Sainsbury's Supermarkets Ltd v Secretary of State for Housing, Communities And Local Government and Anor

On a challenge under section 288 of the Town and Country Planning Act 1990, the court reviews legality rather than the planning merits. The decision-maker must identify the relevant development-plan provisions, determine whether the proposal accords with the plan as a whole, and then assess whether material considerations indicate that the plan should not be followed. The statutory priority given to the development plan does not prescribe a universal decision-making sequence.

Planning judgment and the weight given to material considerations remain matters for the decision-maker. A decision letter is read fairly and as a whole. Where the Secretary of State disagrees with an inspector, he must explain the disagreement clearly, but there is no heightened standard of reasons. A “minded to” letter is discretionary and exceptional.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash the Secretary of State’s decision dismissing its recovered planning appeal under section 78 of that Act. The appeal concerned redevelopment of a supermarket site in Whitechapel, including housing, affordable housing, retail space and public-realm works.

The inspector recommended permission, finding that the public benefits outweighed heritage harm and that the proposal complied with the development plan overall. The Secretary of State disagreed, placing substantial or great weight on harm from loss of daylight and sunlight, heritage harm and the separation of affordable housing. The claimant challenged the decision on grounds including irrationality, inadequate reasons and failure to consider material considerations, particularly the refusal to invite a revised affordable-housing arrangement.

1. The claim was dismissed. There was no public-law error in the Secretary of State’s decision.
2. Under section 288 of the Town and Country Planning Act 1990, the court was concerned with legality, not the merits or the weight given to planning considerations. The Secretary of State was required to recognise the statutory priority of the development plan, but section 38(6) of the Planning and Compulsory Purchase Act 2004 prescribed no universal method or two-stage sequence. He had to determine whether the proposal accorded with the development plan as a whole and then consider whether material considerations indicated that the plan should not be followed.
3. The decision letter, read fairly and as a whole, distinguished between the absence of overall conflict with the amenity policies and the separate conflict with the policy protecting access to daylight and sunlight. The Secretary of State was entitled to attach substantial weight to that harm and to conclude that the proposal conflicted with policies of central importance.
4. The Secretary of State was entitled to conclude that material considerations favouring the scheme, including housing, design, public-realm improvements and the heritage balance under paragraph 196 of the Framework, did not justify departing from the development plan. The statutory duties under sections 66(1) and 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 justified giving great weight to heritage harm.
5. The Secretary of State rationally declined to issue a “minded to” letter or seek a further section 106 agreement. Such a course was discretionary, had no statutory basis in these circumstances, and was exceptional. The claimant had had ample opportunity during the inquiry to address the location and integration of the affordable housing, but had not advanced an alternative proposal. The identified defect was fundamental rather than a readily curable detail, and the claimant failed to establish substantial prejudice.

First-instance judicial review under section 288 of the Town and Country Planning Act 1990. Permission to bring the claim was granted by Lieven J on 24 September 2019. The claim was dismissed by the High Court.