A local authority, which earlier this month saw its planning permission for an out-of-town Asda supermarket in Cinderford quashed for the second time, has fended off a fresh high court challenge from Tesco to similar plans for the town of Lydney.
Patterson J dismissed claims that Forest of Dean district council was wrong to grant planning permission for development of an industrial site that would include a large supermarket to be operated by Asda, despite the recommendation of its planning officers to the contrary.
Tesco, which operates a supermarket in Lydney’s high street, had claimed 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 would also include a new finishing shop and offices for Lydney’s biggest employer, camshaft production company JD Norman Lydney, finding that the proposal would safeguard more than 200 jobs at JDN and that town centre impacts would be mitigated by s106 contributions offered.
Tesco argued that, in granting permission, the planning committee took an irrational or illogical
approach to the threatened loss of jobs at JDN if the development did not go ahead, and failed to consider the operation of the Landlord and Tenant Act 1954.
It claimed that officers had provided clear advice to the committee that the applicants had failed to explain why the expiry of JDN’s current lease in December 2014 would mean the closure of the business, given that the lease could be extended, a new lease agreed, or JDN could refuse to leave and hold over on existing terms.
However, Patterson J said: “The members were quite entitled to disagree with the recommendation of the officers, provided they had a reasonable basis for doing so. Their basis here was to give greater weight to the employment considerations than the officers. They were entitled to do so.”
She said that a clause of JDN’s current lease excluded section 25 of the 1954 Act, and so there was no mechanism by which it, as tenant, could extend the lease.
Tesco had argued that council members failed to explain how a planning condition providing a £1.5m investment by Windmill in the JDN development would secure the jobs as claimed. And it alleged that the council also relied irrationally on a condition to build the finishing shop first which also could not achieve the aim of safeguarding jobs at the site.
But the judge said that members were advised that there was no guarantee to that effect, but that the condition was “imposed for a planning purpose, namely to encourage growth”. As a result, she said that it could not be irrational for them to rely on that condition.
She added: “Its phasing of the development optimised the situation for JDN which the members of the defendant council regarded as of significant weight.”
The judge rejected an additional claim that 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 community infrastructure levy 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.
