The minefield of extant permissions in planning decision making

While it is established that extant planning permissions can be taken into account when determining a planning application, particularly when those extant planning permissions will have a greater adverse impact, the approach in doing so must be carefully considered. On 1 May 2020, the Outer House of the Court of Session quashed the decision by North Lanarkshire Council (the “Council”) to grant planning permission in principle for development at Westway Retail Park, about 1.8 miles from Cumbernauld Town Centre.

Background

The judicial review was brought by Bridges Antonine LLP, the owner of the Antonine Shopping Centre in Cumbernauld Town Centre.

In 2004, outline planning permission was granted for a production facility of 18,500m2 and a retail warehouse park of 30,650m2 at Westway Retail Park The retail element of the development was restricted to bulky goods although that was relaxed in 2013 to allow the sale of comparison goods. A further relaxation was approved in 2015 to allow convenience floorspace in 4 of the retail units.

At the time of the application, 12,610 square metres of floor space had been constructed, forming the 11 units within the retail park. The proposed development sought to add 1,858m2 of convenience floor space and 4,599m2 of comparison floor space, as well as a cinema, leisure facilities, a hotel, commercial space and a car showroom.

The Development Plan and Local Policies

A policy in the Clydeplan Strategic Development Plan (the “SDP”) provided, in connection with the proposed development, that an assessment should be undertaken of the impact on other Strategic Centres in the Network of Strategic Centres as well as the town centre to ensure there is no detrimental impact on their role and function. The policy also provided that the proposal should protect and enhance the town centre and other Strategic Centres.

The local plan (the “LP”) also contained policies requiring a retail assessment for proposals for retail and leisure developments outside a defined town centre with a gross floorspace in excess of 2,500m2.

The Council’s approach

The Council agreed with the applicant that a retail impact assessment (“RIA”) would be carried out on the proposed convenience floorspace only and that no assessment was required in respect of the comparison floorspace. This approach was justified on the basis of the unimplemented comparison floorspace under the extant permission and that the site was identified as a commercial centre for comparison retail or leisure.

The RIA carried out identified a 4% impact on convenience expenditure from Cumbernauld, which was considered acceptable as it would not result in significant harm. The principle of an even larger scale comparison retailing development on the site was already established.

In granting planning permission, the Council stated that the proposal was considered to be in accordance with the SDP and the LP, and that there would be no need to reassess impacts on the vitality and viability of the town centre because the proposed floorspace is less than that already consented.

The Arguments

The Petitioner advanced a number of arguments, including:

1. The Council had misinterpreted and misapplied the development plan policies with the local development policies as no proper assessment of the proposal on the role, function and challenges on Cumbernauld Town Centre was carried out. The extant planning permission could not provide a proper basis for concluding that the proposal was consistent with relevant policies.
2. The Council erred by failing to have regard to the reality that there was no real prospect of the extant planning permission being implemented to any greater extent than what had already been built. Furthermore, there was no appreciation of the differences between the current and extant applications.
3. It was unreasonable and perverse to determine the application without first having conducted a comprehensive impact assessment on Cumbernauld Town Centre. Furthermore, no proper reasons had been given.
4. The issue of prematurity in relation to the emerging local development plan (the “LDP”) had not been addressed. The Petitioner had intended to object to proposals to elevate Westway Retail Park to the same category as Cumbernauld Town Centre in the LDP and had raised that in its objection to the proposal.

In response, the Council’s principal argument was that this was a challenge to the merits of an exercise of legitimate planning judgment and that the courts should not interfere with that exercise of judgment.

Decision

Lord Burns found that the Council erred in a material way in using the extant permissions to assess impact as set out in the relevant policies and that they failed to give proper reasons. He concluded that the existence of the extant permissions did not allow the Council to assess whether the current proposal would “protect and enhance” the role and function of Cumbernauld Town Centre or cause no detrimental impact to its role and function, as required by the development plan policies. The extant permissions only demonstrated that the impact of the proposal would be less than that of the development already authorised.

In reaching this conclusion, it was noted that the Council failed to take into account a number of material considerations, namely that there was no evidence of a previous RIA in relation to comparison floorspace, the previous permission granted in 2013 did not engage the SDP policies relevant to this application and the LP policy requiring retail assessment for proposals in excess of 2,500m2.

Lord Burns rejected the Petitioners’ second argument on the basis that the Council’s use of the extant planning permission was to predict impact and effect, rather than to justify the grant of permission on the basis that the extant permission would have a greater impact. Further, he also rejected the final argument on prematurity.

Comment

This case highlights that while it remains legitimate for decision makers to have regard to extant planning permissions, the specific wording of relevant policies needs to be considered carefully.

In principle, it appears that the Council could, following assessment of the retail impact of the current proposal and whether it complied with the development plan, have had regard to the extant permissions as a material consideration in determining whether planning permission should be granted. It is not difficult to imagine scenarios where a planning permission may be granted notwithstanding it does not accord with the development plan because an extant permission would have a greater impact. However, in this case, it seems to have been accepted that there was no real prospect of the extant permissions being implemented further.

Article co-authored by Ambreen Rasool