Planning permission for superstore — Undertaking by developers to provide community benefits — Whether authority entitled to take such benefits into account when deciding whether to grant permission — No ulterior benefit or unreasonable requirement attaching to offer — High Court upholding that offer of benefit material to grant of permission
On April 23 1992 the council’s planning committee resolved to grant two planning applications for the building of two superstores on almost adjacent sites at Marsh Mills. The two sites were to the north west and south of a large roundabout on the main approach road from the east. The northern site involved the building of a store by Tesco Stores Ltd; the southern site the building of a store by J Sainsbury plc.
The grant of permission in each case contained a proviso that the applicants should enter into a section 106 agreement to secure undertakings and benefits contained in letters written to the council on January 24 1992. On the same day the planning committee resolved to defer an application by Plymouth & South Devon Co-operative Society Ltd for a superstore on a site owned by them at Chadlewood, Plympton, lying to the east of the Tesco and Sainsbury sites. That decision was later subject to second thoughts and ultimately the applications were granted permission.
By an application for judicial review the Co-operative challenged the Tesco and Sainsbury resolutions. Their main ground of complaint was that the council, in breach of section 70 of the Town and Country Planning Act 1990 took into account immaterial considerations — namely the developers’ offers to provide community benefits, which were unrelated to the developments proposed by them and, as a matter of law, immaterial to the grant. The applicants asserted, inter alia, that the benefits were not necessary to the grant of planning permission, nor relevant to planning or to the development permitted; and that the council operated a policy in their non-statutory and unadopted draft local plan alteration that developers of large food stores should provide substantial community benefits. Such a policy was unlawful or in breach of the Secretary of State’s policy in Circular 16/91 — Planning Obligations.
Held The application for judicial review was refused.
1. Para 5 of PPG 1 stated that “applications for development should be allowed, having regard to the development plan and all material considerations, unless the proposed development would cause demonstrable harm to interests of acknowledged importance”. The true test of materiality was whether the conditions imposed, or the obligations exacted by way of a section 106 agreement, were imposed for a planning purpose and not an ulterior one, fairly and reasonable related to the development permitted, and were not so unreasonable that no reasonable planning authority could have imposed them. In that regard the fact that the imposition of the requirement was necessary might go to establish the necessary nexus by showing that the requirement fairly and reasonably related to the development for which permission was sought: see R v Westminster City Council, ex parte Monahan [1989] 1 PLR 36; Newbury District Council v Secretary of State for the Environment [1981] AC 578.
2. The planning authority in this case had clearly published policies in these matters and everything had been done in a perfectly open and above board manner. It was relevant to take into account the fact that these policies were part of the local plan and therefore part of the declared policy of the council. That was one of the factors which went to the materiality of the requirements in this case. Having considered the letters submitted to the committee by Tesco and Sainsbury the court concluded that each of the offers made relating to community benefits was for a planning purpose and could not be said to be for an ulterior motive or not to fairly and reasonably relate to the development permitted. They reflected on the one hand the council’s wishes and environmental policy and on the other the desire of organisations such as Tesco and Sainsburys to ensure that their developments were prestigious, diverting and attractive to their customers.
3. Whether particular items were to be regarded as material or not was a matter for the judgment of the planning authority in the light of all the facts and circumstances known to them including the council’s policy on community benefits.
Andrew Gilbart (instructed by instructed Cobbett Leak Almond, of Manchester) appeared for the applicants; Michael Barnes QC (instructed by Denton Hall Burgins & Warren) appeared for the respondents.
