Wed, 03 Aug 2011
R (oao Telford Trustee No.1/No.2 Ltd) v Telford and Wrekin Council and Asda Stores Ltd
Local planning authorities have long had a duty to give “full reasons” for refusal of planning permission. The duty to give “a summary of their reasons for the grant” of planning permission (to be found until recently in Art.22(1)(b)(i) of the GDPO) is of relatively recent vintage, and has spawned a considerable body of case law with disappointed third party objectors seeking to have permissions quashed on the basis that this duty was not discharged. On several occasions the High Court has been forced to address the question: “what is the degree of detail the LPA must give in order to discharge the duty to provide summary reasons?”
Last month this question came before the Court of Appeal when it decided to retain jurisdiction over a judicial review challenge brought by owners of land in Telford Town Centre against the decision of Telford and Wrekin Council to grant planning permission for an out of town superstore (R (on the application of Telford Trustee No.1/No.2 Ltd) v Telford and Wrekin Council and Asda Stores Ltd EWCA Civ 896). The Trustees had vociferously objected to Asda’s application, “carpet bombing” the council with representations. One of their objections was that the application was in breach PPS4 because it failed the sequential approach and would have a significant adverse impact on the existing town centre.
The Council granted permission, and on the PPS4 point their reasons stated: “The proposed retail store has been fully considered and assessed to be in accordance with guidance in PPS4.”
The Trustees’ sought to persuade the Court of Appeal that this was not enough: their detailed representations to the Council merited a decision notice which explained why the proposal was considered to accord with the sequential and impact assessment tests of PPS4. The Court of Appeal rejected this argument, ruling that “the statutory requirement is to give a summary of the reasons for the grant of planning permission, not a summary of the reasons for rejecting an objector’s representations (even on a principal issue) or a summary of reasons for reasons.” The notice told the reader why permission was granted (the development accorded with PPS4). The Court spelled out the dangers of any other approach: “If one goes onto ask why it was assessed to meet the requirements of… [PPS4], one is drawn ineluctably into the giving of reasons for reasons and/or the giving of reasons for rejecting the Trustees’ objections.”
One of the important factors in this case was that the planning committee followed the recommendation in the officers’ report and adopted the reasoning set out in the report. This was one reason why the Court ruled that a relatively brief summary of the reasons was adequate. Although the Trustees sought to argue that the officers’ report was itself flawed in its reasoning (and that accordingly it did not help in elucidating the reasons for grant of planning permission) the Court showed little patience with this argument, making the point that “if the report disclosed legal errors, it was open to the Trustees to rely on those errors by way of substantive challenge to the decision to grant planning permission.”
Each case will depend on its own facts, but the Asda case sends out a fairly strong message from the Court of Appeal that seeking to undo planning permissions on the basis of inadequate reasons is likely to meet with short shrift.
The No5 Counsel acting in this case were Ian Dove QC and Hugh Richards (acted for Telford and Wrekin Council) and Jeremy Cahill QC and Satnam Choongh (acted for Asda Stores Ltd)