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

On 2 July 2014 the Defendant local planning authority granted planning permission to Trilogy Developments Limited (the Interested Party) for a Class A1 retail store of up to 4,645m² (gross) and related development. The development site is at Steam Mills Road, which lies outside the town centre of Cinderford, Gloucestershire.

The Claimant, which challenges that planning permission, is the owner and operator of the Co-operative supermarket at Dockham Road, Cinderford, which is in the town centre. There are five grounds of challenge, which I will address in turn later in this judgment.

On 20 November 2014 permission to apply for judicial review was granted by Gilbart J. The Claimant and the Interested Party agreed that permission should be granted by the Court. The Defendant had indicated, in a letter dated 9 October 2014, that it no longer wished to defend the claim. In a later letter dated 23 October 2014 the Defendant made it clear that it does not defend the claim for financial reasons but supports the opposition made to it by the Interested Party.

The planning permission under challenge in this case is the third to have been granted by the Defendant for the same proposal since March 2012. The first permission was quashed by Stewart J on 4 July 2013 following a successful claim for judicial review brought by the same Claimant. The second grant of permission, which followed the redetermination of the first application after the judgment of Stewart J, was quashed by Hickinbottom J on 30 September 2013 following another successful claim by this Claimant.

The planning permission challenged in the present proceedings was granted on a duplicate application. The resolution to grant it was passed at a meeting of the Defendant’s Planning Committee on 13 May 2014, at a time when permission to challenge the second planning permission had been refused on the papers by Collins J and a renewed application was due to be heard. Permission to bring that claim for judicial review was granted after a contested oral hearing by Lang J on 22 May 2014. As I have already mentioned, that claim for judicial review succeeded before Hickinbottom J on 30 September 2014.

In 1998 the Defendant had to consider an application for planning permission for a Tesco superstore at the same site. That was for a smaller store of 3,126m² (gross), with a net retail sales area of 2,090m². The current Asda proposal would have a net retail floor space of up to 3,000m².

The Secretary of State called in the 1998 planning application and a public inquiry lasting 10 days was held by an Inspector. The Inspector recommended that planning permission should be refused and that recommendation was accepted by the Secretary of State in a decision refusing permission dated 28 June 1999. Later in this judgment I will refer in more detail to the report by the Inspector and the decision by the Secretary of State in 1999.

On 3 August 2011 the Interested Party applied for planning permission for a retail store with 4,645m² (gross) internal floor space on the development site.

On 31 January 2012 the Defendant’s Planning Committee resolved to grant that application for permission. On 29 March 2012 the Defendant formally granted the planning permission.

On 12 June 2012 the Claimant issued an application for judicial review to challenge that permission.

On 7 August 2012 the Interested Party made a duplicate planning application for the same proposal in the light of the claim for judicial review.

On 4 July 2013 Stewart J quashed the first planning permission.

On 8 October 2013 the Defendant’s Planning Committee reconsidered the 2011 application and resolved to grant it again. It formally granted that permission on 2 January 2014.

On 12 February 2014 the Claimant issued a second claim for judicial review to challenge that second planning permission.

On 13 May 2014 the Defendant’s Planning Committee resolved to grant the 2012 duplicate application for permission.

On 22 May 2014 Lang J granted permission to apply for judicial review of the second planning permission following a contested oral hearing. However, neither the Claimant nor Lang J was informed of the resolution passed on 13 May 2014. On 10 June 2014 the Defendant’s Planning Committee passed a motion in an attempt to respond to the observations made by Lang J on 22 May. I will refer to that judgment and the resolution in more detail later.

On 2 July 2014 the Defendant formally granted the planning permission which is the subject of these proceedings.

On 21 July 2014 solicitors acting for the Claimant sent a Pre-action Protocol letter. On 29 July 2014 the Defendant responded to that letter.

On 12 August 2014 the present application for judicial review was issued.

On 30 September 2014 Hickinbottom J quashed the second planning permission.

On 23 October 2014 the Defendant advised the Administrative Court office that it no longer wished actively to defend this claim for judicial review.

On 20 November 2014 Gilbart J granted permission to bring the present application for judicial review.

On 3 December 2014 the Claimant served its amended statement of facts and grounds in this claim for judicial review.

At para 8.13 of his report in 1999 the Inspector noted that there was no issue between the parties but that Cinderford was a weak town centre. He said that it was not even a static one, but was “clearly declining.” He went on to note that this decline had been presided over by the Co-op, “which provides an insufficient attraction for people to come to the town.” Later, at para 8.24, the Inspector noted “there is an extraordinarily high level of leakage from the area to shop. 65% of the residents living within the catchment area undertake their main food shopping outside the catchment …”.

At para 9.10 the Inspector noted that the Council believed “that the balance of the benefits significantly outweigh any perceived disbenefits.”

In setting out the case for the Co-operative Society, the Inspector noted at para 11.1 that:

“Cinderford town centre is vulnerable and weak, food shopping is the main reason for visiting the centre and there is relatively little comparison shopping. Apart from the Co-op there is one national multiple, Woolworths, which is a small unit. The Co-op acts as an anchor for the town centre and there is no other trader which acts as an anchor. Vacancies are scattered throughout the centre.”

At para 11.2 the Inspector noted that the Co-op store is in an optimum location for Cinderford. He also noted that nearly two-thirds of the trips to the Co-op are combined with visits to some other part of the town centre.

The Inspector set out his own conclusions at section 14 of his report. At para 14.21 he said:

“Cinderford town centre is a weak and vulnerable shopping centre. Food shopping is the main reason for visiting the centre, and there is relatively little comparison shopping. There is a high proportion (22%) of vacant shops scattered throughout the centre. All parties agree that the Tesco store would have a significant impact on town centre turnover. …”

In considering the scale of that impact on the town centre the Inspector said at para 14.26:

“The direct impact of the Tesco store on Cinderford town centre would lie in the range 25% to 37%.”

He concluded that, because of the need to reduce the catchment area of the centre assumed by the applicants and various other assumptions he thought needed to be made, “the actual impact is likely to be nearer to the higher figure than the lower. Even an impact of 25% however could not be called insignificant, whilst one of 37% is likely to be crippling on a centre as vulnerable as Cinderford is generally accepted to be. …”

At para 14.27 the Inspector said that the greatest impact would be on the Co-op, “which would suffer around a 50% reduction in turnover.” He noted that damage to the centre was accepted by all parties to the Inquiry and that Tesco’s case depended critically upon whether there would be enough “spin-off” from its site to the town centre to repair that damage.

The Inspector regarded that suggestion as being questionable. He concluded at para 14.30 on this point:

“In summary, the impact of the Tesco store on the vitality and viability of Cinderford town centre would be serious, causing significant harm to what is already a weak and vulnerable town centre. Leaving aside the sequential test, such impact could only be justified if significant spin off in terms of linked trips could be guaranteed to an extent that visitation to the town centre would be increased. The centre lacks a sufficient range of non-food shops or other attractions however to give any hope of significant spin-off occurring.”

The Inspector then considered whether there were other considerations which would outweigh harm to the vitality and viability of the town centre. He acknowledged that there would be benefits which would accrue to the town centre. They would not be directly related to the impacts of the development nor significantly enhance the town centre as a draw for Tesco shoppers: see para 14.33. He acknowledged that shoppers would have a greater choice of food shopping at Tesco without the need to travel as far as they did. He considered that the aspiration to have a new supermarket in Cinderford was understandable but concluded that it was an aspiration which did not give proper consideration to the consequences for the centre of Cinderford which would inevitably come: see para 14.34. In summary, at para 14.35 he concluded on this point:

“Whilst there would be tangible benefits associated with the proposal, they would not outweigh the very serious harm to Cinderford town centre that would result, should the proposal go ahead.”

At para 9 of the Secretary of State’s decision letter refusing planning permission for the construction of a Tesco store on the site, it was said:

“The Secretary of State sees no reason to disagree with his Inspector’s conclusion as set out at paragraph 14.21 that Cinderford town centre is a weak and vulnerable shopping centre. However for the reasons set out by the Inspector (particularly at paragraphs 14.6 to 14.9 and 14.21 to 14.30 of his report) the Secretary of State is not persuaded that a clear and convincing case has been made to justify the scale of development proposed. He also agrees with his Inspector’s conclusions as set out in paragraphs 14.21 to 14.30 of his report, that the impact of the proposed store would have a serious impact on the vitality and viability of Cinderford town centre, would cause significant harm to it, and that it is unlikely that the proposal would lead to any spin-off for the town centre.”

At para 12 of his decision letter the Secretary of State said:

“The Secretary of State understands, and is sympathetic to, the desire of local shoppers for a large new food store 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 local planning authority’s Core Strategy was adopted in February 2012. In particular policy CSP.10 is of relevance in this case:

“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:

•

Provide for about 1050 dwellings over the period to 2026; and a total of 60% to be developed on previously developed land. On eligible sites (over 10 dwellings/0.3ha, a 40% share of affordable housing will be sought).

•

Enable about 26ha of employment generation uses to be developed, including sites for a college, recreation/tourism/leisure, a biomass plant, office (B1) accommodation, and other uses centred around a new Northern Quarter mixed development.

•

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.

•

Enable the re modelling of parts of the centre to improve its attractiveness and ease of circulation.

•

Protect the retail core from other uses.

•

Ensure improvements in the urban fabric throughout the town.

•

Improve educational and training facilities especially for the post 16 age group.

•

Enable the development of a new access to the Northern Quarter.”

The National Planning Policy Framework (NPPF) was adopted by the Secretary of State in 2012. The relevant passage which deals with development proposals such as this is at paras 24-27.

Para 24 states that local planning authorities should apply a sequential test to planning applications for main town centre uses that are not in an existing centre and are not in accordance with a local plan. They should require applications for main town centre uses to be located in town centres, then in edge of centre locations and, only if suitable sites are not available, should out of centre sites be considered.

The NPPF goes on to state:

“26.

When assessing applications for retail, leisure and office development outside of town centres, which are not in accordance with an up-to-date local plan, local planning authorities should require an impact assessment if the development is over a proportionate, locally set floor space threshold (if there is no locally set threshold, the default threshold is 2,500 sq m). This should include assessment of:

•

the impact of the proposal on existing, committed and planned public and private investment in a centre or centres in the catchment area of the proposal; and

•

the impact of the proposal on town centre vitality and viability, including local consumer choice and trade in the town centre and wider area, up to five years from the time the application is made. For major schemes where the full impact will not be realised in five years, the impact should also be assessed up to ten years from the time the application is made.

27.

Where an application fails to satisfy the sequential test or is likely to have significant adverse impact on one or more of the above factors, it should be refused.”

The judgment of Stewart J was given on 4 July 2013: see [2013] EWHC 1908 (Admin). Before Stewart J there were six grounds of challenge. Ground one alleged a failure to consider the importance of consistency with the earlier decision of the Secretary of State in 1999; alternatively a failure to provide reasons for departing from that earlier decision. Stewart J considered this ground at paras 10 to 22.8. He held that the ground was made out, in particular because the Officers’ report at that time had significantly misled the committee about material matters which were uncorrected before the relevant decision was taken: see para 22.8.

Particular reference should be made to para 22.6. After setting out relevant passages from the Officers’ report, Stewart J said that they were inaccurate. He was of the view that “the full picture” was not reflected in the report. He made reference in particular to what had been said in the GVA Grimley report of September 2011, paras 6.22, 6.27, 6.33 - 6.39, 7.12 and 7.19.

Ground two before Stewart J was that there was a failure to ask the relevant question and to take reasonable steps to obtain the relevant information before concluding that the benefits secured via the section 106 planning obligation would be sufficient to offset the harm to the vitality and viability of the town centre; alternatively a failure to provide any proper reasons dealing with this issue; in the third alternative that the permission was granted in breach of Regulation 122(2) of the Community Infrastructure Levy Regulations 2010 (SI 2010 No. 948). Stewart J dealt with this ground between paras 23 and 28 of his judgment. He held that there was a breach of Regulation 122(2)(a) but not no breach of sub-para (b).

Ground three was that there had been a misconstruction of policy CSP.10 of the Core Strategy and/or a failure to consider the implications of granting the permission for the implementation of that policy and/or a failure to consider the exercise of compulsory purchase powers to achieve implementation of that policy.

Ground four was that there was a failure to mention policy CSP.10 in the notice of the decision to grant the permission and/or a failure to provide summary reasons in the decision notice in relation to policy CSP.10 and the 1999 decision. The requirement to give reasons for the grant of a planning permission has since been abolished by legislation.

Ground five was that there had been a failure to consider the Claimant’s proposed investment in extending its town centre store and improving the adjacent health centre. This does not have any bearing on the present issues.

Ground six was that there was an unlawful condition allowing a development which could be very different to that applied for. This also has no bearing on the present case.

After the decision by Stewart J a report was prepared by officers for the Planning Committee so that it could consider the matter for the purposes of re-determining the original planning application. Section 8 of the report (headed “Evaluation”) pointed out that this was not a straightforward case and very careful consideration needed to be given to various factors. It also reminded the Committee that the weight to be attached to the various factors was a matter for the Committee as the decision maker.

At para 8.3.3 the report said that the proposal “is contrary to the aims and objectives of Policy CSP.10 of the Core Strategy in respect of retail development. Any positive determination of this application would be a departure from the Development Plan.” Para 8.3.5 also reminded the Committee that there was a clear policy objection to the proposal in terms of the conflict with Policy CSP.10. However, it was also stated that the Committee must have regard to any other material considerations to see if these indicated that an alternative decision should be made other than in accordance with the Development Plan.

Para 8.4 set out comments in relation to the Secretary of State’s decision in 1999. At para 8.4.3 the Committee was told that “the Secretary of State’s decision in 1999 is a material consideration. In determining what weight to attach to that decision Members are entitled to consider whether the circumstances have changed or are materially different to those prevailing when the earlier appeal was determined”.

At para 8.4.4 it was said:

“The following points set out what has occurred in retail planning terms since the decision of the Secretary of State in 1999:

•

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 para 8.4.5 the Committee were told in the report:

“Overall, these factors will be considered in more detail within the following sections. Members are entitled to have regard to the changes since 1999 and may determine that the situation is different, enabling an alternative conclusion to be reached on the merits of the proposal.”

In section 8.5 the Committee were informed by the Officers’ report that the proposed development was contrary to para 27 of the NPPF: see in particular para 8.5.5.

Section 8.8 of the report dealt with the section 106 contributions. Having set those out, the report went on to say at para 8.8.4:

“In accordance with the Community Infrastructure Levy (CIL) Regulations and the NPPF … any obligations sought must be necessary to make the proposal acceptable in planning terms, be relevant to planning, directly relate to the proposed development, be fairly and reasonably related in scale and kind to the proposal and be reasonable in all other respects. … It is considered that they are necessary to make the proposal acceptable in planning terms, relevant to planning, directly related to the proposed development, fairly and reasonably related in scale and kind to the proposal and be reasonable in all other respects. The economic and regeneration benefits that the store would bring …, coupled with the Section 106 obligation offered by the Applicant combine to limit the harm arising from the development to an acceptable level and meet the requirements of the CIL Regulations and the NPPF. Whilst Para 27 of the NPPF states that where development is likely to have a significant adverse impact on one or more of the factors in Para 26, it should be refused, that policy is one of the other material considerations that must be weighed in the balance. In the present case, Officers consider that the real benefits for Cinderford that are outlined above do outweigh the Policy objection under the Core Strategy and NPPF.”

Section 8.11 of the report responded to the various issues which had arisen in the High Court judgment of Stewart J. Para 8.11.12 stated:

“As identified above, the vitality and viability of Cinderford Town Centre will be adversely affected by the proposed development. However, the economic benefits that the store will bring, coupled with the mitigation offered by way of financial contributions in support of the Cinderford Town Centre Regeneration Scheme, outweighs the harm to the vitality and viability of the Town Centre making the proposal acceptable.”

There is a similar passage in the concluding section at para 9.1.

As I have mentioned, a renewed application for permission to apply for judicial review was considered by Lang J at a contested hearing on 22 May 2014. This concerned the second planning permission, which was later quashed by Hickinbottom J on 30 September 2014.

At para 6 of her judgment Lang J said:

“It is not disputed that the officers’ report misstated the relevant policy in the NPPF and I consider that that error might well have been material. Taken together with the evidence of the lack of respect for the law on the part of at least some members, I am concerned that this Council is failing to apply planning law and policy correctly when making its decisions. In this case members had the benefit of a carefully reasoned judgment by Stewart J, touching on many of the issues that they had to consider. But the Councillor who moved the application described the High Court Judges as ‘buffoons’, sitting in London making judgments over areas which they knew nothing about, and this attitude may explain why the Council appears not to have had sufficient regard to Stewart J’s judgment when considering this application in 2014.”

As I have mentioned, in response to that judgment the Planning Committee passed a resolution on 10 June 2014. Councillor Lynn Sterry made the following statement, which was approved by the Committee:

“It has been drawn to the Committee’s attention that during the oral permission hearing in the High Court on 22 May 2014 the Judge presiding expressed concern over a comment made one of the Councillors at the Autumn Committee meeting. The Committee would like to make it absolutely clear that we are fully aware of our legal responsibilities to make planning decisions within the framework of the Town and Country Planning Act made by Parliament and further that the Committee are aware of and have the highest respect for the role of the judiciary in ensuring that the local planning authorities operate within the law. We should like to take this opportunity to make it clear that (1) the decision to grant planning permission when the matter was remitted to us was taken after full consideration of the findings of the High Court and was based upon planning judgment and not as a result of any disrespect to the judiciary as a whole or the Judge in that case in particular and (2) the Committee’s decision of the 13^th May 2014 to grant a further planning permission on this site was similarly taken solely on the basis of planning considerations.”

A second part to the motion was also passed by the Committee as follows:

“To avoid any doubt we should like to make it clear that the Committee understood after reading the very comprehensive officer report prepared for the 13^th May Committee that the town centre Co-operative might close as consequential further harm to the viability and vitality of the town centre.”

The judgment of Hickinbottom J quashing the second planning permission was given on 30 September 2014: see [2014] EWHC 3059 (Admin). As Hickinbottom J made clear at para 47, he did not consider the present application for judicial review, or the circumstances giving rise to it, at all. As I have already mentioned, the present application arises out of the decision to grant planning permission on a duplicate application, not the original one. It also followed the third Officers’ report, which was not considered by Hickinbottom J.

Before Hickinbottom J there were four grounds of challenge, summarised at para 3. They were as follows.

First it was alleged that the Planning Committee failed to have regard to a material consideration, namely how the contributions to be made under section 106 of the Town and Country Planning Act 1990 would encourage trips to a town centre left “crippled” by the new out of town store; alternatively it failed to provide any proper reasons in relation thereto. Secondly it was alleged that the grant was made in breach of Regulation 122(2) of the CIL Regulations 2010, because the section 106 obligations imposed on the developer were not “necessary to make the development acceptable in planning terms.” Thirdly it was alleged that the Committee failed to provide a rational and adequately reasoned basis for departing from the earlier decision of the Secretary of State in 1999. Finally it was alleged that the Committee had materially misconstrued para 14 of the NPPF. That fourth ground does not have a bearing on the present case.

Hickinbottom J set out relevant provisions of national and local policy at paras 12 to 17. At para 16 he made reference to the feasibility study done by Halcrow in 2007. This led to the development of the Core Strategy.

In setting out the Inspector’s report from 1999, at para 21 (v) Hickinbottom J said that “no amount of cosmetic enhancements to the fabric of the town would, without more, encourage people to visit the town centre once it had suffered the ‘crippling’ effects of the new out-of-town store”.

At para 27 Hickinbottom J referred to the GVA Grimley report of September 2011, in particular section 6, which dealt with “impact”. He summarised that section of the report in the following way:

“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 (para 6.33). The proposed store would remove half of the Co-op’s turnover (para 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 (para 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 (para 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 (para 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 (para 6.36). The proposal would have a negative impact so far as choice and competition in the town centre is concerned (para 6.37).”

Hickinbottom J dealt with grounds one to three before him compendiously from para 48 of his judgment. He held that ground one would succeed: see para 65.

For the same reasons he held that ground two would also succeed: see para 66.

He also found that ground three was proved for reasons closely paralleling those under ground one: see para 72.

Hickinbottom J also found that ground four had been made out. As I have already noted, that is not a ground which has any bearing on the present case.

Finally, between paras 79 and 82, Hickinbottom J rejected the application made to him that he should exercise the Court’s discretion not to quash the planning permission on the basis that it was obvious that the Council would have made the same decision to grant permission in any event.

I would endorse the comments made by Hickinbottom J as to the general approach which the Court must take to challenges to the grant of planning permission: see paras 8 and 81 of his judgment.

In the Officers’ report which was submitted to the Planning Committee for the purpose of the decision on the duplicate application, which is the subject of the present claim for judicial review, it was made clear that this provided an opportunity to consider the matter again in the light of that report: see para 1.3. Members were reminded that they should be careful to ensure that the duplicate application was considered as a new proposal, in its entirety, so that the planning merits were considered afresh. In particular it was made clear that this was not an opportunity to ratify the decision to grant the 2014 permission but a consideration of the proposed development on its merits: see para 1.4. In that paragraph members were also reminded in terms of the requirements of section 38(6) of the Planning and Compensation Act 2004.

At para 1.5 Members were informed that they were entitled to decide to grant planning permission but were not obliged to do so. All options were open to them, including a refusal of permission.

At para 1.6 Members were told that certain documents had been made available for them to view in their room: this included the GVA Grimley retail study. However, on behalf of the Claimant it has been emphasised that Members were not required to read those documents.

At para 6.8 there were noted the representations which had been made on behalf of neighbours, including local residents and businesses.

Section 8 of the report set out the Officers’ evaluation of the proposed development. Section 8.3 reminded the Committee of the requirements of section 38(6) of the 2004 Act again. Para 8.3.3 made it clear that the proposal was contrary to the aims and objectives of Policy CSP.10 of the Core Strategy. Any positive determination of the application would therefore be a departure from the Development Plan. Para 8.3.5 also made it clear that there was a clear policy objection to the proposal in terms of its conflict with the Development Plan, ie. Policy CSP.10 of the Core Strategy.

Section 8.4 of the report addressed the Secretary of State’s decision in 1999.

Para 8.4.3 referred to relevant case law and also informed the Committee that the Secretary of State’s decision in 1999 was a material consideration. In determining what weight to attach to that decision members were told that they were entitled to consider whether the circumstances had changed or were materially different to those prevailing when the earlier appeal had been determined.

There was no longer any reference in this report to there being national policy which supported the proposed development.

On behalf of the Interested Party in the present case, it has been submitted that what was significant about this report was that the Officers “came off the fence” and provided to the Committee a reasoned justification, setting out their own opinion that a different decision was now justified. Particular emphasis was placed on para 8.4.6 which stated:

“… It is your Officers’ view that the decision of the Secretary of State some 15 years ago is a material consideration. However, given the retail and policy changes above, the economic and re-generation benefits identified below and the wider land-use planning issues detailed in this report, a different decision on this current proposal is justified when compared to that made 15 years ago; not least as the Town Centre has failed to improve during the intervening period. The need to secure investment in the Town as a whole becomes more pressing the longer the re-generation need goes unmet and the Town is permitted to decline.”

Section 8.5 of the report, which dealt with retail needs/impact, reminded the Committee of paras 26 and 27 of the NPPF.

Para 8.5.4 told the Committee that the Applicant had submitted a retail assessment, which had been independently appraised on the Council’s behalf by GVA Grimley and, although it had been reaffirmed that there was capacity and need for one new food store, “the conclusions are that the proposed development is likely to have a significant financial impact on the health of Cinderford Town Centre.” The paragraph continued:

“The Applicant estimates that the total turnover of Cinderford Town Centre will be reduced by around 27%. The analysis undertaken on the Authority’s behalf estimates an impact of around 30% of the current level of expenditure flowing to Cinderford Town Centre diverted to the proposed store. In addition, it is also concluded that there is a real possibility that the largest, existing food-store within the Town Centre will experience a post-impact trading performance that will be well below company average performance levels.”

Para 8.5.5 stated:

“The development of the new store will generate new trips to Cinderford. It has been suggested by the Applicant that 73% of ‘new trade’ in Cinderford can be translated to new trips to the town as a whole. Furthermore, they assume that with an average spend of £40 per visit to the store, 25% of which will equate to linked trips into the town centre resulting in £10 per trip being spent in town centre stores. No evidence has been provided to support these assumptions, thus little weight can be placed upon the assertion that town centre stores will benefit in this way from new linked trips from the proposed store. As a result, it is considered that the vitality and viability of Cinderford town centre will be significantly adversely affected by the proposed development. This is contrary to paragraph 27 of the NPPF and the relevant parts of the PPG and should lead to refusal of the application unless it is concluded that there is a good reason for granting permission as an exception to this.”

Para 8.5.6 stated:

“The conclusions of the above analysis on the impact of the store on Cinderford Town Centre is that the scheme will have a significant adverse impact on the vitality and viability of the Town Centre in general and the Town Centre Co-Operative store in particular. This is in conflict with paragraph 27 of the NPPF, the relevant parts of the PPG, and Policy CSP.10 and CSP.4 of the Core Strategy. The application should be refused unless under the second limb under section 38(6) of the Planning and Compulsory Purchase Act 2004, material considerations indicate a decision otherwise, and justify a decision contrary to the CS Policies, as well as contrary to paragraph 27 of the NPPF – in other words as an exception to (and despite breaches of) these various policies.”

Section 8.7 set out the economic/re-generation benefits of the proposed development.

Para 8.7.4 mentioned that, in addition, the scheme would result in substantial section 106 benefits “albeit these benefits are not in themselves determinative of the decision and even were they to be ignored, it is considered that the other (ie. other than those arising from the section 106 contributions) economic and re-generation benefits of the proposals (as summarised in this report) are so substantial in their own right that they justify making a decision to grant permission despite the conflicts with planning policy identified elsewhere in this report and as an exception to those policies.”

Para 8.7.13 stated:

“In the interests of clarity, although the section 106 contributions will not overcome or offset the impact of the scheme on the Town Centre, they are considered to be necessary to make the development acceptable in planning terms; directly related to the development; and fairly and reasonably related in scale and kind to the development. As such, they are compliant with Regulation 122 of the Community Infrastructure Levy Regulations.”

Section 8.8 dealt in more detail with the subject of section 106 contributions.

The objections raised specifically by the Co-op were summarised at section 8.16 of the report.

Section 9 set out the Officers’ conclusion. It was concluded that the proposal conflicts with a number of Development Plan policies, as well as the NPPF, in particular because it would cause significant adverse retail impacts on the town centre; these conflicts should lead to the application being refused unless material considerations justify a decision to grant permission as an exception to those policies and despite breaches of them.

Para 9.2 stated that, subject to control that could be delivered through the suggested conditions and the financial contributions required, the proposal would have no unacceptable harmful impact on highway safety.

Para 9.3 stated:

“Your Officers recommend this planning application for approval because it is concluded that the economic and re-generation benefits of the development (as discussed at section 8.7) are so significant that they constitute a sufficiently compelling justification for granting permission as an exception to and despite breaches of various development plan and national planning policies.”

The Claimant alleges that (a) the Defendant failed to consider and/or to take reasonable steps to assess the true extent of the harm to the town centre in the context of Stewart J’s judgment (as now reinforced by Hickinbottom J’s judgment); and/or (b) officers significantly misled the Committee in their report as to the true extent of this harm.

Reliance is placed by the Claimant on the importance of consistency in planning law, which was considered by the Court of Appeal in North Wiltshire District Council v Secretary of State for the Environment and Clover (1993) 65 P & CR 137. At p. 145 Mann LJ said:

“In this case the asserted material consideration is a previous appeal decision. It was not disputed in argument that a previous appeal decision is capable of being a material consideration. The proposition is in my judgment indisputable. One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest and it would be wrong to do so, that like cases must be decided alike. An inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision.”

Mann LJ continued that:

“To state that like cases should be decided alike presupposes that the earlier case is alike and is not distinguishable in some relevant respect. If it is distinguishable then it usually will lack materiality by reference to consistency although it may be material in some other way. Where it is indistinguishable then ordinarily it must be a material consideration. A practical test for the inspector is to ask himself whether, if I decide this case in a particular way am I necessarily agreeing or disagreeing with some critical aspect of the decision in the previous case? … Where there is disagreement then the inspector must weigh the previous decision and give his reasons for departing from it. …”

Reliance is also placed by the Claimant on R v Selby District Council & Another, ex p. Oxton Farms & Another [1997] EGCS 60. Although that is only a case summary, the full judgment was considered by Hickinbottom J in R (Zurich Assurance Ltd) v North Lincolnshire Council & Another [2012] EWHC 3708 (Admin), at para 15. In that paragraph Hickinbottom J set out the relevant legal principles which apply to consideration of the reports of planning officers in the following way:

“Each local planning authority delegates its planning functions to a planning committee, which acts on the basis of information provided by case officers in the form of a report. Such a report usually also includes a recommendation as to how the application should be dealt with. With regard to such reports:

i)

In the absence of contrary evidence, it is a reasonable inference that members of the planning committee follow the reasoning of the report, particularly where a recommendation is adopted.

ii)

When challenged, such reports are not to be subjected to the same exegesis that might be appropriate for the interpretation of a statute: what is required is a fair reading of the report as a whole. Consequently: ‘[A]n application for judicial review based on criticisms of the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken” (Oxton Farms, Samuel Smiths Old Brewery (Tadcaster) v Selby District Council (18 April 1997) 1997 WL 1106106, per Judge LJ as he then was).

iii) In construing reports, it has to be borne in mind that they are addressed to a ‘knowledgeable readership’, including council members ‘who, by virtue of that membership, may be expected to have a substantial local and background knowledge’ (R v Mendip District Council, ex p. Fabre (2000) 80 P & CR 500, per Sullivan J as he then was). That background knowledge includes ‘a working knowledge of the statutory test’ for determination of a planning application (Oxton Farms, per Pill LJ).” (Emphasis added)

I was reminded on behalf of the Interested Party of the fundamental principles of planning law set out in Tesco Stores Ltd v Secretary of State for the Environment & Others [1995] 1 WLR 759. At p. 780 Lord Hoffmann said:

“The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process.

This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State.”

In my judgment the Interested Party is right to observe that the Officers’ report for the third planning decision (the planning decision under challenge in the present proceedings) went a long way to correcting the legal defects which had been present in the earlier reports and consequent decisions. In particular:

However, in my judgment, a fundamental defect in the analysis set out in the Officers’ report remains. This is because the full impact of the proposed development on the town centre and in particular on the Claimant’s existing store was not clearly set out in the report. In particular para 8.5.4 noted that the proposed development was likely to have a significant financial impact on the health of the town centre. It also noted that the analysis by GVA Grimley estimated an impact of around 30% of the current level of expenditure flowing into the town centre being diverted to the proposed store. In addition it noted that the analysis concluded that there was a real possibility that the existing food store within the town centre would experience a post-impact trading performance that would be well below company average performance levels. Para 8.5.6 stated that the conclusions of the analysis were that the scheme would have a significant adverse impact on the vitality and viability of the town centre in general and on the town centre Co-operative Store in particular.

However, that still did not go far enough in making it clear that the proposed store would remove half of the Co-op’s turnover (see para 6.22 of the GVA Grimley report). It also did not make it clear that the Co-op store would be put at risk of closure (see para 6.23 of the same report). As I have already said, these are matters which had been emphasised by Hickinbottom J at para 27 of his judgment. Nevertheless the Officers’ report on this third occasion still did not inform the Planning Committee of the true extent of the harm which was likely to result from the proposed development.

In my judgment the advice which was given to, and taken into account by, the Planning Committee accordingly still fell foul of the principles set out earlier in North Wiltshire and Oxton Farms. Although the balancing judgment which has to be performed in a case of this type is ultimately one for the Planning Committee alone, it must be properly informed of the various factors which have to be weighed on each side of the balance. In my judgment, the Committee in the present case was still not properly informed of the true extent of the harm which the proposed development was likely to cause and therefore the balancing judgment which it performed was vitiated by that error of approach.

I have also taken into account the resolution which was passed by the Committee on 10 June 2014. I should emphasise that no one has challenged the good faith of the Committee in passing that resolution. However, the Claimant has taken objection to the admissibility of that resolution in the present context. The Claimant submits that it is not clear what its status is (in particular whether it was a purported re-determination of the application for planning permission). The Claimant also submits that, in so far as the resolution purports to explain the reasons for the earlier decision to grant planning permission, it is not properly evidence before this Court; and that it amounts to an attempt at ex post facto rationalisation.

Although I have considerable doubts about the admissibility of that resolution in the present proceedings, I have taken the resolution at face value so far as it goes. Even on that basis, in my judgment, the decision under challenge was still flawed. In particular I accept the submission made on behalf of the Claimant that the resolution only refers to the Committee’s understanding that the town centre Co-operative store might close as consequential further harm to the viability and vitality of the town centre. It does not go so far as to note two important points which had been made in the report by GVA Grimley. These were first that the Co-operative store played the role of being an “anchor” in the town centre. Secondly, there is no reference either in the Officers’ report or the resolution by the Committee to the point made by the GVA Grimley report that, even if the Co-operative store did not close, there would be a knock-on effect on the reduced number of linked trips to the town centre as a consequence of the proposed development opening out of town.

I was invited on behalf of the Interested Party to exercise the Court’s discretion to decline to grant any remedy even if I concluded (as I have done) that there was merit in the Claimant’s first ground of challenge. However, I have come to the conclusion that this Court should not exercise its discretion to decline to quash the planning permission under challenge on the ground that, even if this error of approach had not occurred, the decision would have been the same. Eloquent submissions were made on behalf of the Interested Party that this Court should exercise its discretion in that way because it was obvious that the same decision would have been made. I am not persuaded by those submissions.

The question of where the balance should be struck is still a matter for the judgment of the democratically accountable planning authority in this case. In my judgment, it is not for this Court to pre-empt what the decision ultimately may be if the decision is taken in accordance with an approach which is correct in law. I am not persuaded that it would be the same. Accordingly I decline to exercise my discretion and have come to the conclusion that the planning permission must be quashed on this ground.

The Claimant submits that the Defendant adopted an inconsistent and therefore irrational approach to section 106 contributions; and/or (b) there was a breach of Regulation 122(2)(a) of the Community Infrastructure Levy Regulations (CIL) 2010.

Regulation 122(2) provides that:

“A planning obligation may only constitute a reason for granting planning permission for the development 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 kind to the development.”

In this context particular complaint is made about the approach taken by the Officers’ report in para 8.7.13. In that paragraph it was stated that, although the section 106 contributions would not overcome or offset the impact of the scheme on the town centre, they were considered to be “necessary” to make the development acceptable in planning terms. It was also stated that they were directly related to the development; and fairly and reasonably related in scale and kind to the development. Accordingly it was concluded that they were compliant with Regulation 122 of the CIL Regulations.

On behalf of the Claimant it is submitted that there is an inherent inconsistency between that passage and, for example, para 8.7.4. In that passage and elsewhere in the Officers’ report, the point was made (as has been emphasised on behalf of the Interested Party) that, even if the section 106 benefits were to be ignored, it was considered that the grant of planning permission was justified in the present case despite the conflicts with planning policy. Accordingly, it is submitted on behalf of the Claimant, it could not rationally be said that the section 106 benefits were “necessary” in order to render the development acceptable.

On behalf of the Interested Party it was submitted that it is lawful for a planning authority to take section 106 benefits into account, even if they are not necessary to render a proposed development acceptable. It was submitted that Regulation 122(2) does not require that a planning obligation may only be taken into account where it is necessary to make the development necessary in planning terms and the other criteria in that paragraph are satisfied. Rather, it was submitted, the provision requires only that a planning obligation “may only constitute a reason for granting planning permission for the development” if the various criteria set out are satisfied.

In this context my attention was drawn by the Interested Party to the decision of the Court of Appeal in Derwent Holdings Limited v Trafford Borough Council and Others [2011] EWCA Civ 832. At para 15 Carnwath LJ, giving the main judgment for the Court, said:

“…We are entitled to start from the presumption that those members who voted for the proposal were guided by the officers’ advice. If so, they would have understood that they should consider the merits of the two parts of the proposal separately. They would have found in the officers’ report sufficient reasons to conclude that, so viewed, they were acceptable in planning terms. At the same time they would have been aware that the proposal was being put forward as not merely acceptable, but as carrying with it significant regeneration benefits, including the improvement of the cricket ground. The offer of a legal agreement to secure those benefits would no doubt have added to the attractions of the proposal. But that does not mean that it was regarded as necessary to offset some perceived planning objections. Nor is there anything in the officers’ report to suggest that it was. There is nothing objectionable in principle in a council and a developer entering into an agreement to secure objectives which are regarded as desirable for the area, whether or not they are necessary to strengthen the planning case for a particular development.” (Emphasis added)

Later at para 16, Carnwath LJ said:

“It seems likely that the wording of the recital followed a standard form for a section 106 agreement, reflecting the wording of the relevant regulations. It was entirely apt for most of the matters listed in the schedule, which were indeed ‘necessary’ to make the development acceptable. If it had added ‘or to secure other planning benefits’, there could have been no objection. …”

At para 19, Carnwath LJ said:

“…Even if, as Mr Tucker submits, some members may have been confused into thinking that they could take account of the overall benefits of the two elements, it is not clear to me why that would have been legally objectionable.”

On behalf of the Claimant it was submitted that the decision in Derwent is distinguishable because it concerned facts which, for material purposes, took place before the CIL Regulations came into force.

The Claimant also places reliance on the background to the introduction of the CIL Regulations: see the Consultation Draft of July 2009; and also the Overview which accompanied the Regulations in May 2011 and the advice given in the Planning Practice Guidance in 2014. In reliance upon those documents the Claimant submits that a planning obligation can only be taken into account when determining a planning application for a development if that obligation meets all of the tests set out in Regulation 122. That is disputed on behalf of the Interested Party in the present case.

In my judgment the difficulty with the approach taken by the Defendant in the present case is that the Officers’ report did indeed state that the section 106 benefits were regarded as being “necessary” to make the development acceptable in planning terms. Even if the general submissions made on behalf of the Interested Party are correct, in my judgment that does not provide a sufficient answer to the Claimant’s fundamental submission in this context. Nowhere in the Officers’ report was it explained why the section 106 benefits were “necessary” to make the development acceptable. To the contrary, it was explained elsewhere in the report that the section 106 benefits could be ignored and the development would still be acceptable in planning terms.

Accordingly, in my judgment, this is a second ground upon which the approach taken to the balancing judgment which had to be undertaken in the present case was still flawed by an error of law.

Furthermore, in this context also, I am not willing to exercise the Court’s discretion to decline to quash the planning permission on this ground. Again it seems to me that the question of the balancing judgment is one for the planning authority and this Court is not in a position to be able to anticipate what the outcome would be if the planning authority were advised to, and did, undertake the exercise which it has to in accordance with an approach which is correct in law. I am not persuaded by the Interested Party’s submission that the decision would be the same.

The Claimant submits that the Defendant failed to provide a rational and adequately reasoned basis for departing from the earlier decision of the Secretary of State in 1999.

Particular emphasis is placed in the context of this ground on the fact that the Defendant gave weight to a report in 2007 known as the Halcrow Report. The Claimant submits that that report proceeded on the basis that there would be no closure of the Claimant’s store in the town centre and therefore did not consider the position if the store did close.

The Claimant’s third ground of challenge is broadly phrased. It is alleged that the planning authority failed to provide a rational and adequately reasoned basis for departing from the earlier decision of the Secretary of State in 1999. So formulated, in my judgment, the ground must be rejected.

In my judgment, the Officers’ report made it clear to the Committee that the Secretary of State’s decision in 1999 was a material consideration: see para 8.4.3. Express reference was made to relevant case law, in particular the North Wiltshire decision. The Committee was also advised by the report that, in determining what weight to attach to the 1999 decision, Members were entitled to consider whether the circumstances had changed or were materially different.

Throughout the report it was made clear by the Officers that their view was that, although the 1999 decision was a material consideration, there were other factors which justified the grant of permission in this case despite the breaches of Development Plan and national policy identified in the report: see e.g. para 8.4.6. As was made clear in that passage, not only would there be economic and regeneration benefits (in the view of the Officers) but account also had to be taken of the fact that the town centre had failed to improve during the intervening period of 15 years since the Secretary of State’s decision. Therefore, in the view of the Officers, the need to secure investment in the town as a whole had become more pressing the longer the regeneration need was going unmet and the town was permitted to decline.

Whether or not the Claimant agrees with the reasoning process, in my judgment, the planning authority, and in particular the Officers’ report, did comply with the law and in particular did set out the reasons why a different view was being reached from that taken by the Secretary of State in 1999.

However, as the third ground was developed on behalf of the Claimant both in its skeleton argument and at the hearing before me, it became clear that the focus of this ground was much narrower. In particular complaint was made that reference was made in the Officers’ report to the Halcrow Town Centre study of 2007 and that this was identified by the Officers as one relevant “change” since the decision in 1999 by the Secretary of State. Complaint is made by the Claimant that the Halcrow report did not address the situation and what the consequences would be if the Co-operative store in the town centre were to close completely.

In my judgment this ground of challenge must fail. The references to the Halcrow study in paras 8.16.2 and 8.16.3 are to be found in the section of the report which deals with the objections which had been raised by the present Claimant. There was nothing impermissible in the reference in the report to the Halcrow report. It was as a matter of fact one of the events that had occurred since the decision in 1999.

Most importantly, in my judgment, when the Officers’ report is read fairly and as a whole, it is clear that it was not recommending the grant of planning permission by reference to, or by giving inappropriate weight to, the Halcrow report. Rather a global view was taken as to the balance to be struck. In particular on one side of the balance it was noted that the proposed development would be contrary to Development Plan and national policy and in principle should be refused. On the other side of the balance the economic and regeneration benefits were noted.

In so far as the fundamental complaint in this context is that the planning authority did not take into account what the impact would be if the Co-operative store were to be closed completely, it seems to me that has been adequately dealt with under the first ground of challenge. For the reasons I have already given, I accept that ground of challenge. If I were wrong about that, in my judgment, the third ground would add nothing and would fail.

In any event, if I were wrong about this, I would accept the submission made on behalf of the Interested Party that in the context of the third ground, the Court should exercise its discretion and refuse to quash the planning permission if this ground alone succeeded. In my judgment, it is clear that, even in the absence of the reference to the Halcrow report, the Defendant’s decision would have been the same.

The Claimant submits (a) that the Council took account of an irrelevant consideration, namely that the proposal would provide “strong links” between the town centre and the Northern Quarter when this was not the case; and/or (b) the Defendant came to the irrational conclusion that the proposal would provide “strong links” between the town centre and the Northern Quarter when officers’ advice elsewhere in the report was that the development would not generate such links; and/or (c) the Committee was significantly misled by the officers’ report into thinking that the proposal would provide “strong links” between the town centre and the Northern Quarter.

At para 8.7.8 of the Officers’ report it was stated:

“More widely, the proposed site will occupy a key ‘gateway’ location between the Northern Quarter and the Town Centre. As set out in paragraphs 5.13 and 5.14 of the Core Strategy, the Northern Quarter regeneration programme will provide a high quality mixed use development…”

At para 8.7.9 of the report it was stated:

“If the regeneration strategy for Cinderford is to have the desired transformative effect, there need to be strong links between the Town Centre and the Northern Quarter, the focus for the Council’s efforts. Without these linkages, there is a risk that the regeneration efforts in the Northern Quarter will become self-contained and will fail to benefit Cinderford as a whole.”

At para 8.7.10 reference was made to the primary bus route that links the Northern Quarter sites to the proposed development site and then continues on to the town centre. It was stated that this bus route was vulnerable and in need of subsidy if the current frequency of service was to be maintained. It was also observed that the section 106 package for the proposed development included a financial contribution to subsidise this bus service and maintain public transport links between the Northern Quarter and the town centre in the short to medium term.

At para 8.7.12 it was noted that these benefits were not in themselves a reason to grant permission; however, “they are a wider regeneration benefit for Cinderford as a whole which are capable of being taken into account.”

The Claimant makes particular complaint that this part of the report was inconsistent with what had been said elsewhere in the same report. For example, at para 8.5.5, it was noted that it had been suggested by the Interested Party that 73% of “new trade” in Cinderford can be translated to new trips to the town as a whole. The report rejected the suggestion that various assumptions could be made. In particular “little weight can be placed on the assertion that Town Centre stores will benefit in this way from new linked trips from the proposed store”.

In my judgment the Claimant’s submission confuses two different issues. What was being referred to at para 8.5.5 was the concept of “linked trips”, that is trips which would be linked to those made to shop at the new store which was the subject of the proposed development. Elsewhere, in particular at paras 8.7.8-8.7.12, what was being referred to was the concept of links between the town centre and the Northern Quarter, which was the focus of the Council’s efforts for regeneration. Part of that would be provided by the primary bus route which linked the Northern Quarter site, not only to the proposed development but also continued on to the town centre. That bus route was vulnerable and in need of subsidy, in the view of the officers.

In my judgment, there is no illogicality or irrationality as suggested by the Claimant in this regard. Furthermore, I reject the submission that, even if there had been some defect in this regard, that the report read as a whole significantly misled the Planning Committee.

Again, I would accept the Interested Party’s submission and would decline to quash the planning permission in the exercise of the Court’s discretion. In my judgment, the decision would have been the same even if there had been merit in the Claimant’s fourth ground of challenge.

The Claimant submits that (a) the Defendant misunderstood the relevant policy; and/or (b) the Defendant was significantly misled into thinking there had been a policy change since the 1999 decision which favoured the proposal for development in this case.

Particular complaint is made in this context of para 8.16.3 of the Officers’ report. Before coming to that passage it is important to set it in its proper context.

The passage appears in section 8.16 of the report, which addressed the objections by the Co-op, the present Claimant.

After summarising the Co-op’s concerns at para 8.16.1, it was stated at para 8.16.2:

“Since the Secretary of State’s decision in 1999 planning permission has been granted for the construction of a DIY store on part of this site, in February 2007. That permission was renewed in 2010, but has recently lapsed. In addition, there has been a raft of changes to national guidance, Planning Policy Guidance 6: Town Centres and Retail Development (1996) was replaced by Planning Policy Statement 6: Planning for Town Centres in 2005 and subsequently, this itself was replaced by Planning Policy Statement 4: Planning for Sustainable Economic Growth in 2009. The National Planning Policy Framework has now superseded PPS4 and was published in March 2012. The most recent change is the introduction of the National Planning Practice Guidance. However, national policy has consistently pursued a Town Centre first approach to retail development. What has changed significantly since 1999 is the Local Policy and the background work that underpins it. The Forest of Dean District Local Plan Review was adopted in 2005 and has since been replaced by the adoption of the Council’s Core Strategy in February 2012. Particularly relevant to the consideration and determination of this application is a range of retail and Town Centre studies which included the Cinderford Retail Study 2006, the District Retail Studies of 2008 (updated in March 2011), the Halcrow Town Centre Study 2007, the Cinderford Business Plan 2007 and the Atkins Cinderford Traffic and Signing Study 2010, these documents and their evidential basis were also used to inform the Core Strategy.”

It was then said at para 8.16.3:

“Accordingly, the 1999 decision was made before the adoption of the Core Strategy, and the AAP for the Northern Quarter, the evolution of which was an important policy development given the site’s location in a gateway position halfway between the Northern Quarter and the Town Centre. As a result of this policy change and the publication of various retail and town centre and regeneration analyses, coupled with the length of time that had elapsed and the clear focus on (i) regeneration and (ii) the new two centred approach with the Northern Quarter, it is considered that the circumstances have changed since the Secretary of State’s decision. …”

It was submitted on behalf of the Claimant that there was an implicit suggestion in para 8.16.3 that there had been a policy evolution which supported the development in this case. In particular it was submitted that the suggestion was that there had been some policy change which allowed out of town superstores.

I do not accept that submission. Nowhere in the passages complained about is there any suggestion that policy favoured the development. To the contrary, in para 8.16.2 itself, it was made clear that “national policy has consistently pursued a Town Centre first approach to retail development.” Furthermore, as is clear from earlier in this judgment, throughout the report there were numerous references to the fact that the proposed development was contrary to both national planning policy and to the Core Strategy. When the report is read fairly and as a whole, it is clear that the planning committee would not have been misled nor is there any error of law in the approach set out in this regard.

Accordingly, I reject the Claimant’s fifth ground of challenge. Again, if it were necessary to do so, I would decline to quash the planning permission in the exercise of the Court’s discretion if there had been merit in the Claimant’s fifth ground of challenge.

For the reasons I have given this claim for judicial review succeeds on the first and second grounds but not the other three grounds. The planning permission of 2 July 2014 will be quashed.

As I have mentioned, the Defendant has not taken any active part in these proceedings and has left the Interested Party to defend its decision. That is not unusual in a case where, for example, a defendant public authority concedes the claim for judicial review but an interested party wishes to resist the challenge and may well be successful in doing so. What is unusual in the present case is that the Defendant has informed the Court in a letter that it does not concede the claim but, since it cannot afford to take an active part in the proceedings for financial reasons, it supports the Interested Party in its resistance to the challenge. While it is readily understandable that public authorities are facing increasing financial pressures, the stance taken by the Defendant could lead to tension with certain fundamental aspects of the way in which judicial review proceedings are conducted.

It is well established that judicial review litigation is not to be conducted in the same way as ordinary civil litigation. This is not only because there are specific provisions in Part 54 of the Civil Procedure Rules 1998 which govern judicial review. More fundamentally, it is because the relationship between a public authority defendant and the court is not the same as that between an ordinary litigant and the court. In particular it has been clear since the decision of the Court of Appeal in R v Lancashire County Council, ex p. Huddleston [1986] 2 All ER 941 that a public authority defendant in judicial review proceedings has a duty of candour and co-operation so as to assist the court in understanding its decision-making process and deal with the issues fairly. It should conduct the litigation with its cards face upwards. This is based on the concept that it acts in the public interest, and not merely to protect a private, commercial interest.

There are circumstances in which an interested party will also be subject to the duty of candour and co-operation: Belize Alliance of Conservation Non-governmental Organisations v Department of the Environment [2004] UKPC 6 [2004] Env LR 38, in particular at para 87 (Lord Walker of Gestingthorpe). In that case the interested party and defendant were partners in a joint project. However, this will not necessarily meet all the practical issues which may arise: for example, an interested party may not have in its possession all relevant documents in order to be able to assist the court to understand the decision-making process of the public authority whose decision is under challenge.

It seems to me that, if a defendant public authority finds itself in the position where it cannot, for financial reasons, defend its own decision in judicial review proceedings, and in particular where it cannot file a skeleton argument or make oral submissions at a substantive hearing, it should at least consider the following: