Timothy Jones and Victoria Hutton successfully defend a planning permission for a Morrison’s supermarket

Mon, 09 Dec 2013

Timothy Jones and Victoria Hutton successfully defend a planning permission for Morrison’s supermarket in the face of a judicial review application. 

On 4 December 2013 Mr Justice Hickinbottom handed down judgement having presided over a rolled-up hearing in the case of R(on the application of Midcounties Co-operative Limited) v Swindon Borough Council and Optimisation Developments Limited [2013] EWHC 3775 (Admin). Timothy Jones and Victoria Hutton appeared for the defendant council and were successful, also being awarded their costs.

In this case, the claimant (the Co-op) launched two judicial reviews in order to challenge the grant of two identical planning permissions by the defendant for a Morrison’s supermarket in Swindon. The challenges to each permission were brought on a number of grounds. However, in the end, the court only heard the challenge to the second permission as the challenge to the first permission would become largely academic if the second grant of permission was found to be lawful.

The grounds argued before the court were as follows:

1.     The officers’ report had failed properly to interpret and apply certain policies in the NPPF;

2.     The officer’s report unlawfully relied upon a plan or aspiration of the Council, not incorporated into the Local Plan to redevelop the local centre (in which the Co-op was situated); and

3.     The officers’ approach to the retail impact assessment was fundamentally flawed.

Agreeing with the defendant and the interested party, the judge found that none of these grounds had any merit and therefore refused permission to apply for judicial review. The judge found inter alia:

1.     The officers in the case has applied the correct local plan policies (para.38);

2.     The officers had properly applied their planning judgement (para.40);

3.     The officers had not misunderstood the dominant policy (para.41);

4.     The future intentions of the council for the site were material considerations in planning terms (following Westminster City Council v Great Portland Estates Plc [1985] AC 661) (para.49);

5.     The defendant fully understood its obligation to proceed with due care as landowner of the site (para.50);

6.     The claimants never raised the issue that their store would have to close if the Morrison’s store was built and as such the defendant was not required to deal with that issue (para.55); and

7.     In any event, officers properly considered the impact of any permission upon the viability and vitality of the nearby local centre (paras 56-57).

The judge therefore refused permission for both judicial reviews.

The judgement can be found here.

Please click here to view Tim Jones and Victoria Hutton's profiles

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