Salford Estates [No 2] Ltd, R (on the application of) v Dalton Park Ltd & Ors

Judicial review of a planning decision is concerned with legality, not the merits of planning judgment. An elected planning committee may depart from officers’ advice and attach such weight as it considers appropriate to material considerations, provided it acts rationally and takes relevant matters into account. It need not obtain further information merely because it reaches a different conclusion from its officers. The sequential test for retail development requires assessment of availability, suitability and viability, with preference for in-centre sites and then well-connected edge-of-centre sites. Related applications may be considered together and determined by voting in sequential order. A planning authority may lawfully enter into a section 106 agreement to secure desirable area-wide objectives even where the obligation is not necessary to make the development acceptable.

Salford Estates [No 2] Ltd sought judicial review of Durham County Council’s decision to grant Tesco Stores Ltd planning permission for a large food superstore at the former East Durham and Houghall Community College site in Peterlee. Three connected retail applications had been considered together, although these proceedings challenged only the Tesco permission.

The claimant alleged failures concerning retail capacity, the sequential test, material considerations and the use of a section 106 agreement. Permission to apply had been granted by Sales J on 24 February 2012. The central issues were whether the committee had acted unlawfully or irrationally by approving the Tesco scheme without further information, whether it had properly applied the sequential test, and whether the planning obligation was lawful.

1. The claim was dismissed. The court’s task was to determine whether the planning process was lawful, not whether the committee had reached the correct planning decision. The exercise of planning judgment belonged to the elected committee, subject to rationality and the requirement to consider material matters.
2. The committee was entitled to depart from officers’ advice, attach greater weight to regeneration, employment and consumer-choice considerations, and reach its own view of the local circumstances. The fact that further detailed work might have been desirable did not make it irrational to proceed without commissioning it. The committee had understood the risks associated with approving the related schemes and had expressly addressed their impact.
3. The sequential test in PPS4 required sites to be assessed for availability, suitability and viability. In-centre options had to be thoroughly assessed before less central sites were considered, with preference then given to a well-connected edge-of-centre location. The evidence showed that the Castle Dene proposal had been assessed but was not immediately deliverable, whereas the Tesco site was available and suitable to meet the identified immediate need. The committee had also voted on the applications in sequential order. The challenge therefore failed.
4. The challenge to the section 106 agreement was answered by Derwent Holdings Ltd v Trafford Borough Council [2011] EWCA Civ 832. A planning authority could enter an agreement to secure desirable objectives for an area whether or not the agreement was necessary to strengthen the planning case for the development. That binding authority provided a complete answer to this ground.
5. The decision to grant permission for the Tesco site had been recommended by officers and disclosed no error of law or irrationality.

This was a first-instance judicial review. Permission to apply was granted by Sales J on 24 February 2012. The substantive claim concerning the Tesco site was dismissed by the Administrative Court.