Town and country planning: material considerations

Council refusing applicant planning permission for superstore development - applicant appealing - inspector recommending permission be refused - secretary of state dismissing appeal - whether secretary of state failing to take material considerations into account - application allowedWilliam Morrison Supermarkets plc v Secretary of State for the Environment, Transport and the Regions and another: Queen's Bench Division: Crown Office List: Lightman J: 18 April 2000

William Morrison Supermarkets (the applicant) applied to Stockton-on-Tees Borough Council (the second respondents) for planning permission for a superstore, petrol filling station and training centre at the site of Stockton & Billingham Technical College on the edge of Billingham town centre.

The council refused permission and the applicant appealed.

At the inquiry, the applicant argued, among other things, that there was a clear need for a new, large superstore in Billingham.

The inspector's decision letter recommended permission be refused because the scheme would conflict with the development plan and its disadvantages would outweigh its advantages.After the close of the inquiry and prior to making a decision, the secretary of state received a number of further representations from parties who had made representations at the inquiry.

In his decision, he stated that he had taken those representations into account but that they had raised no new issues.

He dismissed the applicant's appeal.The applicant sought to quash the his decision pursuant to section 288 of the Town and Country Planning Act 1990.

It contended that the secretary of state had failed to take into account two material considerations referred to by the inspector as advantages of the proposed development; the relocation of the college; and the need for a new superstore.

It submitted that relocation was an important and controversial issue and that need was a core topic.The applicant further challenged the secretary of state's conduct in receiving and taking into account representations made after the inspector's report without communicating them to the applicant and affording it an opportunity to comment on them.Held: The application was allowed.

The secretary of state had been bound to take both material considerations into account.

The balancing of those and other advantages against the disadvantages of the proposal had been one of the main, if not the main, issue before him.On a common sense reading of the decision, he had failed to carry out the appropriate balancing exercise.

There was no reference to the issues of relocation or need in his decision and the only balancing exercise he had considered appropriate and necessary was to weigh the potential harm to the town centre against the benefits of reducing the length of journeys by car.

There was a real possibility that a different conclusion might have been reached had he undertaken a proper exercise.

He had also erred in his approach to the further representations.

The applicant had suffered prejudice and the decision was quashed.Andrew Gilbart QC (instructed by Hammond Suddards, of Leeds) for the applicant; David Elvin (instructed by the Treasury Solicitor) for the first respondent; the second respondents did not appear and were not represented.