The Court of Appeal has reserved judgment in a challenge by Tesco to planning permission for an out-of-town Asda supermarket in the town of Lydney.
Last October, Patterson J dismissed claims that Forest of Dean district council was wrong to grant planning permission for development of an industrial site that will include a 3,827 m2 retail store, to be operated by Asda, despite the recommendation of its planning officers to the contrary.
Now, Tesco has taken its bid to thwart its rival to the Court of Appeal, where Patrick Clarkson QC argued that the judge erred in rejecting two of his client’s grounds of challenge – (i) that the council breached its statutory duty under section 38(6) of the Planning and Compulsory Purchase Act 2004 and (ii) that it failed to ask the relevant questions and take reasonable steps to obtain the relevant information in relation to the benefits secured by a section 106 obligation/granted permission in breach of the Community Infrastructure Levy Regulations 2010.
He also claimed that Patterson J was wrong to draw a distinction between this case and another recent decision that saw the same council’s grant of permission for an out-of-town Asda supermarket in Cinderford quashed for the second time .
Tesco, which operates a supermarket in Lydney’s High Street, had claimed at the High Court that the officers’ advice was that the new Asda store would have “significant adverse impacts” on the town centre, and would divert 37% of Tesco’s trade – amounting to £11.5m – away.
The council’s planning committee approved the scheme, which will also include a new finishing shop and offices for Lydney’s biggest employer, camshaft production company JD Norman Lydney (JDN), finding that the proposal would safeguard more than 200 jobs at JDN and that town centre impacts would be mitigated by s106 contributions offered.
The judge rejected the claim that the section 106 obligations in the case – including £25,000 for town centre management advice, £30,000 for a new market square, £210,000 for further town centre improvements, £15,000 for additional CCTV camera coverage, up to 20 £5,000 grants for individual shop front improvements, and a commitment to a shuttle bus from Asda to the High Street for five years – were not compliant with the CIL regulations and were given inappropriate weight in the decision.
She said that the council members had concluded that the development secured important advantages to Lydney, and found the s106 obligations adequate, which was a matter of planning judgment entirely for them.
The judge said that she did not regard either judgment in the Cinderford case, involving the same local authority, as setting forward any new principle to be applied when a planning decision-maker has to consider whether a s106 obligation overcomes the harm caused by a proposed development.
A judgment is expected before the end of the legal term on 31 July.
The Queen on the application of Tesco Stores Ltd v Forest of Dean District Council Court of Appeal (Sullivan and Sharp LJJ and Sir Colin Rimer)
