Development – Outline planning permission – Core strategy – Reasons – Claimant seeking judicial review of decision to grant planning permission for commercial development – Whether defendant local authority erring in law in failing to follow earlier decision refusing permission for similar project – Whether defendants wrongly failing to mention core strategy policy – 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.
The claimant sought judicial review to quash the 2012 decision contending that the defendants had, among other things, failed to consider the importance of consistency with the earlier decision of the secretary of state that planning permission should not be granted as any benefits secured via a section 106 planning obligation would not be sufficient to outweigh the “very serious harm” to the vitality and liability of the town centre or failed to provide reasons for departing from that earlier decision. Further, the defendants had failed to mention policy CSP10 of the Core Strategy, setting out proposed changes and improvements for Cinderford town, in the notice of the decision to grant the permission and/or failed to provide summary reasons in the decision notice in relation to policy CSP10 and the 1999 decision.
Held: The application was granted.
(1) A previous appeal decision was capable of being a material consideration. Like cases should be decided in a like manner to achieve consistency in the appellate process. Consistency was not only important to developers and development control authorities but also for the purpose of securing public confidence in the operation of the development control system. That principle was not limited to decisions of an inspector/the secretary of state but required an earlier material decision to be taken into account. A decision was material unless it was distinguishable. If a decision maker in a subsequent matter decided that an earlier decision was not distinguishable, then reason had to be given for any departure from it: North Wiltshire District Council v Secretary of State for the Environment [1992] 3 PLR 113 and R v Selby District Council, ex parte Oxton Farms and another [1997] 1997] PLSCS 105; [1997] EGCS 60 applied.
(2) In the present case, the duty on the defendants was to give summary reasons, not the detailed reasons required in an inspector’s report. If, as here, there were entirely free-standing reasons for the earlier decision, the decision itself was not distinguishable merely because one of those separate reasons could be distinguished. The adverse impact on the town centre from a supermarket development on the site had therefore to be considered by the defendants as a separate and free-standing matter. It was highly material that studies commissioned by and relied upon by the defendants had not addressed the impact of an out of centre supermarket on town centre vitality and viability or the improved linkages that would be required. Although the planning officer’s report and the defendants’ reasons were not to be read as a statute or contract, it was not clear from the officer’s report that there was any clear reason or reasoning on the basis of need to distinguish the present decision from the 1999 decision. There had been no proper analysis of the 1999 decision in the officer’s report and it was insufficient to submit that members of the planning committee were familiar with the planning history related to major retail projects in the area. Accordingly, the overall effect of the officer’s report significantly misled the committee about material matters which were uncorrected before the relevant decision was taken.
(3) The defendants had accepted that policy CSP 10 of the Core Strategy was not mentioned in the decision notice. The summary of reasons would be considered adequate if it dealt in substance with the main material issues. CSP 10 should have been dealt with briefly in the reasons. The officer’s report had been insufficient, especially in the circumstances that a committee member had asked for clarification. Given that the reason for distinguishing the 1999 decision was essentially need, based on CSP 10, and the consequential sequential test and since the committee member had specifically asked about the point, there should have been brief reasons explaining the decision not to mention it: R (on the application of Ling) v East Riding of Yorkshire Council [2006] EWHC 1604 (Admin) considered.
David Holgate QC and Gwion Lewis (instructed by Hewitsons Solicitors) appeared for the claimant; Richard Drabble QC and Graeme Keen (instructed by Forest of Dean District Council) appeared for the defendants.
Eileen O’Grady, barrister
R (on the application of Mid Counties Co-operative Ltd) v Forest of Dean District Council
Development – Outline planning permission – Core strategy – Reasons – Claimant seeking judicial review of decision to grant planning permission for commercial development – Whether defendant local authority erring in law in failing to follow earlier decision refusing permission for similar project – Whether defendants wrongly failing to mention core strategy policy – Application grantedThe 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.The claimant sought judicial review to quash the 2012 decision contending that the defendants had, among other things, failed to consider the importance of consistency with the earlier decision of the secretary of state that planning permission should not be granted as any benefits secured via a section 106 planning obligation would not be sufficient to outweigh the “very serious harm” to the vitality and liability of the town centre or failed to provide reasons for departing from that earlier decision. Further, the defendants had failed to mention policy CSP10 of the Core Strategy, setting out proposed changes and improvements for Cinderford town, in the notice of the decision to grant the permission and/or failed to provide summary reasons in the decision notice in relation to policy CSP10 and the 1999 decision.Held: The application was granted. (1) A previous appeal decision was capable of being a material consideration. Like cases should be decided in a like manner to achieve consistency in the appellate process. Consistency was not only important to developers and development control authorities but also for the purpose of securing public confidence in the operation of the development control system. That principle was not limited to decisions of an inspector/the secretary of state but required an earlier material decision to be taken into account. A decision was material unless it was distinguishable. If a decision maker in a subsequent matter decided that an earlier decision was not distinguishable, then reason had to be given for any departure from it: North Wiltshire District Council v Secretary of State for the Environment [1992] 3 PLR 113 and R v Selby District Council, ex parte Oxton Farms and another [1997] 1997] PLSCS 105; [1997] EGCS 60 applied.(2) In the present case, the duty on the defendants was to give summary reasons, not the detailed reasons required in an inspector’s report. If, as here, there were entirely free-standing reasons for the earlier decision, the decision itself was not distinguishable merely because one of those separate reasons could be distinguished. The adverse impact on the town centre from a supermarket development on the site had therefore to be considered by the defendants as a separate and free-standing matter. It was highly material that studies commissioned by and relied upon by the defendants had not addressed the impact of an out of centre supermarket on town centre vitality and viability or the improved linkages that would be required. Although the planning officer’s report and the defendants’ reasons were not to be read as a statute or contract, it was not clear from the officer’s report that there was any clear reason or reasoning on the basis of need to distinguish the present decision from the 1999 decision. There had been no proper analysis of the 1999 decision in the officer’s report and it was insufficient to submit that members of the planning committee were familiar with the planning history related to major retail projects in the area. Accordingly, the overall effect of the officer’s report significantly misled the committee about material matters which were uncorrected before the relevant decision was taken.(3) The defendants had accepted that policy CSP 10 of the Core Strategy was not mentioned in the decision notice. The summary of reasons would be considered adequate if it dealt in substance with the main material issues. CSP 10 should have been dealt with briefly in the reasons. The officer’s report had been insufficient, especially in the circumstances that a committee member had asked for clarification. Given that the reason for distinguishing the 1999 decision was essentially need, based on CSP 10, and the consequential sequential test and since the committee member had specifically asked about the point, there should have been brief reasons explaining the decision not to mention it: R (on the application of Ling) v East Riding of Yorkshire Council [2006] EWHC 1604 (Admin) considered.David Holgate QC and Gwion Lewis (instructed by Hewitsons Solicitors) appeared for the claimant; Richard Drabble QC and Graeme Keen (instructed by Forest of Dean District Council) appeared for the defendants.Eileen O’Grady, barrister
