Tesco Stores Ltd, R (on the Application of) v Forest of Dean District Council & Ors

In a planning judicial review, the court reviews the rationality and legality of the decision-making process, rather than rerunning the planning merits. A development may comply with the development plan as a whole despite conflict with individual policies. Conversely, a conflict with the development plan may be outweighed by material considerations, provided the decision-maker recognises the statutory framework and acts rationally. The weight given to material considerations is principally a matter for the planning authority.

For a Community Infrastructure Levy Regulations 2010 obligation, the authority must have sufficient information to assess the statutory tests and the extent to which the obligation will mitigate identified harm. Mathematical precision is unnecessary. The required rigour depends on the circumstances.

The claimant, operator of a town-centre supermarket, challenged the defendant council’s grant of planning permission for an out-of-centre retail store, petrol filling station, employment units and a replacement finishing shop. The challenge concerned the statutory development-plan duty, the council’s treatment of the applicant’s lease and threatened employment losses, reliance on a planning condition, and the lawfulness of a section 106 obligation.

The application had initially been recommended for refusal because of retail impact, failure of the sequential test and inadequate mitigation. The planning committee nevertheless resolved to grant permission, giving substantial weight to employment benefits and the proposed mitigation. Following a rolled-up hearing ordered by Lindblom J, the central questions were whether the council had acted unlawfully or irrationally in departing from the officers’ recommendation and in relying on the section 106 package.

1. Outcome. The claim for judicial review was dismissed. Permission to proceed would have been granted, but no substantive relief was justified.
2. Development-plan duty. The officers had correctly identified the conflict with policy CSP.12 and had separately analysed material considerations. The committee understood the policy position but gave greater weight to safeguarding existing employment and creating new jobs. That was a planning judgment open to it. Section 38(6) of the Planning and Compulsory Purchase Act 2004 did not require the committee to follow the officers’ recommendation or to use particular terminology in its debate.
3. The weight given to a material consideration is for the decision-maker, subject to rationality. The court’s role was not to substitute its own planning judgment. Because the committee acted collectively, the court also had to approach the transcript of debate with caution and consider its general tenor rather than isolated remarks.
4. Employment and the lease. The lease excluded sections 24–28 of the Landlord and Tenant Act 1954. The evidence showed that it expired on 28 December 2014, subject only to an unexercised landlord’s power to extend it. The officers had asked the relevant questions and obtained sufficient information. There was no irrationality in treating the jobs as at risk.
5. Condition 4. The condition requiring completion and operation of the finishing shop and offices before work began on the retail store could not guarantee continued employment. It was nevertheless a rational planning measure intended to optimise the prospect of retaining the business and promote economic growth. The committee was entitled to rely on it as part of its planning judgment.
6. Section 106 obligation. Regulation 122(2) of the Community Infrastructure Levy Regulations 2010 required consideration of necessity, direct relationship, and reasonable relationship in scale and kind. The committee had sufficient information to take the obligation into account and was reminded of the relevant tests. It could accept that the package would provide partial mitigation, even though some details remained unresolved and no mathematical assessment was possible.
7. The circumstances differed materially from the two Mid Counties decisions, where the planning history contained detailed prior findings that constrained the later decision-making. The council was therefore entitled to conclude that the employment benefits and section 106 obligation outweighed the residual harm.

This was a first-instance judicial review. Lindblom J ordered on 20 June 2014 that the permission application and substantive claim be heard together at a rolled-up hearing. The claim was then dismissed by the Administrative Court.