Scottish Widows Plc & Ors v Cherwell District Council & Ors

In judicial review of an out-of-centre retail development, the sequential test and retail-impact assessment are matters of planning judgment. A planning authority may accept that a development’s required critical mass cannot be delivered on sequentially preferable sites, provided the evidence has been evaluated with the required flexibility and realism. The court will not re-weigh competing expert opinions or infer legal error from isolated councillor comments where the reports and decision record addressed the correct issues.

Summary reasons must be read in context; there is no universal requirement for fuller reasons merely because members reject officers’ advice. Public assurances may be taken into account, and a section 106 agreement need not secure every assurance where proposed obligations would be impracticable or unenforceable. The claims were dismissed.

Scottish Widows, the long leaseholder of a Banbury town-centre shopping centre, and Aegon, owner of a nearby retail park, challenged Cherwell District Council’s grant of planning permission for Banbury Gateway, an out-of-centre retail park with flagship Marks & Spencer and Next stores. The development was commercially linked to Prodrive’s relocation to a larger Banbury site.

The rolled-up judicial review claims alleged failure to apply the sequential test and disaggregation, irrational assessment of town-centre impact, inadequate summary reasons, and failure to secure obligations under section 106 of the Town and Country Planning Act 1990. The central issues were whether the committee’s planning judgments were lawful and whether its reasons and legal-agreement arrangements were sufficient.

1. Disposition. Permission to apply for judicial review was granted, but both claims were dismissed.
2. Sequential test. The court applied the approach explained by Tesco Stores Ltd v Dundee City Council ([2012] UKSC 13). The sequential approach gives preference to town-centre sites, then edge-of-centre sites, and only then out-of-centre sites. Suitability is assessed by reference to the proposed development. Developers, retailers and authorities must nevertheless show flexibility and realism, including consideration of a different built form or subdivision of a large proposal. The committee was entitled to evaluate the conflicting expert evidence and conclude that the required critical mass could not be delivered elsewhere in the relevant period.
3. Planning judgment and committee reasoning. The sequential test and retail impact were matters for the committee’s planning judgment. Judicial review did not permit the court to re-weigh the evidence. The court applied the caution in R v Poole ex parte Beebee ([1991] 2 PLR 27) and related authorities concerning individual councillors’ comments. The reports and debate did not demonstrate a misunderstanding of policy, unlike the circumstances distinguished in R (Lanner Parish Council) v Cornwall County Council ([2013] EWCA Civ 1290).
4. Retail impact. The committee was entitled to consider public assurances concerning the town-centre stores, diversion of shopping trips, linked trips, new business and planned investment. The assessment was not a scientific exercise. The reference to protecting the town centre did not mean positively enhancing it; in context, it conveyed that the development was not considered likely to cause significant adverse impact.
5. Reasons. Article 31(1)(a) of the Town and Country Planning (Development Management Procedures) (England) Order 2010 required summary reasons at the relevant time. Following Siraj v Kirklees Metropolitan Council ([2010] EWCA Civ 1286) and R (Telford Trustee No. 1 Ltd and another) v Telford and Wrekin Council ([2011] EWCA Civ 896), adequacy depended on the surrounding decision-making materials. The detailed reports and the reference to the National Planning Policy Framework made the reasons sufficient.
6. Remedy and section 106. Even if the reasons had been inadequate, further reasons rather than quashing could have been required, as illustrated by R (TWS) v Manchester City Council ([2013] EWHC 55 (Admin)) and R (Mid-Counties Co-operative Ltd) v Wyre Forest District Council ([2009] EWHC 964 (Admin)). The committee had delegated negotiation of the section 106 agreement and had not prescribed particular obligations. Its reliance on public assurances, and its view that proposed covenants might be impracticable or unenforceable, were rational. Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd ([1998] A.C. 1) supported the concern about compelling continued business operations.