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30th July 2013

Hewitsons’ client wins judicial review of planning decision

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Hewitsons is delighted to have acted for Midcounties Co-operative Ltd in its successful legal challenge to stop an Asda store being built in Cinderford, Gloucestershire.

In March 2012 the Forest of Dean District Council decided to grant Trilogy Developments Ltd (TDL) planning permission for a new 4,645 square metre out-of-town supermarket development intended for Asda. Our client, who owns and operates the Co-op supermarket in Cinderford town centre, felt that there had been several flaws in how the permission had been granted and applied for a judicial review of the decision.

The High Court agreed with our client that there had been errors in the Council’s decision-making process, for the following reasons:

1. In 1999 the Secretary of Sate had refused planning permission for a Tesco supermarket on the same site. The Officers’ Report recommending that the Council grant TDL planning permission should have taken this earlier decision into account. The Council argued that the increased need for a store and the jobs and other benefits which would flow from it justified departing from the 1999 decision. However, the Judge, Mr Justice Stewart, felt that the Report did not contain enough analysis of the 1999 decision or why the 2012 decision should be distinguished from it. He therefore thought that the Report had significantly misled the Planning Committee about matters material to the decision.

2. The permission was conditional on TDL making financial contributions towards the regeneration of Cinderford town centre. The Council had recognised that the out-of-town development would have a harmful impact on the viability of the centre but had concluded that the contributions outweighed that policy objection. However the Judge found that the Council had not given adequate reasons why these contributions were enough to mitigate the harm. He accepted also that the conditions were not “necessary to make the development acceptable in planning terms” as required by government regulations.

3. Supporting the redevelopment of the town centre was set out in CSP10, part of the relevant Core Strategy, as a policy object for Cinderford. The Judge found that the officers had misunderstood the policy when they concluded that the proposal was in accordance with this policy: while the policy did not specifically restrict retail outlet provision to the centre, it could not be said to contain support for out-of-town retail outlets, only for town centre retail outlets.

4. The notice of a decision granting planning permission should include a summary of the reasons for the grant and of relevant policies and proposals in the development plan. Here, the reasons in the notice should have dealt briefly with both CSP10 and the 1999 decision but did not.

Due to the errors and inadequate reasoning, the Court quashed the decision to grant planning permission. This means that the Council will have to reconsider its decision.

The judgment emphasises the need for local authorities to respect and adhere to policies they have introduced to protect the viability of town centres.

For more information, please contact Robert McClellan on 01604 233233 or click here to email John.