W Morrisons Supermarket Plc v London Borough of Hounslow

In assessing whether a proposal accords with a development plan, the policies must be considered as a whole. Non-compliance with one policy or site allocation does not necessarily prevent overall accordance where other policies point in the opposite direction. Policy wording and the purpose of the policy must both be respected, but flexibility in a site allocation has limits. A planning authority need not undertake a detailed retail impact assessment for temporary disruption caused by redevelopment of a town-centre retail site where no policy requires it and the disruption is inherent in the planned regeneration. A legitimate expectation of consultation may arise from a clear promise, but its practical effect depends on the reciprocal conduct reasonably contemplated by the promise. Relief may nevertheless be refused where the breach caused no practical unfairness and the outcome would highly likely have been the same.

Hounslow London Borough Council granted planning permission for the redevelopment of a supermarket site in Brentford town centre. The scheme included a larger replacement food store, other commercial space, housing and associated works. The claimant, the existing supermarket operator, sought judicial review.

It argued that the proposal conflicted with Local Plan policy IMP2 and the site allocation; that the Council had failed to assess the temporary effect of closing the existing store and car park on the vitality and viability of the town centre; and that the Council had breached a legitimate expectation that the claimant would be consulted on the final section 106 agreement. The Council relied also on section 31(2A) of the Senior Courts Act 1981.

The judicial review claim was dismissed.

1. Development plan accordance. Section 38(6) of the Town and Country Planning Act 1990 required consideration of the development plan as a whole. The proposal was not “retail-led” and did not meet the stated 75:25 retail-to-residential ratio. The Officer’s Report should therefore have acknowledged non-compliance with the site allocation and policy IMP2. That was an error of interpretation.
2. The error did not invalidate the permission. The proposal fulfilled the purpose of the allocation by providing substantial retail floorspace and supported the plan’s wider town-centre regeneration and housing objectives. The development plan, viewed as a whole, could lawfully be regarded as supporting the proposal. Applying section 31(2A), it was certain, or at least highly likely, that the outcome would have been unchanged.
3. Temporary retail impact. No policy required a retail impact assessment for a retail development within a defined district centre. The National Planning Policy Framework’s provisions on impact assessments and significant adverse impact did not require a separate assessment of temporary construction disruption. The temporary loss of the existing store and car park was inherent in the planned regeneration and had been adequately considered. A refined comparison of alternative temporary shopping arrangements was unnecessary for a lawful planning judgment.
4. Legitimate expectation and section 106 agreement. The Council’s promise to provide further drafts of the agreement, including the final draft, created a legitimate expectation of an opportunity to comment. The promise also contemplated prompt comments on earlier drafts. The claimant did not substantively comment on the March draft, which contained the material provisions, and identified no point it would have made in response to the final version. The limited breach in failing to indicate the very short period for responding to the May draft caused no practical unfairness.
5. The agreement’s use of reasonable endeavours and its fallback provisions did not take it outside the Planning Committee’s resolution. The Officer was entitled to conclude that the agreement provided an acceptable framework for temporary convenience shopping. Any error would in any event have been immaterial under section 31(2A).