Tesco Stores Ltd, R (On the Application Of) v Forest Of Dean District Council

A planning obligation may be relied upon in granting permission only if it satisfies the three requirements in regulation 122(2) of the Community Infrastructure Levy Regulations 2010. Whether those requirements are met requires appropriately rigorous planning judgment, calibrated to the circumstances.

Mitigation need not be quantified in every case. Where decision-makers lawfully conclude that substantial wider benefits justify permission provided that a harmful impact is mitigated to some unquantified extent, partial mitigation may be necessary, directly related, and fairly and reasonably related in scale and kind. The obligation must not, however, impose costs so excessive that they are out of scale with the development.

Forest of Dean District Council granted permission for a mixed employment and retail development on a brownfield site. The out-of-centre retail store would significantly harm Lydney town centre. A planning obligation provided a shuttle-bus service and £380,000 for measures intended to mitigate that harm.

Tesco sought judicial review. Patterson J dismissed the claim: [2014] EWHC 3348 (Admin). Tesco appealed only the challenge to the planning obligation. The central issue was whether the obligation satisfied regulation 122(2), particularly the requirement that it be fairly and reasonably related in scale and kind to the permitted development despite the extent of mitigation not being quantified.

1. Appeal dismissed. Sullivan LJ, with whom Sharp LJ and Sir Colin Rimer agreed, held that the planning obligation complied with regulation 122(2) of the Community Infrastructure Levy Regulations 2010.

2. The requirements of necessity and direct relationship were met. The members did not treat the employment benefits as justifying permission without mitigation. They regarded some mitigation of the retail development’s town-centre harm as necessary to make the proposal acceptable. The agreed measures were directed to mitigating that harm.

3. The obligation was fairly and reasonably related in kind because it addressed the significant adverse effects of a major element of the development. It was also related in scale. Measures which mitigate, but do not eliminate, a significant adverse effect will generally be in scale with the development. That conclusion remains fact-sensitive: an obligation may still be out of scale if its cost is excessive. Nothing showed that £380,000 was out of scale with this substantial proposal.

4. Regulation 122(2) does not impose an invariable requirement to quantify mitigation, numerically or verbally. The degree of rigour required depends on the case. Quantification will be required where acceptability depends upon reducing harm by a specified amount, to a stated level, or in a particular way. It was unnecessary here because the members lawfully treated some, rather than a defined extent of, mitigation as sufficient when balanced with the employment benefits.

5. The officers’ view that the package could partly mitigate harm, although its precise effect was uncertain, was not Wednesbury unreasonable. The earlier Mid Counties decisions were materially different because they concerned the need for a rational basis to depart from a particular conclusion that proposed mitigation would not be effective.

• Court of Appeal (Civil Division) — dismissed Tesco’s appeal and upheld the planning permission.
• High Court of Justice, Queen’s Bench Division, Administrative Court — Patterson J dismissed Tesco’s judicial-review claim: [2014] EWHC 3348 (Admin).