Salford Estates (No 2) Ltd R (on the application of) v Dalton Park Ltd

In judicial review of a planning decision, the court must respect the elected planning committee’s evaluative judgment. The committee may depart from officers’ advice, determine the weight of competing material considerations, and decline to obtain further information, provided it has addressed the relevant considerations and has not acted irrationally.

National planning policy, including the sequential approach for out-of-town retail development, forms part of the planning judgment. It may be outweighed by other material considerations where the committee recognises and properly weighs the policy.

A Town and Country Planning Act 1990 section 106 obligation may lawfully be refined after the committee’s decision where the committee has identified its planning purpose and the applicable parameters. The application was dismissed.

The claimant challenged Durham County Council’s decision to grant planning permission for a food store, factory outlet, hotel, cinema and associated development at Dalton Park, an out-of-town site near Peterlee. The permission followed the Council’s resolution of 7 June 2011 and was formalised on 26 March 2012 after the Secretary of State declined to call in the decision.

The challenge was the second of two related judicial reviews concerning three proposed retail developments. In the earlier Tesco case, the court had rejected challenges concerning retail capacity, the sequential test and a section 106 obligation. The present case raised those issues again in relation to Dalton Park, together with a new challenge to the proposed section 106 arrangements.

The central questions were whether the committee had acted irrationally, misapplied the sequential test, or unlawfully relied on an obligation whose detailed terms were to be refined after the resolution.

1. Disposition. Permission to apply for judicial review was granted on all grounds because the hearing was rolled up, but the claim was dismissed. The retail capacity and sequential test arguments substantially repeated issues decided in the earlier Tesco case.
2. Retail capacity and irrationality. The committee knew that it was departing from officers’ and consultants’ advice. It considered the competing material considerations, including economic regeneration, employment and the perceived stand-alone nature of Dalton Park. The weight given to those matters was for the committee. The decision was one which a reasonable planning committee could reach, and there was no failure to take account of a material consideration.
3. Sequential test. The court approved the analysis in R (Zurich Assurance Ltd) v North Lincolnshire Council [2012] EWHC 3708 (Admin). The sequential policy had to be placed at the forefront of the committee’s judgment, but it could be displaced by sufficiently weighty material considerations. The committee understood and applied the policy and was entitled to conclude that other considerations outweighed it.
4. Section 106. Applying Derwent Holdings Limited v Trafford BC [2011] EWCA Civ 832 and influenced by R (on the application of Welcome Break Group Limited and Another) v Stroud District Council and Another [2012] EWCA Civ 993, the court held that the committee could take account of a proposed section 106 agreement. The agreement was sufficiently identified in purpose and parameters, and later refinement by the chair and vice-chair under delegated powers did not create a legal disconnection.
5. The committee’s planning judgment was lawful. The application was dismissed.

First-instance judicial review proceedings. The judgment records an earlier related decision concerning the Tesco site, [2012] EWHC 2512 (Admin), which was not appealed.