Planning permission – Joint application – Section 106 of Town and Country Planning Act 1990 – Development of retail food store and regeneration of cricket club – Planning agreement under section 106 of 1990 Act 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 – Appeal dismissed
In September 2010, the first respondent council granted planning permission to the second respondent supermarket chain and the third respondent local cricket club in respect of their joint application for a superstore and the redevelopment of the nearby Old Trafford Cricket Club. The two elements of the development were to be linked by a pedestrian walkway. The works at the cricket club aimed to make the ground suitable for international matches.
The application scheme contemplated that the first respondents would sell the relevant land for £21m to the second respondent, which would pass it on to the third respondent for the cricket club 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 appellant, which owned a nearby retail park, and whose planning application for a new food store had been refused, applied for judicial review of the planning permission. It contended that the first respondents’ planning committee might have been confused as to the relevant planning principles with a consequent risk that permission for the superstore element had been impermissibly “bought” by the cross-subsidy for the cricket club.
Dismissing the claim, the judge held that the committee members would have understood from the planning officer’s advice that they should consider the two parts of the development separately. He found that they had considered each part to be acceptable in planning terms and had not erroneously proceeded on the assumption that the works to the cricket club were necessary to make the superstore acceptable: see [2011] EWHC 491 (Admin); [2011] 11 EG 103 (CS). The appellant appealed.
Held: The appeal was dismissed.
The court was entitled to start from the presumption that the members of the planning committee who voted for the proposal had been guided by the planning officer’s advice. If so, they would have understood that they should consider the merits of the two parts of the proposal separately. They would have found in the officer’s report sufficient reasons to conclude that, so viewed, they were acceptable in planning terms. At the same time, they would have been aware that the proposal was being put forward as not being merely acceptable, but as carrying with it significant regeneration benefits, including the improvement of the cricket ground. Although the offer of a legal agreement to secure those benefits would have added to the attractions of the proposal, that did not mean that it was regarded as necessary to offset perceived planning objections. It was not objectionable, in principle, for a council and a developer to enter into an agreement to secure objectives desirable for the area, irrespective of whether they were necessary to strengthen the planning case for a particular development.
Moreover, in the joint application, a direct relationship arose between the superstore and the cricket club, since the two elements were in close proximity and physically linked, and they were reasonably included in a single application. In such a case, it would have been permissible to take account of the benefits of the one as offsetting the possible planning objections to the other: R v Westminster City Council, ex parte Monahan [1998] 1 PLR 36 applied; R (on the application of Sainsbury’s Supermarkets Ltd) v Wolverhampton City Council [2010] UKSC 20; [2010] 2 EGLR 103 distinguished.
Paul Tucker QC and Ian Ponter (instructed by Walker Morris LLP, of Leeds) appeared for the appelant; Stephen Sauvain QC (instructed by the legal department of Trafford Borough Council) appeared for the first respondents; Christopher Katkowski QC and Sasha White (instructed by Berwin Leighton Paisner LLP) appeared for the second respondent; Robert Griffiths QC and Matthew Slater (instructed by Hill Dickinson LLP, of Liverpool) appeared for the third respondent.
Sally Dobson, barrister
