High Court overturns Co-Op store consent due to 'misleading' officer's report

Planning permission for a new Co-Op convenience store in a Hertfordshire village has been overturned by the High Court after a judge ruled that an officer's report failed to take account of the impact of the proposal on the settlement's existing post office and was therefore 'materially misleading'.

Dacorum Borough Council granted planning permission in December last year to developers, Harkalm Investments Limited, for a store in Markyate.

Over 1,000 concerned local residents had signed a petition against the Co-Op proposal.

The claimant, shop owner, Sagar Patel, had argued that the viability of his Post Office branch in Markyate would be jeopardised if he lost customers to the new store.

However, the council's planning committee resolved to grant consent for the edge of village centre development by a narrow margin, with two councillors voting in favour, one against and four abstaining.

Harkalm, which owns a lease of the site, wants to convert a building that was originally designed as a doctor's surgery into a Co-Op branch. In response to local concerns, it agreed to limit its retail space to no more than 170 square metres. 

But Patel said even that would be enough to threaten his "marginal" trade in the village store and that, if he lost customers, he might have to close his Post Office counter.

Deputy High Court Judge Timothy Mould QC said a planning officer had reported to councillors that the impact of the new store on Patel's trade was "not a significant planning consideration."

Members of the planning committee were advised that the "small scale" new store would bring the vacant health centre "into productive use" and would help to meet the shopping needs of Markyate's growing population.

But Judge Mould said that the officer's report simply "did not address the question" of whether the new store would accord with national and local planning policies relating to the protection of community facilities.

The report, he added, "offered the committee no explanation or advice as to the risks of closure of the Post Office counter resulting from loss of trade" to Patel's Nisa Local store.

"The report did not suggest that Patel's concerns about the loss of trade to [his] Nisa Local store were unfounded. On the contrary, the report acknowledged that there would be an impact on the Nisa Local store," he told the court.

"The report advised, however, that the impact on the Nisa Local store was not a significant planning consideration."

Ruling that that advice was "materially misleading", the judge added: "The report needed to address the question of whether the proposed development risked the loss of the existing Post Office counter at the Nisa Local store. That was a material consideration in its own right."

Overturning the planning permission, the judge concluded: "Had the question whether the proposed development risked the loss of the existing Post Office counter at the Nisa Local store been addressed, the committee at least might have reached the overall conclusion that planning permission should be withheld.

"Modest in scale the proposed development may be, but Mr Patel raised before the council a material consideration of substance at regards the protection of a local community facility".  

His concerns were "firmly founded" on both national and local planning policies, but had not been considered by the council.

R on the Application of Patel v Dacorum Borough Council. Case Number: CO/209/2019


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