimant had not been afforded the opportunity to comment upon this. That assumes that the published submitted plans did not fix the point of connection and the Claimant’s objections must be examined in light of this proposition.

37. Is it instructive that as at the 16 October 2024 the IPs own consultant was advocating that a vehicular connection link was not necessary. That in part explains the Site Access Plan 3578-F01 Revision K which does not depict the connection point and which contains the hatched area safeguarded for a future pedestrian access. It also explains the first Transport Policy Section response. The Second Transport Policy response was dated 16 October and it notes that it was proposed that Lockett Road is extended into the site to serve the wider allocation. The response refers to outstanding issues and queries relating to matters which included “a vehicular connection to land to the immediate east”.

38. However the above documents were not published on the application website until 15 January 2025. That was the website which was being monitored by the Claimant. The witness statement of Mr Paige confirms that on the 15 November 2024, in response to a query regarding the status of the application, he was told that it was still pending.

39. On the 19 December 2024 the Claimant’s advisors had a teams meeting to discuss the progression of their own reserved matters application and the interplay with the IPs application. Mr Paige confirms that the Defendant’s officer, Mr Gareth Jones, noted that there was a difference of interpretation regarding condition (5) of the Claimant’s permission in terms of the location of any connection. During that conversation the Claimant notified the Defendant’s officer that they had seen that there remained an outstanding objection from the internal Transport Policy Officer requiring the routing of the estate road. The Claimant’s representatives were then asked to provide its position in relation to the interpretation of condition (5) and its implications.

40. That places the letter of objection of the Claimant into context. I remind myself that the Claimant’s Transport Technical note objecting to a vehicular connection was uploaded on to the Defendant’s website on 15 January 2025.

41. Sometime around 20 December 2024 the IP submitted the two revised plans which were not published. They were amended to depict the box depicting the geometry of the internal roadway extending up to the site boundary. The Claimant was not aware of those plans.

42. It is evident that the matter of a vehicular connection was still subject to debate between the IPs and the Defendant during the application process and after the submitted plans had first been published. The Claimant was aware of that debate as a result of the first highways response and the Claimant’s Technical Note. The Claimant had a particular interest in any connection point and also had views on how condition (5) should be construed. The construction placed upon condition (5) by the Claimant differed from that of the Council. The letter of objection was sent at the behest of the Defendant’s Officer’s who were seeking clarification as to the Claimant’s views on condition (5).

43. In the context of the published documents evidencing different positions between the applicant developer and the local planning authority as to the necessity of a vehicular connection and in the context of some debate as to the appropriate construction of condition (5) on the Claimant’s own permission, the submission of the revised plans takes on a greater importance. After all, the condition securing the internal access roads and ensuring wider connectivity is framed only with regards to those two revised plans.

44. In addition, the Defendant’s own planning officer was on notice by virtue of the email of the 6 August 2024 of the Claimant’s views that the submitted plans did not include a connection link to its site. The Defendant was of course well aware of the Claimant’s interest in such a link.

45. In these circumstances, I am satisfied that it is arguable that the Defendant failed to properly consult the Claimant on the revised plans leading to procedural unfairness. Permission is granted for ground 2. Whilst members of the public did not make a comment on the application, the parties are agreed that the factual matrix underpinning grounds 1 and 2 are the same and therefore I shall grant permission on ground 2.

46. The Defendant’s Statement of Community Involvement dated September 2023 sets out how it will consult when considering planning applications at various stages of the application process. When there are amendments the Statement says: “Where amendments are made which significantly alter the nature or impact of the proposal – We will carry out further consultations as appropriate and again consider the views received before making a decision.”

47. It follows that I have concluded that it is arguable that the amendments would significantly have altered the nature of the proposal, so permission is granted in relation to ground 3. I would ask Counsel to draw up an Order reflecting the terms of this Permission Judgment to include case management directions for a substantive hearing.