Milton (Peterborough) Estates Company (t/a Fitzwilliam (Malton) Estate, R (on the application of) v Ryedale District Council & Anor

A planning committee may depart from an earlier appeal decision, but must identify it as a material consideration, engage with its reasoning and explain the disagreement. An officer’s report is unlawful where it significantly misleads members or leaves a material planning consideration out of account. Where a Schedule 2 development has previously received a negative screening opinion, the authority must keep the position under review. If changed circumstances create a realistic prospect of a different screening outcome, the authority must reconsider whether screening is required.

The claimant challenged the defendant’s grant of planning permission to the interested party for retail, office, petrol filling station, car parking and landscaping at Wentworth Street Car Park, Malton. The claimant had an extant appeal permission for a retail-led development at the Livestock Market Site. It alleged that the committee had been misled about the Inspector’s conclusions on the sequential test and retail impact, that planned investment had not been properly considered, and that changed circumstances required reconsideration of an earlier negative environmental impact assessment screening opinion.

The central issues were whether the officer’s report adequately explained the proposed departure from the Inspector’s decision, whether the Livestock Market Site was protected planned investment for retail-impact purposes, and whether the authority had failed to review the screening position before granting permission.

1. Grounds 1, 2, 4 and 5 succeeded. The planning permission granted on 12 September 2014 was quashed.
2. The Inspector’s appeal decision was an important material consideration carrying significant weight. The officer’s report materially misrepresented it by stating that the Inspector’s conclusion on the sequential test was not fully reasoned. The report failed to engage with the Inspector’s detailed reasons concerning the physical integration of the Livestock Market Site with the town centre and the evidence supporting its sequential preference.
3. The report omitted the Inspector’s conclusion that the Livestock Market Site should be treated as part of the town centre for retail-impact analysis. That omission affected the application of paragraph 26 of the National Planning Policy Framework. Planned investment could not be excluded merely because the development had not yet materialised. A quantified assessment of the impact on the Livestock Market scheme was required.
4. The report fairly distinguished the positions of the claimant and Booths, but its treatment of planned investment remained incomplete because it rested on the erroneous exclusion of the Livestock Market Site and failed to assess the economic impact on that scheme.
5. Under regulations 3(4) and 5 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, the authority had to ensure that the Regulations were satisfied when permission was granted. A previous negative screening opinion did not end that obligation. The authority had to keep the proposal and its environmental context under review. Reconsideration was required where a change created a realistic prospect of a different screening outcome.
6. The original screening material proceeded on the basis that only one large foodstore could operate. By the time permission was granted, the authority was contemplating both schemes. The cumulative economic effects had not been considered, and the authority had not considered whether the screening opinion should be revisited. That failure was an error of law.

First-instance judicial review. The judgment describes an earlier appeal decision granting planning permission for the claimant’s Livestock Market Site development, dated 29 October 2012, but gives no citation for that decision.