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14 Aug
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High Court quashes Forest of Dean Aldi consent

High Court  has quashed a planning permission granted by the Forest of Dean District Council to Aldi for a discount food store Coleford, Gloucestershire (see Midcounties Co-operative Limited v Forest of Dean District Council [2017] EWHC 2056 (Admin)).

The judgement provides a useful reminder of the need for clear, robust and reasoned planning judgement, in particular where a decision is finely balanced.

One way to ensure a robust decision is to fully articulate the benefits of development at the outset then ensure these benefits (where justified and planning related) are recognised by officers and members,  in order to give the Council clear grounds to inform reasons listed on a decision notice.

Context

Planning permission was refused by the Council for an Aldi store on the application site in July 2015. In May 2016, Aldi submitted a second planning application for a slightly modified store, the proposed being 14sqm larger (but the same net floor area) with slightly reduced car parking.  The application was recommended for refusal by Officers based on independent retail advice. Planning permission was, however, eventually granted in October 2016 at Full Council following a deadlocked Planning Committee vote. This permission was challenged.

Details

The grounds of challenge were that Forest of Dean District Council (‘the Council’):

1(a)  Unlawfully misinterpreted or misapplied the suitability criterion of the sequential test; or

1(b)  Failed to identify any adequate basis for coming to conclusions in respect of the sequential test and/or this was not a conclusion that could rationally be made on the evidence; or

1(c)   Alternatively, gave inadequate reasons for the decision reached on the sequential test

2.  Unlawfully failed to consider the importance of consistency with a 2015 decision to refuse planning permission for an almost identical development on the site, or to give reasons for coming to a different conclusion in 2016; or

3. Failed to come to a final decision on retail impact test and its application in this case. 

The claim was allowed on Grounds 2 and 3

Ground 1 provides a useful summary on retail planning policy matters, in particular the sequential test, clarifying that: ‘The question of whether the sequential test had been passed or not was essentially one of planning judgement and it was one for the Defendant. It was not one for its Officers, still less for this Court’. In this instance, the Courts concluded that members did not unlawfully act in considering Aldi’s commercial requirements to dismiss a potentially sequential site (therefore Ground 1 failed).

Grounds 2 and 3 provide a reminder to ensure planning decisions are robust and supported by clear proportionate reasoning. The Court concluded the Council failed to consider in its reasons: (1) why an approval was justified in the context of the previous refusal of an almost identical scheme, and (2) retail impact matters (for which officers raised concerns and recommended refusal of the application).

Of note, the judgement states:

“Nevertheless, it [the reason for challenge] emphasises the importance of reasons for decision-making. Such reasons need not be lengthy or detailed. Very often, as the authorities I have cited earlier make clear, it will be possible to discern what the reasons for a decision are from the fact that the local planning authority has accepted the recommendation of its Officers, in which case one can reasonably be expected to go to the Officers’ report in order to find a fuller statement of what the reasons were…”.

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If you would like to know how this judgment could affect you and your interests, or you would like further details, please do not hesitate to contact our Manchester or Leeds offices.

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