Development – Outline planning permission – Reasons – Section 106 of the Town and Country Planning Act 1990 — Claimant seeking judicial review of decision to grant planning permission for commercial development – Whether defendant local authority failing to remedy errors of law with regard to section 106 contributions – Application granted
The claimant owned and operated a supermarket in Cinderford town centre, Gloucestershire. On 29 March 2012, the defendant local authority granted outline planning permission to a developer (the interested party) for the demolition of existing buildings and the construction of a retail store on a site out of the town centre. In 1999, the secretary of state, accepting the recommendation of his inspector, had refused an application for outline planning permission on that site for a large retail store. That application, which had been supported by the defendants, had been called in by the secretary of state for his own determination and the inspector had reported after a 10-day public inquiry recommending refusal.
Planning permission was granted in January 2014, following a resolution of the defendants’ planning committee to approve the interested party’s application. That was a redetermination of the application following the decision of Stewart J to quash the defendants’ earlier grant of permission: See [2013] EWHC 1908 (Admin); [2013] PLSCS 161.
The claimant sought judicial review to quash the 2014 decision contending that, in making the new decision, the planning committee had fallen into the same errors that had led to the quashing of the first determination. The claimant contended that: the committee had: (i) failed to have regard to a material consideration, namely how the contributions to be made under section 106 of the Town and Country Planning Act 1990 would encourage trips to the town centre or to provide any proper reasons in relation thereto; (ii) granted planning permission in breach of regulation 122(2) of the Community Infrastructure Levy Regulations 2010 because the section 106 obligations imposed on the developer were not necessary to make the development acceptable in planning terms; (iii) failed to provide a rational and adequately reasoned basis for departing from an earlier decision of the secretary of state to refuse planning permission for the site for a similar development on the basis of similar section 106 contributions/obligations; and (iv) materially misconstrued paragraph 14 of the National Planning Policy Framework (“NPPF”).
Held: The application was granted.
(1) A further planning officers’ report (OR2), upon which the planning committee had relied, had failed to grapple with the crucial question, clearly identified by Stewart J in the Administrative Court, as to how the proposed section 106 contributions would or might encourage more visits to the town centre in the context of harm to that centre inherent in the development proposal which the contributions had been intended to mitigate. It was common ground that that harm would be substantial. The defendants were clearly required to be satisfied that the contributions would mitigate that harm which required some consideration of how, whether and the extent to which it would do so. That was not an onerous task, not did it require any form of mathematical exactitude but it was a material consideration with which the planning committee was required to grapple and OR2 had failed to do so.
(2) The defendants’ failure to provide an adequate explanation for how the section 106 contributions would increase trips to the town centre meant that they could not be considered sufficient to render the development acceptable in planning terms. Further, a finding of failure to comply with regulation 122(2)(a) of the CIL Regulations flowed from the findings in relation to ground one. Accordingly, grounds one and two succeeded.
(3) Ground three had also been proved. OR2, and the planning committee which had relied on it, had failed to grapple with the crucial findings of the inspector and secretary of state prior to the 1999 decision that enhancements such as those incorporated into the section 106 contributions would not, without more, encourage people to visit a town centre seriously adversely affected by the proposed out-of-town development as envisaged. That earlier decision was indistinguishable and there had been no analysis or reasons given for departing from it.
(4) Finally, ground four was also proved. On the evidence, the planning committee had materially misconstrued paragraph 14 of the NPPF which did not “clearly” favour the grant of planning permission where the adverse impact did not significantly and demonstrably outweigh the benefits.
David Holgate QC and Gwion Lewis (instructed by Hewitsons Solicitors LLP) appeared for the claimant; David E Manley QC (instructed by Forest of Dean District Council) appeared for the defendants; Christopher Katkowski QC (instructed by Thomas Eggar LLP) appeared for the interested party.
Eileen O’Grady, barrister
