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This blog should perhaps be read with a pinch of salt. We acted
for the losing claimant, Sainsbury's.
Sainsbury's have a town centre store in South Ruislip that
they have permission to redevelop. Asda are promoting an edge of
centre store. Asda were refused consent for their store on both
impact and sequential test grounds. With minor revisions to the
scheme six months later, the Council approved the scheme.
Sainsbury's challenged that approval.
Dove J generously interpreted the Council's Committee report
as reaching a conclusion that Sainsbury's would proceed,
regardless of the Asda development. In the absence of
anything clear in the report on that central point, his
conclusion was a masterpiece of kind inference. As a
consequence the Judge found that there was no adverse impact and
that the Sainsbury's redevelopment site was not sequentially
"available". The small changes to the refused scheme, and
marginal revisions to the retail analysis, justified the Council in
reaching a different conclusion. Dove J's judgment raises
four issues of principle.
First, it undermines the sequential test. Paragraphs 24 and 27
of the NPPF are quite clear. They are part of the town centre first
policy. If there are suitable, viable and available sites
then out of centre proposals should be refused. The policy is
blunt. If there is a sequentially preferable site available for
development then it should be given the opportunity to be developed
first. It should not be left to build out in competition or
following the secondary site. If the preferred site fails to
take advantage of the opportunity then, almost necessarily, it will
then remove itself from being sequentially preferable. Dove J's
judgment simply does not respect the policy intention that town
centres should be developed first. First should actually mean
first.
Secondly, concluding that a site is not sequentially available
because it is likely to be built out by a competitor rather misses
the point of the sequential test. If the Sainsbury's
site was available for development (and Dove J decided
that the Council thought that was available for development
and would be developed) then it must be a sequentially
preferable site, even if it is not available to the competing
developer. And should lead to a refusal on the
basis of the sequential test – after all, that is the
preferred place for development.
Thirdly, the NPPF indicates that where either the sequential
test or the impact test is failed then permission "should
be refused". The NPPF uses this diktat rarely. The clear
policy intent is that unlike much of the NPPF, where questions of
balance and competing interests are rightly highlighted, if either
the sequential or impact test fail then the policy presumption is
that permission should be refused. The same language is used in
relation to a failure to deliver "good design".
Dove J found that the wording "should be
refused" is no presumption for refusal, and in effect,
gives the key town centre first policy tests no special priority.
Clearly, decision-makers must always have the option to take
account of the NPPF policy injunctions and decide that other
material considerations outweigh them. That is the essence of
decision making. However, the decision
maker should only do so after having properly recognised that
in NPPF terms planning permission should be refused. If the town
centre first policy is to mean anything it should be that the
starting point for a proposal that fails the sequential or impact
test is that it should be refused.
Finally, planning decisions are important. If a scheme is
refused and then, with marginal changes, approved only 8 months
later that undermines confidence in the planning system.
Planning authorities must always be allowed to change their minds
but they should only do so with good and clear reasons. Since
the Courts are the only means of monitoring that when a volte
face leads to a permission they should accept the
responsibility of testing those reasons.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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On 26 July the FCA published its long-expected consultation paper on the extension of the SMCR to all FCA-authorised firms. The so-called "core regime" introduces the key concepts of regulator-approved senior managers, firm-approved certification staff and conduct rules applicable to virtually all staff.
Led by partner and ex-FCA lawyer Celyn Armstrong, who was closely involved in creating the regime when he was at the regulator, the discussion will cover practical topics such as:
planning and preparatory work tips to ensure a smooth implementation process;
the process of identifying who your senior managers should be and allocating responsibilities to them as well as dealing with disputes;
what will be required in terms of statements of responsibility and other documents; and
the impact of the extension of the SMCR and the regulatory reference regime on HR practices.
As the founding Partner of the Europe-Iran Forum, Dentons Europe will once again support this year’s event. This compelling event which explores all Iran-related topics will take place in Zürich on 3rd and 4th October.
The opening speech will be delivered by John Andrews, Consultant Editor of The Economist. This event will bring together at least 500 business leaders and policymakers who set the agenda for Iran’s post-sanctions growth and development . There will be two days of networking and collaboration.
The event will include a number of prominent speakers from Europe and Iran. Four European Ambassadors to Iran have also been confirmed as speakers.
Dentons Global Real Estate Group is delighted to be exhibiting once again at EXPO REAL, the International Trade Fair for Property and Investment which takes place on 4-6 October, 2017 in Munich, Germany.
With more than 1,700 exhibitors and 39,000 participants EXPO REAL is the biggest B2B trade show for property and investment in Europe, offering optimum conditions for efficient networking and extensive opportunities for market orientation and analysis.
Come and meet with Dentons legal advisors from China, Europe, the UK and the US on trade stand:
In Dawnus Construction Holdings Ltd v Marsh Life Ltd [2017] EWHC 1066 (TCC), the Claimant (Contractor) brought enforcement proceedings against the Employer (Defendant), in relation to an adjudication...
A recent Court of Session decision has rejected a contractor's claim for damages against a third party, where that third party had affected progress of the works.
Welcome to the August 2017 edition of the Real Estate Bulletin. In this edition we update you on recent decisions and legal developments affecting the property industry:
It is well established that a landlord can oppose renewal of a business lease if he demonstrates settled intention to demolish, reconstruct or carry out substantial construction works to the premises or a substantial part ...
The NEC3 form had the (widely publicised) aim of encouraging cooperation, collaborative working and a fair allocation of risk between the parties to the contract
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Planning TV: Designing Liveable Cities (Video)
