Competing applications for supermarkets – Council referring two applications to Secretary of State – Secretary of State calling in one application – Applicant applying for judicial review of Secretary of State’s decision – Whether Secretary of State required to call in competing applications – High Court dismissing application
On May 9 1997 a planning application was submitted by the applicant to Teesdale District Council for a supermarket on the Auction Mart site, Vere Road, Barnard Castle (the Carter application). Two other competing applications for supermarkets were submitted by a developer in relation to the Grove Works site, Queen Street, Barnard Castle (the GW application), and by Safeway Ltd in relation to a site to the rear of Galgate/Horsemarket, Barnard Castle (the Safeway application). It was common ground that there was capacity for only one of the proposals. The council’s head of planning issued a report which advised that the Carter and GW applications be refused and the Safeway application be granted. The council’s development control (south) committee considered the report and resolved that the Carter and Safeway applications be granted and the GW application refused. Subsequently the council decided to grant the Carter and Safeway applications and to refuse the GW application. The council then referred the Carter and Safeway applications to the Secretary of State because they did not accord with the development plan since the sites were outside the “main shopping area” defined by policy BC6 of the Barnard Castle Area local plan.
On February 5 1998 the council’s refusal to grant the GW application was appealed to the Secretary of State. Subsequently the Secretary of State notified the applicant of his decision not to call in the Safeway application under section 77 of the 1990 Act, but to call in the Carter application and hear it together with the appealed GW application. The applicant sought judicial review of the Secretary of State’s decision not to call in the Safeway application on the ground that the decision had the effect of unlawfully pre-empting the proper consideration of which of the competing applications should be permitted. It was submitted that the sequential approach applied and since the Carter Site related to an edge of centre site, an assessment would have to be made of whether the town centre had any sites which were suitable for development and, if the Safeway application had also been called in, the two proposals would have been considered at the same inquiry and the applicant would have had the opportunity to persuade the inspector that the Carter application was preferable.
Held The application was dismissed.
1. The Secretary of State was not under an obligation to call in applications where there were competing applications because his discretion was unfettered, subject to the principle that any decision must be fair.
2. Since the Safeway application related to a site in the town centre and would not breach any national policy there was no reason for the Secretary of State to call in the application. However, the Carter application might have been in breach of the sequential test and accordingly there were grounds for calling in that application. The Secretary of State had not been not carrying out an evaluation of competing planning merits but considering whether there was a breach of policy: Lakin v Secretary of State for Scotland (Court of Session) 1989 JPL 339, distinguished.
3. The adverse consequences of not calling in the Safeway’s application were material considerations which the Secretary of State was to take into account and which were relevant to rationality. However it had not been shown that the Secretary of State had failed to have regard to the adverse consequences and therefore it could not be concluded that his decision was irrational or perverse.
Christopher Katkowski (instructed by McGuiness Finch) appeared for the applicant, Carter Commercial Ltd; Philip Sales (instructed by the Treasury Solicitor) appeared for the respondent, the Secretary of State for the Environment; Alun Alesbury (instructed Lawrence Jones) appeared for Safeway Ltd, as an interested party.
Thomas Elliott, barrister
