Midcounties Co-Operative Ltd, R (on the application of) v Forest of Dean District Council & Anor

The Claimant (“the Co-op”) owns and operates a supermarket in Cinderford town centre. In this claim, it seeks to quash the decision of the Defendant planning authority (“the Council”) to grant outline planning permission to the Interested Party developer (“Trilogy”) for a Class A1 retail store of up to 4,645 sq m gross floor space together with ancillary works on land at Steam Mills Road, Cinderford (“the Site”). The Site is out-of-town. The new store is to be operated by Asda Stores Limited (“Asda”).

Planning permission was granted on 2 January 2014, following a resolution of the Council’s Planning Committee on 8 October 2013 to approve Trilogy’s application. That was a redetermination of the application, following the decision of Stewart J on 4 July 2013 to quash the Council’s earlier grant of permission on 29 March 2012 (Midcounties Co-operative Limited v Forest of Dean District Council [2013] EWHC 1908 (Admin)).

In this claim, in short, the Co-op contends that, in making the new decision to approve, the Planning Committee singularly fell into the same errors that (with others) led to the quashing of the first determination, namely:

Before me, David Holgate QC and Gwion Lewis appeared for the Co-op; David Manley QC for the Defendant; and Christopher Katkowski QC for Trilogy. At the outset, I thank them all for their focused and helpful submissions.

The principles relevant to the proper approach of local planning authorities to the determination of planning applications are uncontroversial.

In respect of this claim, two things are therefore immediately apparent.

First, this court is not at all concerned with the merits of the planning application. Whether or not it is in the public interest for Cinderford to have an out-of-town supermarket in the terms of the proposed development is entirely a matter for the democratically elected councillors who make up the Planning Committee: this court is only concerned with whether, in considering that question, the Committee’s approach was lawful. If it was materially unlawful (as Stewart J found the first determination to be), then, although the delay caused by the Committee acting unlawfully is unfortunate, this court is all but bound to quash the decision. It is then for the Committee to reconsider and redetermine the application on the basis of a lawful approach.

Second, as I have indicated, the owner and operator of the proposed new store is intended to be Asda. If the development proceeds, the new store will be direct competition for the Co-op in-town supermarket; indeed, the evidence is that the Co-op will lose half its business to the new store and it may not survive. Although the Planning Committee has only the public interest in mind, Trilogy, Asda and the Co-op therefore have very substantial private interests at stake. Councillors at the 8 October 2013 Planning Committee meeting referred to the frustration felt by the people of Cinderford with the Co-op who “are trying to defer this application with every means they can” and with this court which has (it was said) “held our town to ransom”. However, with respect, these comments were misplaced. Although the merits of the application are a matter for the Committee to determine in the public interest – and, it seems, there is significant in principle support for a new superstore in Cinderford, both within the councillors and in the public at large – it is in the obvious public interest that the application be determined by the Committee lawfully, the law being there to ensure that the public interest is properly considered and protected. In particular, it is clear and uncontroversial that a new out-of-town superstore will have a substantial adverse effect on Cinderford town centre; and, whilst ultimately it is a decision for elected councillors as to whether the advantages of having such a store outweigh that harm, it is important that the decision-makers in the Planning Committee approach that exercise properly. Stewart J found that the initial determination was fundamentally flawed as a matter of law. He quashed it, and the application returned to the Committee for redetermination. The question that I must consider is whether the Planning Committee’s approach on its redetermination was lawful or not.

Section 34 of the Town and Country Planning Act 1932 gave local planning authorities the power to enter into planning agreements for the regulation of development and use of land. That survived until section 12(1) of the Planning and Compensation Act 1991 which replaced that power, by then found in section 106 of the 1990 Act, with a power to enter into planning obligations set out in a new, substituted section 106. Such obligations are of course the subject of negotiation between the planning authority and developer, but can be imposed if not agreed. In practice, the obligations are often commuted into financial contributions, sufficient to satisfy the relevant obligations.

To deter abuse, the Secretary of State issued successive policy guidance in relation to the exercise of this new power, now found in the NPPF. Paragraphs 203-204 of the NPPF, echoing earlier guidance, state:

“203.

Local planning authorities should consider whether otherwise unacceptable development could be made acceptable through the use of… planning obligations….

204.

Planning obligations should only be sought where they meet all the following tests:

•

necessary to make the development acceptable in planning terms;

•

directly related to the development; and

•

fairly and reasonably related in scale and in kind to the development.”

However, that is not now merely policy; because regulation 122(2) of the CIL Regulations provides that, where a determination is made which results in a planning permission being granted for development:

“A planning obligation may only constitute a reason for granting planning permission if the obligation is:

(a)

necessary to make the development acceptable in planning terms;

(b)

directly related to the development; and

(c)

fairly and reasonably related in scale and in kind to the development.”

“Planning obligation” is defined in terms of a section 106 obligation (regulation 122(3)).

As I have indicated, for the purposes of determining a planning application, relevant national and local policies are material considerations.

National planning policy is contained in the NPPF, which incorporates, “as a golden thread running through both plan-making and decision-taking”, a presumption in favour of sustainable development (paragraph 14). Therefore, having required approval of development plan proposals without delay (paragraph 14) and reiterated the principle set out in section 38(6) of the 2004 Act that applications for planning permission must be determined in accordance with the development plan unless material considerations indicate otherwise (paragraph 11), the NPPF provides for a policy presumption in favour of development where there is a lacuna, in the following terms (paragraph 14):

“… where the development plan is absent, silent or relevant polices are out-of-date, granting permission unless:

-

any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or

-

specific policies in this Framework indicate development should be restricted.”

Paragraphs 26-27 deal with circumstances in which an application is made for out-of-town retail development, which is not in accordance with the local plan. Those provisions require an assessment to be made as to (amongst other things) the impact of the proposal on town centre vitality and viability; and, where the application is likely to have significant adverse impact on that factor, “it should be refused”. There is therefore a policy presumption against grant, although of course subject to other material considerations outweighing that factor.

In terms of local policy, the relevant development plan document is the Council’s Core Strategy, adopted on 23 February 2012. As a general principle, Policies CSP4, CSP7 and CSP10 identify Cinderford as a focus for new development within the district. The Site falls within the Cinderford settlement area, but outside the town centre. Outside the settlement area, the Northern Quarter – which lies beyond the Site, to the north – is identified as a focus for regeneration and growth by way of mixed development, seeking to attract public and private development investment of some £60m. It has been made an area the subject of an Area Action Plan, also adopted on 23 February 2012, within the context of the Core Strategy and parallel Business Plan for the area, as part of the Council’s Local Development Framework.

In 2007, the Council commissioned a feasibility study from Halcrow on “environmental enhancements” to Cinderford Town Centre (“the Halcrow report”), which included site specific proposals and, as a longer term vision, refocusing the town so that the Co-op area became an anchor at the southern end with better links from the Co-op to the Triangle, a triangle of roads which is a major natural focus of the town centre. Paragraph 7 of the Core Strategy deals with settlement policies, including the “Cinderford town strategy”, referring to the Halcrow report as part of an evolved strategy “to make the town more attractive”. Paragraph 7.8 reads as follows:

“The strategy is to create a major new focus for the town in order to provide a new stimulus and break away from slow incremental change. This will alter both the perception of the town and its function and appearance. It will increase its range of employment, broaden its service base and address local issues of low educational achievement and deprivation. This will be done both by a widening of the range of opportunities on offer and by developing new housing, services, educational and skills facilities including the relocated college and employment. Critical parts of the strategy are the physical improvement of parts of the town, and developing its role, including that of the centre together with the adoption of a mixed development scheme for land to the north (the Northern Quarter) which improves the range and quality of development…

The role of Cinderford in the district context is for it to provide a focus for new development especially in retailing and employment…”.

Policy CSP10 states that:

“The Core strategy will bring about major change in Cinderford, to establish a more sustainable and economically diverse town using a new mixed development as a focal point for change which will be complemented by improvements in the town centre and other areas. It will:

•

…

•

Support the continued redevelopment of the town centre, to bring improved facilities, including retail outlets, with up to about an additional 2600m2 convenience and 2300m2 comparison floorspace, public space and cultural facilities.

•

…”

The Site is 2.3ha in extent, roughly rectangular, and about 800m to the north-west of Cinderford Town Centre. Formerly a garden centre, the buildings have been demolished and the land is now made up of scrub and rough hardstanding.

In 1997, a planning application was made for the Site in respect of a 3,126 sq m gross floor space Class A1 retail store, to be operated by Tesco Stores Limited (“Tesco”). The Secretary of State called-in the application and, after a ten-day inquiry, the Inspector recommended refusal. In a decision letter dated 28 June 1998, the Secretary of State substantially accepted the reasoning of the Inspector, and followed the recommendation.

The Inspector did not consider that the proposed development satisfied the sequential test: he did not consider that the capacity on the scale of the development was needed (paragraph 14.9) and, even if overprovision could be justified, other sites within the town centre (e.g. the rugby ground) had the potential to accommodate it (paragraphs 14.10-14.12).

That would have been sufficient to refuse the application. However, the Inspector went on to the impact of the proposed development on the vitality and viability of the town centre. His essential analysis and conclusions were as follows:

In refusing the application, the Secretary of State generally endorsed the analysis and findings of the Inspector. In conclusion, he said (at paragraph 12):

“The Secretary of State understands, and is sympathetic to, the desire of local shoppers for a large new foodstore but, on the evidence available to him, is convinced that this proposal would primarily attract the car borne shopper undertaking a one-stop shopping trip. He is concerned that the proposal would lead to the closure of smaller stores, and seriously affect the trade of other smaller specialist retail stores as the result of a withdrawal of trade from the town centre. In this context he concludes that the overall impact of the proposal would result in very serious harm to the vitality and viability of Cinderford town centre.”

The Secretary of State’s decision to refuse the application was not the subject of challenge.

Following that refusal, in 2007 and again in 2010, outline planning permission was given for the Site for the construction of a DIY store and garden centre. Neither development has commenced.

So far as planning permission for a new superstore in Cinderford is concerned, three applications were made in respect of a site adjacent to the Co-op store, on land currently occupied by Cinderford Rugby Club. The last was made in 2008, for a store to be operated by Tesco, on the basis of an agreement between the rugby club and Tesco for the relocation of the club to a new out-of-town ground. That agreement expired; and the rugby club entered into a 10-year sponsorship deal with the Co-op, which effectively means that the club ground is no longer available for retail development.

On 3 August 2011, Trilogy made an application for planning permission to develop the Site in the form of an Asda supermarket in the terms I have already described.

The Council instructed GVA Grimley (“GVA”) to carry out an independent review of the retail policy aspects of the application. GVA reported in September 2011. Section 6 of the report dealt with “Impact”. GVA considered the Co-op store an anchor store for the town centre, and its closure or a severe loss of trips to it had the potential to have a knock-on effect for the town centre (paragraph 6.33). The proposed store would remove half of the Co-op’s turnover (paragraph 6.22), and would put the Co-op store at risk of closure because, not only would there be a severe impact on turnover, but the store would be trading at around 35% below company average (paragraph 6.23). In any event, closure of or a severe loss of trips to the store would lead to less linked trips and visits to the town centre (paragraph 6.34). The proposal was unlikely to lead to linked trips to the town centre, as was acknowledged in the 1999 decision: GVA did not consider that circumstances had changed since then (paragraph 6.35). The town centre was recognised as being in need of improvement and regeneration, and so even a small impact would be noticeable in terms of its health (paragraph 6.36). The proposal would have a negative impact so far as choice and competition in the town centre is concerned (paragraph 6.37).

The application came before the Planning Committee on 31 January 2012. Although the GVA report does not appear to have been made available to the Committee members, in the usual way the Committee had the benefit of an Officers’ Report dated 24 January 2012 (“OR1”), which recommended approval subject to the completion of a section 106 agreement. The Committee resolved to grant the application, which was formally granted on 29 March 2012.

OR1 included the following analysis and conclusions:

At its meeting on 31 January 2012, the Planning Committee accepted the recommendation in OR1, and resolved to grant permission which was formally granted on 29 March 2012. There is nothing of note in the record of the meeting.

The Co-op issued a claim for judicial review of that decision on 12 June 2012. The claim was made on six grounds, including:

The substantive claim came before Stewart J. Before him, it was common ground that (i) a retail need of up to about 2600 sq m of convenience goods floorspace had been identified in Cinderford; (ii) there were no available town centre sites that were suitable to satisfy that need; (iii) consistently with the 1999 decision, the impact of the proposed out-of-town store was such as to affect adversely the vitality and viability of the town centre; and (iv) the section 106 contribution/obligations were not materially different from those at the time of the 1999 decision (see paragraph 22.3(c) and (d) of the judgment).

With regard to Ground 1, it was argued on behalf of the Council that the application was distinguishable from the 1999 decision, because the sequential test was not satisfied in 1999, but was satisfied now: unlike in 1999, there was now an evidenced need in Cinderford for retail floorspace of the capacity of the development, and no available town centre sites to meet that need. Stewart J rejected that submission, holding that the sequential test was an entirely discrete matter from the adverse impact on town centres (paragraph 22.5). Had the 1999 decision been distinguishable, then it would not have been a material consideration. As it was not distinguishable, it was material.

Nevertheless, that of course was not the end of the matter. OR1 came to a different conclusion from the 1999 decision as to whether the harm to the town centre caused by the proposed development would be offset by the mitigation in the form of the section 106 contributions. Neither the likely harm nor the proposed contributions were materially different from 1999. The Inspector and Secretary of State considered in 1998-9 that there was no evidence to support the contention that the section 106 contributions would result in linked trips from the proposed development that would benefit the town centre; and therefore they concluded that any benefit from proposed measures could not be said to be sufficient to outweigh the harm to the town centre inherent in the proposal. However, it was of course open to the officers’ report (and, in its turn, the Planning Committee) to come to a different view as to how the proposed mitigation measures might, now, reduce that harm.

In paragraph 22.6 of his judgment, Stewart J dismissed the suggestion that the Committee members worked on the basis other than that the negative impact would be entirely cancelled out by the section 106 contributions, because statements in the reports clearly stated that, in the officers’ view, the harm would be entirely offset. Those statements were, he said, inaccurate.

However, importantly for the purposes of this claim, the judge continued as follows:

“In addition there was no analysis, merely assertions, of the mitigation of harm. It is instructive that the Secretary of State and Inspector rejected, in relation to this particular site (paras 14.27-14.30 of the Inspector’s decision) the ‘spin-off’ arguments in terms of ‘linked trips’ which were asserted by the Officers’ Report in the statement ‘These improvements to the public realm will enhance the town centre as a destination and encourage linkage trips.’

The Council rely on studies commissioned by them. However, they recognise that these did not consider the site or the impact of an out of centre supermarket on town centre vitality and viability or the improved linkages that would be required. They submit that this is not relevant. I disagree. It is in my judgment highly material that the studies did not address the position of the town centre given the very substantial impact. This was exactly the point which had in fact been addressed in the relevant paragraphs in the 1999 decision. This is particularly important given the estimated scale of the effect on the town centre in the Council’s Report for this application from GVA… , the full picture of which is not reflected in the Officers’ Report (see [GVA] Report, in particular paragraphs 6.22, 6.27, 6.33 - 6.37, 7.12 and 7.19). By not factoring in this part of the equation, those studies were of little significance.” (emphasis added).

There was, the judge noted (in paragraph 22.8) no proper analysis of the 1999 decision in OR1.

In all the circumstances, the judge found that the overall effect of OR1 significantly misled the Planning Committee about a material matter, namely the 1999 decision.

Ground 2 was determined on effectively the same basis. Stewart J dealt with it as follows:

26.1.

[The Co-op] submit that officers did not ask themselves how contributions would improve linkages between the site/town centre sufficiently so as to offset diversion of expenditure from the town centre to the site. They say that the 2007 town centre enhancement study set out a general strategy and did not provide appropriate analysis of the benefits needed to reduce the harm to the town centre consequential upon granting permission. No adequate reasons were given to justify the opinion that the mitigation offered was satisfactory to offset the harm.

26.2.

I have dealt with this point in full under Ground 1 particularly in paragraph 22.6 above [quoted above at paragraph 36 of this judgment]. For the reasons given there I uphold this separate but related submission.”

He went on to hold that it flowed from this that the section 106 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”. There was therefore a breach of regulation 122(2)(a) of the CIL Regulations.

There was no appeal against the judgment of Stewart J. As a result of it, the planning permission was quashed, and Trilogy’s application went back to the Planning Committee for redetermination.

A further report, dated November 2013, was commissioned from GVA, as an update to the September 2011 report.

Impact was dealt with in paragraph 6.13 and following. It did not differ substantially from the earlier report. It considered that the Co-op store would lose half its turnover, and would be at risk of closure, with the consequential adverse effects for other shops as a result of an anchor store closing or at least losing considerable numbers of customers. The overall impact on the town centre was put at 30%, and at 41% for the convenience goods sector alone. The report continued (paragraph 7.11):

“In our view, this level of impact is important in the context of the health of Cinderford town centre. The Forest of Dean Retail Study found that Cinderford town centre is in need of revitalisation and regeneration and available data indicates that vacancy levels in the centre are high and have been growing over the last two years. Indeed, the recent closure of the Beales department store is a particular blow to the attractiveness of the centre. Also, trading performance levels are considered to be modest and further levels of impact could threaten the vitality and viability of the centre. In particular, the scale of the impact of the proposed supermarket on the town centre is such that a significant number of trips to the centre could be removed, via the loss of linked trips between the Co-op and other facilities. In contrast, the proposed supermarket is likely to function as a stand alone shopping destination with little prospect of consistent linked trips.”

Nothing in the report suggested that the position with regard to linked trips had changed since the September 2011 report.

A further Officers’ Report was prepared (“OR2”). That indicates that a number of documents were also made available to the members of the Planning Committee, by being left in the Members’ Room, including the GVA report, the 1999 decision, the judgment of Stewart J and the Co-op’s objections to the proposal. OR2 recommended approval, subject to section 106 obligations in substantially the same terms as OR1 as described above (paragraph 29(vii))

A further, short report was prepared by officers following receipt of further representations on behalf of the Co-op.

At its meeting on 8 October 2013, the Committee resolved unanimously to approve the application. The grant was formally made on 2 January 2014. Following pre-action protocol correspondence, this claim was issued on 12 February 2014. Permission to proceed was granted by Lang J at a hearing on 22 May 2014.

To complete the chronology, although for some reason this was not disclosed during the hearing before Lang J, on 13 May 2014 the Planning Committee resolved to approve a duplicate application for the development, resulting in a second planning permission being formally granted on 2 July 2014. In making that decision, the Committee did not consider any section 106 contribution, concluding (as I understand it) that the regeneration benefits of the development alone were sufficient to outweigh the breach of policy that the development entails.

On 24 July 2014, an application was made on behalf of Trilogy to adjourn the substantive hearing in this claim, pending any claim to judicially review that further decision – the time limit for any claim being 13 August 2014 – so that the claims could be considered together, if appropriate. I understand such a claim has been made; but that application to adjourn this substantive hearing was opposed by the Co-op, and was refused by Lewis J on 21 August 2014. As a result, I have not considered that further claim – or the circumstances giving rise to it – at all.

I now turn to deal with the grounds of claim relied upon by Mr Holgate on behalf of the Co-op.

Grounds 1-3 are clearly closely related: they amount to a submission that crucial errors identified by Stewart J in relation to OR1 were, in substance, simply repeated in OR2. As pithily put in paragraph 6 of the Claimant’s Statement of Facts and Grounds:

“[T]he same or similar errors were made again, all stemming from the Council’s continuing failure to explain how, for example, paying for a ‘bus service’ between the new store and the town centre, or for ‘cosmetic enhancements’ in the street scene, could mitigate harm to vitality and viability if the town centre would be lacking retail attraction as a result of the abstraction of trade from the centre to the proposed out-of-centre store. Shoppers come to the town centre to visit retail facilities such as the food store operated by the [Co-op]; they do not come to view new street lights in front of vacant stores.”

Mr Holgate submitted that a core part of Stewart J’s reasoning, set out in paragraph 22.6 of his judgment (see paragraph 36 above) was that, although Trilogy had asserted that the section 106 contributions would mitigate the serious harm the development would otherwise cause to the town centre, that assertion was not supported by evidence – Stewart J finding the reports relied upon were not supportive on this point – or by any analysis of how the contributions would mitigate the harm. Although OR1 indicated what the percentage reduction in town centre trade would be (30%) – and the specific percentage reduction in the Co-op store turnover (50%) – it failed to set out the full picture as to what the actual effects of what that would mean to the town centre in terms of (e.g.) the risk of closures, the loss of linked trips within the centre and the effects on the scope and level of service for those using the centre; and, in any event, it then failed to grapple with the issues of whether the proposed enhancements etc would or might reduce the harm caused by the development (and, if so, the extent to which it would or might do so), by failing to consider how the section 106 contributions would or might reduce the harm in circumstances in which the town centre was the subject to the serious, “crippling” adverse effects of the new development. Such analysis was particularly required in this case because of the essential similarity of those contributions to the contributions proposed in 1999, when they were dismissed as not being sufficient to encourage linked trips because of the lack of retail and other attractions in the town centre. OR2 merely said that there was a real possibility that, as a result of the development, trading at the Co-op store would be “well below company average performance levels”, there would be no real benefit for the town centre from trips linked to the new store, and that therefore the viability of the centre would be adversely affected; but these were merely the same points made in OR1, dismissed by Stewart J as being inadequate. They in fact provided no analysis at all; and, in particular, no analysis of how the section 106 contributions would or might reduce the adverse effects caused to the town centre by the proposed superstore.

It is no answer to say, submitted Mr Holgate, that it is not now asserted (as it had been in 1999 and in OR1) that the section 106 contributions would wholly offset the harm caused, but only partly offset it, because:

Therefore, in short, Mr Holgate submitted that OR2 repeated errors made in OR1, and identified by Stewart J in his judgment.

Mr Manley and Mr Katkowski accepted that the Planning Committee were required to consider how the section 106 contributions proposed would reduce the harm to the town centre resulting from the development; but both submitted that, when read fairly and as a whole, OR2 was clear as to how the contributions do so by encouraging trips to the town centre. Mr Katkowski set out the effective reasoning of OR2 as adopted by the Committee, as he saw it, in paragraph 12 of his skeleton argument. It was, briefly, as follows.

In response to continuing and worsening stagnation of the town centre since 1999, a regeneration scheme had been adopted, focusing on the town centre and the Northern Quarter. So far as the town centre is concerned, Mr Katkowski pointed to the relevant parts of the Core Strategy, and to the particular strategy (quoted in OR2, paragraph 8.7.1) for “new investment to refurbish the environment and improve the amenity for town centre users”, none of which was in place in 1999. The regeneration of the town centre started in 2010, but the improvements had only been modest to date, significant work being required to have the transformational effect desired (OR2, paragraph 8.7.3). The section 106 contributions would “complement works already undertaken as part of this phased programme of works” and therefore contribute to the transformational effect (OR2, paragraph 8.7.3). In particular, they would encourage trips to the town centre for two reasons: (i) they would increase accessibility between the Site and the town centre through a series of public transport linkages both within Cinderford as a whole (including an improved bus service) and by additional highway improvements; and (ii) they would complement the overarching strategy of “enhancing the town centre as a destination” through contributions to landscaping and lighting.

Mr Katkowski submitted that, thus, OR2 explained how the contributions will result in more trips, thereby remedying the errors of law identified by Stewart J. It was, he said, clear that the Committee carefully considered how the section 106 contributions would encourage linked trips into the town centre, through better accessibility and enhancements. Mr Manley succinctly made essentially the same substantive submissions.

Powerfully as those submissions were made, I am unpersuaded by them, for the following reasons.

One of the problems for the Council in defending the first determination before Stewart J was the fact that there was no evidence upon which to base an analysis of how the harm created to the town centre by the development would or might be mitigated by the section 106 contributions. The reports of GVA set out, to an extent, the nature of the harm, e.g. substantial reduction in customers for and possible closure of the Co-op anchor store, with a correlative reduction in in-town linked trips. GVA expressly disagreed with Trilogy’s contention that the picture surrounding linked trips was different from the position in 1999. However, they did not address the question of whether, how and to what extent the section 106 measures would or might address that harm. Nor did they do so in the 2013 report. It seems that they were not asked to address that issue which, in the light of Stewart J’s judgment, is somewhat curious.

I am unable to accept the submission that OR2 remedied the errors of law with regard to the section 106 contributions identified by Stewart J, by its references to the purported changes in local policy and strategy. Indeed, the matters referred to above, as purportedly remedying the errors, were all before Stewart J. OR1 set out all of these matters in substantively the same terms as OR2 (see paragraph 29(vi) above); and Stewart J also expressly referred to them, in this context (see paragraph 26 of his judgment). He referred to the regeneration programme, the Cinderford Northern Quarter Area Action Plan, and the Cinderford Town Centre Regeneration Scheme. In concluding that the officers had failed to analyse how the section 106 contributions would mitigate the harm, the judge therefore had in mind these matters. There is simply nothing new, of substance, in OR2. Consequently, even if I were minded to consider that Stewart J might have been wrong to have made the findings that he did, it would be difficult for me now to come to a different conclusion. His judgment was not the subject of any appeal.

However, I consider Stewart J was clearly right.

In this case, the Council contend that the section 106 contributions are necessary to make the development acceptable in planning terms. Those contributions are intended to mitigate the harm caused by the development to the town centre – that is their only purpose. It is common ground that that harm will be substantial.

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: and OR2 (and, in its turn, the Committee) failed to do so.

Mr Holgate relied upon OR2’s failure to consider the practical impacts of the new development on the town centre. We know that the Co-op would lose 50% of its turnover, and (although this is not expressly stated in OR2) that would put its continued existence at real risk. We know that the adverse impact on the town centre overall would be 30%, and that that impact is significant and indeed serious and potentially “crippling”. But OR2 does not consider what a 30% impact overall would mean in practice, and in particular what it would mean in terms of (e.g.) further loss of shops or available retail services, in a vulnerable town centre with already high vacancy rates. This is particularly important, because the 1999 decision indicated that cosmetic enhancements etc are unlikely to encourage visits to the town centre without better retail attractions being there. The damage to the town centre as a result of the development was thus not properly considered. Without that consideration, it is impossible to consider mitigation properly.

Trilogy asserted that, whatever the harm to the town centre, the section 106 contributions would mitigate the damage by increasing the number of linked trips from the development to the town centre. However:

As I have said, Mr Katkowski submitted that OR2 indicated that the section 106 contributions would encourage trips to the town centre in two ways.

Consequently, Ground 1 succeeds. OR2, upon which the Planning Committee relied, failed to grapple with the crucial question (clearly identified by Stewart J) as to how the proposed section 106 contributions would or might encourage more visits to the town centre in the context of the harm to that centre inherent in the development proposal which the contributions were intended to mitigate.

For the same reasons, Ground 2 also succeeds. As Stewart J held, the Council’s failure to provide an adequate explanation for how the section 106 contributions would increase trips to the town centre means that they could not be considered sufficient to render the development acceptable in planning terms. As Stewart J put it, a finding of failure to comply with regulation 122(2)(a) of the CIL Regulations “flows” from the findings in relation to Ground 1.

Ground 3 is also closely related to Ground 1. As I have described, in 1998-9, the Inspector and Secretary of State concluded that the improvements to the fabric of the town centre and transport proposed by way of section 106 obligations would not result in any significant linked trips to the town from the proposed development, because of the lack of retail or other attractions in the town. Mr Holgate submitted that OR2 and the Planning Committee failed to distinguish on relevant and rational grounds the Secretary of State’s 1999 decision (and notably this particular conclusion) – indeed, as OR2 accepted, the 1999 decision was a material consideration, it necessarily accepted it was not distinguishable – nor did they explain why they were departing from that earlier decision.

OR1 had been silent about the 1999 decision. OR2 dealt with it, in paragraph 8.4. It summarised the effect of the decision (paragraph 8.4.2). It summarised the law drawn from the North Wiltshire case (see paragraph 5(viii) above); and, on the basis of that case, it said that the 1999 decision was a material consideration (paragraph 8.4.3). However, in determining the weight to be given to that decision, it said that the Committee was “entitled to consider whether the circumstances have changed or are materially different to those prevailing when the earlier appeal was determined” (paragraph 8.4.3). It then (in paragraph 8.4.4) set out “what has occurred in retail planning terms since the decision of the Secretary of State in 1999”, in the following bullet points:

“…

•

Whilst document titles and the wording of national policy may have changed, the general substance of the key policy tests of harm and the sequential approach has not altered. However, the National Planning Policy Framework supports the granting of planning permission of retail developments where the adverse impacts do not significantly and demonstrably outweigh the benefits. This is a change in emphasis at national policy level.

•

At the local level, through the Core Strategy and the retail evidence base underpinning it, there is now a clear and demonstrable need for new retail development in Cinderford and a growing level of expenditure capacity. This is outlined in more detail within the following section. [The point is emphasised in paragraph 8.11.2 of OR2.]

•

There has also been a change in circumstances in relation to the sequential test since 1999, regarding the availability of Rugby Club site….

•

Although the benefits associated with the new Lidl store were known to the Inspector, the opening of that store has improved consumer choice within Cinderford.

•

There has been no significant change in town centre health, vacancy levels or an improvement in the comparison goods retail sector since the Secretary of State’s decision.

•

There has also been a slight change in shopping patterns with Cinderford’s market share either remaining static or falling, although there are smaller outflows of expenditure to Coleford and Gloucester, levels to Ross-on-Wye and Lydney are increasing. However, the impacts upon the town centre and the Co-Op store are proportionally similar to those in 1999.

•

Finally, from the available data there are no obvious changes in the picture surrounding linked trips.”

OR2’s analysis here appears to me to be cloudy, and struggling to apply the law as set out in North Wiltshire. If there have been material changes since 1999, the 1999 decision is distinguishable and it is thus not material to the 2013 application. If it is not material, it can be left out of account and there is no question of giving it any weight.

However, leaving that aside, the points raised give no substantial support to the proposition that matters have changed since 1998-9, in a way favourable to the grant of permission. The first bullet point is misconceived (see paragraph 73 and following below). The second and third relate to the sequential test, which (again as emphasised by Stewart J) is discrete from impact: although in 1998-9 the applicant failed to satisfy the Inspector and Secretary of State that there was a need for this retail capacity and that any need could not be accommodated in-town, their consideration of impact must necessarily have been on the (hypothetical) basis that these discrete tests had been satisfied (see, e.g., paragraph 14.30 of the Inspector’s report). None of the matters raised in the rest of the bullet points is supportive of grant: most are neutral – it is noteworthy that the last bullet point notes that “there are no obvious changes in the picture surrounding linked trips” – whilst one appears to be in the balance in favour of refusal. As I have described, the conclusion in 1998-9 was that significant spin-off in the form of linked trips was “most unlikely”; and, indeed, the town centre was so lacking in retail and other attractions “to give any hope of significant spin-off occurring” (see paragraph 21(iv) and (v)).

Mr Manley and Mr Katkowski focused on two matters. First, they submitted that need and the other factors in the sequential test had not been satisfied in 1998-9, but were satisfied now. That is covered by the bullet points, which I deal with above. Second, they relied upon the changes to local policy and strategy, since 1999, particularly the wider strategy for enhancing the town centre. I have dealt with those in relation to Ground 1.

I find that Ground 3 is also proved, for reasons closely paralleling those under Ground 1: OR2 (and the Planning Committee which relied upon it) failed to grapple with 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, without more, encourage people to visit a town centre seriously adversely affected by the proposed out-of-town development as envisaged. That earlier decision was neither distinguished – indeed, it is common ground that it is indistinguishable – nor was there any analysis or reasons given for departing from it.

This ground is founded on paragraph 8.4.4 of OR2, and in particular the first bullet point:

“Whilst document titles and the wording of national policy may have changed, the general substance of the key policy tests of harm and the sequential approach has not altered. However, the [NPPF] supports the granting of planning permission of retail developments where the adverse impacts do not significantly and demonstrably outweigh the benefits. This is a change in emphasis at national policy level.”

This appears to have been derived from paragraphs 3 and 4 of Appendix A to GVA’s September 2013 report, which refer to paragraph 14 of the NPPF (although wrongly labelled there as “paragraph 215”), before saying this:

“Whilst this guidance does not automatically mean that permission should be granted… where there is an absence of a significant adverse impact on Cinderford town centre, the NPPF is clearly promoting the grant of planning permission where the adverse impact do not significantly and demonstrably outweigh the benefits. As a consequence, this may be a material change in planning policy for [the Council] to highlight in its decision-making process for this application”

It was rightly common ground before me that this is simply wrong. As I have indicated, paragraph 14 of the NPPF only applies where there is a policy lacuna: where there is no such lacuna, in respect of an out-of-town retail development that will have a significant adverse impact on the vitality and viability of a town centre, paragraph 27 applies. That creates a presumption in favour of refusal. Paragraph 14 does not give any support at all to the granting of planning permission of retail developments where the adverse impacts do not significantly and demonstrably outweigh the benefits, as the GVA report and OR2 suggest.

As I say, both Mr Manley and Mr Katkowski frankly accepted that OR2 was wrong in this respect, in misrepresenting the policy position. However, each submitted that that error was not material, because OR2, when read fairly and as a whole, made it quite clear that the paragraph 27 policy presumption applied, i.e. that the proposed development had a significant adverse effect on town centre vitality and viability and consequently there was a presumption in favour of refusal. Indeed, on the page after paragraph 8.4.4 of OR2, paragraph 27 of the NPPF is quoted (paragraph 8.5.2) and it is then said, in terms:

“… [I]t is considered that the vitality and viability of Cinderford town centre will be adversely affected by the proposed development. This is contrary to paragraph 27 of the NPPF” (paragraph 8.5.5).”

That, it was submitted, could not be clearer. The Committee members could not have been under any misunderstanding.

However, I do not agree. Even if the Committee members understood that the paragraph 27 presumption in favour of refusal applied, paragraph 8.4.4 of OR2 indicated that, when it came to the relevant balancing exercise, the NPPF in some way supported the grant of planning permission of retail developments where the adverse impacts do not significantly and demonstrably outweigh the benefits. That is not the case. This was not simply a slip in OR2; the GVA report upon which it was based suggested that the NPPF “clearly” favoured the grant of planning permission where the adverse impact do not significantly and demonstrably outweigh the benefits, and that this was something which the Committee could take into account and indeed “highlight”.

In my judgment, Ground 4 is also proved.

For those reasons, I find all four grounds are made good.

In those circumstances, Mr Katkowski submitted that I should nevertheless exercise the court’s discretion not to quash the planning permission, on the basis that it is “blindingly obvious” (his phrase) that the Council would have made the same decision to grant permission in any event. I am asked to take into account the first determination, and the subsequent duplicate determination to grant permission. Mr Katkowski submitted that it is as clear as can be that the Council is convinced that the right thing for its town is that the Site should be developed as proposed.

That submission is nothing if not bold. But, with respect to Mr Katkowski, it is hopeless. I say nothing of the determination on the duplicate application, which I have not considered – but it cannot flow from the fact that a Planning Committee has twice decided to grant planning permission with apparent enthusiasm but unlawfully, that it will necessarily determine the application the same way if they approach it lawfully, taking into account all of the material considerations that they must. This planning application involves complex and interrelated planning issues. The development has very substantial public benefits, for example in terms of bringing money and jobs into the district; but the price to be paid for those benefits, in terms of the harm to the town centre, is high. As I have stressed, whether, on balance, the development is in the public interest is quintessentially a matter for the councillors on the Committee, and not this court. I cannot say that, on a redetermination of this planning application and taking into account all material considerations, the Planning Committee would be bound to decide in favour of granting permission. I appreciate that some of the councillors take a strong view as to the benefits of such a development; but it would clearly be wrong for me to second-guess what the determination of the application will be, as and when the Committee consider it according to the law.

I appreciate that that will result in yet further delay in the final determination of this planning application, which is important not just for the commercial parties to this claim, but also to the people of Cinderford who clearly have restricted retail opportunities in their district. However, as I have indicated, that delay is the result of the unfortunate failure of the Council properly to take into account all material considerations that go to make up the public interest.

I shall therefore allow the judicial review, and quash the Defendant Council’s decision of 2 January 2014 to grant planning permission for the development of the Site.