Superstore — Local inquiry — Inspector recommending applicant’s site — Secretary of State not accepting recommendation — Whether Secretary of State discounted applicant’s offer of funding for improved road link — Court of Appeal allowing appeal against High Court’s quashing of decision — House of Lords dismissing appeal
In 1992, a public inquiry was held in connection with applications relating to three proposed food retail stores on three sites at Witney, Oxfordshire. The planning inquiry inspector recommended that permission be granted for the Tesco site and that the appeal in respect of the other sites be rejected. The Secretary of State refused the Tesco application and allowed an appeal in respect of another proposed site. At first instance Tesco successfully applied to have the Secretary of State’s decision quashed arguing that he had discounted, inter alia, its offer to fund a road network (the West End Link “WEL”): [1993] 2 PLR 108.
The Court of Appeal allowed an appeal: [1994] 1 PLR 97. It concluded that it was a case of unusual public importance bearing on conditions and obligations and at which point they might overlap into buying and selling of planning permissions, which was always agreed to be unacceptable. Tesco appealed to the House of Lords. The thrust of its argument was that the offer of funding was a material consideration and that the Secretary of State failed to have regard to it: see section 70 of the Town and Country Planning Act 1990.
Held The appeal was dismissed.
1. In the course of his judgment in the Court of Appeal, the Master of the Rolls stated that “material” in section 70(2) meant “relevant” and that was correct.
2. It was for the courts, if the matter was brought before them, to decide what was a relevant consideration. If the decision maker wrongly took the view that some consideration was not relevant, and therefore had no regard to it, his decision could not stand and he would be required to think again.
3. It was entirely for the decision maker, however, to attribute to the relevant considerations such weight as he thought fit and the court would not interfere unless he had acted unreasonably.
4. An offered planning obligation which had nothing to do with the proposed development would plainly not be a material consideration. If it had some connection with the development which was not de minimis then regard should be had to it; but the extent, if any, to which it should affect the decision maker was a matter entirely within his discretion and in exercising that discretion he was entitled to have regard to his established policy.
5. The policy set out in Circular 16/91 was intended to bring about certainty and to ensure, among other things, that planning permissions were not bought or sold.
6. When it came to the Secretary of State’s decision letter, on a fair reading, he had not disregarded Tesco’s offer of funding as being immaterial. On the contrary he gave it full consideration and carefully weighed up its significance for the purpose of arriving at a planning decision which was not open to challenge.
7. Tesco had made the offer because the local planning authority had said that in their view no superstore should be allowed unless the WEL was built. That was a perfectly respectable argument. But the choice between a policy which emphasised the presumption in favour of development and fairness between developers, and a policy to obtain the maximum legitimate benefit, lay within the area of discretion which Parliament had entrusted to planning authorities.
Roy Vandermeer QC and Christopher Katkowski (instructed by Berwin Leighton) appeared for Tesco; Christopher Lockhart-Mummery QC and Richard Drabble (instructed by McKenna & Co) appeared for the second respondent; Duncan Ouseley QC and John Hobson (instructed by the Treasury Solicitor) appeared for the Secretary of State.
