Development — Defendant council assessing quantitative need — Changes in shopping patterns between resolution and grant of planning permission — Whether defendants failing to take account of material considerations — Claim allowed
In December 2004, the defendant council granted the first and second interested parties planning permission to erect of a Tesco retail food store, a retail DIY store and to construct a car park and a section of link road on land situated on the edge of a town centre. The site included the claimant’s land, which the defendants had to compulsorily acquire.
A large Somerfield supermarket with car parking stood to the west of the application site. It, too, was located on the edge of the defined town centre. PPG 6 required that applicants should demonstrate a need for large retail developments in “edge-of-centre” locations. That included the ability to show a “quantitative need”, in the sense that the retail expenditure available in the catchment area was not sufficiently catered for by the existing retail floorspace. “Qualitative need” for a choice of shops, range of goods, and competitive pricing, was also relevant.
The present application was supported by a retail assessment that concluded that the proposed development was justified since there was both a qualitative and quantitative need for it. However, between the resolution to grant and the issue of planning permission, a convenience store in the town centre had been replaced by a Tesco Express store and the Somerfield store had been reopened as a Sainsbury’s supermarket.
The claimant applied for judicial review of the grant of planning permission. It contended, inter alia, that the defendants failed to have regard to material considerations. It argued that the assessment of quantitative need for shopping floorspace had been an important justification for the resolution to grant planning permission. After the date of the resolution, changes to the shopping pattern in the localities could potentially affect that assessment materially and the defendants should have reconsidered those new circumstances.
Held: The claim was allowed.
The changes in the occupation of shopping floorspace were material to the assessment of quantitative need upon which the defendants had relied when granting planning permission. They should have considered those changes with the Tesco application in mind. Even if the court had been satisfied that the defendants’ officers had adequately considered the changes, that would not have been sufficient. It was impossible to say that, on a reconsideration, the planning committee would have reached the same conclusion: R (on the application of Kides) v South Cambridgeshire District Council [2002] 4 PLR 66 applied.
Average floorspace or benchmark figures had been used in the quantitative assessment undertaken to demonstrate that a substantial proportion of the turnover of the existing convenience shopping space might accommodate a major part of the turnover of a new store without any harm to the vitality and viability of the town centre. This assessment might change when a significantly stronger competitor occupied the Somerfield floorspace.
James Maurici (instructed by Wragge & Co, of Birmingham) appeared for the claimant; Peter Goatley (instructed by Eversheds, of Birmingham) appeared for the defendants; Patrick Clarkson QC (instructed by Ashurst Morris Crisp) appeared for the first interested party, Tesco Stores Ltd; the second interested party, Mercian Developments Ltd, did not appear and was not represented..
Eileen O’Grady, barrister
