Applicant applying for planning permission to build supermarket – Council resolving to defer application – Applicant applying for leave to move for judicial review of council’s decision – Whether arguable that council failed to take material consideration into account – Whether application made promptly – Application refused
The respondent council received various applications for planning permission for the development of supermarkets in Attleborough. The first, made on May 7 1997, was from Sainsbury for a supermarket on the High Street. The second, made on June 5, was from Budgens for a supermarket on Queen’s Road and, if allowed, involved the closure of its existing store. The third, on September 18, was from Tesco for a supermarket on Queen’s Road, and the fourth was from SPC Ltd for a supermarket on Station Road. The council commissioned independent planning consultants to make a study of the proposals from Sainsbury and Budgens. The consultants concluded, inter alia, first, that the council should be satisfied that all options on the Queen’s Road site had been explored and that a larger site could not be accommodated before considering the High Street proposal and, second, that if no larger site could be accommodated the council could elect or permit both in the knowledge that only Sainsbury would be likely to proceed.
On October 20 1997 the committee resolved to approve Sainsbury’s scheme subject to conditions, a legal agreement and further clarifications, and to approve the Budgens scheme subject to further negotiations and conditions. They further resolved to refuse the Station Road Scheme and to defer consideration of the Tesco proposal to enable further detailed negotiations and the completion of consultations. Subsequently, on November 10 1997, the committee resolved that the Budgens and Sainsbury applications be deferred, but that the director of planning building control be authorised to issue approvals, and it was further resolved that the Tesco application be deferred to await further detailed information. By a letter dated December 22 1997, Budgens indicated that it intended to apply for leave to move judicial review of the committee’s decision made on November 10 1997. On January 7 1998 the application was made. It was contended that the council had failed, in breach of section 70(1)(2) of the Town and Country Planning Act 1990, to take into account as a material consideration the issue of whether the identified need could be met on the Queen’s Road site.
Held The application for leave was refused.
1. Although the council were not saying that the Queen’s Road proposal was more favourable but that, having been advised, there were no reasons for refusing either proposal and that consent could be granted for both, there was an arguable case that the council had failed to have regard to a material consideration because they had come to their decision without knowing whether the Tesco proposal could be recommended.
2. However, the application for leave not been made promptly within RSC Ord 53 r 4 and was therefore out of time. The decision to bring the application was purely commercial and should have been in mind from October 20 1997. The applicant should also have had in mind the fact that in the weeks before Christmas, Sainsbury and its contractors would have been carrying out works on the basis of the council’s resolution.
Rusell Harris (instructed by Lovell White Durrant) appeared for the applicant; Duncan Ousley QC (instructed by Denton Hall) appeared for the respondent council.
