The Garden and Leisure Group Ltd, R (on the application of) v North Somerset Council & Anor

Under section 106A of the Town and Country Planning Act 1990, the authority must assess the planning obligation and the proposed modifications as a whole. It must ask whether the obligation serves a useful purpose and, if so, whether it would serve that purpose equally well if modified. The statutory test is specific and does not permit approval of only part of the application. A decision in principle may be amenable to judicial review before a final determination where there is practical utility in doing so. The authority must focus on the purpose of the obligation affecting the relevant site, including compliance with applicable countryside retail policies, rather than treating a neighbouring site as the governing comparison.

The claimant challenged North Somerset Council’s resolution to approve in principle an application to expand the goods permitted for sale at a neighbouring garden centre under a section 106 agreement. The resolution left the precise list of goods and the sales area for later determination by another committee.

The claimant argued that the council had misunderstood and irrationally applied section 106A of the Town and Country Planning Act 1990. The council argued that the claim was premature because no final statutory determination had yet been made. The central issues were whether the resolution was sufficiently final to be reviewable and whether the proposed modifications would preserve the purpose of the planning obligation equally well.

1. Prematurity. The resolution was not a final decision having legal effect under section 106A. Nevertheless, it was a decision in principle to approve the application. A preliminary decision may be challenged before the final decision where the court considers that useful purpose would be served. The court applied the analogy recognised in R (Burkett) v Hammersmith and Fulham London Borough Council [2002] 1 WLR 1593. The present challenge was therefore not automatically barred.
2. Statutory purpose. The obligation’s purpose was not merely to control retail activity in the countryside. It was to secure compliance with local policies on countryside retail development, particularly Policy S5, which required the majority of the retail area to be devoted to produce grown on site and the remainder to specified ancillary goods. That purpose was useful and remained materially unchanged.
3. Application of section 106A. The authority had to consider the modifications specified in the application in their entirety. The application required an all-or-nothing determination. It could not be approved in principle while leaving the detailed scope of the proposed modifications for later selection by another committee. The proposed food, gift, outdoor-pursuit and seasonal goods went substantially beyond Policy S5. The only rational conclusion was that the obligation would not serve its purpose equally well if modified as proposed.
4. The committee failed to apply the statutory test. Its reference to regulating retail sales was too vague, and its stated reason did not address whether the modified obligation would continue equally well to secure compliance with the relevant policies. The comparison with the claimant’s less restricted neighbouring outlet improperly diverted attention from the restrictions applying to the subject site. The resolution was unlawful and was quashed.
5. The defendant was ordered to pay the claimant’s costs of the range-of-goods application. The claimant was ordered to pay the defendant’s costs of the abandoned glasshouse application, subject to detailed assessment if necessary. Permission to appeal was refused, but 28 days were granted to seek permission from the Court of Appeal.