Legal Viewpoint: Sorry case history shows planning in a poor light

The facts in a recent High Court case from Gloucestershire illustrate much of what is wrong in current planning.

The decision offers a useful reminder of some basic principles that the court applies when considering challenges, and these should be expanded to discourage poor planning.

In 2013, a town centre site was promoted for Tesco in Coleford. Tesco withdrew in 2014, after permission was granted. In 2015, Aldi was refused permission for a competing out-of-centre site on retail impact and sequential test grounds. A year later Aldi made a new, essentially identical application. The council commissioned consultants, who reached opposing conclusions on both the impact and sequential issues.

Aldi submitted a written opinion from its QC. The council procured an alternate opinion from a QC. As in 2015, officers recommended refusal. The planning committee was deadlocked. The full council granted consent to Aldi, providing some reasons in note form as part of its formal resolution. Even without a court challenge this is a sorry history: repeat applications, contradictory professional evidence, conflicting opinions and contrary decisions. It is unsurprising the planning system gets criticised.

The Co-Op challenged the Aldi consent. There were arguments about whether the sequential test had been properly applied, whether retail impact had been considered and the lack of reasons for reversing the 2015 refusal. Mr Justice Singh generously found for the council on the sequential test point and against on the others.

The judge helpfully set out some general propositions for judging challenges. There is no general duty on a local authority to give reasons for granting consent. Depending on the context, it may need to explain its reasoning. Statements in committee debates should be given limited weight. Reports and decisions should not be read as canonical texts. Earlier material decisions need to be taken into account unless they are distinguishable or reasons are given for a departure.

It would be helpful if the courts developed these principles, in two respects. First, where a council disagrees with an officer’s report, appropriate reasons should be be given, rather than bland declarations. The courts should be willing to explore whether there is evidence to support them. Secondly, they should remind planning professionals of their duties. There will always be differences of opinion, but unnecessary gaming in the application process sparks challenges.

Midcounties Co-operative Ltd v Forest of Dean District Council; Date: 4 August 2017; Ref: [2017] EWHC 2056 (Admin)

Stephen Ashworth is a partner at Dentons

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