Midcounties Co-Operative Ltd, R (On the Application Of) v Swindon Borough Council & Anor

In a planning challenge, the court must identify the applicable development-plan policies, construe them correctly and determine whether the authority materially misunderstood or misapplied them. The weight given to material considerations remains a matter of planning judgment and is reviewable only on conventional public-law grounds.

A local authority’s plans or aspirations as landowner may be material considerations because they relate to the character and use of land. They must not be treated as planning policy, and particular care is required where the authority has a non-planning interest. A planning officer’s report is read fairly as a whole. The court will not re-evaluate the planning merits or the sufficiency of evidence where the authority was entitled to regard the information as adequate.

The claimant sought judicial review of two planning permissions granted by Swindon Borough Council for an out-of-centre supermarket, additional retail units and associated works. The proposed development was close to the Eldene Local Centre, where the claimant operated a food store.

The first claim challenged the permission granted on 19 December 2012. The second challenged a later permission for the same development granted on 2 July 2013. The claimant alleged that the officers’ report misinterpreted the Local Plan, relied unlawfully on an aspiration to replace the Eldene Local Centre, and proceeded on a fundamentally flawed retail impact assessment.

The central issues were whether the report properly applied Policies S1 and S13, whether the Council’s landowner aspirations were material considerations, and whether the officers had sufficient information to assess retail impact.

1. Disposition. Permission to proceed with the Second Claim was refused because none of the grounds was arguable. The First Claim was academic and permission was also refused in that claim.
2. Applicable policy. The Site was outside any defined centre and was not edge-of-centre development. Policy S13, which concerned development within a minor local centre, therefore did not apply. Policy S1 was the relevant policy. It required consideration of clearly identified need, impact on the vitality and viability of relevant centres, the sequential availability of alternative sites and accessibility.
3. The officers’ report correctly identified and applied Policy S1. Its conclusions on need, sequential sites and retail impact were matters of planning judgment. The report was entitled to conclude that the development would not undermine the Eldene Local Centre or elevate it within the retail hierarchy.
4. The Council’s aspiration, as landowner, to replace the Eldene facilities was not planning policy and could not determine the application. It was nevertheless a material consideration because it related to the character and use of land. The report expressly recognised its status, gave it little weight and treated it as non-determinative. In any event, the policy test was satisfied independently of that aspiration.
5. The officers were not required to address an argument that had not been made in relation to the 2013 application, namely that the claimant’s Eldene store was likely to close. They were entitled to regard the available retail-impact assessment as sufficient to make a properly informed decision. Whether the projected trade diversion would undermine the centre was a matter of planning judgment, and the conclusion that it would not was not susceptible to public-law challenge.
6. A planning report must be read fairly as a whole. Judicial review does not provide an opportunity to contest the commercial or planning merits of the decision.

First-instance judicial review proceedings. The court refused permission to proceed with the Second Claim and treated the First Claim as academic.