Tesco Stores Limited, R (on the application of) v Reigate and Banstead Borough Council

A planning committee may lawfully reach a different overall planning judgment from its officers, provided it applies the statutory and policy framework correctly. Harm to the setting of a listed building must receive considerable importance and weight, but the decision-maker retains an evaluative judgment as to the nature and extent of that harm. A committee’s reasons may be read with the officers’ report and addendum. Where the relevant harms and benefits are identified there, a committee need not repeat them or give reasons for reasons merely because it reaches a different conclusion on the balance. Debate comments should be assessed cautiously and collectively, with primary focus on the formal resolution and the general tenor of the discussion.

Tesco challenged the Council’s grant of planning permission for demolition of the Air Balloon public house and construction of a retail foodstore in Horley. The challenge alleged failure to comply with the statutory heritage duty under section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990, and failure to give adequate reasons for concluding that the public benefits outweighed heritage, town-centre and other harms despite an officers’ recommendation for refusal.

Permission had been granted for the reasons recorded in the committee resolution and minutes. Ground 1 was pursued by a renewed permission application; Ground 2 concerned the substantive judicial review. The central issues were whether the committee had applied the weighted heritage balance and whether its reasons, read with the officers’ materials, were intelligible and adequate.

1. Ground 1 refused. The Council members had been repeatedly and correctly advised through the officers’ report, addendum and oral advice that harm to the setting of the Grade II listed War Memorial attracted considerable importance and weight under section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 and the NPPF. The absence of an express repetition of that duty in the resolution did not establish legal error.
2. The statutory duty did not prescribe identical weight in every case. Members remained entitled, and arguably required, to make their own evaluative judgment about the nature and extent of harm, including harm within the NPPF category of less than substantial harm. They could also reach a different conclusion from officers on the balance between harm and public benefits while applying the correct legal approach.
3. Comments made during a committee debate must be approached with caution. The decision is that of the collective body. The court should focus primarily on the formal resolution and, where useful, the general tenor of the debate rather than forensic analysis of isolated remarks. Read fairly and in context, the debate did not show that members had misunderstood or disregarded the legal advice.
4. Ground 2 rejected. The Council was under a duty to give reasons because it departed from the officers’ recommendation. The resolution, read with the officers’ report, addendum and oral advice, identified the relevant harms and the public social and economic benefits, including jobs, an improved shopping offer and sustainability benefits. The committee was entitled to attach greater weight to those same benefits and conclude that they outweighed the harms.
5. The committee was not required to repeat the benefits in its resolution or explain further why it disagreed with the officers’ overall planning judgment. Requiring such elaboration would amount to requiring reasons for reasons. The reasons were intelligible and left no genuine doubt as to what had been decided and why. The claim for judicial review was dismissed.

First instance judicial review. Permission to pursue Ground 1 was refused, and the substantive claim under Ground 2 was rejected.