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

Planning permission may be challenged where the decision-maker materially misunderstands planning policy, fails to consider a material consideration, or relies on an inadequately reasoned officer’s report.

Where Town and Country Planning Act 1990 section 106 obligations are relied on to mitigate substantial planning harm, the authority must consider how, whether and to what extent the obligations would achieve that mitigation. Regulation 122(2) of the Community Infrastructure Levy Regulations 2010 requires the obligations to be necessary to make the development acceptable in planning terms.

A previous decision concerning an legally indistinguishable proposal is material and may only be departed from with adequate reasoning. The presumption in paragraph 14 of the NPPF does not apply where paragraph 27 governs out-of-town retail development.

The claimant, which operated a town-centre supermarket, challenged the Council’s decision to grant outline permission for an out-of-town Asda supermarket at Steam Mills Road, Cinderford.

A previous permission for substantially the same proposal had been quashed by Stewart J in Midcounties Co-operative Limited v Forest of Dean District Council [2013] EWHC 1908 (Admin). On redetermination, the Council again approved the proposal, relying on regeneration benefits and substantially similar section 106 obligations.

The issues were whether the Council had adequately analysed the mitigation of harm to the town centre, complied with regulation 122(2), properly addressed the Secretary of State’s earlier refusal of a similar proposal, and correctly construed paragraph 14 of the NPPF.

1. Judicial review and officer’s report. The court was concerned with legality, not the planning merits. A committee is ordinarily entitled to rely on an officer’s report, read fairly and as a whole, but the report must not materially mislead it about material matters. The report must be addressed to a knowledgeable readership and enable the committee to perform its statutory function.
2. Section 106 mitigation. The proposed obligations were intended to mitigate substantial harm to Cinderford town centre. The Council therefore had to grapple with how, whether and to what extent the obligations would do so. Mathematical precision was unnecessary, but some evidence or analysis was required. The report failed to explain how improved transport links, landscaping, lighting and other enhancements could encourage linked trips in a town centre suffering serious loss of retail trade and the possible loss of its anchor store.
3. Regulation 122(2). The failure to demonstrate how the obligations would mitigate the harm meant that they could not be regarded as necessary to make the development acceptable in planning terms. The grant therefore breached regulation 122(2)(a) of the Community Infrastructure Levy Regulations 2010.
4. Earlier decision. The Secretary of State’s 1999 refusal was a material consideration because it was legally indistinguishable on the relevant impact and mitigation issues. The Council neither distinguished it nor gave adequate reasons for departing from its conclusion that similar enhancements would not generate significant linked trips. Changes concerning need and the sequential test did not answer the distinct issue of town-centre impact.
5. NPPF paragraph 14. The report wrongly treated paragraph 14 as supporting permission where adverse impacts did not significantly and demonstrably outweigh benefits. Paragraph 14 applies where the development plan is absent, silent or out of date. For an out-of-town retail proposal with significant adverse impact where paragraph 27 applies, there is a policy presumption against permission.
6. Relief. All four grounds succeeded. It was not “blindingly obvious” that the Council would reach the same decision lawfully, particularly given the complex balance between substantial public benefits and serious town-centre harm. The decision of 2 January 2014 was quashed.

This was a first-instance judicial review. A previous permission for the same proposal had been quashed by Stewart J in Midcounties Co-operative Limited v Forest of Dean District Council [2013] EWHC 1908 (Admin) . The present court quashed the Council’s subsequent permission dated 2 January 2014.