Respondents reconsidering planning application to develop multiplex cinema – Developer and operator indicating withdrawal if site not available within certain timescale – Respondents granting planning consent – Whether respondents’ decision not reached only on planning merits – Application dismissed
St Edmundsbury Borough Council (the respondents) had, since 1986, been considering the provision of a multiplex cinema at Bury St Edmunds. Two suitable sites had been identified: the Parkway site and the Cattle Market site. The respondents’ planning committee resolved to grant conditional planning permission for the Parkway site, and such permission was subsequently granted to Simons Estates Ltd (the developer).
In June 1999 the court quashed the consent, allowing challenges to (i) the planning committee’s refusal to reconsider their resolution in relation to the Parkway site; and (ii) the decision to grant permission to the developer. Following that judicial review decision, the developer wrote to the respondents stating: “your officers have made it very clear that it will take at least two years to consider and prepare a development brief for the Cattle Market site. This will mean that, even assuming a relatively straightforward planning process, construction for the cinema could not commence for at least three years”. The developers continued: “this would be a totally unacceptable time scale for Cine UK… unless a suitable consent can be obtained within the next few months, there will be no new multiplex for Bury St Edmunds”. Cine UK, the proposed operator of the cinema, wrote to the respondents in similar terms.
In July 1999 the respondents’ officer prepared a report, pointing out that the application would have to be considered afresh and noting that the developer had “indicated a requirement for a 12 month time scale for the availability of a site, ending in July 2000”. In November 1999 the respondents’ subcommittee once again resolved to grant planning consent for development at the Parkway site, and conditional permission was issued. It was not disputed that there was sufficient evidence of a need for a multi-screen cinema in the area.
The applicant sought to quash the respondents’ decision. It was submitted that the developer and operator had effectively held a gun to the respondents’ head by asserting that they would withdraw from the site if permission were refused and that no other cinema operator would come forward. The applicant contended that this had been a principal, even the decisive, factor in the appraisal of the respondents’ officer. In those circumstances, the applicant submitted, there was an obligation to investigate the assertions further, and no such investigation had taken place. The respondent’s decision to grant permission was, therefore, flawed.
Held: The application was dismissed.
Given the cautious manner in which the report put forward the assertions, and given the detailed assessment of need in the report itself, the assertions made were not a principal or decisive factor. It was inconceivable that the respondents’ committee would have made the decision they did because their members thought that a “gun was being held to their head”. The committee had to evaluate the weight to attach to the timescale put forward by the developer and operator and the risk that a multiplex cinema might not be achieved if a start were not made by July 2000.
Douglas Edwards (instructed by Richard Buxton, of Cambridge) appeared for the applicant; Brian Ash QC (instructed by the solicitor for St Edmundsbury Council) appeared for the respondents.
Sarah Addenbrooke, barrister
