05th October 2014
“Since there is no right of appeal for third parties on planning decisions in the UK, judicial review provides the only opportunity for further action once a decision to approve development has been made by a local authority.
“Since there is no right of appeal for third parties on planning decisions in the UK, judicial review provides the only opportunity for further action once a decision to approve development has been made by a local authority. However, it can only consider the lawfulness of a decision and test whether it was legally right or wrong. The best outcome is that a bad decision will be quashed and returned to the relevant authority who must then make a fresh decision. The same decision may be made by the LPA again as long as it is then made lawfully.” That is the succinct explanation of JR in respect of grants of planning permission from the CPRE website. A favoured reason for disappointed objectors deciding against the JR process is that delay is the only sure result. If the decision is quashed all the local planning authority (LPA) has to do is start again, avoiding the mistakes it made the first time. However, in his judgment in The Queen on the application of Midcounties Co-operative Limited –v- Forest of Dean District Council and Trilogy Developments Limited  EWHC 3059 (Admin) handed down on 30.09.14 Hickinbottom J, took the rare step of quashing the LPA’s second grant of planning permission. Are we approaching that even rarer phenomenon: the grant of planning permission that can never be lawfully made? Cinderford is a small town in the Forest of Dean, Gloucestershire with a struggling town centre where a large Co-op is the principal and anchor store. Out of the town centre is a plot of land ripe for supermarket development. Tesco first sought planning permission for the land in 1997. The application was called in and refused after a 10 day inquiry. A number of reasons were cited, in particular that: • The town centre was “weak and vulnerable” • There were 22% void shop units • The proposed store would cause greater harm • Direct impact would range from minus 25% to 37% (“crippling”) • Section 106 contributions would be cosmetic • The tangible benefits of the new store (universally welcomed locally) would not outweigh the “very serious harm” to the town centre were the proposal to go ahead In 2011 Asda (through Trilogy, the Interested Party) made a similar application. The Council as LPA instructed experts to evaluate the impact on the town centre. Unsurprisingly, similar conclusions were reached to those accepted by the inspector 15 years earlier, including the view that the proposed store would remove half of the Co-op’s turnover, putting it at risk of closure. The LPA’s duty was to consider the application against that factual background together with the relevant national and local guidance. On the one hand, there is the NPPF presumption in favour of sustainable development, said to be a, “golden thread running through both plan-making and decision-taking.” The District Council’s local plan identified Cinderford as a focus for new development, based on the town centre. The Asda application was not in accordance with the local plan. The NPPF in those circumstances required that an assessment be made as to impact on town centre vitality and viability and where the outcome was likely to be significantly adverse, “it should be refused”. This constituted a policy presumption against grant. The LPA granted permission. That grant was taken to JR by the Co-op. Stewart J quashed the grant following the hearing on 27/28 June 2013. In doing so, he found that The likely harm and the s106 contributions offered were not materially different in 2012 from those of 1997 The inspector in 1997 concluded that there was no evidence to support the contention that the s106 contributions would benefit the town centre; any benefit from the proposed measures could not be said to be sufficient to outweigh the harm to the town centre inherent in the proposal The LPA failed to look for evidence: “…In addition there was no analysis, merely assertions, of the mitigation of harm” It flowed from that that the s106 contributions could not be said to be “necessary to make the development acceptable in planning terms” so as to “constitute a reason for granting planning permission”; thereby breaching regulation 122(2)(a) of the CIL Regulations The LPA took the application back to committee. This time of course it had the guidance of Stewart J: a blueprint of how to tackle the application which it would be expected to follow. The committee meeting, as is increasingly the case with enlightened councils, was recorded and the recording placed on its web site. Members, however, did not let that technological advance impede their debate. The word 'buffoons' was applied to judges. Lang J, who granted permission to proceed with the JR, noted the, “evidence of the lack of respect for the law on the part of at least some members”. Hickinbottom J however did not find it necessary to rely on the recorded words of committee members. He concentrated upon the issues found to be wanting by Stewart J: the analysis of how and to what extent the s106 measures might address the harm created by the development. He commented that it was “curious” that the LPA’s advisors were not asked to address that issue: “The Council was clearly required to be satisfied that the contributions would mitigate that harm. That required some consideration of how, whether and (if at all) the extent to which it would do so. That was not an onerous task, nor did it require any form of mathematical exactitude. But it was a material consideration with which the Planning Committee was required to grapple with: and OR2 [the officers’ report to Committee] (and, in its turn, the Committee) failed to do so”. That failure was fatal to the grant. The importance of these decisions is perhaps the emphasis of two judges of the Planning Court that in order to depart from NPPF guidance presuming against grant of permission where substantial harm to a town centre is envisaged by an out of centre development and said to be mitigated by (inter alia) s106 contributions there must be evidence of that mitigation. Assertion alone, no mater what the financial level of the s106 contribution may be, will not do. It may be a reminder to LPAs of the need to consider the effect of s106 contributions in all cases. A footnote is also that claimants should not necessarily be put off by failure to obtain permission on the papers to bring JR; in both these cases permission was refused on the papers but given on renewed application. John Shephard, Hewitsons LLP, solicitors for the Claimants. For more information, contact John Shephard on 01604 233233 or click here to email John. For more information on our planning services click here.