Council granting planning permission for supermarket – Permission subject to payment of £100,000 to council to be used to improve town centre – Whether obligation to pay £100,000 to be regarded as material consideration – Whether grant of permission Wednesbury unreasonable – Application for judicial review allowed
In 1998 Westry Developments Ltd (Westry) applied to the respondent council for a grant of planning permission to erect a supermarket on a brownfield site about 300m from the main shopping centre of Long Sutton, Lincolnshire. At that time, the council had before them three separate applications for retail developments. The first two related to sites in Long Sutton, the second of which was known as Station Yard, and the third related to a site five miles from Long Sutton at Holbeach. A firm of retail planning consultants considered Westry’s application on the instructions of the council, advised that there was only a need for one new supermarket in the area and recommended that it should be at Holbeach.
In November 1998 the council granted the Holbeach application and refused both Long Sutton applications on the grounds that they: (i) would have an adverse effect upon the vitality and viability of the town centre; (ii) contravened the development plan, as evidenced by the Lincolnshire structure plan and the South Holland district local plan; and (iii) contravened the advice in PPG 6 on town centres and retail developments.
In June 1999 Westry made a second application in respect of the Station Yard site, identical to the first save that it contained an offer to enter into a section 106 agreement to pay £100,000 to the council. In February 2000 the application was granted, subject to the applicant paying £100,000 to fund improvements to the town centre, including a rural transport scheme, better pedestrian and cycle links, the renovation of Market House, the provision of street lighting and road identification signs and the marketing and promotion of Long Sutton.
The applicant, which ran a store in Long Sutton town centre, opposed the proposal on the grounds of need, scale, harm, vitality and viability of the town centre, and lack of accessibility by a choice of means of transport. It sought judicial review of the council’s decision, contending that: (i) Westry’s proposed obligation to pay £100,000 was not of such a nature that it could be regarded as a material consideration that the council were entitled to take into account; and (ii) the decision to grant permission was Wednesbury unreasonable.
Held: The application was allowed.
1. In itself, the proposed development was likely to harm the vitality and viability of the town centre. The main area of harm would be to the retail business and that harm would not be limited to retail outlets alone. However, although there was only a tenuous connection between the supermarket development and some of the suggested proposals for making the town centre more attractive and accessible, a rural transport scheme that enabled people to reach the town centre was capable of having some beneficial effect upon the town centre. Accordingly, the proposed obligation was one that the council were entitled to take into account, albeit that it was at the very lower limit of materiality: Tesco Stores Ltd v Secretary of State for the Environment [1995] 2 EGLR 147.
2. The benefits that might be derived from the payment of £100,000 were a matter of pure speculation. Although the council had been entitled to take into account their members’ local knowledge, it could not be concluded that it could have given them rational grounds for believing that the money could significantly redress the harm envisaged by the development, let alone outweigh it. Accordingly, it could be concluded that the decision was one that no reasonable council could have taken, and the matter was to be remitted for further consideration.
Nicholas Nardecchia (instructed by Andrew & Co, of Lincoln) appeared for the applicant; Timothy Corner (instructed by the solicitor to South Holland District Council) appeared for the respondents.
Thomas Elliott, barrister
