A local authority that earlier this week saw its planning permission for an out–of–town Asda supermarket in Cinderford quashed for the second time today faced a fresh High Court challenge to similar plans for the town of Lydney.
Forest of Dean District Council is facing claims that it is persistently failing to comply with clear instructions from the High Court on the proper approach to section 106 contributions and the operation of the Community Infrastructure Levy Regulations.
Tesco, which operates a supermarket in Lydney’s High Street, is attacking the council’s decision in March to grant planning permission for development of an industrial site that will include a 3,827 m2 retail store, to be operated by Asda.
Tesco claims the council wrongly granted planning permission despite advice from its own officers that the new 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.
JDN has a foundry on the part of the site it owns, but its current finishing shop is on the other part of the site, owned by MMC Land & Regeneration. It is hoping to build a new finishing shop on its land before its lease of the remaining part of the site expires in December 2014.
Tesco says that, in order to finance the development, JDN has entered into an arrangement with Asda and Windmill Ltd, which has an option over the MMC land a contract to sell it to Asda.
Tesco argues that, in granting permission against its officer’s recommendation, the planning committee took an irrational or illogical approach to the threatened loss of jobs at JDN if the development did not go ahead, and failed to consider the operation of the Landlord and Tenant Act 1954.
It says that officers had provided clear advice to the committee that the applicants had failed to explain why the expiry of JDN’s current lease in December 2014 would mean the closure of the business, given that the lease could be extended, a new lease agreed, or JDN could refuse to leave and hold over on existing terms.
It argues that they had also failed to explain how a proposed £1.5m investment by Windmill would secure the jobs as claimed.
Tesco alleges that the council also relied irrationally on a condition to build the finishing shop first which does not and could not achieve the aim of safeguarding jobs at the site.
In respect of the council’s approach to the potential benefits of the s106 obligations, Patrick Clarkson QC argued that it was “persistently failing to comply with the clear instructions it received from Stewart J” when the High Court quashed the first Cinderford Asda permission last year.
In this case, the s106 obligations include £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 High Street for five years.
But he said that, here, as in the Cinderford case – in which the second planning permission was quashed by Hickinbottom earlier this week – there was no evidence as to how the harm to the town centre would be mitigated by those contributions.
The Lydney decision is being defended by the applicants and interested parties, who say that Tesco’s claim is misconceived, unarguable without merit and amounts to “no more than a commercial spoiling tactic”. They say that the council made no error of law and that the planning committee was entitled to depart from the officer’s recommendation and take the view that all of the material considerations, considered together, justified the grant of planning permission.
Patterson J is to reserve judgment in the case.
The Queen on the application of Tesco Stores Ltd v Forest of Dean District Council Planning Court (Patterson J) 2 October 2014
Patrick Clarkson QC and Gwion Lewis for the claimant
Paul Stinchcombe QC and Graeme Keen for the interested parties
