Horne & Meredith Properties Ltd., R (on the application of) v Bridgnorth District Council

A planning authority must consider material changes arising after resolving to grant permission but before issuing the decision notice. A change is material if it is relevant to the grant of permission and has some weight in the decision-making process. Where the authority relied materially on a quantitative retail-need assessment, a change in the identity and competitive strength of a principal competing store required reconsideration with the application in mind. The authority could proceed without reconsideration only if it was satisfied that the change had been considered and that the same decision would inevitably be reached. The failure to reconsider a material change required the planning permission to be quashed.

The claimant sought judicial review of a planning permission granted by Bridgnorth District Council for a Tesco food store, a DIY store, car parking and part of a link road. The Council had resolved in 2003 to grant permission, subject to conditions and agreements, but issued the permission in December 2004. In the meantime, a Somerfield supermarket relied upon in the retail assessment had become a Sainsbury’s store, and a One-Stop store had become a Tesco Express.

The claimant argued that these changes affected the quantitative need assessment and required the application to return to the committee. It also challenged changes to conditions and the enforceability of a green travel plan condition.

1. Ground 1 succeeded. A planning permission is not granted until it is issued. The resolution to grant permission had no legal effect before issue, and a change of circumstances could require reconsideration: [2002] 1 WLR 1593.
2. The Court applied the approach in R. (Kides) v South Cambridgeshire District Council, [2003] JPL 431. A consideration is material if it is relevant to whether permission should be granted and has some weight in the decision-making process. The duty to have regard to material considerations is discharged only if, at the date of issue, the authority has considered all material considerations affecting the application with the application in mind.
3. The retail assessment depended substantially on benchmark turnover figures which assumed that Somerfield was materially less competitive than Tesco. The replacement of Somerfield by Sainsbury’s was therefore plainly material. The fact that the floorspace and site were unchanged, or that Sainsbury’s actual turnover was initially lower, did not remove the significance of the change.
4. The Court could not conclude that reconsideration would inevitably have produced the same result. The Council had not considered the changes with the Tesco application in mind. The permission was therefore quashed.
5. It was unnecessary to decide grounds 2 and 3. The Court indicated that the delegation relied upon by the Council did not clearly authorise changing specified section 106 obligations into conditions. It also considered condition 51, requiring approval of a green travel plan before development commenced, to be unenforceable as drafted. The separate planning obligation would have remedied that defect in practical terms, and the Court would not have quashed the permission on ground 3 alone.

Not an appeal. The judgment records that permission to bring judicial review proceedings was granted by Collins J on 15 April 2005.