Scarborough Borough Council (SBC) has announced that they have received written notification from Tesco of their intention to withdraw from the purchase of the Council’s Depot on Dean Road, Scarborough.
The contract between SBC and Tesco meant that Tesco had to fulfill all of the conditions in the contract before 15th December 2013. One condition wasn’t fulfilled which meant the contract will be terminated as of 15th December 2013.
Nick Edwards, SBC’s Director of Business Support, said of the situation:
“This news is clearly disappointing; council officers will now hold discussions with Assura, the company that owns the site adjacent to our depot, regarding the way forward.”
The news is a major headache for the Council as they were due to receive £10million from Tesco for the sale of the depot site. A significant amount of that money had already been allocated to other projects. The Council has already spent close to £4million building a new depot on Queen Margaret’s Road. Now they have a depot to spare!
The Assura land mentioned is the former St Mary’s Hospital site on Dean Road, which lies to the east of the SBC Depot. The two plots of land are separated by Trafalgar Street West.
The condition which wasn’t fulfilled is thought to relate to Tesco’s attempts to partially close Trafalgar Street West. Tesco applied to the DfT to partially close the road, to enable them to join up the two pieces of land and build the superstore.
The announcement ends a four year battle by Scarborough Town Against Tesco Store (STATS) to stop the retail giant from building a huge new superstore on Dean Road.
Tesco had previously obtained planning permission from SBC to build a new superstore on Dean Road. The campaign against the superstore by STATS resulted in the Planning Inspectorate holding a Public Inquiry over the proposed road closure.
The Public Inquiry into the proposed road closure was held on 15-18th October at The Spa with the Planning Inspector due to deliver his report to the DfT a couple of weeks ago. The result of the Public Inquiry is not yet in the public domain, but given the Tesco last minute withdrawal, it is thought that STATS had won the case.
Public Inquiry – Potentially Invalid Planning Permission
Some interesting information emerged from the Public Inquiry regarding the proposed Tesco development. In her final summary, the Barrister acting for STATS, Miss Megan Thomas, said the Section 106 agreement between the Council, Tesco and Assura covering the development was potentially invalid.
For Local Authorities to exercise functions in a lawful manner, they need to abide by the terms and resolutions of their committees.
When planning permission was granted by SBC, the following was resolved by the Planning Committee:
“subject to the completion a S.106 Legal Agreement to cover the following matters”
“Closure of the Existing Westwood Store – The new store shall not open to the public until the existing Westwood Store has ceased to open to be the public.”
” Re-instatement of the Listed Buildings […] The store shall not open to the public until the agreed works have been implemented in full.”
As you can see from page 11 of the S.106 agreement, it differs from what was resolved by the Planning Committee:
“the Existing Store shall cease to be used for Convenience Retail and shall not at any time thereafter be used for Convenience Retail other than pursuant to a planning permission granted after the date of this agreement”
Obviously the Council has acted ultra vires, beyond their powers, in entering into the S.106 agreement. The SBC Planning Committee resolution only allowed planning permission to be issued if the Westwood Store ceased to open to the public.
It follows that the Council again acted ultra vires in 2012 when it issued planning permission for 11/00019/FL. Further to this the Council again acted ultra vires in 2013 when they altered the planning permission for 12/02400/FL.
Since no one has brought a legal challenge as to the validity of the planning permission and the time limit to bring such challenges has elapsed, it would be difficult to persuade the High Court to do so.
Further issues with S.106 agreement also emerged. Assura, listed as the owner of the land, had a number of covenants placed upon them. Assura were to carry out listed building improvements on the Dean Road Jail, which is on land they do not own. Assura were to make available car parking spaces for guest houses in the area, which is on land they do not own. Assura were also to ensure that a minimum of 2.5 hours parking will be delivered free, which again is on land they do not own.
Public Inquiry – Traffic Levels on Columbus Ravine
Further revelations regarding the high levels of traffic on Columbus Ravine emerged during the Public Inquiry. SBC, in their 2009 Development Brief for the site, stated that 4,000 vehicles per day used Columbus Ravine. At that time SBC also ran automated traffic counts on Columbus Ravine that showed the actual levels of traffic were closer to 12,000 vehicles per day. A substantial difference.
Under cross-examination by the STATS Barrister, the Traffic Engineer from Mouchel, acting for Tesco, admitted that the figures they’d sent out to people asking them to withdraw their letter of objection were inaccurate.
The traffic modeling that Mouchel had undertaken did not include any traffic from whatever type of store replaces the Tesco at Westwood. Nor had Mouchel taken into account traffic to the proposed Waterpark in the North Bay.
When further cross-examined, the Mouchel traffic engineer admitted that, with traffic from the Westwood store, traffic to the new Waterpark and traffic from closure of Trafalgar Street West, Columbus Ravine may actually be over-capacity with traffic to the proposed Tesco store.
In 2009, SBC were responsible for the highways in the Borough. Quite why the information regarding the high levels of existing traffic on Columbus Ravine was not passed from the Highways Dept to the Planning Dept is unclear.
I posed a number of questions to SBC under the FOI Act and received the usual late response. SBC stated that information in the Development Brief was received from officers in a section of the Council which no longer exists. SBC claimed they no longer hold detailed information about transport following the termination of the Council’s Highways Agency agreement by North Yorkshire County Council in April 2011.
So, a four year catalogue of maladministration by SBC, coupled with a determination not to let the Council and Tesco cause massive traffic congestion across the North Side of Scarborough has eventually led to Tesco pulling out. A result for common sense.
It seems the Portfolio Holder for Strategic Planning and Regeneration has some work to do. Perhaps this time Scarborough Borough Council will work with the people of Scarborough, for the benefit of the people of Scarborough, instead of trying impose what the Council thinks is best for the Council’s coffers.
Article first posted to Real Whitby on December 15 2012.