A cash-strapped local authority’s decision not to participate in the latest legal challenge to consent for an out-of-town Asda in Cinderford places question marks over the planning appeal system, a judge has warned.
Though he said he was expressing no final view on the matter, Singh J said that he may have to address it in his judgment, after Forest of Dean district council elected to play no part in the third set of proceedings over the planned supermarket.
Unusually, it has not consented to judgment against it, but James Maurici QC, representing the rival Co-op business opposed to the proposal, said that it had taken the decision not to participate because of “a strain on finances”. Instead, it supports the defence put forward by developer Trilogy Developments.
Mr Maurici said that such a stance was unusual, but “not unheard of” – though it is the first time it has happened in a case he has been involved with. He added: “It may be a situation that is increasingly going to occur.”
Singh J said that the development “raises some questions in my mind” as to the appropriateness of the council’s position, adding: “One bears in mind the obvious point that judicial review proceedings are concerned with public interests and not merely private interests.”
On the other hand, he said that public authorities are “strapped for cash” and that he cannot force them to engage with the court process.
He said that he may ultimately have to address in his judgment the question of whether it is appropriate for a public authority to say to the court that it neither consents to judgment nor seeks to defend a decision, but is instead leaving it to a private party to defend it.
Mr Maurici added that it also raised the question of who would be liable to pay his client’s legal costs in the event it is successful, with the possibility that the council and the developer may end up jointly liable.
The high court has twice quashed planning permission for the out-of-town Asda, which the Co-op claims will halve its town centre business.
It is now seeking a third quashing order, claiming, among other things, that the latest planning permission – granted last July before the most recent quashing order in September – was once again based on an officer’s report that failed properly to assess the true extent of the harm that would be caused to Cinderford town centre. As a result, it says that council members who granted consent were misled.
Trilogy – which is defending the permission – is pursuing the 4,645 m2 store, to be operated by Asda, on land at Steam Mills Road, Cinderford.
The Queen on the application of Mid-Counties Co-operative Ltd v Forest of Dean district council Planning Court (Singh J) 3 March 2015
James Maurici QC and Gwion Lewis (instructed by Hewitsons LLP) for the claimant
Christopher Katkowski QC and Graeme Keen (instructed by Thomas Eggar LLP) for the interested party
