R Tesco Stores Ltd v Forest of Dean District Council JD Norman Lydney Ltd and Others (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan,Lady Justice Sharp,Sir Colin Rimer |
| Judgment Date | 22 July 2015 |
| Neutral Citation | [2015] EWCA Civ 800 |
| Docket Number | Case No: C1/2014/3586 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 July 2015 |
and
[2015] EWCA Civ 800
Lord Justice Sullivan
Lady Justice Sharp
and
Sir Colin Rimer
Case No: C1/2014/3586
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
THE HONOURABLE MRS JUSTICE PATTERSON DBE
CO/1830/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
Tim Straker QC and Gwion Lewis (instructed by Berwin Leighton Paisner LLP) for the Appellant
Paul Stinchcombe QC and Jon Darby (instructed by Eversheds LLP) for the Third Interested Party
The Respondent and the First, Second and Fourth Interested Parties did not appear, and were not represented.
Hearing date: 14 th July 2015
Introduction
This is an appeal against the Order dated 14 th October 2014 of Patterson J dismissing the Appellant's claim for judicial review of the Respondent's grant of planning permission dated 11 th March 2014 for the development of a site known as Federal Mogul Camshaft and Casings Limited, 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."
A section 106 agreement to provide a shuttle bus service between the new retail store and Lydney town centre, and £380,000 to provide town centre management advice, town centre improvements, a market square, additional CCTV camera coverage, and shop front improvement grants in the town centre, was executed on the 11 th March 2014 prior to the grant of permission.
Background
The background to the claim is set out in some detail in the judgment of Patterson J [2014] EWHC 3348 (Admin). The Appellant does not take issue with those passages in the judgment in which Patterson J discusses the legal framework (paragraphs 15–26), identifies the relevant planning policies (paragraphs 27–33), sets out the relevant extracts from the officers' report (paragraphs 34–53), and summarises the basis upon which the Planning Committee at its meeting on 12 th November 2013 decided that planning permission should be granted subject to the satisfactory completion of a section 106 agreement (paragraphs 54–61). I gratefully adopt, and will not repeat, these parts of Patterson J's judgment.
In policy terms the proposed mix of uses was like the proverbial curate's egg: good in part, and bad in part. The "bad" part — the large out of centre retail store with its associated petrol station and car parking which would have a significant adverse impact on Lydney town centre contrary to both the NPPF and the development plan — would fund both the "good" part — the erection of the new finishing shop and offices — and a section 106 agreement containing a package of measures to mitigate the adverse impact on the town centre. The Respondent's planning officers recommended that planning permission should be refused because the wider advantages of the proposal, principally the retention of existing and the creation of new employment on a brownfield site did not outweigh the conflict with the NPPF and the development plan, and the proposal failed to make provision for the necessary contributions to mitigate the impact on the town centre. The Members disagreed, and by the Chairman's casting vote passed a motion that the application be approved "as this development of a brownfield site would safeguard existing and create new jobs and that impacts arising from the development would be mitigated by the Section 106 obligations offered."
The grounds of challenge
Before Patterson J the planning permission was challenged on four grounds (see paragraph 14 of the judgment). There was no appeal against her decision to reject grounds 2 and 3. While Mr. Straker QC did not abandon a submission in the Appellant's Grounds of Appeal that Patterson J had erred in rejecting the first ground on which the permission was challenged — that the Council had breached its statutory duty under section 38(6) of the Planning and Compulsory Purchase Act 2004 — he did not press this point in his oral submissions. He was right not to do so. It was common ground that in respect of this issue the advice given to Members by the officers, both in their written report prior to the meeting and in their oral advice at the commencement of the meeting on 12 th November 2013, was impeccable. In their report the officers had advised Members that "a great deal of weight" could be attached to the "wider benefits" of the proposal. Those "wider benefits" were, principally, securing existing jobs at the town's biggest employer, JD Norman Lydney Ltd., and the creation of new jobs. Members were advised at the start of the meeting that the proposal was contrary to both the NPPF and the Core Strategy in the development plan, but they were:
"…entitled to consider whether there are any other material considerations that justify a decision which would be contrary to the development plan and also to consider any mitigation offers through section 106 contributions and to decide if they offer a degree of mitigation that if when considered with all the other material considerations reduce the harm arising from the proposal to an acceptable level."
There is no good reason to suppose that, having been given that advice, the Members failed to follow it.
The section 106 agreement
I turn to the remaining ground on which the permission was challenged before Patterson J: ground 4 in which it was contended that the section 106 agreement did not comply with regulation 122(2) of the Community Infrastructure Levy Regulations 2010, which states that:
"A planning obligation may only constitute a reason for granting planning permission for the development if the obligation is —
(a) necessary to make the development acceptable in planning terms;
(b) directly related to the development; and
(c) fairly and reasonably related in scale and kind to the development."
Patterson J dealt with this ground of challenge in paragraphs 89–128 of her judgment.
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The King (Stephen Whiteside) v The Council of the London Borough of Croydon
...decision maker, and not evidence subsequently placed before the court. 30 In R (Tesco Stores Ltd) v Forest of Dean District Council [2015] EWCA Civ 800, the Court of Appeal considered regulation 122(2). Sullivan LJ, giving the lead judgment said at paragraph 12: “…while a planning decision......