Derwent Holdings Ltd v Trafford Borough Council

In judicial review of a planning permission, procedural unfairness or a failure to give adequate reasons does not automatically justify quashing. The court must assess whether the defect could realistically have affected the decision and may withhold relief where quashing would serve no useful purpose. Material arising after a resolution to grant permission need only be referred back where it would give a rational planning committee reason to change its mind. A saved local planning policy may rationally be read in the light of later national policy, particularly where the older policy no longer reflects that national policy. A section 106 obligation linking parts of a joint development is not unlawful merely because the elements are financially connected, provided each element remains independently acceptable in planning terms.

Derwent challenged Trafford Borough Council’s grant of planning permission to Tesco Stores Ltd and Lancashire County Cricket Club for a large food store and cricket-ground redevelopment. The permission followed the Council’s resolution to grant the joint application and to refuse Derwent’s competing application for redevelopment of a nearby retail park.

The challenge alleged procedural unfairness, failure to consider material planning policies and matters arising at a later public inquiry, confusion caused by the cross-subsidy and section 106 obligation, and inadequate reasons under the applicable development procedure rules. By the hearing, the Secretary of State had refused Derwent’s appeal against refusal of its own application. The central questions were whether any unlawfulness occurred and, if so, whether relief by way of quashing was justified.

1. The claim was dismissed. Any procedural unfairness concerning Derwent’s second speaker did not create a real prospect that the outcome would have been different. In any event, Derwent would have had no continuing role in a redetermination because its competing application had been refused and its appeal dismissed.
2. Applying the principle in Dry v W Oxfordshire CC [2010] EWCA Civ 1143, material arising after a resolution to grant permission need be referred back only if it would provide a reason for a rational planning committee to change its mind. The evidence concerning H10, S11 and the proposed Shopping Park did not meet that threshold. The Shopping Park had not been advanced when the applications were determined and was later rejected by the Inspector as unrealistic.
3. The Council was entitled to give primacy to PPS 4 when assessing the saved S11 policy. Although it was arguable that S11 requirement (iv) remained relevant, treating that requirement as no longer applicable because it was not reflected in later national policy was rational. The omission could not have affected the result.
4. The section 106 obligation, which prevented the Tesco food store opening before the cricket-ground works contract had been entered into, was not shown to breach regulation 122 of the Community Infrastructure Levy Regulations 2010. The obligation secured promised regeneration benefits and did not mean that an otherwise unacceptable Tesco development had been purchased by the cricket-ground funding.
5. The permission’s reasons failed to summarise the main planning issues adequately, contrary to A22(1)(b) of the Town and Country Planning (General Development Procedure) Order 1995. Nevertheless, the detailed report and the evidence made the reasons for the decision clear. No substantive relief was required.

First-instance judicial review proceedings. The judgment itself records that the Secretary of State refused Derwent’s planning appeal on 22 February 2011, adopting the Inspector’s recommendations. The High Court dismissed the judicial review claim.