Lord Justice Sullivan, the most influential planning judge in recent decades, today handed down his final decision, dismissing a challenge by Tesco to the permission for an out-of-town Asda supermarket in the town of Lydney.
Sullivan LJ, who retires at the end of term, upheld a ruling last October, in which Patterson J rejected claims that Forest of Dean district council was wrong to grant planning permission for development of an industrial site that will include a 3,827 m2 retail store, to be operated by Asda, despite the recommendation of its planning officers to the contrary.
Tesco had pursued two grounds of appeal – (i) that the council breached its statutory duty under section 38(6) of the Planning and Compulsory Purchase Act 2004 and (ii) that it failed to ask the relevant questions and take reasonable steps to obtain the relevant information in relation to the benefits secured by a section 106 obligation/granted permission in breach of the Community Infrastructure Levy Regulations 2010.
But Sullivan LJ said that Patrick Clarkson QC had not pressed the first point in his oral submissions, and was “right not to do so”.
He said: “It was common ground that in respect of this issue the advice given to members by the officers, both in their written report prior to the meeting and in their oral advice at the commencement of the meeting on 12 November 2013, was impeccable. In their report the officers had advised members that ‘a great deal of weight’ could be attached to the ‘wider benefits’ of the proposal. Those ‘wider benefits’ were, principally, securing existing jobs at the town’s biggest employer, JD Norman Lydney Ltd., and the creation of new jobs.”
He added: “In policy terms the proposed mix of uses was like the proverbial curate’s egg: good in part, and bad in part. The ‘bad’ part – the large out of centre retail store with its associated petrol station and car parking which would have a significant adverse impact on Lydney town centre contrary to both the NPPF and the development plan – would fund both the ‘good’ part – the erection of the new finishing shop and offices – and a section 106 agreement containing a package of measures to mitigate the adverse impact on the town centre.”
Dismissing the second ground, he said that a £380,000 package of measures included in the section 106 agreement was “fairly and reasonably related in kind to the development” because it seeks to mitigate what is acknowledged to be a significant adverse impact of one of the major elements of that development, the impact on Lydney town centre.
Patterson J had found that the section 106 obligations in the case – including £25,000 for town centre management advice, £30,000 for a new market square, £210,000 for further town centre improvements, £15,000 for additional CCTV camera coverage, up to 20 £5,000 grants for individual shop front improvements, and a commitment to a shuttle bus from Asda to the High Street for five years – were compliant with the CIL regulations.
And Sullivan LJ said: “This is not a case of a local planning authority seeking funding through the imposition of a section 106 agreement for some extraneous planning benefit that is unrelated to any adverse impact of the development for which permission is sought. In terms of scale, measures that merely mitigate, but do not obviate, a significant adverse impact that would be caused by a proposed development are likely to be fairly and reasonably related in scale to that development.
“Each case will be fact sensitive. There might well be cases where the cost of such mitigation measures would be so excessive that the obligation would be out of scale with the proposed development even though they would not obviate its adverse effects, but there is nothing to suggest that the overall cost of these particular mitigation measures (£380,000) is out of scale with this substantial employment/retail proposal. It is the large scale of the retail element of this out of centre proposal which results in the significant adverse impact on the town centre.”
Tesco, which operates a supermarket in Lydney’s High Street, had claimed at the High Court that the officers’ advice was that the new Asda store would have “significant adverse impacts” on the town centre, and would divert 37% of Tesco’s trade – amounting to £11.5m – away.
The council’s planning committee approved the scheme, which will also include a new finishing shop and offices for Lydney’s biggest employer, camshaft production company JD Norman Lydney (JDN), finding that the proposal would safeguard more than 200 jobs at JDN and that town centre impacts would be mitigated by s106 contributions offered.
• Read Estates Gazette’s profile of Sullivan LJ here.
The Queen on the application of Tesco Stores Ltd v Forest of Dean District Council Court of Appeal (Sullivan and Sharp LJJ and Sir Colin Rimer) 22 July 2015
Tim Straker QC and Gwion Lewis (instructed by Berwin Leighton Paisner LLP) for the appellant
Paul Stinchcombe QC and Jon Darby (instructed by Eversheds LLP) for the third interested party
