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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Tesco Stores Ltd, R (on the Application of) v Forest of Dean District Council & Ors [2014] EWHC 3348 (Admin) (14 October 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/3348.html Cite as: [2014] EWHC 3348 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/10/2014

Mrs Justice Patterson:

Introduction

1. This is a claim for judicial review in which the claimant challenges the decision of the Forest of Dean District Council ("the council") on the 11 March 2014 to grant planning permission on a site known as the Federal Mogul Camshaft & Casings Ltd, Land South of Cambourne Place, Lydney for:

"Demolition of existing finishing shop and erection of new finishing shop, offices with car parking and associated works. Erection of retail store of 3827 sq.m. gross internal floor area (Class A1), petrol filling station, car parking, service areas and associated development. Erection of 4 No. B1 units and 4 No. B1/B8 units."

2. The original applicant for planning permission is now owned by J D Norman Lydney Ltd (JDN) which already operates a camshaft production business on the site with permission. The site has been in two ownerships, land owned by JDN, and land owned by the fourth interested party, MMC Land and Regeneration Limited (MMC). JDN occupies the MMC land under a lease with MMC Developments Limited dated 21 December 2009 which is due to expire on 28 December 2014. JDN wants to build a new finishing shop on the JDN land before its lease of the MMC land expires in December 2014. It has entered into an arrangement with the second and third interested parties, Asda stores limited (Asda) and Windmill Limited (Windmill) respectively. The planning application was presented on the basis that the retail store component of the scheme will be operated by Asda.
3. The claimant is the owner and operator of a Tesco supermarket located on the high street in the centre of Lydney.
4. The defendant is the local planning authority. The defendant did not appear and was not represented at the proceedings before me. By a letter dated the 7 May 2014, Mrs Hughes, the legal team manager and monitoring officer, said that the council had decided not to take an active role in defending the claim but to provide assistance, where needed, to the interested parties who would be putting forward a robust defence. That was not intended to suggest that the council accepts the claim or felt unable to offer a defence but was based purely on protecting local residents and public finance. That position was repeated in a letter dated 5 of August 2014 which said also that the Defendant had had sight of the Interested Parties Skeleton Argument and fully supported the arguments advanced therein.
5. The second and third interested parties appeared and were represented by leading and junior counsel.
6. The application was recommended for refusal by the council's planning officers initially for four reasons. They were

i) the proposal would be contrary to the advice of the National Planning Policy Framework and policy CSP.12 of the core strategy in that there is insufficient need for a store of the size proposed and due to its scale would have a significant impact on the vitality and viability of the town centre;

ii) the proposal would be contrary to the advice of the National Planning Policy Framework and Policy CSP.12 of the core strategy in the applicants have failed to satisfy the sequential test by failing to show sufficient flexibility and have discounted a sequentially preferable site which could be available in the town centre;

iii) the proposal would be contrary to Policy CSP.1 of the core strategy and the advice of the National Planning Policy Framework in that satisfactory information has not been submitted to demonstrate that the proposal would not result in an unacceptable adverse impact on European Protected Species;

iv) The proposal fails to make provision for the necessary contributions to mitigate the impact on the town centre via a section 106 legal agreements or undertaking. As such the proposal would be contrary to the National Planning Policy Framework and policy CSP.12 of the core strategy.

7. Further material was received by the defendant which then prepared a late information document for members. In that, the recommendation remained one of refusal but the reasons for refusal were abbreviated so that there were two only. They were numbers (i) and (iv) above. The other proposed reasons for refusal were withdrawn.
8. Following a meeting on 12 November 2013 members of the council's planning committee resolved to grant planning permission for the application, subject to conditions. The resolution read as follows:

"that authority be given to the Group Manager, Planning and Housing, to grant planning permission subject to conditions including the requirement that the offices and finishing shop for JD Norman be completed and operational before work on the supermarket commences, and subject to satisfactory completion of a section 106 agreement to provide a shuttle bus for a period of not less than 5 years between the new store and the High Street via Cambourne Place…"

9. In the Statement of Common Ground it is agreed that the committee gave the following reasons for the grant of permission:

i) the proposal would safeguard existing jobs at JDNL;

ii) the proposal would create new jobs;

iii) the impact arising from the proposal would be mitigated through an agreement under section 106 of the Town and Country Planning Act 1990.

10. On the 11 March 2014 an agreement under section 106 of the Town and Country Planning Act was completed and planning permission was issued.
11. On the 22 April 2014 the claimant lodged an application with the court for permission to apply for judicial review.
12. The matter was considered by Lindblom J on the 20 June 2014 who ordered that the matter be heard at a rolled up hearing. That is how the matter comes before me.
13. As a result of the order of Lindblom J the parties have agreed a statement of common ground setting out an agreed narrative of relative facts, an agreed list of issues for the court and an agreed list of relevant propositions of law for each issue identifying for each proposition the relevant authority. That document has been extremely helpful and of great assistance in narrowing the issues.

Agreed list of issues

14. The agreed issues are:

i) whether the council breached its statutory duty under section 38(6) of the Planning Compulsory Purchase Act 2004;

ii) whether the council:

a) was required to consider the operation of Landlord and Tenant Act 1954 and, if so, whether it erred in law by failing to consider the operation of the Landlord and Tenant Act;

b) whether the council took an illogical/irrational approach to the threatened loss of jobs at JDNL, in particular, whether the council failed to ask the relevant questions and/or failed to take reasonable steps to obtain the relevant information in relation to the threatened loss of jobs at JDNL.

iii) whether the council irrationally relied on condition four and/or whether condition 4 does or does not sufficiently safeguard the continued existence of JDNL;

iv) whether the section 106 is CIL compliant and/or otherwise lawful and whether the council acted properly in giving weight to it.

Legal framework

15. Judicial review is not an opportunity to rerun arguments on planning merits: see R (Newsmith Stainless Steel) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74 at [6] – [8].
16. A local planning authority determining an application for planning permission must do so in accordance with the Development Plan unless material considerations indicate otherwise see: section 70(2) of the TCPA and section 38(6) of the Planning and Compulsory Purchase Act 2004 (the PCPA). In other words there is a presumption that any decision on an application for planning permission will be taken in accordance with the Development Plan but that presumption can be rebutted by other material considerations.
17. A judgment is to be made by the decision maker, first, as to whether a proposal is in accordance with the Development Plan as a whole; and a proposed development may be in accordance with the Development Plan as a whole even if it fails to comply with one or more policies it contains: see City of Edinburgh Council v Secretary of State for Scotland [1997] 1WLR 1447, Lord Hope at page 1450 E-G and Lord Clyde at page 1459 E- F. The role of the court, if its jurisdiction is invoked on this issue, is to merely view the rationality of the judgment made by the decision maker and not to determine the question for itself.
18. If the decision maker considers a proposal is not in accordance with the Development Plan as a whole the decision maker must make a judgment as to whether material considerations indicate that the decision should be made otherwise than in accordance with the Development Plan.
19. National Planning Policy, such as the National Planning Policy Framework (NPPF) is a material consideration. A decision maker must interpret policy properly. The true interpretation of policy is a question of law for the court: Tesco Stores Limited v Dundee City Council [2012] UK SC 13.
20. A decision maker must take into account all material considerations but the weight to be given to such considerations is a matter of planning judgment for the decision maker: see Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759. However, neither the weight given to a particular consideration or the ultimate decision must be irrational in the sense of being Wednesbury unreasonable.
21. The threshold of irrationality for the purposes of judicial review is a high one: see R (on the application of Skinner and Alvarado) v London Borough of Haringey [2013] at [8] and in the Court of Appeal [2013] EWCA Civ 1870 at [12].
22. Guidance on the discretion of the court to quash a planning permission in the event of a decision maker failing to take a relevant matter into account is set out in Bolton MBC v Secretary of State for the Environment [1990] 61 PNCR 343.
23. When a challenge is based on comments made by a decision maker in a planning committee meeting it is necessary to bear in mind the judgement in R v London Borough of Camden Ex parte Kings Cross Railway Lands Group [2007] EWHC 1515 at [63] and the fact that the committee was taking a collective decision so that it was the general tenor of the discussion that was important rather than the individual views expressed by committee members let alone the precise terminology used: R v Exeter City Council ex p Thomas [1990] 3 WLR 100. Further, in dealing with such a situation there are recognised difficulties in establishing the reasoning of a corporate body that acts by resolution. As Schiemann J said in R v Poole Borough Council ex p Beebee and others [1991] 2 PLR 27:

"All one knows is that at the second that the resolution was passed the majority were prepared to vote for it. Even in the case of an individual who expressly gave his reasons in council half an hour before, he may well have changed them because of what was said subsequently in debate."

24. On Ground 2 the claimant relies upon the position in relation to a business lease under the Landlord and Tenant Act 1954 that the tenant is entitled at the contractual expiration of his lease to remain. The landlord is only able to bring his relationship with the tenant to an end by serving a notice under section 25 of the 1954 Act. When serving a section 25 notice, or when responding to an application by the tenant for a new tenancy a landlord may object to a new tenancy on the ground that he intends to demolish or reconstruct the premises comprised in the holding or a substantial part of those premises or to carry out substantial work of construction on the holding or part thereof and he could not reasonably do so without obtaining possession of the building.
25. On Ground 4 a local planning authority presented with a section 106 obligation needs enough information to be able to appraise the contributions on offer and, in particular, to asses the extent to which (if at all) those contributions would reduce the harm identified: R (Mid Counties Co-Operative Limited) v Forest of Dean District Council [2013] EWHC 1908 at [28] and R (Mid Counties Co-Operative Limited) v Forest of Dean Council [2014] EWHC 3059.
26. Further, regulation 122 (2) of the Community Infrastructure Levy Regulations 2010 states as follows:

"(2) A planning obligation may only constitute a reason for granting planning permission for the development if the obligation is—

(a) necessary to make the development acceptable in planning terms;

(b) directly related to the development; and

(c) fairly and reasonably related in scale and kind to the development."

Planning policy

27. The Development Plan comprises the Council's Core Strategy 2012 (CS). The most relevant policy is CSP.12. Where relevant that reads:

"In order to enhance the role of the town, the core strategy will support the proposed development of land east of Lydney for a new neighbourhood and will promote a new mixed development including amenity land along the access between the harbour and the town centre. The development of the town centre including improvements following the implementation of the highway strategy and the improvement of key retail sites will be supported. This will…improve the town centre and develop up to an additional 600 sq. m. convenience retailing and about 1,500 sq. m. for comparison goods principle within the south eastern part of the town centre."

28. The supporting text in the CS says:

"7.27 the development of Lydney is critical to the district as a whole. To rely on incremental growth in the (often declining) sectors present in the town's economy or not to intervene in the town centre would result in a declining town and one that could not support the wider area in the manner envisaged…

…

7.31 although there is possibly a case for the remodelling of the stores, indications are that there is unlikely to be major scope for additional convenience retailing in the town, though a modest increase will be planned."

29. Policy CSP.7 titled "Economy" has also been referred to. That reads, where relevant:

"Economic development will be promoted throughout the district in accordance with a spatial strategy and its allocations. This will encourage new and more diverse types of employment and supporting infrastructure to be established by making land and premises available."

30. As part of the supporting text to that policy, paragraph 6.47, reads:

"As part of its promotion of employment uses the policy encourages the retention of employment in locations presently used for employment, unless they are allocated for another purpose or can be shown to be unsuitable. Its scope is not confined to traditional areas or uses (B1, B2, B8 for example). The intention is to allow as broad a range as possible of alternative employment generating proposals to be considered on any given site. This range will be limited by the location and nature of the site concerned. Sites in established employment estates will not be suitable for the same uses as some in or close to town centres. Retailing may be considered as suitable where it doesn't conflict with the need to protect shopping in a town centre. By being flexible with the types of employment, a better range will be established through time. It will be a long term process but given the variety of sites (some of which are in exceptional locations), it will deliver welcome change over a wide area."

31. A material consideration in the determination of the application was the NPPF. It confirms that the status of development plans is unchanged and that proposed development which conflicts with an up to date local plan should be refused, unless material considerations indicate otherwise (paragraph 12).
32. The NPPF requires local planning authorities to recognise town centres as the heart of their communities and pursue policies to support their vitality and viability (paragraph 23). A sequential test should be applied for retail development which is not in an existing centre. When assessing applications for retail development outside the town centre which are not in accordance with an up to date local plan local planning authorities should require an impact assessment if the development is over a proportionate locally set floor space threshold. That should include an assessment of the impact of the proposal on the town centre vitality and viability (paragraph 26).
33. Where an application fails to satisfy the sequential test or is likely to have significant adverse impact on investment in a centre or vitality and viability it should be refused (paragraph 27).

The Officer Report

34. The officers produced a detailed report which highlighted the key issues in the determination of the application. One of those was the principle of development. Under that heading the report recorded that the eastern part of the site already had planning permission as part of a larger scheme for mixed employment and housing use. The land where the new finishing shop and offices were to be located was outside land which was allocated for development but, as it fell within the settlement boundary, it was considered that the principle of employment development in the location was acceptable. The report went on:

"Policy CSP.12 of the Core Strategy focuses on Lydney and identifies that in order to support the role of the town centre the proposed development to the east of Lydney for a new neighbourhood will be supported. The land identified for the neighbourhood centre is outside of land subject of this application and is located further to the north. This, along with other measures, would enable employment generating uses to be developed. The proposal for a new supermarket will generate jobs, and although this is a different type of employment to that previously approved, it remains an employment generating use. However, although this is the case, the supporting text to policy CSP.12 identifies that uses which conflict with the broader claims of economic regeneration and could harm the town centre will not be permitted. This will be assessed in greater depth below. Policy CSP.12 also identifies that an additional 600 sq. m. con convenience goods retailing and about 1500 for comparison goods is to be provided principally within the south eastern part of the town centre. The proposal would be contrary to this due to its location and amount of convenience goods floor space, as 1462 sq. m. is proposed."

35. The report continued that the purpose of the neighbourhood centre was to provide a local centre for the new east of Lydney neighbourhood but was also to enhance the town centre. Due to the relative distance between the neighbourhood centre and the Asda store it was considered to be unlikely that there would be linked trips between the two. It was likely that the facilities offered by the store would be similar to those proposed within the neighbourhood centre and that would undermine its development.
36. On this part of the evaluation the report said:

"In conclusion it is considered that, in the wider sense, the principle of a store in that it creates employment rather than the employment uses envisaged by the existing planning permission is accepted however the store provides greater convenience retailing envisaged within the core strategy and this, and the other issues of material consideration which must be assessed are considered below. The principle of the provision of B1, B1/B8, new finishing shop and offices is considered acceptable and this element of the scheme would accord with the policy CSP.7 of the core strategy."

37. Under retail need and impact the report noted that policy CSP.12 was not designed to consider out of centre proposals and so the proposal was contrary to the Core Strategy.

Impact on town centre vitality and viability and consumer choice

38. The report continued:

"The information provided has been assessed by the council's retail consultant who has concluded that the trading effects of the proposed store will have a clear adverse impact on the financial turn over in Lydney town centre. When combining the convenience and comparison good sectors, the cumulative impact will be a loss of 31% of the retail annual turn over in 2017."

39. The officers were not impressed by the retail impact assessment submitted by the applicant. The report continued:

"Due to the concerns identified above the council's retail consultant has undertaken their own analysis of financial impact in relation to the convenience good sector. This concludes that the impact of the Asda proposal will result in an overall cumulative loss of trade to Lydney town centre of 38% at 2017. The impact on existing stores in Lydney is different for each. The impact on trade for the existing Tesco store would be 37% with £11.5 million diverted to the proposal. For the Co-op the impact would be 26% with £2 million trade diversion. …As a result of this analysis it is considered that there would be a noticeable effect on the trading performance of the Tesco store. Although it is considered that this store would not close, the level of impact is likely to have knock-on consequences for the town centre. In relation to the Co-op store it is already trading at a level below the 2011 Lydney retail study benchmark figure and the development would worsen their situation. The store is considered to have a modest trading performance but is distinctly less well-used than the Tesco store. There is therefore already pressure on the Co-op store without the Asda store opening. …it is considered that the proposal would divert £15.9 million from the town centre retail sector which would have a marked effect on the future trade performance of the town centre. In addition, the loss of linked trips to Tesco and spin off benefits this may provide in the form of linked trips is key. …The proposal is in an out of town location, and at the present time isolated, although it is acknowledged that there are extant permissions for both residential and employment development. The store is located approximately one kilometre from the town centre and linked trips are far more unlikely. Whilst there is a footpath link that is to be provided there is no intervisibility with the town centre. A store of the nature proposed is more likely to offer a one-stop 'shopping experience' than a store within the town centre where there are opportunities for linked trips and the benefits that this bring which are both for convenience goods retailers and other services … Overall it is considered that the trading effects of the Asda store will have a clear adverse impact upon financial turnover in Lydney town centre. The retail sector in the town could be impacted upon by 31% with the impact on the convenience goods sector at 38% it is therefore considered that the proposal would be contrary to the aims and aspirations of policy CSP.12. …the NPPF asks LPAs to consider whether the impacts associated with the development can be classed as 'significant adverse impacts'. For the reasons identified within this section is it considered that the impact of the proposed Asda can be classed as significantly adverse."

40. This section of the report ended as follows:

"In conclusion, it is considered that the proposal fails to demonstrate compliance with the sequential test and the NPPF identifies where this is the case though the application should be refused. The NPPF also identifies that if there is a 'significant adverse impact' then the application should be refused. In this case, it is considered that there are significant adverse impacts due to the scale and financial impacts on the town centre, possibility of store closure and the loss of town centre vitality. It is, therefore, considered that the proposal is contrary to the advice in the NPPF and policy CSP.12 of the Core Strategy."

Other material considerations

41. The report considered that there were material considerations which should be taken into account. The officer advised that JDN had purchased the finishing shop and offices that were formerly operated by FM. A replacement finishing shop and offices were absolutely vital to maintain JDN's viability and presence within Lydney. Without that the manufacture of camshafts would be relocated to other JDN facilities outside the UK. Such a loss of Lydney's largest employer and hundreds of high quality jobs would cause hardship to hundreds of families. JDN was said not to have the capital expenditure budget to fund such a scheme. However, Windmill had agreed to utilise receipts from Asda to provide investment to allow for construction of a finishing shop and offices. Without that, it was said there was no viable plan B.
42. The report continued:

"The information provided by the applicants is welcomed, but raises a number of questions. Firstly no evidence has been provided that the lease finishes at the end of 2014. If it were provided it would help support the applicants' position and it is acknowledged that to have the facilities on land within their ownership would provide greater security. There is no reason to doubt that the lease does not finish at the end of 2014, in which case the applicants have been asked to demonstrate what alternative provisions are in place to continue to deliver the planned orders which the supporting information highlights is in place until 2017 with major world wide manufacturers. …the applicants have been asked to provide further information to demonstrate how granting permission for the Asda store would enable the development of the new finishing store and offices in financial terms and have confirmed that £1.5 million of investment will be provided to allow the construction … the applicants are of the opinion that the proposal will secure the existing jobs at JDN and the opportunity of further jobs at the site. It would be possible to ensure that the new finishing shop and offices were built prior to the commencement of the development of the new store thereby giving the opportunity to secure the business. Whilst it is acknowledged that there is planned work to 2017 which indicates the likelihood of the business continuing to operate, should market forces dictate there would be no guarantee that the actual jobs would be retained. It is also important to recognise the other job opportunities which would arise from the other B1 and B1/B8 development, but this should be balanced with the concerns raised regarding the potential for store closures or downsizing within the town centre and associated potential for job losses. …it is therefore considered that the proposal does offer wider benefits to which a great degree of weight can be attached. Greater weight could have been attached if further supporting information had been provided. Notwithstanding this, the consequences of allowing the proposal would mean that it would run contrary to the need to recognise town centres as the heart of communities and to pursue policies to support their vitality and viability as identified within the NPPF."

Impact mitigation and section 106 requirements

43. Dealing with impact mitigation and section 106 requirements the report recorded that the applicants had put forward a package of financial contributions in order to help mitigate the adverse impacts associated with the development. The applicants had acknowledged that adverse impact could not be entirely overcome by the package but was able to mitigate the impact.
44. The contributions that were on offer were summarised as follows:

i) £25,000 for town centre management advice which would be paid to an expert town centre management adviser to work with the town council and local traders to suggest improvements with a view to attracting more shoppers and visitors;

ii) Town centre improvements - for which £210,000 would focus on physical improvements to the town centre;

iii) Market square – a feasibility study was to be undertaken and £20,000 was allocated towards the implementation of recommendations from that study;

iv) Additional CCTV camera coverage later confirmed to be £15,000;

v) Shop front improvement grants of £5,000 each for up to twenty shops linked to the town council's neighbourhood plan design guide;

vi) A shuttle bus to be provided from Asda to the High Street via Camborne Place for a period of five years or less if a commercial operator took over the service sooner;

vii) Transport/path link to town centre contributions to the town centre in the sum of £75,000.

45. The report continued that it would have expected that expert advice would have accompanied the planning application to inform and quantify the impacts that need to be mitigated against. The danger of having that advice as part of the section 106 package was that without the impacts being quantified nothing could be done to mitigate the harm that would result to the town centre. As for the Market Square proposal it may be that it would not be feasible. The result could be that none of the elements of the package could come forward so that the impacts of the proposal would not be mitigated in either whole or part.
46. On the public realm improvements the report said that it needed to be borne in mind that there were no detailed schemes in place as to what the money could be spent upon or detailed evaluations as to how that works would offset the significant reduction in the town centre trading which had been identified. The CCTV provision was more realistic as areas where there was a deficiency in the existing provision could be identified.
47. On the path and transport link a contribution had already been secured by the residential planning permission on land to the north and as such it was not reasonable to include it within that package. As to the bus service the information provided was insufficiently detailed to determine what the money would provide. As a result the officer recommendation was of refusal.
48. As set out a supplementary note was prepared for the meeting on 12 November 2013 dealing with late submissions.
49. The note recorded that the officers had been provided on a confidential basis with a copy of the lease between MMC and Federal Mogul (FM).
50. Further retail analysis had been carried out by the council's consultant which concluded that a cumulative impact on Lydney town centre of the proposed store was 34%. There would be a 43% loss of trade in relation to the convenience goods sector and 11% on the comparison goods sector. It remained the case that that had to be considered as a significant adverse impact on the health of Lydney town centre.
51. The note continued:

"It was suggested to the applicants on a number of occasions during the course of the application, that they may wish to provide evidence to support the material considerations which they had identified. For understandable reasons a copy of the lease between MMC and Federal Mogul has been provided on a confidential basis. The purpose of its provision is to demonstrate that the lease will expire at the end of December 2014 and there is no alternative. It is the case that the lease expires at the end of December 2014 and the tenant's right to occupy ceases at this point. However, this does not preclude the lease being extended by the landlord or a new lease being negotiated. In addition, the tenant could refuse to leave and therefore 'holding over' on the lease terms. Therefore, it cannot be agreed that there is no alternative to the granting of the planning permission to enable the offices and finishing shop to be constructed for JDN."

52. It was recorded that there had been further representations providing costings in relation to improvements to the environment and public realm. That provided additional details to support the figures identified in the earlier report. It concluded that the monies offered in relation to improvements to the environment and the town centre could mitigate in part the harm to the town centre that would result from the proposal.
53. The report went on:

"In conclusion, therefore, whilst it is acknowledged that there are material considerations to be taken into account, they do not outweigh the development plan or the advice in the NPPF. The recommendation remains one of refusal but with the removal of the second and third suggested reasons."

The Committee Meeting

54. The committee met, as planned, on 12 November 2013. The minutes of the meeting confirm divided views between those councillors that spoke. The ward members were supportive of the application as it would provide jobs both in the factory and in the supermarket. The motion that was eventually put forward and seconded was that the application be approved because:

"This development of a brown field site would safeguard existing and create new jobs and that the impacts arising from the development would be mitigated by the 106 obligations offered. This motion was subject to a condition requiring the offices and finishing shop being completed and operational before work on the supermarket commenced and that any further conditions be delegated to officers to draft."

55. It was also proposed that approval be subject to the satisfactory completion of a section 106 agreement to provide a shuttle bus service for a period of not less than five years between the new store and the High Street via Camborne Place and £380,000 to provide:

Town centre management;

Town centre improvements;

Market square;

Additional CCTV coverage;

Shop front improvement grants.

56. The section 106 agreement was to be completed within six weeks of any confirmation by the Secretary of State that he did not wish to call in the development pursuant to Town and Country Planning (Consultation) England (Direction) 2009.
57. The Committee voted seven members for and seven against the resolution. The chairman used his casting vote in favour.
58. On 28 January 2014 the Secretary of State for Communities and Local Government advised that he would not be calling in the application for his own determination.
59. On 11 March 2014 the council issued a formal notice granting permission subject to a series of conditions including condition 4 which reads:

"Prior to the works commencing on the retail store hereby permitted, the finishing shop and its associated offices hereby permitted shall be completed and operational."

60. A section 106 obligation dealing with all the matters subject to the council resolution was executed prior to the grant of permission.
61. Section 8 of the obligation further provided for the implementation of a shuttle bus service if not already in place for a period of five years from when the retail store opened.

Ground 1: Breach of the Council's statutory duty under section 38(6) of the Planning and Compulsory Purchase Act 2004

62. The claimant relies upon the case of Colman v Secretary of State for Communities and Local Government [2013] EWHC 1138 (Admin) where Kenneth Parker J restated the approach to be followed as between the Development Plan and material considerations. He said:

"23. I reject that argument on two grounds. First, the NPPF in referring to "relevant policies" is plainly directing the mind of the decision maker to the express terms of the relevant policies and requiring the decision maker to compare, for consistency, the express terms with the "cost/benefit" approach of the NPPF. Secondly, and perhaps more importantly, it is a fundamental and long established principle of planning law that something identified as a "material consideration" (such as the putative economic and environmental benefit in the present context) is conceptually distinct from considerations identified in the development plan and does not ceteris paribus carry the same weight as an aim or consideration identified in the development plan itself. It is, therefore, essential, both analytically and in policy terms, to separate objectives or considerations specifically set out in the development plan from something else that can count only as another "material consideration". Mr Cocks' argument confounds elements that fall within different relevant categories, and which have a different character for planning purposes, and it cannot rescue the inconsistency that is obvious on its face between the relevant policies and the NPPF."

63. The claimant accepts that the defendant's officers were clearly alive to this statutory duty when they gave their advice as is evident from their separating out issues of compliance with the Development Plan from their analysis of other material considerations. However, it contends that when the committee itself came to vote on the application the chairman presented the issue as one of simply balancing the harmful impacts that were identified against the benefits that accrued from the development. That approach failed to acknowledge that section 38(6) of the 2004 Act provides a statutory presumption in favour of the Development Plan and that the failure of the proposal to comply with policy CSP.12 had to be approached as a conceptually distinct element in the planning balance which the committee had not done.
64. The interested parties contend that the case of Colman does not affect the previous approach of the courts. Further, the claimant acknowledges that the advice given by the officers was impeccable. One should be cautious in relying on a debate and contributions made to that debate by the members and drawing the conclusion that members failed to follow the proper approach.
65. Members were aware of the importance of JDN as one of the oldest and largest single employers in Lydney with a finishing shop on the MMC land and a foundry on their own land. Both facilities needed to be within immediate proximity of each other to achieve efficiency. In addition to direct employment the letter from Mr Roderick, the Plant Manager, emphasised that the company generated further jobs via the local supplier network where JDN spent over £1 million each year. Mr Roderick also addressed the committee at the beginning of its meeting.
66. It is clear from the officer's report that it was recognised that there were other material considerations here to which great weight could attach. That remained the case after the provision of late information. The issue of what weight should be attached was exclusively for the members.

Discussions and conclusions

67. No criticism can be made, nor is any made, of the officer report in its analysis of the Development Plan and other material considerations. It sets out quite clearly the Development Plan position and the conflict of the proposed development with it.
68. As a separate and conceptually distinct exercise the report then goes on to set out other material considerations and analyses their strength. Within the report it accepts that other material considerations in the case are of some weight.
69. The minutes of the meeting make it clear that the members were particularly impressed and influenced by the retention of existing jobs although it is evident from the advice that they received from the Group Manager, Planning and Housing, and from some of their comments in the debate that they were perfectly aware that there was no guarantee that the existing jobs would be maintained. Further, there was the prospect of provision of new additional jobs in the supermarket itself.
70. The transcript of the committee meeting makes it clear that certain members who spoke were reluctant to go against the recommendation of the officers. However, the employment consideration trumped that recommendation as there was a great need for jobs. Employment was considered to be a material consideration of the greatest weight by certain of the members who spoke. The tenor of the transcript mirrors the official minutes in this regard.
71. The members were quite entitled to disagree with the recommendation of the officers provided they had a reasonable basis for doing so. Their basis here was to give greater weight to the employment considerations than the officers. They were entitled to do so. The weight to be given to a material consideration is entirely for the decision maker.
72. There is nothing to show that the members approach was anything other than legitimate. They were clearly cognisant of the officer analysis and recommendation but declined to follow it because of the weight that they attached to what they regarded as the most significant material consideration. In their judgment that overrode conflict with the Development Plan. In my judgment they were quite entitled to come to that view: the weight that they attached to the material consideration was entirely a matter for them.
73. As is made clear in the case of Beebee there are real difficulties in establishing the reasoning process of a corporate body which acts by resolution. What an individual says during the debate may or may not be how he acts when he casts his vote after that debate. Many of those present at the meeting in this case made no verbal contribution. In those circumstances a court has to be extremely cautious in attaching any undue significance to a transcript of proceedings during the debate part of the decision making process. I have applied that cautious approach.
74. It follows that Ground 1 fails.

Ground 2

(a) Whether the council was required to consider the operation of Landlord and Tenant Act 1954, and if so, whether it erred in law by failing to consider that the operation of Landlord and Tenant Act 1954; and

(b) Whether the council took an illogical/irrational approach to the threat and loss of jobs at JDNL, in particular, whether the council failed to answer the relevant questions and/or failed to take reasonable steps to obtain the relevant information in relation to the threat and loss of jobs at JDNL

75. Ground 2 was not pursued with Mr Clarkson's customary vigour. The reason for that was that the applicants had submitted the relevant lease which, by clause 32, excluded sections 24-28 of the Landlord and Tenant Act 1954. That means that the security of tenure which is provided to a business tenant when he serves a notice under section 25 was inapplicable in the current circumstances. Mr Clarkson maintained, however, that there was no material before the Committee to enable it to conclude as it did on this ground and so its approach was irrational.
76. Mr Stinchcombe QC submits that the claimant has acted under a misunderstanding of the Landlord and Tenant Act. Clause 32 of the lease expressly excludes section 25 of the Landlord and Tenant Act. There is no mechanism by which the tenant can extend the lease. A landlord can do so but he has chosen not to do so. It follows that all matters were before the members and there is no basis for a contention that the council acted irrationally or unreasonably.

Discussions and conclusion

77. The documentary evidence submitted to the court makes it clear that:

i) In the lease held by JDN sections 24-28 of the 1954 Act are excluded;

ii) The lease under which JDN held the premises expires on 28 December 2014;

iii) By paragraph 8 of schedule 4 to the lease the landlord may serve a notice on the tenant at any time after 1 January 2014 extending the term on the lease to 28 December 2015 but no notice has been served by the landlord.

78. The documentation submitted to the court evidences a statutory declaration prior to an agreement excluding the security of tenure so that it is, as the interested party submits, incorrect to allege that the committee relied on no more than the bare assertion by Mr Roderick as to the lease.
79. It follows that there is no proper basis to allege that the council's decision was irrational as alleged in Ground 2(a) or 2(b). Without being able to occupy the land and the premises the jobs at JDN were clearly at risk. The officers had asked the relevant questions and taken reasonable steps to obtain the relevant information as to the duration and nature of the lease. They reported that to committee. Nothing else was required to enable the members to come to a decision. This ground fails.

Ground 3: whether the council irrationally relied on condition 4 and/or whether or not condition 4 does or does not sufficiently safeguard the continuing existence of JDN

80. Condition 4 is set out at paragraph 59 above. The reason for its imposition is:

"To ensure that the benefits which were considered to outweigh the advice in the NPPF and the development plan were delivered."

81. Mr Clarkson does not submit that the condition is invalid but, rather, that it cannot do the job which it is supposed to do. He refers back to the discussion on the planning application where the chairman recited the motion which was to: "approve the application on the basis that it safeguards the jobs at JD Norman and there are other benefits coming from the development in terms of additional jobs with Asda." It is contended that it was irrational for the committee to grant permission on the basis of safeguarding jobs when the advice of Mr Williams, the council officer, was that it could not guarantee that and that the only mechanism proposed in an attempt to achieve the outcome was condition 4 that could not achieve it.
82. The interested party submits that members considered employment at JDN and at the application site as an important material consideration. They were aware that there was no guarantee that jobs would be retained as that was clearly set out in the officer report. Condition 4 was an attempt to promote employment. Such an approach is entirely consistent with the emphasis on economic growth contained in NPPF at paragraph 19. The claimant's contention is no more than a disagreement on the planning merits with the defendant.

Discussion and conclusion

83. The members received very clear advice both in the reports and at the meeting that there could be no guarantees in terms of safeguarding jobs.
84. When asked, at the meeting, whether it was possible to guarantee jobs Mr Williams said:

"All you can do if you think that there is merit in the application and the points that are raised as other material considerations in terms of trying to safeguard the jobs at JD Norman is provide the facilities to allow that to happen so that you can require the finishing shop and the offices to be built in advance so that they are available for use prior to commencement of the store. You are not able to guarantee that the business will continue operating from the site. You have to make a judgment as to whether or not that is likely in light of the investment that is made and any other circumstances but we cannot guarantee that."

85. Later, Mr Williams said:

"In the supporting information that has come with the application it is quite clear that they intend to invest to do that; there is talk of £1.5 million loan to allow that to happen. That is significant investment. So members need to make a judgment as to whether or not that level of investment is a good indicator as to whether or not they realistically want to be there. It is not a guarantee but you can't have guarantees in terms of safeguarding jobs but is that genuine intention to deliver what they say they want to deliver which is new facilities to replace the old and then allow the redevelopment of the existing site with the supermarket and the four business units."

86. It is quite clear from that that members were very aware that their approach had to be to optimise the prospect of safeguarding jobs and come to a judgment as to how that was best to happen. The factors that contributed to that judgment were condition 4 and the investment of £1.5 million from the construction of the Asda store.
87. Condition 4 has to be seen in that context. It was imposed for a planning purpose, namely, to encourage economic growth. That is supported by paragraph 19 in the NPPF. In those circumstances it cannot be said that the members were irrational in relying upon that condition. It could not provide an absolute safeguard in relation to the continued existence of JDN, but the planning judgment which the members formed, and for which there was a rational basis, was to the effect that, although the condition could not deliver absolute certainty of employment, it was a positive step. That meant that the defendant was not irrational in its reliance upon it. Its phasing of the development optimised the situation for JDN which the members of the defendant council regarded as of significant weight.
88. There is no substance in this ground of challenge.

Ground 4: Whether the section 106 is CIL compliant and/or otherwise lawful and whether the council acted properly in giving weight to it ?

89. The claimant submits that a defendant presented with a section 106 obligation needs enough information to be able to appraise the contributions on offer and, in particular, to assess the extent to which (if at all) those contributions would reduce the serious harm to the town centre that had been identified. The officers had advised the members that it was not possible to make an informed judgment as to how far the package would mitigate the impacts of the proposal, either in whole or in part. The chairman during the debate is recorded as saying, "the mitigation that is in the 106 has been considered and it is considered that in balancing the impact and the harmful impacts that we have identified against the benefits that accrue the balance is that the residual harm is acceptable."
90. The claimant contends that the absence of any analysis in the approach meant that the committee failed to deal with several relevant questions that arose for consideration in light of the advice of the officers and failed to take reasonable steps to obtain relevant information in relation to the contributions offered. As a result the committee lacked relevant information that it needed to assess the extent to which the contribution offered would mitigate the serious harm identified. In particular, it:

i) had no information as to the "town centre improvements" that would be made. Instead, improvements were to be after the grant of permission;

ii) had insufficient information about whether a new market square would be feasible;

iii) had no information as to whether the contribution towards shop front improvements depended on matched funding by shop owners and, if so, the likelihood of this being forthcoming; and

iv) had no information about the frequency of the shuttle bus service.

91. Alternatively, the defendant acted in breach of regulation 122(2) of the CIL Regulations 2010. The obligation breached the test in the regulation as follows:

i) a contribution for town centre management advice was desirable but was not necessary to make the development acceptable in planning terms;

ii) a contribution of £25,000 for town centre management advice was not reasonably related in scale and kind to the development when the objective was to produce a town centre improvement plan;

iii) it was impossible to conclude that the contribution of £210,000 towards the town centre improvements was necessary to make the development acceptable in planning terms, directly related to the development, and reasonably related in scale and kind to the development when the committee did not know what improvements would be suggested in due course, what they would cost, whether and if so to what extent any such improvements could mitigate the harm identified;

iv) a contribution of £30,000 towards the market square was not necessary to make the development acceptable in planning terms in the absence of any detailed information which also made it impossible to conclude that it was reasonably related in scale and kind to the development;

v) it was impossible to conclude that a contribution of £100,000 towards a shop front grant scheme was necessary to make the development acceptable in planning terms when the basis for calculating that figure and a proper explanation of how the scheme would involve third party shop owners was absent; and

vi) it was impossible to conclude that the proposed shuttle bus was reasonably related in scale and kind to the development when the committee had no information about the proposed frequency of service.

92. Those points were given added force by the recent judgment of Mr Justice Hickinbottom in R v Mid Counties Co-operative Against Forest of Dean District Council [2014] EWHC 3059 (Admin).
93. The interested parties submit that the two Mid Counties cases were decided very much on their own facts and against their own planning history. They are entirely distinguishable from the circumstances here.
94. The statutory test that the members had to be satisfied of was whether what was proposed was related to the development, whether it was fairly related to the scale and kind of the development and whether it was necessary to make the development acceptable in planning terms.
95. The development was supported by the council because it secured all the important advantages which had been subject to additional costing which had been supplied to the members and which was to a level that was sufficient to make it acceptable. All the detail was not known but the eventual decision would be informed by a feasibility study.
96. It is clear from the committee discussion that the members were aware of the harm that would be caused by the development. They knew what the benefits were and were satisfied that the contents of the obligation were sufficient to outweigh the harm. They did not have to do more on the facts of this case where they were not constrained by the prior findings such as in the MCL cases.

Discussions and conclusions

97. In R (Mid Counties Co-operative Limited) v Forest of Dean District Council [2013] EWHC 1908 (Admin) ("MCL1") Mr Justice Stewart quashed the defendant's grant of planning permission. It is important to examine that case, and the later case ("MCL 2"), in more detail to see how much of the MCL 1 decision and the later MCL 2 decision were fact or site specific.
98. In MCL1 the defendant had granted planning permission for a class A1 retail store of up to 4,645 sq. m. at Steam Mills Road, Cinderford. MCL owned and operated a Co-operative supermarket in the town centre of Cinderford. The planning history was highly material. On 28 June 1999 the Secretary of State, accepting the recommendation from an inspector, had refused an application for outline planning permission on the site at Steam Mills Road for a large retail store, namely the construction of a Tesco food store with associated parking and petrol filling station. That application had been supported by the defendant but called in by the Secretary of State for his own determination. The inspector reported after a ten day public inquiry.
99. The 1999 decision of the Secretary of State had found that Cinderford town centre was weak and vulnerable. Food shopping was the main reason for visiting the centre in which there was relatively little comparison shopping. There was a high proportion (22%) of vacant shops scattered throughout the centre. It was common ground that the proposed Tesco store would have a significant impact on town centre turnover. The direct impact of the Tesco store on Cinderford town centre was to be in the range of 25-37% but the actual impact was adjudged to be nearer to the higher figure. An impact of 37% was likely to be crippling on a centre as vulnerable as Cinderford. The greatest impact was to be on the Co-op which would suffer around a 50% reduction of turnover. A survey of Cinderford shoppers revealed that of those that did not go into the town centre 91% said it was unlikely they would start to use it as well as the new Tesco. Of those going into the town centre 22% said that they would no longer use it if the new Tesco was built. That suggested a decline in usage rather than increased spin off. The centre was found to lack a sufficient range of non-food shops or other attractions to give any hope of significant spin off occurring.
100. In considering the suitability of the site for the development proposed and whether there were any considerations which would outweigh any possible harm to the vitality and viability of the town centre the inspector in 1999 concluded that benefits would accrue to the town centre in the form of increased parking at Haywood Road … paying for public toilets and other cosmetic enhancements to shop fronts etc. but would not be directly related to the impacts for development, would not meet the tests of the circular nor significantly enhance the centre as a draw for Tesco shoppers. As a result, whilst there would be tangible benefits associated with the proposal, they would not outweigh the very serious harm to Cinderford town centre if the proposal went ahead.
101. In the officer report in 2011, on the application which the defendant had to determine, analysis undertaken on behalf of the council estimated that between 25-30% of the current level of expenditure flowing to Cinderford town centre would be diverted to the proposed store. The report went on to say that the mitigation offered by way of financial contributions and support to Cinderford town centre regeneration scheme were a significant material consideration and satisfactory to offset the harm to the vitality and viability of the town centre and consequently the proposal was acceptable.
102. There was limited reference to the 1999 decision in the officer report where the fact of the application was set out together with a note that the Secretary of State had called it in and the appeal had been dismissed in June 1999. The reason for the dismissal was recorded as: "adverse impact on the vitality and viability of the town centre. In addition that the proposal failed to satisfy a sequential test as required in PPG6."
103. Mr Justice Stewart found, in [22.6], that the advice from the officers that the mitigation offered was satisfactory to offset the harm to the vitality and viability of the town centre and that the financial contributions were a significant material for consideration was inaccurate. In addition, there was no analysis, merely assertions of the mitigation of harm. He found it instructive that the Secretary of State had rejected, in relation to the particular site, the spin off "arguments" in terms of linked trips which were asserted in the officers' report in the statement, "these improvements to the public realm will enhance the town centre as a destination and encourage linkage trips."
104. Although the council had relied on surveys that they had commissioned the studies did not consider the application site or the impact of an out of centre supermarket on town centre vitality and viability or the improved linkages that would be required. Stewart J found it highly material that the studies did not address the position of the town centre given the very substantial impact. That was exactly the point which had in fact been addressed in the relevant paragraphs in the 1999 decision. He found, further, that there was no proper analysis of the 1999 decision in the officer report and that there was insufficient to support the submission that members were familiar with the planning history on major retail projects in Cinderford.
105. On the section 106 obligation Stewart J accepted a submission that the officers did not ask themselves how contributions would improve linkages between the site and town centre sufficiently so as to offset diversion of expenditure from the town centre to the site. Although the officers had referred to the 2007 Town Centre Enhancement Study that did not provide appropriate analysis of the benefits needed to reduce the harm to the town centre consequential upon granting permission. No adequate reasons were given to justify the opinion that the mitigation offered was satisfactory to offset the harm. He accepted that an architectural lighting scheme, landscaping and bulb planting scheme and the provision of high quality materials in the high street could properly be said to be directly related to the development in that they were capable of encouraging some customers to shop in the main shopping centre of Cinderford it could not be said that the section 106 obligations were necessary to make the development acceptable in planning terms so as to constitute a reason for granting planning permission. There was, therefore, a breach of Regulation 122(2A).
106. In MCL 2, in which judgment was handed down on 30 September 2014, Mr Justice Hickinbottom considered a further challenge by MCL in relation to the same Steam Mills Road site following the redetermination of the application which had been quashed by the decision of Mr Justice Stewart on 4 July 2013. The basis of that claim was that the committee had fallen into the same errors that had led to the quashing of the first determination. Mr Justice Hickinbottom allowed the application and quashed the decision.
107. Mr Justice Hickinbottom referred to a report of November 2013 which had been commissioned by the defendant from GVA. It did not differ substantially from the earlier report which had considered that the Co-op store would lose half its turnover and would be at risk of closure with consequential adverse effects for other shops as a result of an anchor store closing or at least losing a considerable number of customers. The overall impact on the town centre was put at 30% and at 41% of the convenience goods sector alone. Nothing in the report suggested that the position with regard to linked trips had changed since the report on the first application.
108. The claimant's submission that the officers' report continued to provide no analysis of how the section 106 contributions would or might reduce the adverse effects caused to the town centre by the proposed superstore was accepted. Mr Justice Hickinbottom said at [57-61]:

"57. One of the problems for the Council in defending the first determination before Stewart J was the fact that there was no evidence upon which to base an analysis of how the harm created to the town centre by the development would or might be mitigated by the section 106 contributions. The reports of GVA set out, to an extent, the nature of the harm, e.g. substantial reduction in customers for and possible closure of the Co-op anchor store, with a correlative reduction in in-town linked trips. GVA expressly disagreed with Trilogy's contention that the picture surrounding linked trips was different from the position in 1999. However, they did not address the question of whether, how and to what extent the section 106 measures would or might address that harm. Nor did they do so in the 2013 report. It seems that they were not asked to address that issue which, in the light of Stewart J's judgment, is somewhat curious.

58. I am unable to accept the submission that OR2 remedied the errors of law with regard to the section 106 contributions identified by Stewart J, by its references to the purported changes in local policy and strategy. Indeed, the matters referred to above, as purportedly remedying the errors, were all before Stewart J. OR1 set out all of these matters in substantively the same terms as OR2 (see paragraph 29(vi) above); and Stewart J also expressly referred to them, in this context (see paragraph 26 of his judgment). He referred to the regeneration programme, the Cinderford Northern Quarter Area Action Plan, and the Cinderford Town Centre Regeneration Scheme. In concluding that the officers had failed to analyse how the section 106 contributions would mitigate the harm, the judge therefore had in mind these matters. There is simply nothing new, of substance, in OR2. Consequently, even if I were minded to consider that Stewart J might have been wrong to have made the findings that he did, it would be difficult for me now to come to a different conclusion. His judgment was not the subject of any appeal.

59. However, I consider Stewart J was clearly right.

60. In this case, the Council contend that the section 106 contributions are necessary to make the development acceptable in planning terms. Those contributions are intended to mitigate the harm caused by the development to the town centre – that is their only purpose. It is common ground that that harm will be substantial.

61. The Council was clearly required to be satisfied that the contributions would mitigate that harm. That required some consideration of how, whether and (if at all) the extent to which it would do so. That was not an onerous task, nor did it require any form of mathematical exactitude. But it was a material consideration with which the Planning Committee was required to grapple: and OR2 (and, in its turn, the Committee) failed to do so."

109. Hickinbottom J accepted that the relevant report failed to perform the analysis required of assessing how improvements to the town centre lighting scheme, planting scheme, building materials and footways and the improvements of bus stops and service information, helped to overcome the diminution or loss of the anchor Co-op store (and loss of linked trips) and any other harm given the lack of retail or other attractions in the town centre which would be compounded by the development proposed.
110. He went on to find that there had been no material change since the decision in 1999 in a way that was favourable to the grant of planning permission. The conclusion then that significant spin off in the form of linked trips was "most unlikely" and that the town centre was so lacking in retail and other attractions to give any hope of significant spin off occurring remained the position.
111. I do not regard either MCL judgment as setting forward any new principle to be applied when a planning authority has to consider whether a section 106 obligation offered overcomes the harm caused by a proposed development. It is axiomatic that a local planning authority must apply the law now set out in the CIL Regulations, to its decision making process. That means, that in relation to a section 106 obligation which has been offered by a developer, a decision maker must approach its assessment of the statutory tests with appropriate rigour. What is appropriate will clearly vary in the circumstances of each case. That was particularly pertinent in the Cinderford cases due to the vulnerable nature of the town centre and the lack of any material change since the detailed decision of the Secretary of State in 1999.
112. I turn now to consider the situation of Lydney and the current challenge to this application. The officers' view was that the proposal caused a significant adverse impact on the health of Lydney town centre (34%). The officers went on to consider a further cumulative impact should a resolution to grant planning permission for a Sainsbury's store also be implemented. The two stores would compete against each other but the possibility of cumulative impact on the town centre increasing could not be ruled out. It follows that the starting point for the members was, applying the advice in NPPF paragraph 27, a presumption of refusal.
113. The officer report analysed the effect of the retail impact on what were regarded as the three key stores in Lydney, namely, Tesco, the Co-op and Tuffins. On Tesco, it was considered that there would be a noticeable effect on the trading performance which was likely to have knock-on consequences for the town centre but the store would not close. In relation to the Co-op, that was already trading at a level below the 2011 Lydney retail study benchmark figure and the development would worsen that situation. As a result of being already under pressure closure of the Co-op could not be ruled out and there was a possibility that there would be a reduction in the range and depth of products on offer (including non-food goods) and ongoing investment in the store could be affected. On Tuffins, that was poorly performing but because of the potential sale to another operator the future was inconclusive.
114. Because of the limited expenditure in the Lydney area and significant overall reduction in expenditure within the town centre there were concerns about the convenience sector. All three stores of major concern were within the town centre and shoppers had the opportunity to visit them together with other shops and services in the same visit. With the proposed store 1km from the town centre linked trips were far more unlikely. Although a footpath link was to be provided there was no intervisibility between the proposed store and the town centre so that the proposal was more likely to offer a one stop shopping experience.
115. The council's retail consultant advised that post-impact trading performance indicated loss of turnover and poor trading performance with the consequence that some town centre retailers may stop investment due to the poor returns that it may provide. If that happened then the town centre would be a poorer quality destination than at present.
116. In the section of the officer report on impact mitigation headed section 106 requirements it was recorded that the applicants acknowledged that the adverse impact of their proposal could not be entirely overcome by the package. The applicants put forward developer contributions to support the town centre and promote its physical enhancement to mitigate the potential identified harm. Those contributions were costed and analysed by consultants acting for the applicants.
117. Having summarised what was offered the officer report went on the review the issue of impact mitigation. It said:

"The issue of impact mitigation is a key consideration as was recently demonstrated in relation to the High Court challenge in relation to the supermarket in Cinderford. It should be noted that the offer put forward is similar to that of the Robert Hitchins Ltd. and Sainsbury's proposal. The offer has been put forward on the basis of mitigating the impacts of a single store. Whilst the applicants' offer is welcomed, there are a number of issues that are raised as a result. Firstly, regarding the expert advice which would ultimately lead to the production of a town centre improvement plan. It would normally be expected that this work would accompany the planning application in order to inform and quantify the impacts that would need to be mitigated against. The danger of having it as part of the s106 package is that without the impacts being quantified, that nothing could be done in order to mitigate the harm that would result to the town centre. Regarding the feasibility study and implementation, it may be the case that it is not feasible to have a market or market square. The result could be that none of this element of the package would come forward and the impacts of the proposal would not be mitigated in either whole or part. Regarding the public realm improvements, a number of the options could make the town centre more attractive, but it should be borne in mind that there are no detailed schemes in place that this money could be spent upon or detailed evaluation as to how such works would offset the significant reduction in town centre trading which has been identified. Whilst it is acknowledged that the Neighbourhood Development Plan is in preparation, it has not been subject to the required referendum and as such, can be given no weight. Specifically relating to shop fronts grants, this could potentially be delivered, but if buildings are owned by third parties and the money is to be match funded with each party providing half the funds, there is a danger that this may not become reality.

Regarding the monies for CCTV provision, this is a contribution that could potentially be secured as it would be possible to identify those areas of the town centre currently not covered by the existing provision. In relation to the provision of the path/transport link, this is a contribution which has already been secured by the residential planning permission on land to the north and as such it is considered that it would not be reasonable to include within this package. The implementation of the link is addressed within the relevant highways section of this report. It is a contribution which at the present time has not been paid but it is understood that separate discussions are on-going regarding this matter.

Finally the bus service, the information provided is not sufficiently detailed to determine as to what this money would provide. The applicants have identified that it would run for a five year period, or less if a commercial operator took the service over sooner. However, there is no information regarding the frequency of the service over this five year period. Once the bus service stops, this mitigation, and the opportunities for linked trips that the applicant identifies, would cease. Overall, due to the lack of detail within the offer, it is not possible to make an informed judgement as to how far the package would mitigate the impacts of the proposal either in whole or part."

118. According to the minutes of the meeting the motion put forward by the ward member, and seconded, was:

"That the application be approved, as this development of a brown field site would safeguard existing and new jobs and that impacts arising from the development would be mitigated by the 106 obligations offered."

119. In the transcript the chairman is recorded as saying:

"The motion is to approve the application on the basis that it safeguards the jobs at JD Norman and there are other benefits coming from the development in terms of additional jobs with Asda. The mitigation that is in the 106 has been considered and it is considered that in balancing the impact and the harmful impacts that we have identified against the benefits that accrue the balance is that the residual harm is acceptable. You are proposing that there is a condition specifically to deliver the finishing shop and offices before commencement of the retail store."

120. In those circumstances the members decided to reject the advice of their officers that there was insufficient detail to enable an informed judgment to be made on whether the section 106 obligation would mitigate the impacts of the proposal.
121. So far as the members were concerned, in my judgment, they had first to consider whether there was sufficient information available to them to take the section 106 agreement into account and then to be aware of, and apply, the statutory tests, but that was not something which, in the circumstances of this case, had to be applied with mathematical exactitude. Members had been advised by the officers that the applicants regarded the offer as part-mitigation only for the harm caused by the development. Further, members were reminded in the Officer Report that, in demonstrating compliance with the Regulations, the applicants noted that the purpose of the developer contributions was to support the town centre, and that its physical enhancement to redress the potential identified harm was necessary, directly related to the development and subject to a reasonable mechanism to review, reasonable in scale and kind. The members were, therefore, expressly reminded by the officers of the relevant tests.
122. The starting point for members was, therefore, an acceptance of harm to the town centre. It was against their acceptance of that principle that it can be inferred that members were satisfied that they had sufficient information to be able to take the section 106 into account. They were looking for partial amelioration of harm. That was a matter for their judgement.
123. Members were experienced members of the Planning Committee and had undergone mandatory training. As such it is a reasonable inference, in particular, as they were reminded of the tests in the officer report, that the members were familiar with the tests to be applied to consider and to take into account a section 106 obligation. They were under no obligation to spell out the CIL Regulations by name in their debate to demonstrate that they had applied them and there is nothing to indicate that the Regulations were not applied.
124. There were loose ends as a result of the applicant's obligation, such as the outcome from the feasibility study, that related to how the covenant to spend £380,000 in the town centre was to be deployed. What members were satisfied on was that the sum was necessary to bolster the town centre and increase its attractiveness. They can be regarded as accepting the applicant's arguments and being satisfied that what was on offer was sufficient to make the development acceptable in planning terms. The same applies to their judgement on the offer of a bus service for a period of five years even though warned by the officers that there was no information on frequency and that the opportunity for linked trips would cease with the cessation of the service.
125. The presumption in favour of refusal applying the NPPF was capable of being overcome by the weight that members attached to the material consideration of employment and taking into account what was offered in the section 106 agreement. That does not mean that the members misapplied the statutory tests in their consideration of a section 106 obligation. Their decision accords with their view that the benefits were sufficient to mitigate the residual harm caused by the development, at least in part and they were content, as I have said, as a matter of their judgement to accept harm to the retail centre of Lydney town centre.
126. The circumstances of this case are, in my judgment, distinguishable from the two MCL cases. There was no detailed prior finding here as there had been in the 1999 Secretary of State's decision letter which set the benchmark, absent any material change in circumstance, against which subsequent decisions on the same site had to be taken. The 1999 decision influenced the decision of Mr Justice Stewart which in turn was highly material to the judgment of Mr Justice Hickinbottom. In Lydney, as Mr Stinchcombe submits, the members were not constrained by such material considerations.
127. In conclusion, the council concluded that the development secured important advantages to the town of Lydney. The section 106 obligation had been costed by DPP, independent consultants for the applicant, and, whilst regarded by the officers as lacking, was found adequate by the members. On a fair reading of the proceedings, members were entitled to conclude that they had sufficient information to enable it to be taken into account and to meet the statutory tests given that acceptance of some harm to Lydney town centre was the members starting point. That was a matter of planning judgement entirely for them.
128. It follows that in the circumstances Ground 4 fails also.
129. In the circumstances of this case I would have granted permission to proceed but refused relief on the substantive application for the grounds set out above. I invite submissions on costs and the final Order.