Bibb v Bristol City Council

When a further planning permission is needed to implement or operate an existing permission, the benefits and impacts of the existing permission may be material to the later application. The relevant baseline is the likely position without the further permission, and the material consideration is the difference between the two positions. A grant of the earlier permission does not require the later permission to be granted.

The legal question whether a matter is material must be distinguished from the planning judgment as to the weight it deserves. A committee must take a material consideration into account, but need not give it significant weight. The court may assess the committee’s reasoning by reading the reports, advice and debate as a whole.

Bristol City Council granted planning permission in 2009 for unrestricted retail use of premises in Stokes Croft, Bristol. Tesco Stores Limited later intended to operate a Tesco Express store there. In 2010 the Council considered an application for external plant, a screening wall and alterations to the rear service yard, including a chiller and freezer unit.

A local objector argued that the Council had failed to consider the servicing impacts of the already-permitted store, and the additional servicing impact arising from the extra floor space released by the chiller and freezer. Permission to bring judicial review proceedings was granted on the issue whether a material servicing consideration had been ignored.

The central questions were whether the effects of implementing the earlier permission were relevant to the later application, what baseline should be used, and whether the Council had in fact considered the incremental impact of the proposed works.

1. The claim was dismissed. The Council had not erred in law by considering the servicing impact of the existing retail permission to be acceptable. It was entitled to treat the earlier permission as permitting unrestricted A1 retail use, subject to the existing Traffic Regulation Order and planning condition controlling deliveries.
2. Where planning permission B is needed to implement or operate planning permission A in a particular way, the benefits and impacts of implementing A may be material to the grant of B. Permission B need not be granted merely because it would enable A to be implemented. A later permission could be refused if it would enable an undesirable implementation of the earlier permission.
3. The relevant comparison is between the position with permission B and the fallback position without it. The local planning authority must first decide whether B is genuinely necessary, or would materially alter the operation of A. It must then assess the difference between the likely impacts in those two situations. The fact that a particular impact was not fully assessed when A was granted does not make it irrelevant to the application for B.
4. The additional servicing impact from the proposed chiller and freezer was capable of being a material consideration. The distinction between legal materiality and the weight to be given to a consideration was addressed by reference to Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759 and Bolton Metropolitan Borough Council v Secretary of State for the Environment [1979] (61) P & CR 343. Although the legal advice used an unhappy formulation, the transcript showed that the councillors treated incremental servicing as relevant and considered its significance.
5. The committee had sufficient information to reach a rational view. It knew the relevant road conditions, traffic controls, traffic flows, the proposed increase in floor space and the objectors’ servicing evidence. No elaborate traffic assessment was required. The approach to misleading advice and the opportunity for discussion during the meeting was considered by reference to Oxton Farm v Selby District Council [1997] EWCA Civ 1440.
6. The court’s earlier interlocutory ruling refusing witness evidence from councillors had relied on R (Young) v Oxford City Council [2002] EWCA Civ 990, particularly paragraphs 20–25. The claim was dismissed, and it was unnecessary to decide the issue of delay.

This was a first-instance judicial review. Permission was initially refused on paper but was granted by Beatson J on the ground that a material consideration concerning servicing impact might have been ignored.