R Midcounties Co-operative Ltd v Forest of Dean District Council Trilogy Developments Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 30 September 2014 |
| Neutral Citation | [2014] EWHC 3059 (Admin) |
| Docket Number | Case No: CO/630/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 September 2014 |
[2014] EWHC 3059 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Hickinbottom
Case No: CO/630/2014
and
David Holgate QC and Gwion Lewis (instructed by Hewitsons LLP) for the Claimant
David E Manley QC (instructed by Mrs Claire Hughes, Legal Team Manager, Forest of Dean District Council) for the Defendant
Christopher Katkowski QC (instructed by Thomas Eggar LLP) for the Interested Party
Hearing date: 3 September 2014
Introduction
The Claimant ("the Co-op") owns and operates a supermarket in Cinderford town centre. In this claim, it seeks to quash the decision of the Defendant planning authority ("the Council") to grant outline planning permission to the Interested Party developer ("Trilogy") for a Class A1 retail store of up to 4,645 sq m gross floor space together with ancillary works on land at Steam Mills Road, Cinderford ("the Site"). The Site is out-of-town. The new store is to be operated by Asda Stores Limited ("Asda").
Planning permission was granted on 2 January 2014, following a resolution of the Council's Planning Committee on 8 October 2013 to approve Trilogy's application. That was a redetermination of the application, following the decision of Stewart J on 4 July 2013 to quash the Council's earlier grant of permission on 29 March 2012 ( Midcounties Co-operative Limited v Forest of Dean District Council [2013] EWHC 1908 (Admin)).
In this claim, in short, the Co-op contends that, in making the new decision to approve, the Planning Committee singularly fell into the same errors that (with others) led to the quashing of the first determination, namely:
i) The Committee failed to have regard to a material consideration, namely how the contributions to be made under section 106 of the Town and Country Planning Act 1990 ("section 106") would encourage trips to a town centre left "crippled" by the new out-of-town store; or, alternatively, failed to provide any proper reasons in relation thereto.
ii) The grant was made in breach of regulation 122(2) of the Community Infrastructure Levy Regulations 2010 (SI 2010 No 948) ("the CIL Regulations"), because the section 106 obligations imposed on the developer were not "necessary to make the development acceptable in planning terms".
iii) The Committee failed to provide a rational and adequately reasoned basis for departing from an earlier decision of the Secretary of State which refused planning permission for the Site for a similar development on the basis of similar section 106 contributions/obligations.
iv) The Committee materially misconstrued paragraph 14 of the National Planning Policy Framework ("the NPPF").
Before me, David Holgate QC and Gwion Lewis appeared for the Co-op; David Manley QC for the Defendant; and Christopher Katkowski QC for Trilogy. At the outset, I thank them all for their focused and helpful submissions.
The Relevant Legal Principles
The principles relevant to the proper approach of local planning authorities to the determination of planning applications are uncontroversial.
i) A landowner or other legally interested party is entitled to challenge a grant of planning permission where a public law basis for such a challenge exists, even if his motive is to advance his commercial interests at the expense of others who will benefit from the grant of permission, such motive being irrelevant ( R v Ogwr Borough Council ex parte Carter Commercial Developments Ltd [1989] 2 PLR 54 at page 58H; and R (Mount Cook Land Ltd) v Westminster City Council [2004] EWCA Civ 1346; [2004] 2 P & CR 22 at [46] per Auld LJ).
ii) Each local planning authority delegates its planning functions to a planning committee, which usually (as in this case) acts on the basis of information and recommendations provided by case officers in the form of a report. I considered the proper approach to such reports recently in R (Zurich Assurance Limited trading as Threadneedle Property Investments) v North Lincolnshire Council [2012] EWHC 3708 (Admin) at [15], where I summarised the relevant principles as follows:
"(i) In the absence of contrary evidence, it is a reasonable inference that members of the planning committee follow the reasoning of the report, particularly where a recommendation is adopted.
(ii) When challenged, such reports are not to be subjected to the same exegesis that might be appropriate for the interpretation of a statute: what is required is a fair reading of the report as a whole. Consequently:
'[A]n application for judicial review based on criticisms of the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken' ( Oxton Farms, Samuel Smiths Old Brewery (Tadcaster) v Selby District Council (18 April 1997) 1997 WL 1106106, per Judge LJ as he then was).
(iii) In construing reports, it has to be borne in mind that they are addressed to a 'knowledgeable readership', including council members 'who, by virtue of that membership, may be expected to have a substantial local and background knowledge' ( R v Mendip District Council ex parte Fabre (2000) 80 P & CR 500, per Sullivan J as he then was). That background knowledge includes 'a working knowledge of the statutory test' for determination of a planning application. ( Oxton Farms, per Pill LJ)."
iii) The assessment of how much and what information should go into a report to enable the planning committee to perform its function is itself a matter for the officers, exercising their own expert judgment ( R v Mendip District Council ex parte Fabre (2000) 80 P & CR 500 at page 509). However, of course, if the material included is insufficient to enable the committee to perform its function, or if it is misleading, the decision taken by the committee on the basis of a report may be challengeable.
iv) Section 70(2) of the Town and Country Planning Act 1990 ("the 1990 Act") provides that, in dealing with an application for planning permission, decision-makers must have regard to the provisions of "the development plan", as well as "any other material consideration", i.e. any other consideration which serves a planning purpose.
v) "The development plan" sets out the local planning policy for an area, and is defined by section 38 of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") to include adopted local plans. Section 70(2) of the 1990 Act makes clear that the development plan is a material consideration; but it is more than that, because section 38(6) of the 2004 Act gives it a particular status:
"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."
Therefore, section 38(6) raises a presumption that planning decisions will be taken in accordance with the development plan, looked at as a whole; although that presumption is rebuttable by other material considerations.
vi) Relevant central government policies are material considerations. Since March 2012, such policies have been set out mainly in the NPPF.
vii) Planning decision-makers cannot have due regard to relevant policies unless they understand them. They must therefore proceed on the basis of a proper understanding of relevant policies as properly construed, the true interpretation of such policies being a matter of law for the court. Where they have misunderstood or misapplied a policy, or failed to take reasonable steps to acquaint themselves with the information that will enable them to give proper informed answers to the material questions, that may found a challenge to the resulting decision, if it is material, i.e. if their decision would or might have been different if they had properly understood and applied the guidance ( Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; [2012] PTSR 983 at [17]–[23] per Lord Reed).
viii) On a subsequent planning application, a previous planning decision is a material consideration if it is legally indistinguishable. The materiality of previous decisions was considered by Mann LJ in North Wiltshire District Council v Secretary of State for the Environment (1993) 65 P&CR 137 at page 145, who considered the matter in the context of an appeal to an inspector, although the principles are clearly applicable to all planning decision-makers:
"Where [the previous decision] is indistinguishable ordinarily it must be a material consideration. A practical test for the [decision-maker] is to ask himself whether, if I decide this case in a particular way am I necessarily agreeing or disagreeing with some critical aspect of the decision in the previous case? The areas for possible agreement or disagreement cannot be defined but they would include interpretation of policies, aesthetic judgments and assessment of need. Where there is disagreement then the [decision-maker] must weigh the previous decision and give his reasons for departure from it. These can on occasion be short, for example in the case of disagreement on aesthetics. On other occasions they may have to be elaborate."
ix) Whereas what amounts to a material consideration is a matter of law, the weight to be given to...
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