Council misapplied material considerations to out of town retail scheme

In the Court of Appeal case of Midcounties Co-Operative Ltd, R (On the Application Of) v Forest of Dean District Council [2014] the Claimant (“the Co-op”) had a supermarket in Cinderford town centre.

The developer (“Trilogy”) had agreed to contribute £471,000 under section 106 of the Town and Country Planning Act 1990 (“section 106”) towards town centre enhancements in line with the adopted Cinderford Town Centre Regeneration Scheme.

The Co-op challenged the Defendant Council’s (“the Council”) grant of outline planning permission to Trilogy for an out-of-town retail store (“the Site”) to be operated by Asda Stores Limited (“Asda”) on the main grounds that:

i) The Committee failed to have regard to a material consideration i.e. how the contributions to be made under section 106 would encourage trips to a town centre left “crippled” by the new out-of-town store and in any event had failed to give proper reasons.

The court found the Council’s reports provided no evidence on which they could have based an analysis of how the harm created to the town centre by the development would or might be mitigated by the section 106 contributions.

ii) The planning permission breached of regulation 122(2) of the Community Infrastructure Levy Regulations 2010 (“the CIL Regulations”), because the section 106 obligations imposed on the developer weren’t “necessary to make the development acceptable in planning terms”.

The findings under ground i) meant it was inevitable there had been a breach of regulation 122(2)(a) of the CIL Regulations . The Council’s failure to provide an adequate explanation for how the section 106 contributions would increase trips to the town centre meant that they could not be considered enough to make the development acceptable in planning terms.

iii) The Committee hadn’t provided a rational and adequately reasoned basis for departing from an earlier 1999 decision of the Secretary of State to refuse planning permission for a similar development at the Site where similar section 106 contributions/obligations had been on the table.

The Court found that the Council’s the Planning Committee had failed to distinguish this Scheme from the crucial findings of the Inspector and Secretary of State in 1998-9 that enhancements such as those incorporated into the section 106 obligations would not, of themselves, encourage people to visit a town centre seriously harmed by the planned out-of-town development. Nor were any analysis or reasons given for departing from it. In fact that earlier decision was indistinguishable.

iv) The Committee materially misconstrued paragraph 14 of the National Planning Policy Framework (“the NPPF”).

The court said paragraph 14 of the NPPF only applied where there is a policy lacuna so this ground was based on the wrong paragraph. Where (as here) there was an out-of-town retail development that would have a significant adverse impact on the vitality and viability of a town centre, and no such lacuna, paragraph 27 of NPPF applied. That created a presumption in favour of refusal of planning permission. The planning committee had been misdirected on this by a report which had indicated that the NPPF somehow supported the planning application.

This blog has been posted out of general interest. It does not remove the need to get bespoke legal advice in individual cases.