R (on the application of Tesco Stores Ltd) v Forest of Dean District Council

Town and country planning – Planning permission – Condition – Claimant applying for judicial review of grant of planning permission by defendant local planning authority – Whether defendants acting in breach of statutory duty – Whether defendants acting irrationally – Whether defendants giving proper weight to agreement – Application dismissed A company owned by the first interested party applied for planning permission to demolish an existing shop and erect a new one and a new retail store. The first interested party leased the land from the fourth interested party and had entered into an arrangement with the second and third interested parties. The defendants’ local planning authority’s planning officers produced a report recommending refusal of the application. However, the defendants resolved to grant planning permission subject to certain conditions which included: (i) the completion and coming into operation of the offices and shop before work on the supermarket commenced (the first condition); and (ii) the satisfactory completion of an agreement pursuant to section 106 of the Town and Country Planning Act 1990. The defendants took the view that the great need for jobs in the area trumped the officers’ recommendation to refuse permission. The claimant company, which operated a supermarket near the development site, applied for judicial review of the decision to grant planning permission. It contended that the defendants had: (i) acted in breach of their statutory duty, under section 38(6) of the Planning and Compulsory Purchase Act 2004, to determine the application in accordance with the development plan, unless material considerations indicated otherwise; (ii) acted irrationally in failing to consider the operation of the Landlord and Tenant Act 1954 or had taken an illogical approach to the threatened loss of jobs at the first interested party; (iii) irrationally relied on the first condition and/or insufficiently safeguarded the continued existence of the first interested party; and (iv) made a section 106 agreement which did not comply with the Community Infrastructure Levy Regulations 2010 (and acted improperly in giving weight to it). Held: The application was dismissed. (1) There was nothing to show that the approach of the members of the defendants’ planning committee had been anything other than legitimate. They were clearly cognisant of the officers’ analysis and recommendation but had declined to follow it because of the weight that they attached to what they had regarded as the most significant material consideration. In their judgment, that had overridden conflict with the development plan. They had been quite entitled to come to that view and the weight that they had attached to the material consideration had been entirely a matter for the defendants. One had to be cautious in relying on a debate and contributions made to that debate by the members and drawing the conclusion that members had failed to follow the proper approach: R v Poole Borough Council, ex parte Beebee [1991] 2 PLR 27 applied; Colman v Secretary of State for Communities and Local Government [2013] EWHC 1138 (Admin) considered. (2) There was no proper basis to allege that the defendants’ decision had been irrational. Without being able to occupy the land and the premises, the jobs at the first interested party had clearly been at risk. The officers had asked the relevant questions and had taken reasonable steps to obtain the relevant information as to the duration and nature of the lease. They had reported that to the committee. Nothing else had been required to enable the authority to come to a decision. (3) The first condition had to be seen in context. It had been imposed for a planning purpose, namely, to encourage economic growth. In those circumstances, it could not be said that the defendants had been irrational in relying on that condition. It could not provide an absolute safeguard in relation to the continued existence of the first interested party but the planning judgment which the planning committee members had formed, and for which there was a rational basis, was to the effect that, although the condition could not deliver absolute certainty of employment, it was a positive step. That meant that the defendants were not irrational in their reliance upon it. The phasing of the development had optimised the situation for the first interested party, which the defendants had regarded as of significant weight. (4) The defendants had concluded that the development had secured important advantages for the town. The section 106 agreement had been found adequate. On a fair reading of the proceedings, the defendants had been entitled to conclude that they had had sufficient information to enable them to be taken into account and to meet the statutory tests given that acceptance of some harm to the town centre had been the starting point. That had been a matter of planning judgment entirely for the defendants: R (on the application of Mid Counties Co-Operative Ltd) v Forest of Dean District Council [2013] EWHC 1908 (Admin); [2013] PLSCS 161 and R (on the application of Mid Counties Co-Operative Ltd) v Forest of Dean District Council [2014] EWHC 3059 (Admin); [2014] PLSCS 259 considered. Patrick Clarkson QC and Gwion Lewis (instructed by Ashurst LLP) appeared for the claimant; The defendants did not appear and were not represented; Paul Stinchcombe QC and Graeme Keen (instructed by Thomas Eggar LLP) appeared for the second and third interested parties.   Eileen O’Grady, barrister Click here to read transcript: R (on the application of Tesco Stores Ltd) v Forest of Dean District Council