In October 2013 the Planning Committee of the Forest of Dean District Council decided, against an officer recommendation, to grant planning permission for a Sainsbury store on an out-of-town site near Lydney, albeit subject to certain conditions yet to be determined and to a section 106 agreement. When the Planning Committee so resolved, another application for an out-of-town site near Lydney was in the wings – for an Asda store on the “Federal Mogul site”. Faced with the resolution in favour of Sainsbury, Asda were clearly prejudiced. In particular, officers had recommended against the Sainsbury proposal on retail impact grounds; if Members were nonetheless minded to approval that proposal, the retail impact argument against the further Asda store would become that much harder to meet.
However, there was a window of opportunity available to those promoting the Asda store in that no decision notice had yet been issued by the Council, nor could it be until the section 106 agreement has been entered into and the conditions approved. In these circumstances the case of R (on the application of) Erine Kides v. South Cambridgeshire DC  1 P&CR 16,  EWCA Civ 1370 was potentially engaged, whereby it had been held to be a “counsel of prudence” for Members to be appraised of any “new material considerations” before finally determining any application. Hence, those promoting Asda wrote to the Council alerting them to the Erine Kides case and bringing to their attention the following matters as “new material considerations”.
First, and it in light of paragraph 24 of the NPPF, the Council was at risk of legal error if Members proceeded formally to grant planning permission for the Sainsbury proposal without considering the Asda proposal alongside it. In particular, Councils were to apply a sequential test to planning applications for main town centre uses that were not in an existing centre. Whilst the guidance in paragraph 24 of the NPPF was of only limited relevance to the Sainsbury application when it was being recommended for refusal on retail impact grounds, it became of prime relevance as soon as Members indicated that they were minded to reject that recommendation so as to permit a retail proposal on out-of-town site.
Second, if Members were to lend their mind to the requisite test mandated by paragraph 24 of the NPPF, they could only reasonably conclude that the Asda proposal was to be preferred in that the site of the Asda proposal was the most accessible site of the two sites.
Third, the Asda proposal brought with it considerable additional benefits that Members ought to take into account when considering the competing applications – including an agreement to invest £1.5M to allow the construction of needed industrial and office floorspace, so as to help secure 200 valuable jobs on the Federal Mogul land.
Officers brought the above representation to the attention of the Planning Committee at their next meeting, in November 2013, and Members decided both to reject the Sainsbury application after all and, again against an officer recommendation on retail impact grounds, to approve the Asda proposal, once more subject to a section 106 agreement. When this was agreed, the Council issued the planning permission for the Asda superstore.
But matters did not end there. Tesco, who had a town centre store in Lydney, challenged the Council’s decision on four grounds. Moreover, one of those grounds had successfully been argued against the same Council in respect of two previous decisions to permit an out-of-town store, albeit near Cinderford not Lydney, reported at R. (Midcounties Co-operative Ltd) v Forest of Dean District Council  EWHC 1908 (Admin); and R (Midcounties Co-Operative Ltd.) v. Forest of Dean District Council and (2) Trilogy Developments Ltd.  EWHC 3059.
Faced with a third challenge against a decision to grant planning permission for an out-of-town store, the first two of which had been successful, the Council chose not to appear in the Tesco challenge, leaving it to the interested parties, including Asda, to defend it themselves. This they did in R (Tesco Stores Limited) v. (1) Forest of Dean District Council (2) Asda Stores Limited and Others  EWHC 3348 (Admin), in which Paul Stinchcombe QC appeared for Asda and another interested party, and successfully persuaded Mrs Justice Patterson that the two Mid Counties cases were to be distinguished from the circumstances affecting the Asda proposal for Lydney.
In the first Mid Counties case, Mr Justice Stewart had quashed the Council’s decision to grant planning permission for a retail store on a site in respect of which a similar proposal had been dismissed on appeal in 1999. At that earlier appeal, the Secretary of State had agreed with his Inspector’s finding that Cinderford was a weak and vulnerable town centre, with particular retail characteristics which meant that there was no hope of any significant spin-off trade from the proposed out-of-town store, so that any section 106 contributions intended to achieve such linked trips, and hence reduce the retail impact in the town centre, would not succeed. However, when the Council later decided to grant planning permission for a similar proposal on the same site, there was only limited reference to the 1999 decision in an officer’s report which advised that the mitigation now offered would offset the harm to the vitality and viability of the town centre. Mr Justice Stewart found that this advice was inaccurate; that there was no analysis, merely assertions, of the mitigation of harm; and that those assertions were made in the face of a prior decision that there would be no linked trips to Cinderford generated by section 106 contributions. It was in these circumstances that Mr Justice Stewart held that officers had not asked themselves how the contributions would improve linkages between the site and town centre, such that it could not be said that the section 106 obligations were necessary to make the development acceptable in planning terms so as to constitute a reason for granting planning permission. There was, therefore, a breach of Regulation 122(2A) of the CIL Regulations.
In the second Mid Counties case Mr Justice Hickinbottom had considered a further challenge, by the same claimant and in relation to the same site, following the redetermination of the application which had been quashed by Mr Justice Stewart. The basis of the second claim was that the Committee had fallen into the same errors that had led to the quashing of the first determination. Mr Justice Hickinbottom allowed that application and quashed the second decision also. In particular, he accepted that the Council had still failed to perform the analysis required, assessing how improvements to the town centre would help to overcome the retail harm to Cinderford town centre.
In R (Tesco Stores Limited) v. (1) Forest of Dean District Council (2) Asda Stores Limited and Others  EWHC 3348 (Admin), however, Mrs Justice Patterson held that the Mid Counties cases did not set any new principle to be applied when a local planning authority was considering whether a section 106 obligation overcame the harm caused by a proposed development:
“It is axiomatic that a local planning authority must apply the law now set out in the CIL Regulations, to its decision making process. That means, that in relation to a section 106 obligation which has been offered by a developer, a decision maker must approach its assessment of the statutory tests with appropriate rigour. What is appropriate will clearly vary in the circumstances of each case.”
That, Mrs Justice Patterson held, was particularly pertinent in the Cinderford cases in the light of the detailed decision of the Secretary of State in 1999 and the lack of any material change since then. However, and so far as Lydney was concerned, there was no prior finding which set the benchmark, absent any material change in circumstance, against which subsequent decisions on the same site had to be taken. Unconstrained by such considerations, Members were entitled to conclude that they had sufficient information in respect of the Asda proposal for Lydney to enable the section 106 agreement to be taken into account. That being so, their decision that the section 106 agreement met the statutory tests was a matter of planning judgement entirely for them.
Paul Stinchcombe QC