Planning permission – Joint application – Development of retail food store and regeneration of cricket club – Section 106 agreement linking two elements of application – Grant of permission on ground that each element acceptable in planning terms – Whether permission for food-store element impermissibly “bought” by cross-subsidy for cricket club – Whether section 106 agreement constituting impermissible link between two elements – Claim dismissed
In November 2009, Tesco, the first interested party, and a local cricket club, the second interested party, jointly applied to the defendant council for planning permission for a large superstore and the redevelopment of the nearby Old Trafford Cricket Club, with the two being linked by a pedestrian walkway. The works at the cricket club aimed to make the ground suitable for international matches, in particular the Ashes in 2013. The application scheme contemplated that if permission were granted, the defendants would sell the relevant land for £21m to Tesco, which would pass it on to the cricket club for the redevelopment. The two elements of the proposal were to be linked through an agreement, under section 106 of the Town and Country Planning Act 1990, to ensure that the food store would not open for trading until the cricket club had awarded the contracts for the works needed to meet the requirements of the English Cricket Board. The claimant, which owned a nearby retail park, applied at around the same time for planning permission to extend and refurbish its site, including the construction of a new food store.
In March 2010, the defendants’ planning committee resolved to refuse the claimant’s application and to allow that submitted by Tesco and the cricket club. Owing to uncertainty as to whether the application would be called in, permission was not formally granted until September 2010. In December 2010, the claimant’s appeal in respect of its own application was dismissed.
The claimant applied for judicial review of the planning permission for the joint application. It contended, inter alia, that there was a risk that permission for the Tesco element had been impermissibly “bought” by the cross-subsidy for the cricket club because: (i) the defendants’ planning committee might have been confused by the requirement to consider each element of the joint application separately in planning terms but to vote on the application as a whole and had possibly regarded the cross-subsidy for the cricket club as compensating for any planning objections to the Tesco element; and (ii) the section 106 agreement was unlawful or evidenced an impermissible link between the cricket club and Tesco elements.
Held: The claim was dismissed.
The joint application was not an “enabling” proposal where planning harm caused by one part of the proposal could be ruled out because of specific benefits elsewhere. Both aspects of the proposal, namely the Tesco food store and the cricket club redevelopment, had to be deemed acceptable before the joint application could be allowed. The report made it clear that each element had to be considered and justified separately from a planning point of view before the joint application could be approved and that the cross-subsidy could not be used to justify any objectionable part of the Tesco element. That advice was logical and not difficult to follow. The thrust of the report was that each element was acceptable in planning terms. There was no evidence that the planning committee had disregarded the advice set out in the report and allowed the application on some other basis.
The mere fact that there was a section 106 obligation linking the cricket club works with the Tesco store did not mean that the need to consider the planning acceptability of each element had been disregarded. The obligation had been imposed to ensure that the significant regeneration benefits of the cricket club were brought on stream as soon as possible, not least because of the aim of securing international test match status in time for the 2013 Ashes. The idea was that Tesco, as one of the joint applicants, would be able to encourage or assist the cricket club in its redevelopment.
The obligation was not unlawful. It complied with regulation 122(a) of the Community Infrastructure Levy Regulations 2010 that it was necessary to make the development acceptable in planning terms, directly related to it and fairly and reasonably related to it in scale and kind. It did not otherwise constitute an impermissible link between the cricket club redevelopment and the Tesco store. The linking of the cricket club works to the Tesco store could be wrongful only if it meant that the permission for the Tesco store was being “bought”, in the sense that its objectionable planning features were being disregarded. The planning committee had not proceeded on that basis, but had voted for the application because it agreed with the recommendations of the report that each element was acceptable in planning terms. Further, the section 106 obligation did not secure the funding for the cross-subsidy in the first place because, by the time the obligation came into play, Tesco would already have acquired the site and the cross-subsidy would notionally have happened already by the time the obligation came into operation.
Per curiam: In respect of many of the matters raised by the claimant, it could have gone back to the defendants after the resolution and asked for a reconsideration pending the actual grant of planning permission. The six months that had elapsed before the grant had provided ample time to revert to the defendants. Although not necessary to the court’s reasoning, that provided an additional reason not to quash to permission.
Paul Tucker QC and Ian Ponter (instructed by Walker Morris LLP, of Leeds) appeared for the claimant; Stephen Sauvain QC (instructed by the legal department of Trafford Borough Council) appeared for the defendants; Christopher Katkowski QC and Sasha White (instructed by Berwin Leighton Paisner LLP) appeared for the first interested party; Matthew Slater (instructed by Lane-Smith & Shindler LLP, of Manchester) appeared for the second interested party; the third interested party did not appear and was not represented.
Sally Dobson, barrister