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R (on the application of Sainsburys Supermarkets Ltd) v Wolverhampton City Council and Tesco Stores Limited: decision-making in respect of compulsory purchases
A recent application by Sainsburys for judicial review of a decision by the Council to exercise compulsory purchase powers in favour of Tesco, examined what can be taken into consideration in reaching a decision.
Sainsburys own 86% of a site at Raglan Street (RS) in Wolverhampton, Tesco own the majority of the remaining 14%, with the Council owning the subsoil beneath the site's roads.
Sainsburys applied for planning permission to develop the site, consent for which was granted following a public inquiry and consequently the Council agreed to sell its land. Subsequently Sainsburys decided against developing the site and negotiated the sale of its land to Tesco. Some months later the Council entered into a conditional contract with Tesco for the sale of the Council's land and agreed in principle to approve the use of its compulsory purchase powers under section 226 of the Town and Country Planning Act 1990 for the remaining land. Sainsburys again decided to develop the site and both Sainsburys and Tesco were granted outline planning permission. Tesco had proposed to cross-subsidise the RS development to fund a Royal Hospital site (RH) development within the city, which would otherwise have been unviable for Tesco but which the Council were keen to see developed. Tesco's proposed development of both sites resulted in a resolution by the Council to exercise its compulsory purchase powers in favour of Tesco rather than Sainsburys.
Sainsburys applied for judicial review of the resolution on grounds of misconstruction and predetermination. They argued the decision was contrary to section 226, which sets out that a compulsory purchase of land should only take place where the development of that land would improve the economic, social or environmental well-being of the area. The predetermination argument was based upon the existence of the conditional contract prohibiting the proper consideration of both schemes.
The application for judicial review failed. Elias J opined that, whilst the use of compulsory purchase powers to develop land other than the application site would be unlawful, Tesco's outline planning permission in respect of RS had been granted without any consideration of RH and their RS proposals had considerable planning merits sufficient to satisfy section 226. In determining in whose favour to grant compulsory purchase powers, it was held where a CPO could lawfully be made in respect of competing developments, the Council could consider all the benefits that would flow from the developments per section 226(1A) which sets out that a CPO can be made where it would "contribute to the achievement of the promotion or improvement of the economic well-being of the council's area". The guidance in Appendix A of Circular 06/04 supports the position that, "The benefit to be derived from exercising the power is...not restricted to the area subject to the compulsory purchase order, as the concept is applied to the well-being of the whole (or any part of) the acquiring authority's area."
No basis was found for the proposition that the Council had predetermined the decision, given that the Council's cabinet had been expressly advised that the conditional contract with Tesco was irrelevant to the compulsory purchase decision.
This case highlights considerations in respect of CPOs and the advantages of linking to another site which has been identified for development in the event of competing compulsory purchase requests.
Vattenfall Wind Power Limited against
a decision of the Scottish Ministers
The time limits for taking an appeal on the grounds of non-determination.
The case was determined by the Second Division of the Inner House and the opinion is that of the Lord Justice Clerk.
Vattenfall applied to Scottish Borders Council ("SBC") in April 2003 for planning permission for 12 wind turbines at Minch Moor, Peeblesshire. Some 5 years later, they appealed to the Scottish Ministers against the failure of SBC to determine their application. Scottish Ministers notified Vattenfall that their appeal was out of time. Vattenfall appealed against this decision of the Scottish Ministers, giving rise to this application to the Court of Session.
The standard timescale within which a decision must be made on a planning application is 2 months from receipt. This is extended to 4 months where an Environmental Impact Assessment is required and can be further extended by agreement between the applicant and the planning authority. Should a planning authority fail to issue a decision within the statutory period, it is open to an applicant to appeal against this as a deemed refusal. An applicant has 6 months from the expiry of the statutory period in which to appeal to the Scottish Ministers.
In August 2007, with the application 4 years and 2 months beyond the date by which a decision should have been made, Vattenfall's planning consultant put a proposal to SBC to set a formal timescale for determination. This was accepted by SBC and a date of 31 December 2007 was set.
On expiry of this timescale without a decision being issued, Vattenfall took the approach that they had a valid right of appeal against a deemed refusal for 6 months from 31 December 2007. They proceeded to lodge an appeal in June 2008.
The Lord Justice Clerk refused the appeal. He explained that planning applicants have separate rights in relation to the planning authority and the Scottish Ministers. An applicant has the right to a decision from the planning authority within the statutory period. Should the planning authority fail to issue a decision within this period, the applicant is immediately entitled to appeal to the Scottish Ministers. This right subsists for 6 months from the date of the expiry of the statutory period. If no appeal is made, however, the obligation to make a decision on the application remains with the planning authority.
The Lord Justice Clerk went on to say that an applicant has a single right of appeal in relation to an application and that the right emerges after the statutory period expires. The Scottish Ministers have no discretion to extend the time limit. By failing to appeal within the 6 month limit following the statutory period for determination, Vattenfall lost the right to invoke the jurisdiction of the Scottish Ministers.
This case clarifies the law on appeals against a deemed refusal. It is made clear that an attempt by an applicant to artificially re-start the determination period, where their application has passed the statutory period and the 6 month appeal period following thereon, will not be effective. The options for an applicant in this situation would be to either await a determination by the planning authority or re-submit the application and start the process afresh.
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