Derwent Holdings Ltd v Trafford Borough Council & Ors

A planning committee’s decision is assessed by reading the officer’s advice fairly and as a whole. A later planning agreement does not recharacterise the committee’s earlier planning judgment merely because it uses statutory language of necessity.

A development-plan policy may receive minimal weight where later national policy has overtaken the considerations on which it was based. Omission of an express explanation may be imperfect without invalidating the decision.

Procedural unfairness requires material prejudice. Defective reasons will not justify relief where the underlying reasoning is clear and a fuller statement would provide no practical benefit.

Trafford Borough Council granted permission for a large Tesco food store and redevelopment of Lancashire County Cricket Club’s Old Trafford ground. The Council intended to sell land to Tesco and pass the proceeds to the cricket club. Derwent Holdings Ltd, the owner of a nearby retail park whose competing application had been refused, sought judicial review.

His Honour Judge Waksman QC in the Administrative Court rejected the challenge. Derwent appealed on grounds concerning the treatment of the cross-subsidy and planning agreement, failure to address policy S11(iv), procedural unfairness and inadequate reasons.

The central issues were whether the committee had been misdirected about the relationship between the two developments, whether it unlawfully disregarded a development-plan policy, and whether procedural or reasons defects invalidated the permission.

1. Appeal dismissed unanimously. Carnwath LJ delivered the judgment, with which Sullivan and Tomlinson LJJ agreed.
2. The court presumed that the members who supported the application were guided by the planning officer’s report. Read fairly, the report advised them to assess the food store and cricket-ground elements separately and gave sufficient reasons for finding each acceptable. The prospect of substantial regeneration benefits and an agreement securing them did not show that those benefits had been used to offset an otherwise unacceptable development.
3. There is no objection in principle to a council and developer agreeing to secure objectives considered desirable for an area, even where those objectives are not needed to strengthen the planning case. The wording of the later agreement, made under section 106 of the Town and Country Planning Act 1990 and section 111 of the Local Government Act 1972, appeared to follow a standard form reflecting regulation 122 of the Community Infrastructure Levy Regulations 2010. It did not undermine the planning judgment made six months earlier.
4. For completeness, benefits associated with separate proposals require a sufficient relationship before one may justify the other. The present elements were close, physically linked and reasonably included in one application. This distinguished R (Sainsbury’s) v Wolverhampton City Council [2010] 2 WLR 1173 and resembled R v Westminster City Council, ex p Monahan [1990] 1 QB 87.
5. Even if policy S11(iv) remained formally within the development plan, the officer could rationally give it minimal weight because later national retail policies had omitted the road-corridor criterion on which it was based. An express explanation would have been preferable, but its absence did not invalidate the decision. Derwent’s own planning consultant had not raised the point and could not demonstrate prejudice.
6. The inability of Derwent’s planning expert to address the committee personally caused no material unfairness. The written objections were before the committee, others raised similar arguments, and there was no real prospect that an additional oral presentation would have changed the result.
7. The stated reasons were defective because they did not summarise the main issues, including adverse retail impact. However, the reasoning was clear from the officer’s report and the only appropriate relief would have required the Council to restate it. That would have provided Derwent no practical benefit, and Derwent had conceded that this ground could not succeed independently.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously: [2011] EWCA Civ 832.
2. Administrative Court: His Honour Judge Waksman QC rejected Derwent’s application for judicial review of the planning permission. No neutral citation is stated in the judgment.