Planning Law Update

June 26th, 2013 by Heather Emmerson

Telford & Wrekin Borough Council (and others) v Secretary of State for Communities and Local Government (and others) [2013] EWHC 1638 (Admin)

This decision of the High Court addressed i) the correct interpretation of the sequential test policies contained in the National Planning Policy Framework (NPPF) and ii) the extent to which planning obligations agreed between a developer and local planning authority based on pooled costs met the test of necessity in regulation 122 of the CIL Regulations 2010.

A developer applied for planning permission to construct a food store at a site out of the town centre. Following non-determination of this application by the Council, planning permission was granted by an inspector on appeal. A rival developer had applied for planning permission to construct a food store on an alternative out of town site. The planning authority and rival developer challenged the grant of planning permission under section 288 of the Town and Country Planning Act 1990.

Interpretation of the sequential test

The principal ground of challenge was that the Inspector had erred in interpreting and applying the provisions of the NPPF relating to sequential assessment. Paragraphs 24 and 27 of the NPPF provide that local planning authorities should apply a sequential test to planning applications for main town centre uses that are not in an existing town centre and are not in accordance with an up to date local plan. The NPPF provides that preference is to be given to sites in the town centre over sites at the edge of town or out of town, and when considering edge of centre or out of centre proposals, preference should be given to sites that are well connected to the town centre. The Inspector concluded that neither of the competing sites (both of which were out of centre sites) had preference over the other and that customers in respect of both sites would be unlikely to walk into the town centre. The claimants argued that the application of the sequential test must always result in a finding that one site is sequentially superior to the other and the Inspector had erred in concluding that the sites were equivalent.

In addressing this ground of challenge Mr Justice Turner referred to the Supreme Court’s decision in Tesco Stores v Dundee City Council [2012] UKSC 13 which held that it was a matter for the courts to determine the correct interpretation of planning policies, although planning policy was not to be interpreted as if it were a statute. He held that the application of the sequential test did not require a judgment to be reached that one site was sequentially superior to the other and it was open to a decision maker to find that one or more sites were sequentially equal. First, there was nothing in the NPPF or guidance which precluded this result. Secondly, a decision maker retained some flexibility under the policy and there was no reason to interpret the policy in a narrow and prescriptive sense. Thirdly, there were circumstances in which it would be artificial for a decision maker to be compelled to declare one site the victor. Sequential preference was not simply a question of which site was geographically closer to the town centre but required an assessment of all relevant factors including accessibility (see [27] – [32]). There was therefore no basis for impugning the interpretation of the NPPF, nor was there any basis for criticising the application of the policy to the facts of the case.

Pooled costs and planning obligations

A planning obligation had been agreed between the developer and planning authority relating to off-site highway works which would be required as a result of the proposed development. These costs had been calculated by the planning authority by considering the need for highway works generated by all the planning applications before it at that time and distributing these costs between the different developments on a pro rata basis (having regard to the need for modification at particular highway junctions). The costs were therefore calculated on the basis that all the developments would be completed. The Inspector considered that the pooled costs did not reflect reality, but rather proceeded on a false basis given that both food stores would not be developed. Mr Justice Turner held that whilst the method of apportioning pooled costs between proposed developments could in an appropriate case satisfy the requirements of Regulation 122(a), on the facts of this case the Inspector was entitled to find that pooled costs apportioned to the developers did not reflect the reality of future development and in these circumstances the Inspector was entitled to conclude that she could not be satisfied that the contributions were necessary within the meaning of Regulation 122(a).

Jonathan Moffett of 11KBW was instructed by the Secretary of State.

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