The facts in the recent Coleford Aldi case illustrate much of what is wrong with planning at the moment. The decision is a useful reminder of some useful basic principles that the Court applies when considering challenges, and which should be expanded to discourage poor planning.
In 2013 a town centre site was promoted for Tesco in Coleford. Tesco withdrew from the site in 2014 after planning permission had been granted. In 2015 Aldi were refused planning permission for a competing out-of-centre site, on both retail impact and sequential test grounds. A year later Aldi made a new application. The underlying scheme was virtually identical.
The application was supported by a retail impact assessment. The council commissioned consultants who reached opposing conclusions on both impact and sequential issues. As is becoming tediously common Aldi submitted a written opinion from their QC. The council then procured an alternate opinion from a QC. As in 2015, the council's officers recommended refusal. The planning committee was deadlocked. A final decision was taken by full council granting consent to Aldi. The full council provided some note form reasons as part of their formal resolution.
Even without a Court challenge this is a sorry history. Repeat applications, contradictory professional evidence, conflicting opinions and contrary decisions. It is unsurprising that the planning system gets criticised.
Having successfully challenged other Forest of Dean planning permissions the Co-Op challenged the Aldi consent. There was an argument about whether the sequential test had properly been applied and a question about whether the retail impact consequences of the development had been considered. The final issue concerned the lack of reasons for the reversal of the 2015 refusal. Mr Justice Singh generously found in favour of the Council on the sequential test point and against them on the others.
The judge helpfully set out some general propositions for judging challenges. There is no general duty on a local authority to give reasons for granting consent. Depending on the context, there may be a need to explain their reasoning, particularly where they have disagreed with the planning report. Statements in committee debates should be given limited weight. Reports and decisions should not be read as if they are canonical texts. Earlier material decisions need to be taken into account unless they are distinguishable or reasons are given for the departure.
It would be helpful if the Courts developed these general principles in two respects. First, where a Council disagrees with an officer report then appropriate reasons should be given. Councils should not be able to hide behind bland declaratory statements. The Courts should be willing to explore whether there is evidence to support the declarations. Secondly, they should remind planning professionals of their duties. There will always be differences of opinion, but unnecessary gaming goes on in the application process and leads to challenges.
An edited version of this article appeared in Planning Magazine, 3 November 2017