R Tesco Stores Ltd v Forest of Dean District Council JD Normal Lydney Ltd and Others (Defendant Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Patterson |
| Judgment Date | 14 October 2014 |
| Neutral Citation | [2014] EWHC 3348 (Admin) |
| Docket Number | Case No: CO/1830/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 October 2014 |
[2014] EWHC 3348 (Admin)
The Honourable Mrs Justice Patterson DBE
Case No: CO/1830/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Patrick Clarkson QC and Gwion Lewis (instructed by Ashurst LLP) for the Claimant
Paul Stinchcombe QC and Graeme Keen (instructed by Thomas Eggar LLP) for the Second and Third Interested Parties
Hearing date: 2 October 2014
Introduction
This is a claim for judicial review in which the claimant challenges the decision of the Forest of Dean District Council ("the council") on the 11 March 2014 to grant planning permission on a site known as the Federal Mogul Camshaft & Casings Ltd, Land South of Cambourne Place, Lydney for:
"Demolition of existing finishing shop and erection of new finishing shop, offices with car parking and associated works. Erection of retail store of 3827 sq.m. gross internal floor area (Class A1), petrol filling station, car parking, service areas and associated development. Erection of 4 No. B1 units and 4 No. B1/B8 units."
The original applicant for planning permission is now owned by J D Norman Lydney Ltd (JDN) which already operates a camshaft production business on the site with permission. The site has been in two ownerships, land owned by JDN, and land owned by the fourth interested party, MMC Land and Regeneration Limited (MMC). JDN occupies the MMC land under a lease with MMC Developments Limited dated 21 December 2009 which is due to expire on 28 December 2014. JDN wants to build a new finishing shop on the JDN land before its lease of the MMC land expires in December 2014. It has entered into an arrangement with the second and third interested parties, Asda stores limited (Asda) and Windmill Limited (Windmill) respectively. The planning application was presented on the basis that the retail store component of the scheme will be operated by Asda.
The claimant is the owner and operator of a Tesco supermarket located on the high street in the centre of Lydney.
The defendant is the local planning authority. The defendant did not appear and was not represented at the proceedings before me. By a letter dated the 7 May 2014, Mrs Hughes, the legal team manager and monitoring officer, said that the council had decided not to take an active role in defending the claim but to provide assistance, where needed, to the interested parties who would be putting forward a robust defence. That was not intended to suggest that the council accepts the claim or felt unable to offer a defence but was based purely on protecting local residents and public finance. That position was repeated in a letter dated 5 of August 2014 which said also that the Defendant had had sight of the Interested Parties Skeleton Argument and fully supported the arguments advanced therein.
The second and third interested parties appeared and were represented by leading and junior counsel.
The application was recommended for refusal by the council's planning officers initially for four reasons. They were
i) the proposal would be contrary to the advice of the National Planning Policy Framework and policy CSP.12 of the core strategy in that there is insufficient need for a store of the size proposed and due to its scale would have a significant impact on the vitality and viability of the town centre;
ii) the proposal would be contrary to the advice of the National Planning Policy Framework and Policy CSP.12 of the core strategy in the applicants have failed to satisfy the sequential test by failing to show sufficient flexibility and have discounted a sequentially preferable site which could be available in the town centre;
iii) the proposal would be contrary to Policy CSP.1 of the core strategy and the advice of the National Planning Policy Framework in that satisfactory information has not been submitted to demonstrate that the proposal would not result in an unacceptable adverse impact on European Protected Species;
iv) The proposal fails to make provision for the necessary contributions to mitigate the impact on the town centre via a section 106 legal agreements or undertaking. As such the proposal would be contrary to the National Planning Policy Framework and policy CSP.12 of the core strategy.
Further material was received by the defendant which then prepared a late information document for members. In that, the recommendation remained one of refusal but the reasons for refusal were abbreviated so that there were two only. They were numbers (i) and (iv) above. The other proposed reasons for refusal were withdrawn.
Following a meeting on 12 November 2013 members of the council's planning committee resolved to grant planning permission for the application, subject to conditions. The resolution read as follows:
"that authority be given to the Group Manager, Planning and Housing, to grant planning permission subject to conditions including the requirement that the offices and finishing shop for JD Norman be completed and operational before work on the supermarket commences, and subject to satisfactory completion of a section 106 agreement to provide a shuttle bus for a period of not less than 5 years between the new store and the High Street via Cambourne Place…"
In the Statement of Common Ground it is agreed that the committee gave the following reasons for the grant of permission:
i) the proposal would safeguard existing jobs at JDNL;
ii) the proposal would create new jobs;
iii) the impact arising from the proposal would be mitigated through an agreement under section 106 of the Town and Country Planning Act 1990.
On the 11 March 2014 an agreement under section 106 of the Town and Country Planning Act was completed and planning permission was issued.
On the 22 April 2014 the claimant lodged an application with the court for permission to apply for judicial review.
The matter was considered by Lindblom J on the 20 June 2014 who ordered that the matter be heard at a rolled up hearing. That is how the matter comes before me.
As a result of the order of Lindblom J the parties have agreed a statement of common ground setting out an agreed narrative of relative facts, an agreed list of issues for the court and an agreed list of relevant propositions of law for each issue identifying for each proposition the relevant authority. That document has been extremely helpful and of great assistance in narrowing the issues.
Agreed list of issues
The agreed issues are:
i) whether the council breached its statutory duty under section 38(6) of the Planning Compulsory Purchase Act 2004;
ii) whether the council:
a) was required to consider the operation of Landlord and Tenant Act 1954 and, if so, whether it erred in law by failing to consider the operation of the Landlord and Tenant Act;
b) whether the council took an illogical/irrational approach to the threatened loss of jobs at JDNL, in particular, whether the council failed to ask the relevant questions and/or failed to take reasonable steps to obtain the relevant information in relation to the threatened loss of jobs at JDNL.
iii) whether the council irrationally relied on condition four and/or whether condition 4 does or does not sufficiently safeguard the continued existence of JDNL;
iv) whether the section 106 is CIL compliant and/or otherwise lawful and whether the council acted properly in giving weight to it.
Legal framework
Judicial review is not an opportunity to rerun arguments on planning merits: see R (Newsmith Stainless Steel) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74 at [6] – [8].
A local planning authority determining an application for planning permission must do so in accordance with the Development Plan unless material considerations indicate otherwise see: section 70(2) of the TCPA and section 38(6) of the Planning and Compulsory Purchase Act 2004 (the PCPA). In other words there is a presumption that any decision on an application for planning permission will be taken in accordance with the Development Plan but that presumption can be rebutted by other material considerations.
A judgment is to be made by the decision maker, first, as to whether a proposal is in accordance with the Development Plan as a whole; and a proposed development may be in accordance with the Development Plan as a whole even if it fails to comply with one or more policies it contains: see City of Edinburgh Council v Secretary of State for Scotland [1997] 1WLR 1447, Lord Hope at page 1450 E-G and Lord Clyde at page 1459 E—F. The role of the court, if its jurisdiction is invoked on this issue, is to merely view the rationality of the judgment made by the decision maker and not to determine the question for itself.
If the decision maker considers a proposal is not in accordance with the Development Plan as a whole the decision maker must make a judgment as to whether material considerations indicate that the decision should be made otherwise than in accordance with the Development Plan.
National Planning Policy, such as the National Planning Policy Framework (NPPF) is a material consideration. A decision maker must interpret policy properly. The true interpretation of policy is a question of law for the court: Tesco Stores Limited v Dundee City Council [2012]...
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