Tesco Stores Ltd v Teignbridge District Council & Ors

This is a claim for judicial review of the grant of a planning permission dated 3 September 2008. The defendant is the local planning authority for the relevant area and the main interested party is Sainsbury's, which is the beneficiary of the grant of the relevant planning permission.

On 4 April 2008, the Council received from Sainsbury's and Millwood Properties Limited a planning application in relation to a site at Shutterton Bridge, Dawlish. The application was for a 3,820 square metre food store with a petrol filling station, car wash, parking for 266 vehicles and associated works. It was submitted in association with a separate application for industrial and employment uses on a neighbouring site. That other application was granted, but I am told is not (in legal terms) linked to the planning permission with which this court is concerned, and so I need not dwell upon that.

On 13 June 2008, in a letter which appears at page 225 of the bundle, planning consultants, DPP, acting on behalf of the claimant, which is Tesco, wrote to the local planning authority with reference to Sainsbury's application and stated that:

The letter continued to describe the fact that there had been a public exhibition earlier in June into Tesco's proposal, and that it was anticipated that a full planning application by Tesco would be submitted by 20 June. It also, at some length, made a number of criticisms of the Sainsbury's application and concluded with this:

At some point in June the officer's report was prepared in anticipation of the meeting of the Development Control Committee, which was to take place on 23 June. The exact date of that report is not material, although I am informed that usually such officer's reports are drafted about a fortnight before the relevant Committee meeting and made available to the public approximately five days before the relevant meeting.

A copy of that officer's report starts at page 145 of the bundle. I will read relevant passages from it. At section 1 the report recommended that Sainsbury's application should be refused for two reasons:

In the section dealing with description the report stated that:

The report then considered the identified need for a supermarket, which had already been discussed earlier, and continued in the following way:

Finally, in the officer's report, I should set out the conclusions, which were as follows:

On 20 June 2008, Tesco submitted its planning application in relation to the Lady's Mile site. That site is currently used for tourism purposes. I am told that that date was a Friday, and the Development Control Committee meeting took place the following Monday, that is 23 June 2008.

It is clear that although the local planning authority did not have the formal planning application by Tesco before it when the officer's report was written, nevertheless the officers did have some knowledge of what might come and were able to refer to it in their report. It is also clear that they were able to report orally to the members of the Committee at the meeting which took place on 23 June about the Tesco application.

I turn next to the minutes of the meeting of the Development Control Committee, which took place on 23 June 2008. Among other things, the minutes report that the letter of objection from agents representing Tesco had raised a number of issues about the Sainsbury's application, that there had been a letter from the applicant in response to the Committee report, and also that letter from Tesco, to which I have referred.

It was proposed at one point during the meeting that the application should be deferred for consideration by the Committee, but this proposal was defeated on a vote by 13 votes to nine. In the minutes of that meeting there appears the following paragraph, which it is important to quote in full:

The minutes then record that the Committee resolved that, subject to the completion of a section 106 agreement to secure various financial contributions for the public benefit, permission should be granted, and then specified a number of conditions to be attached to that permission.

On the evidence before me it is apparent that the minutes of 23 June meeting, to which I have referred, were subsequently approved by the Development Control Committee on 28 July 2008. There then followed correspondence between the parties, which it is not necessary, for present purposes, to recite. On 3 September 2008, the formal grant of planning permission took place. That is the decision which is the subject of challenge in the present judicial review proceedings.

It is important to recite two matters in the text of the planning permission. The first is condition 5, which required that the entire access road shown on the relevant drawing referred to there, including both roundabouts and southerly spur road, had to be completed prior to the operation of the supermarket. The reason given in the text for this condition being attached was:

The second matter appears towards the end of the document and is headed: "INFORMATIVE". It states as follows:

Before continuing with a chronological account of the facts, I should at this junction refer to a witness statement, which has been filed with this court by Mr John Collier-Marsh who is the Head of Development Control with the defendant Council. It is necessary to quote paragraphs 3 and 4 in full:

It is no criticism of the deponent, or the defendant's representatives in this case, to note that there has not been put forward any precise formulation of the statement of reasons, which would be enclosed with the planning permission if the court were otherwise minded to adopt the route which is mentioned in paragraph 4 of Mr Collier-Marsh's witness statement. It is important to note that the defendant fairly accepts that there was an error in the practice, which it appears to have adopted in the past, and it is right that the practice has now been ended.

On 29 September 2008, there was a meeting of the Development Control Committee at which the Tesco application was refused. The principal reason why it was refused was because the need for a supermarket in the area had by now been met by the grant of permission to Sainsbury's.

On 7 October 2008, those representing Tesco wrote a letter before claim to the defendant authority. It is not necessary to cite from that, but it is relevant to note that the possibility of legal proceedings was therefore notified to the defendant authority at that time.

On 24 October 2008, in a letter which appears at page 242 of the bundle, the solicitor to the Council wrote to the solicitors for Tesco and said this:

(I interpose to note at this stage that subparagraph (iii) of paragraph 2.11 could, on analysis, itself be further subdivided into two parts. The first half envisages the scenario whether the members could recall whether the minuted reasons were "an adequate summary of the reasons they discussed". The second part was, "If not, what further matters should have been included in the minutes, or other changes should have been made?". Although these letters do not appear in the text of the report, it may be convenient if I refer to them as (iii)(a) and (iii)(b).)

The meeting of the Development Control Committee then took place on 10 November 2008, as was envisaged by the documents, to which I have already referred. That begins at page 221 of the bundle. At page 222 of the bundle it is recorded in those minutes:

After a record of various discussions which then took place at the meeting, there appears this:

A little later in the minutes it is recorded that a number of people present noted that in fact the petrol station point had not been taken into account at the June meeting, and this no doubt explains the terms of the resolution which the Committee then arrived at. I quote that:

It may be helpful at this juncture if I briefly refer to the procedural history of this case. The proceedings for judicial review were launched on 6 November 2008. On 3 March 2009, a decision was made upon the application for permission to seek judicial review by HHJ Mole QC in which he granted permission on the first ground that was then raised, in effect the reasons challenge, but refused permission on other matters.

On 21 April 2009, there was written a letter from the solicitor to the defendant authority, which appears at page 273 of the bundle. At paragraph (iv) of that letter it stated as follows:

On 10 June 2009, there was a hearing of the renewed application for permission before Burnett J, although the order was sealed on 23 July. This granted permission generally and required certain matters to be clarified on behalf of the claimant. It should be noted that the related claim for judicial review, known as the "Geoffrey claim", with the reference number CO/11637/2008, with which this case was at one time to be heard, has in fact been withdrawn. I need not concern myself further with it.

After a letter, dated 25 June 2009, complaining that this was not adequate particularisation of the claimant's case, a further letter was written on behalf of the claimant, dated 26 June 2009, which appears at page 56. Although the claimant's representatives did not accept that their earlier letter was insufficient, nevertheless they set out further clarification in the following terms:

I will turn briefly now to set out relevant policies in the development plan. At page 106 of the bundle there appears Policy ST20 of the Devon Structure Plan, which was in the following terms:

In the text preceding that policy in the DSP, paragraph 3.89 noted that proposal ST17 provides for employment land sufficient to meet Devon's strategic needs in the period 2001 to 2016. It also noted that good sites for employment-related development in Devon are scarce, and it is important to ensure that land identified for employment development is effectively safeguarded for that use. Paragraph 3.90 continued, that Policy ST20 seeks to ensure that local planning authorities re-assess all existing and allocated employment land in order to test whether it is necessary to meet the area's current or longer term economic development needs. The same paragraph continued:

Before me it has been common ground that both the Tesco site and the Sainsbury's site would fall within the third bullet point, namely out-of-centre sites, although the Tesco site is, to some extent, closer to the town centre and other residential development.

The first provision which is relevant is section 70 of the Town and Country Planning Act 1990:

Next I should refer to section 38 of the Planning and Compulsory Purchase Act 2004, which so far as material reproduces section 54A of the 1990 Act, which had been inserted by the Planning and Compensation Act 1991. Section 38(6) reads as follows:

Before continuing with the citation of relevant legislation it is important to note the decision of the House of Lords in an authority which considered the equivalent provision to section 54A in the Scottish planning legislation: City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447. The equivalent to what is now section 38(6) and was section 54A was section 18A of the relevant Planning Act in Scotland, which dated from 1972, and it is to that provision that the opinions of the House of Lords referred. At pages 1449-1450 Lord Hope of Craighead said this:

Before leaving that case I should observe that the present case does not seek to challenge the decision to grant planning permission on the basis that it is irrational or perverse. It does, as I will state later, mount the challenge principally on the ground that there is a breach of the relevant duty to give reasons. It is an important component of the submission, which I have heard on behalf of the claimant, that one of the functions of the duty to give reasons, in a context like the present, is precisely to enable a person to know whether the priority to be accorded to the development plan, in accordance with what is now section 38(6) of the 2004 Act, and in accordance with the principles set out in the City of Edinburgh has been properly accorded.

In the skeleton argument on behalf of the claimant there are two grounds raised by way of challenge to the decision in this case. In oral argument before me counsel for the claimant told me that those grounds had in fact "morphed" into one argument. In essence, the reasons in this case were said to be inadequate, whether one takes the reasons as set out in the minutes of the meeting of 23 June 2008, or includes the additional matters set out in the minutes of the meeting of 10 November 2008.

It is common ground before me that the notice of the grant of planning permission in this case was defective in that the reasons for it were not accurately recorded within it. There is an admitted breach of Article 22 of the 1995 order. The question which is raised for me is what, if any, relief the court should grant in its discretion? A number of authorities, particularly of this court, have been cited to me. I will refer to the main authorities now. The first is R (on the application of Wall) v Brighton and Hove City Council [2004] EWHC 2582 Admin, a decision of Sullivan J, as he then was. It is important to note that on its facts that case was different from the present case in that it concerned a situation where officers had recommended the grant of planning permission, and that had indeed occurred.

In his conclusions on the relevant ground of challenge, which begin at paragraph 51 of his judgment, Sullivan J said:

Before leaving that judgment I should also note that at paragraph 28 Sullivan J said:

I can deal with other authorities which have been cited, and which it is necessary to refer to more briefly. The next case is R (on the application of Tratt) v Horsham District Council [2007] EWHC 1485, a decision by Collins J. At paragraph 26 of his judgment Collins J said:

In relation to the statutory requirement to make reference to relevant development plan policies, it is important to cite from paragraph 18 of the judgment where Collins J said:

The Court of Appeal has had occasion, at least on a permission application, to consider Wall and Tratt in Smith v Cotswold District Council [2007] EWCA Civ 1341. The main judgment was given by May LJ, who at paragraph 8 and at paragraphs 14 and 15 referred to the cases of Wall and Tratt with apparent approval. At paragraph 16 he said in terms:

My attention was also drawn to a decision by Ouseley J in R (on the application of Midcounties Co-operative Ltd) v Wyre Forest District Council [2009] EWHC 964 (Admin). At paragraphs 1 and 5 Ouseley J noted Tratt and the fact that it has been approved by the Court of Appeal, albeit on a contested permission application only in the case of Smith, to which I have referred. At paragraph 186 Ouseley J then said this:

Finally, in relation to the authorities, I should make reference to R (on the application of Ling Bridlington Limited) v East Riding and Yorkshire Council [2006] EWHC 1064 (Admin), a decision of Sir Michael Harrison. It is only necessary to quote one passage in that judgment from paragraph 50:

I would not attempt, nor would it be helpful for me to attempt, to summarise the principles from the relevant authorities, not least because, as the authorities themselves recognise, each case turns on its own facts. Nevertheless, some helpful guidance has undoubtedly been given in the authorities, to which I have referred. Although what is required is a summary and not full reasons, the principal issues must be addressed and the development policies, which are said to be relevant, must be referred to in brief terms.

It is clear from the authorities I have cited that there is no need for a claimant to show prejudice, still less substantial prejudice, although the presence or absence of prejudice will be relevant to the exercise of the court's discretion, since this is a challenge by way of judicial review. It is also clear from the authorities I have cited that where officers recommend refusal, if members of the local planning authority do not accept that recommendation, very powerful reasons will be required to persuade the court not to quash the grant of planning permission. It will be more likely that the court will take the normal course and quash the grant of planning permission in its discretion.

Turning to the facts of the present case, I observe first that this is a case where the members disagreed with the recommendation of the officers to refuse planning permission. Secondly, I observe that the reasons in the minutes of 23 June 2008 were approved as being correct, and (it would appear to be a reasonable inference) a complete record of those reasons at a meeting which took place on 28 July 2008.

It would appear from the passages from the factual documents, which I have quoted earlier, to be a reasonable inference, from the way in which matters were then conducted, that the members of the Committee felt, when they met on 10 November 2008, that the case fell within what I have called subparagraph (iii)(b) of the officer's report at 2.11. This is set out at page 172 of the bundle, and which I have quoted in full earlier.

I am not convinced, in the circumstances of this case, that it was open to the Committee to add the additional matters, which it did, on 10 November. However, it is unnecessary, in my judgment, to decide that point, for reasons that will become apparent. I will proceed on the assumption that the Committee was entitled to add those further matters, because, as has been submitted by counsel for the defendant and the interested party, they were not additional reasons, but amplification of the existing reasons.

I have come to the conclusion that the reasons read as a whole were not adequate and would not comply with the requirements of Article 22 of the 1995 order. It would not, in my view, suffice for the court simply to direct that the defendant must set out a summary of the reasons in the terms recorded in the minutes of the two meetings on 23 June and 10 November 2008. This is for essentially the following reasons: first, the reasons, taking those minutes together, even now do not set out, even in the briefest of terms, the development plan policies which are said to be relevant. Next, this omission is particularly important in a case like the present where it is common ground that the grant of planning permission was in breach of certain policies in the development plan: ST20 of the Structure Plan and E4 of the Local Plan.

It would not, in my view, be sufficient to note that the minutes of 23 June meeting record that the members of the Committee were well aware that the site in question was "allocated" for employment land. It seems to me that that word does not bear the burden which it is sought to place upon it by the defendant and the interested party.

I have already mentioned the importance of the development plan in planning law as a result of section 38(6) of the 2004 Act, and the interpretation given to the equivalent provision in Scotland in the House of Lords case of City of Edinburgh, which I have quoted at some length earlier. I am also of the view that the submissions for the claimant are well-founded when it argued before me that the principal issues in the officer's report recommending refusal before the meeting of 23 June, and in Tesco's correspondence, were not dealt with adequately, even if briefly, in the reasons which were required for granting the permission.

By way of example, counsel for the claimant submits, and I accept, there is not an adequate response to the point that there was inevitably, if planning permission was granted, going to be a shortfall in employment land, which was required by the development plan in the period right up to 2016; or the point that Sainsbury's, it would appear, accepted that a viable project for the allocated employment land might well come forward during the planned period; or the point that there was no alternative provision to make good the shortfall by Sainsbury's.

So far as the sequential approach is concerned, taking the June reasons by themselves, I would have found it very difficult indeed to distil from them that there was any proper appreciation of the need to do any sequential exercise as between the Tesco site and the Sainsbury's site.

Even taking a benevolent approach to the circumstances of this case, and even accepting, for the sake of argument, that the additional matters referred to on 10 November 2008 did bring within the summary of reasons reference to the sequential approach, nevertheless in the overall circumstances of this case I would not regard that fact as outweighing the other considerations. This leads me to exercise my discretion in the normal way, which is to quash the permission rather than to grant any lesser remedy, or no remedy, as has been urged upon me by both the defendant and the interested party.

For the reasons I have given, this claim for judicial review is granted and I will quash the grant of planning permission in this case.

MR KATKOWSKI: I am grateful. I ask for an order in those terms and costs.

THE DEPUTY JUDGE: Yes. Mr Findlay?

MR FINDLAY QC: I cannot resist that order.

THE DEPUTY JUDGE: An order will therefore be drawn up in the terms sought by the claimant, including an order that the costs of the claimant shall be paid by the defendant. Those costs are to be subject to detailed assessment, if not agreed. Is there anything else?

MR FINDLAY QC: Can I make two submissions? First, I make a very brief application for permission to appeal; secondly ,(if your Lordship is against me on that) I ask your Lordship to make an order extending time for any further application to be made until 21 days after receipt of the transcript in this matter.

THE DEPUTY JUDGE: Do you want to say anything about that?

MR KATKOWSKI: I resist the first of those applications and I will not say anything about the second.

THE DEPUTY JUDGE: What I am going to do is to refuse permission to appeal on the ground that, as the authorities recognise, this is essentially an exercise of discretion by this court. Obviously if I have erred in the exercise of that discretion, then that will be a matter that you will be able to persuade the Court of Appeal of, but I am not going to grant permission in this case. However, I will grant you an extension of time for any application to the Court of Appeal for 21 days from the date of receipt of the transcript, not least because the holiday period is going to intervene in the next few weeks.

MR FINDLAY QC: I am much obliged.

THE DEPUTY JUDGE: I am grateful to all counsel for all the help I have received in this case.