This case concerned a successful judicial review action against the granting of a planning permission for the development of an out of town supermarket. Midcounties Co-operative challenged the decision on the basis the council failed to consider how the contributions under a s106 agreement would offset the substantial harm which would be caused by the development.

An application for an out of town supermarket had previously come before the council in 1999 but was called in for decision by the Secretary of State, who refused it. The inspector had found the town centre was weak and vulnerable and would suffer very serious harm to its vitality and viability if the development of the supermarket was to be permitted. The s106 obligations put forward at the time were considered not to be sufficient to outweigh this harm.

However, with largely similar s106 obligations, the planning committee deciding this application found that the mitigation offered by the obligations was satisfactory to offset the harm.

The council’s approach was criticised on several grounds. The judge found that although they had considered the mitigation offered by the obligations, there had been no analysis of how this mitigation would actually take place. The town lacked retail attractions of its own and no evidence was presented of how the enhancements would provide such attractions, there was simply an assertion that the obligations would mitigate the harm.

Further, this application was indistinguishable from the previous 1999 decision, making it a material consideration. The council had failed to deal with this appropriately, and failed to give reasoning for their departure from this decision by the Secretary of State.

This case shows the importance of justifying the need for the s106 obligations, and demonstrating how they will actually mitigate the harm caused by the development.