Superstore — Local plan inquiry — Local plan inspector expressing preference for applicant’s site — Secretary of State not accepting recommendation — Whether Secretary of State discounted inspector’s preference and offer of funding for improved roads when making decision — Court at first instance quashing decision of Secretary of State
In July 1992 a public inquiry was held in connection with applications and appeals relating to three proposed food retail stores on three sites at Witney, Oxfordshire. A local plan inquiry was held into the proposed alterations to the Witney local plan in late 1991. The local plan inspector expressed an informal preference for the Tesco site having recommended against the site proposed in the local plan. The council supported that preference. The planning inquiry inspector recommended that permission be granted for the Tesco site and that the appeals in respect of the other two sites be rejected. The Secretary of State refused the Tesco application and allowed an appeal in respect of another proposed site. Tesco applied to quash the decision complaining that he had discounted the local plan inspector’s preference and its offer of funding for a road network (the West End Link “WEL”).
Held The decision was quashed.
1. A local plan inquiry was only one of several steps in the process whereby the planning authority reached the final version of their local plan. It was quite a different procedure to that of the appellate process of development control: see Jeantwill Ltd v Secretary of State for the Environment [1992] EGCS 128.
2. The Secretary of State had expressly identified the local plan inspector’s preference and its acceptance by the local planning authority, but he gave it only limited weight. The court would not interfere with the Secretary of State’s power to give whatever weight he pleased to the arguments of the parties: see Seddon Properties Ltd v Secretary of State for the Environment [1978] P&CR 26, at p28.
3. An offer to fund was a material consideration under section 70(2) of the Town and Country Planning Act 1990 if it had a planning purpose, was fairly and reasonably related to the permitted development and was not Wednesbury unreasonable: see Newbury District Council v Secretary of State for the Environment [1981] AC 578 at p607.
4. No other principle could be applied as a test of legal materiality and specifically the concept of necessity found in Annex B of Circular 16/91: see R v Plymouth County Council, ex parte Plymouth and South Devon Co-Operative Society [1993] EGCS 113.
5. The Secretary of State had applied the test in Annex B paras B8 and B9 of Circular 16/91, which was not appropriate in the case where an offer from a proposed developer was under consideration. In so doing he had introduced glosses on the Newbury test which he should not have done. The test in B8 and B9 were not the legal test of materiality.
6. The question of Wednesbury reasonable could not arise in the present case; nor could it be disputed that the provision of the WEL had a planning purpose.
7. The WEL was not likely to come forward without Tesco’s offer. There was a reasonable relationship between the offer to fund the WEL and the superstore. The offer was a material factor which the Secretary of State failed to take into account. Given the fine balance between the merits of the sites, there was a real possibility that it would have made a difference to the Secretary of State’s decision.
Roy Vandermeer QC and Christopher Katkowski (instructed by Berwin Leighton) appeared for Tesco; John Hobson (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment.
