Town and country planning – Planning permission – Judicial review – Claimant applying for judicial review of third grant of planning permission for out of town retail store – Whether defendant local authority failing reasonably to consider and/or assess true extent of harm to town centre – Whether defendants adopting inconsistent, irrational approach to section 106 contributions and/or breaching regulation 122(2)(a) of Community Infrastructure Levy Regulations 2010 – Application granted
The defendant local planning authority granted planning permission to the interested party for a class A1 retail store of up to 4,645m2 (gross) and related development at Steam Mills Road, which lay outside the town centre of Cinderford, Gloucestershire. The claimant, which challenged that planning permission, was the owner and operator of the Co-operative supermarket at Dockham Road, Cinderford, which was in the town centre.
The planning permission under challenge was the third to have been granted by the defendants for the same proposal since March 2012. The first permission had been quashed by Stewart J following a successful claim for judicial review brought by the same claimant: [2013] EWHC 1908 (Admin). The second permission, which followed the redetermination of the first application after the judgment of Stewart J was quashed by Hickinbottom J following another successful claim by the claimant: [2014] EWHC 3059 (Admin).
The claimant applied for judicial review of the latest decision to grant planning permission contending, among other things, that: (i) the defendants had failed to consider and/or to take reasonable steps to assess the true extent of the harm to the town centre in the context of Stewart J’s judgment, as reinforced by the judgment of Hickinbottom J and/or the planning officers had significantly misled the planning committee in their report as to the true extent of that harm; and (ii) the defendants had adopted an inconsistent and irrational approach to section 106 contributions and/or breached regulation 122(2)(a) of the Community Infrastructure Levy Regulations 2010.
Held: The application was granted.
(1) There was fundamental defect in the planning officers’ report because the full impact of the proposed development on the town centre, and in particular on the claimant’s existing store had not been clearly set out. Although the report noted that the proposed development was likely to have a significant financial impact on the health of the town centre, it did not go far enough in making clear that the proposed store would remove half of the claimant’s turnover or inform the planning committee of the true extent of the harm which was likely to result from the proposed development. Although the planning judgment which had to be performed in a case such as the present was ultimately one for the planning committee alone, it had to be properly informed of the various factors which had to be weighed on each side of the balance. Since the committee had not been properly informed of the true extent of the harm which the proposed development was likely to cause, the balancing judgment which it performed had been vitiated by that error of approach: North Wiltshire District Council v Secretary of State for the Environment (1993) 65 P & CR 137, Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, R v Selby District Council, ex parte Oxton Farms [1997] EGCS 60 and R (on the application of Zurich Assurance Ltd) v North Lincolnshire Council [2012] EWHC 3708 (Admin) considered.
(2) Regulation 122(2)(a) of the 2010 Regulations provided that a planning obligation might only constitute a reason for granting planning permission for the development of it was necessary to make the development acceptable in planning terms. In the present case, the planning officers’ report had stated that the section 106 benefits were regarded as necessary pursuant to regulation 122(2(a) but nowhere in the report was it explained why the section 106 benefits were necessary to make the development acceptable. To the contrary, it had been explained elsewhere in the report that the section 106 benefits could be ignored and the development would still be acceptable in planning terms. Accordingly, that was a second ground upon which the approach taken to the balancing judgment which had been undertaken in the present case was still flawed by an error of law: Derwent Holdings Ltd v Trafford Borough Council [2011] EWCA Civ 832; [2011] PLSCS 190 considered.
James Maurici QC and Gwion Lewis (instructed by Hewitsons LLP Solicitors) appeared for the claimant; The defendants did not appear and were not represented; Christopher Katkowski QC and Graeme Keen (instructed by Thomas Eggar LLP Solicitors) appeared for the interested party.
Eileen O’Grady, barrister
