Sainsbury’s Supermarkets Ltd v Secretary of State for Housing, Communities and Local Government and another – Town and country planning – Planning permission – Affordable housing – Claimant applying to quash decision of secretary of state dismissing appeal against failure to determine application for planning permission to demolish store and redevelop site – Whether first defendant’s decision irrational/unintelligible – Whether first defendant failing to give sufficient reasons for decision – Application dismissed
The claimant applied to the second defendant local planning authority for planning permission to replace its existing Whitechapel store and car park at Cambridge Heath Road, London E1 and redevelop the site with a replacement store, flexible retail/office/community space, residential units, an energy centre and plant at basement level, car parking spaces and associated highway works.
When the second defendant failed to determine the application, the claimant appealed. The second defendant then resolved that it would have refused the application on four grounds relating to: affordable housing and viability, harm to the setting of a listed building and conservation area, unacceptable impact on daylight and sunlight to surrounding properties and the absence of a legal agreement.
The appeal was recovered by the first defendant secretary of state for his own determination. Following an inquiry, an inspector recommended that planning permission should be granted, subject to conditions. Despite that recommendation, the first defendant dismissed the appeal.
The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash that decision. The claimant contended that: (i) having concluded he was not content with the location of affordable housing, the first defendant’s decision not to provide the claimant with the opportunity to offer an alternative location through a revised section 106 agreement was irrational, unintelligible or insufficiently reasoned; and (ii) in determining the planning balance and overall conclusion, the first defendant failed to take account of relevant considerations, reached an irrational or unintelligible decision and/or failed to give sufficient reasons.
Held: The application was dismissed.
(1) Despite the criticisms of the decision letter, the claimant could not be in any genuine, as opposed to forensic, doubt as to why the first defendant concluded that the proposal was in overall conflict with the development plan. The first defendant had identified “clear conflicts” with five policies in the plan, which he found were of central importance, some of which attracted considerable weight.
The effect of section 70(2) of the 1990 Act and section 38(6) of the Planning and Compulsory Purchase Act 2004 was that the relevant development plan policies governed the decision, unless there were material considerations which indicated that, in the particular case, the development plan should not be followed. The manner in which the decision-maker structured his decision applying that principle was a matter for him to decide: there was no universal prescription. His decision could only be challenged on public law grounds. The assessment of the facts and the weighing of the considerations were matters for the decision-maker, not the court: City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33; [1997] 3 PLR 71 applied.
(2) The first defendant correctly went on to consider whether there were material considerations which indicated that the proposal should be determined otherwise than in accordance with the development plan. On a fair interpretation of the decision letter, read as a whole, the first defendant had had regard to material considerations in favour of the proposal. He considered that the housing benefits and the affordable housing attracted weight in favour of the proposal but found that there was some conflict with the second defendant’s policy on daylight and sunlight. Therefore, it was not irrational or inconsistent for him to take that consideration into account. It was apparent from the decision letter that, in the view of the first defendant, there were a number of material considerations which weighed against the proposal.
(3) Under sections 66(1) and 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, there was an overarching statutory duty to treat a finding of harm to heritage assets as a consideration to which the decision-maker had to give considerable importance and weight when exercising his powers under section 70(2) of the Town and Country Planning Act 1990 on an application for planning permission. The first defendant found that the harm to heritage assets attracted great weight against the proposal, while the impact on the character and appearance of the conservation area carried slight to moderate weight against the proposal.
In the circumstances, the first defendant was entitled to dismiss the appeal, and refuse planning permission, on the basis that the proposal was not in accordance with the development plan overall. There was no identifiable public law error in the first defendant’s decision-making, and therefore no grounds for a legal challenge.
(4) Rule 17(5) of the Town and Country Planning (Inquiries Procedure)(England) Rules 2000 provided for the first defendant to give the parties an opportunity to make representations if he differed from the inspector on any matter of fact or took into consideration any new evidence or new matter of fact and for that reason disagreed with the inspector. In the present case, the first defendant had a discretion whether to refer matters back to the parties, or to issue a “minded to grant” letter to the parties, inviting further representations on the location of the proposed affordable housing. The first defendant’s reasons for deciding not to issue a “minded to” letter were rational and intelligible. He was entitled to conclude that seeking more fundamental changes through a further revised section 106 agreement was unlikely to be successful in the light of previous revisions.
(5) The quality of the proposed affordable housing was put in issue at the inquiry by the second defendant. The claimant did not respond to the second defendant’s concerns prior to or during the inquiry by putting forward an alternative proposal in an amended section 106 agreement. Although the claimant had had ample opportunity to address the location of the affordable housing units during the course of the inquiry, when the views of all present could have been aired, it had chosen not to do so.
It was far from certain that addressing the distribution of affordable housing would have decisively altered the planning balance in the claimant’s favour. In any event, the claimant had failed to establish any prejudice from the alleged weakness in the reasons.
Timothy Corner QC (instructed by Dentons UK and Middle East LLP) appeared for the claimant; Richard Turney (instructed by the Government Legal Department) appeared for the first defendant; Andrew Byass (instructed by Tower Hamlets London Borough Council) appeared for the second defendant.
Eileen O’Grady, barrister
