The decision by a local planning authority (“LPA”) to grant planning permission is, of course, amenable to judicial review on an application to the court by a third party with the appropriate degree of standing. The process is an example of the court exercising its supervisory role; it does not involve a revisiting of the planning merits, nor does it result in a substituted planning decision. If the application is successful, the decision is quashed and the underlying planning application is returned to the LPA for redetermination. The LPA is bound to have regard to the judgment of the court in redetermining the planning application.
In R (on the application of Midcounties Co-operative Ltd) v Forest of Dean District Council [2014] EWHC 3059 (Admin) the LPA had granted planning permission in 2012 to the interested party for an out-of-town supermarket. The claimant, which owned and operated a town centre supermarket, sought judicial review of its decision to do so. In 2013, the court quashed the LPA’s decision. It concluded that the LPA’s determination of the planning application was fundamentally flawed as a matter of law. The overall effect of the case officers’ report had been to mislead the LPA’s planning committee significantly.
Crucially, that report had failed to consider the importance of consistency with an earlier decision of the Secretary of State refusing planning permission for a similar development on the site, and the officers had not asked themselves how financial contributions under a section 106 agreement would improve linkages between the site and the town centre sufficiently so as to offset the recognised impact on the town centre. (In relation to this second issue, one consequence was that the contributions could not then be said to be “necessary to make the development acceptable in planning terms” so as to “constitute a reason for granting planning permission” for the purposes of regulation 122(2) of the Community Infrastructure Levy Regulations 2010.)
At the end of 2013, the LPA redetermined the planning application and again granted planning permission to the interested party. In 2014, the claimant sought judicial review. The court has now once more quashed the LPA’s decision, holding that the errors previously identified in the case officers’ first report were, in substance, simply repeated in their second report. Accordingly, once more the LPA’s planning committee had been misled.
John Martin
