Planning permission – Retail development – Defendant local planning authority considering three applications for retail development and granting permission for all three – Whether failing properly to assess retail capacity or improperly disregarding advice of officers on that issue – Whether failing properly to apply sequential test in PPS 4 – Claim dismissed The claimant and the two interested parties were three developers each of whom applied to the defendant local planning authority for planning permission to develop a large retail outlet in Peterlee, County Durham. A supermarket already existed in the town centre. The claimant’s application related to another site in the town centre, while the first interested party’s site lay on the periphery of the town centre and that of the second interested party was five miles away. The defendant considered the three planning applications concurrently and decided to grant planning permission in respect of all three, having concluded that Peterlee was capable of accommodating and sustaining four large retail stores and that the impact on other local areas was acceptable. They voted on the applications in order of sequential merit, with permission granted first for the claimant’s development, then for the first interested party’s scheme and finally for that of the second interested party. The claimant obtained permission to seek judicial review of the defendants’ decision to grant planning permission to the first interested party. Its application for permission for a similar challenge to the second interested party’s development remained outstanding at the date of the hearing. The claimant’s main grounds of challenge were that, in granting permission for the first interested party’s development, the defendants had: (i) failed to carry out a proper assessment of the retail capacity of the area; (ii) misapplied the sequential test in PPS 4 regarding the suitability of sites for development. On the first point, it contended that the defendants’ planning committee had ignored the advice of their officials that Peterlee could not accommodate more than two new stores and should, before acting against that advice, have sought further information on the impact of granting permission for three developments. Held: The claim was dismissed. (1) The arena for arguments on the planning merits of a development was for planning committees not for the court, which would be acting unlawfully if it strayed into that arena. The members of planning committees were answerable to the public, from whom they derived their authority as elected members, and the court had to respect the primacy of their planning judgment. The members of the committee were obliged to adhere to the law and to take into account all relevant ministerial guidance, local plans and analogous documents, but, provided they acted lawfully and not irrationally, as defined in law, the weight that they attached to the relevant considerations was a matter for the exercise of their planning judgment. They should not slavishly follow the views or advice of their officials; although they might accept the recommendations of such officials, they were entitled to depart from them in the exercise of their own judgment if their reason for doing so was not irrational. Although it might be proper, in certain circumstances, for them to ask for more information before they were minded to disregard their officers’ recommendation, whether they did so was a matter for their judgment. Although it might have been wise for the defendants’ planning committee to have commissioned further detailed work on the potential impact of approving all three applications, they had not acted irrationally, or ignored a material consideration, in failing to do so. They were an experienced group of elected members who were very familiar with the relevant planning policy statements, the local plan and the various other highly material considerations. They had been entitled to place their own view of the local situation into the decision-making matrix. The committee members had known that they were taking a risk by granting permission and had expressly stated that they judged the impact on other local areas to be acceptable. They had been aware of the advice and all the relevant factors and had not artificially restricted their view. They had been entitled to accentuate other highly relevant and material considerations and give less weight to expert opinion and the advice of officers, and they had given clear and cogent reasons for doing so. (2) The defendants’ planning committee had not been under any misapprehension as to their approach to the issues before them with regard to the sequential test under PPS 4, with its preference for town centre sites. They had been entitled to consider all the applications together, so that all views could be advanced fairly, and thereafter to vote on the applications in order of sequential merit. That was a permissible and sensible approach to take. The planning committee had applied its collective mind to the sequential test and addressed the issues in accordance with that test. Paul Tucker QC (instructed by Eversheds LLP, of Birmingham) appeared for the claimant; Patrick Clarkson QC and Nicola Allan (instructed by the legal department of Durham County Council) appeared for the defendants; Christopher Katkowski QC and Robert Walton (instructed by Semple Fraser LLP, of Manchester) appeared for the first interested party, Tesco Stores Ltd; Guy Williams (instructed by Fladgate LLP) appeared for the second interested party, Dalton Park Ltd. Sally Dobson, barrister
R (on the application of Salford Estates (No 2) Ltd) v Durham County Council
Planning permission – Retail development – Defendant local planning authority considering three applications for retail development and granting permission for all three – Whether failing properly to assess retail capacity or improperly disregarding advice of officers on that issue – Whether failing properly to apply sequential test in PPS 4 – Claim dismissed The claimant and the two interested parties were three developers each of whom applied to the defendant local planning authority for planning permission to develop a large retail outlet in Peterlee, County Durham. A supermarket already existed in the town centre. The claimant’s application related to another site in the town centre, while the first interested party’s site lay on the periphery of the town centre and that of the second interested party was five miles away. The defendant considered the three planning applications concurrently and decided to grant planning permission in respect of all three, having concluded that Peterlee was capable of accommodating and sustaining four large retail stores and that the impact on other local areas was acceptable. They voted on the applications in order of sequential merit, with permission granted first for the claimant’s development, then for the first interested party’s scheme and finally for that of the second interested party. The claimant obtained permission to seek judicial review of the defendants’ decision to grant planning permission to the first interested party. Its application for permission for a similar challenge to the second interested party’s development remained outstanding at the date of the hearing. The claimant’s main grounds of challenge were that, in granting permission for the first interested party’s development, the defendants had: (i) failed to carry out a proper assessment of the retail capacity of the area; (ii) misapplied the sequential test in PPS 4 regarding the suitability of sites for development. On the first point, it contended that the defendants’ planning committee had ignored the advice of their officials that Peterlee could not accommodate more than two new stores and should, before acting against that advice, have sought further information on the impact of granting permission for three developments. Held: The claim was dismissed. (1) The arena for arguments on the planning merits of a development was for planning committees not for the court, which would be acting unlawfully if it strayed into that arena. The members of planning committees were answerable to the public, from whom they derived their authority as elected members, and the court had to respect the primacy of their planning judgment. The members of the committee were obliged to adhere to the law and to take into account all relevant ministerial guidance, local plans and analogous documents, but, provided they acted lawfully and not irrationally, as defined in law, the weight that they attached to the relevant considerations was a matter for the exercise of their planning judgment. They should not slavishly follow the views or advice of their officials; although they might accept the recommendations of such officials, they were entitled to depart from them in the exercise of their own judgment if their reason for doing so was not irrational. Although it might be proper, in certain circumstances, for them to ask for more information before they were minded to disregard their officers’ recommendation, whether they did so was a matter for their judgment. Although it might have been wise for the defendants’ planning committee to have commissioned further detailed work on the potential impact of approving all three applications, they had not acted irrationally, or ignored a material consideration, in failing to do so. They were an experienced group of elected members who were very familiar with the relevant planning policy statements, the local plan and the various other highly material considerations. They had been entitled to place their own view of the local situation into the decision-making matrix. The committee members had known that they were taking a risk by granting permission and had expressly stated that they judged the impact on other local areas to be acceptable. They had been aware of the advice and all the relevant factors and had not artificially restricted their view. They had been entitled to accentuate other highly relevant and material considerations and give less weight to expert opinion and the advice of officers, and they had given clear and cogent reasons for doing so. (2) The defendants’ planning committee had not been under any misapprehension as to their approach to the issues before them with regard to the sequential test under PPS 4, with its preference for town centre sites. They had been entitled to consider all the applications together, so that all views could be advanced fairly, and thereafter to vote on the applications in order of sequential merit. That was a permissible and sensible approach to take. The planning committee had applied its collective mind to the sequential test and addressed the issues in accordance with that test. Paul Tucker QC (instructed by Eversheds LLP, of Birmingham) appeared for the claimant; Patrick Clarkson QC and Nicola Allan (instructed by the legal department of Durham County Council) appeared for the defendants; Christopher Katkowski QC and Robert Walton (instructed by Semple Fraser LLP, of Manchester) appeared for the first interested party, Tesco Stores Ltd; Guy Williams (instructed by Fladgate LLP) appeared for the second interested party, Dalton Park Ltd. Sally Dobson, barrister