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

A planning committee must be properly informed of the material factors requiring evaluation before exercising its planning judgment. An officers’ report must fairly identify the true extent of relevant harm, particularly where earlier decisions or evidence have highlighted a material risk. A planning obligation cannot rationally be described as necessary to make development acceptable where the report states that the development would remain acceptable even without it. The court will not pre-empt the planning authority’s evaluative balance by assuming that the same decision would inevitably have been made.

The claimant supermarket operator challenged planning permission granted by the local planning authority for an out-of-centre retail store in Cinderford. The permission was the third granted for the same proposal after two earlier permissions had been quashed in related proceedings. The authority did not actively defend the claim, while the interested developer opposed it.

The claim alleged, among other matters, that the officers’ report understated the likely impact on the town centre, adopted an inconsistent approach to section 106 contributions, failed to justify departure from a 1999 Secretary of State decision, and mischaracterised planning policy and regeneration links.

1. First ground allowed. The officers’ report correctly reminded the committee that the proposal conflicted with the Development Plan and national policy and that the application had to be considered afresh. Nevertheless, it failed to state that the proposed store could remove about half of the existing town-centre store’s turnover and put that store at risk of closure. It also omitted the store’s role as an anchor and the likely reduction in linked trips. The committee therefore lacked a proper understanding of the harm to be weighed against the claimed benefits. The balancing judgment was consequently vitiated.
2. Second ground allowed. Regulation 122(2) of the Community Infrastructure Levy Regulations 2010 provides that a planning obligation may constitute a reason for granting permission only if the stated criteria are met. The report described the section 106 contributions as necessary to make the development acceptable, but elsewhere said that the development would remain acceptable even if those contributions were ignored. It gave no coherent explanation for the asserted necessity. That inconsistency amounted to an error of law.
3. Third ground rejected. The report properly treated the 1999 Secretary of State decision as a material consideration and identified changes in policy, evidence, regeneration needs and the condition of the town centre as reasons why a different planning judgment might be reached. The reference to the Halcrow study was permissible and, read fairly as a whole, did not show that the decision was based on inappropriate weight being given to that study.
4. Fourth and fifth grounds rejected. The report properly distinguished links between the Northern Quarter and the town centre from linked shopping trips generated by the proposed store. It was not irrational to regard transport and regeneration connections as material benefits. Nor did the report suggest that national policy had ceased to pursue a town-centre-first approach.
5. The court declined to withhold relief on the basis that the same decision would inevitably have been made. The ultimate balance was for the democratically accountable planning authority, applying the law correctly. The planning permission was quashed.
6. In an obiter postscript, the court emphasised that a public authority defendant in judicial review has a duty of candour and co-operation. Where financial constraints prevent active defence, it should consider disclosure, explanatory evidence, summary grounds of resistance and attendance at hearings.

Not an appeal. The judgment records that two earlier permissions for the same proposal had been quashed in related proceedings, including [2013] EWHC 1908 (Admin) and [2014] EWHC 3059 (Admin). Those decisions were not under appeal in the present claim.