One particular aspect of the judgment in R (on the application of Midcounties Co-operative Ltd) v Forest of Dean District Council (see PP 2014/151) deserves additional comment.
On a subsequent planning application a previous planning decision is a material consideration, if it is legally indistinguishable. In North Wiltshire District Council v Secretary of State for the Environment [1992] 3 PLR 113, Mann LJ formulated a simple practical test for the later decision maker. He should ask himself whether, if he were to decide the present case in a particular way, he would necessarily be agreeing or disagreeing with some critical aspect of the decision made by the earlier decision maker. Where there is a disagreement, he must then weigh the previous decision and give his reasons for departure from it.
In Midcounties, the secretary of state had called in a 1997 planning application for a similar supermarket development on the same site. He substantially accepted the reasoning of his inspector, following a public inquiry, and refused to grant planning permission.
In the inspector’s opinion, the town centre was “a weak and vulnerable shopping centre” and the proposed out-of-town supermarket would cause significant harm to it. He took the view that the case for development depended critically upon whether there was enough spin-off from the new supermarket to the town centre, in terms of linked trips that would increase visits to the latter that would set off such harm. The distance between the two was too far for linked trips on foot. His conclusion was that proposed section 106 obligations, namely the provision of a bus service and cosmetic improvements, would not encourage people to visit the town centre once it had suffered the “crippling” effects of the new out-of-town supermarket.
The court accepted the claimant’s contention that the local planning authority (“LPA”) had not provided a rational and adequately reasoned basis for departing from the secretary of state’s earlier decision refusing planning permission for a similar development supported by similar section 106 obligations. (In particular, it had failed to consider the importance of consistency.) The officers and the LPA’s planning committee had failed to grapple with the crucial findings of the secretary of state and his inspector that the section 106 obligations would not, without more, encourage people to visit a town centre seriously adversely affected by the out-of-town development as it was envisaged.
John Martin is a planning law consultant
