Mid Counties Co-Operative Ltd, R (on the application of) v Forest of Dean District Council & Anor

In planning decision-making, an earlier decision is a material consideration unless it is distinguishable. Where a later decision-maker disagrees with an earlier, materially indistinguishable decision, it must weigh that decision and give reasons for departing from it. A report to a planning committee must not materially mislead members about matters which remain uncorrected before the decision. Financial contributions cannot justify permission under regulation 122(2) of the Community Infrastructure Levy Regulations 2010 unless they are necessary to make the development acceptable in planning terms. A development-plan policy supporting town-centre retail does not, without clear language, support out-of-centre retail development.

The claimant sought judicial review of the Council’s decision to grant outline planning permission for an out-of-centre supermarket at Steam Mills Road, Cinderford. A Secretary of State had refused an earlier proposal for a large retail store on the same site in 1999, citing failure of the sequential approach and serious harm to the town centre. The claimant argued that the Council had failed to address that decision, had inadequately assessed mitigation and retail need, had misconstrued policy CSP.10, had failed to consider the claimant’s proposed town-centre investment, and had imposed an unlawful condition.

The central issues were whether the later proposal was materially distinguishable, whether the section 106 contributions could outweigh the identified harm, and whether the Council’s report and decision notice adequately addressed the relevant planning policies and considerations.

1. Ground 1 allowed. The 1999 refusal was a material consideration. An earlier decision is distinguishable only if there is a relevant difference. Where the earlier decision rested on free-standing grounds, distinguishing one ground does not make the decision as a whole distinguishable. The Council therefore had to address the earlier finding of serious harm to the town centre and explain any departure from it. The Officers’ Report did not do so. It inaccurately asserted that the financial contributions satisfactorily offset the harm, without analysing how they would do so. The report consequently significantly misled the committee about material matters, applying the approach in Oxton Farms Samuel Smith Old Brewery (Tadcaster) v Selby DC and Persimmon Homes (Yorkshire) Ltd.
2. Ground 2 allowed in part. The same failure meant that the Council had not established that the contributions were necessary to make the development acceptable in planning terms. There was therefore a breach of regulation 122(2)(a) of the Community Infrastructure Levy Regulations 2010, but not regulation 122(2)(b), since the contributions were directly related to the development.
3. Grounds 3(a) and 3(b) allowed. Applying Tesco Stores Ltd v Dundee City Council, policy CSP.10 supported continued town-centre redevelopment, including retail outlets in the town centre. It did not support out-of-centre retail development. The Council’s presentation of the policy as supporting the proposed store was wrong, and the report also failed to recognise that the policy supported up to about 2,600 m² of convenience floorspace rather than a single 3,000 m² store. Ground 3(c), concerning compulsory purchase powers, failed.
4. Ground 4 allowed. Article 31(1) of the Town and Country Planning (Development Management Procedure) (England) Order 2010 required summary reasons and a summary of relevant development-plan policies. Policy CSP.10 was a main material issue and required brief reasons in the decision notice. Ground 5 failed because members knew of the claimant’s proposal and could assess its weight. Ground 6 was superseded by execution of the section 106 obligation.

The judgment was a first-instance judicial review decision. The judgment records that permission to bring the claim was initially refused on the papers and later granted at an oral renewal hearing.