Patel, R (On the Application Of) v Dacorum Borough Council

Factual and Procedural Background

This opinion concerns an application for judicial review of the decision by the Defendant, Dacorum Borough Council, to grant planning permission with conditions for the change of use of Units 1 and 2 at Richmond Square, Hicks Road, Markyate, Hertfordshire. The planning permission was granted on 5 December 2018. The Claimant, joint owner and operator of a local convenience store and Post Office, challenged the lawfulness of this decision on sixteen grounds.

Permission to apply for judicial review was granted on nine grounds by a deputy high court judge on 27 February 2019. Subsequently, a planning obligation was entered into limiting the retail sales area of Unit 1 to no more than 170 square metres, leading the Claimant to withdraw two grounds. The claim proceeded on seven grounds.

The background includes a 2012 planning permission granted by the Defendant for a comprehensive redevelopment of Hicks Road, Markyate, including residential dwellings, commercial units, and a health centre, subject to conditions restricting shop unit sizes to maintain viability of existing retail units. The proposed development in 2018 sought to change Unit 1 from a health centre to a convenience store and Unit 2 to residential flats, with associated alterations.

The Claimant and others objected on grounds including retail impact, loss of Post Office services, highway safety, and parking. The Defendant undertook public consultations, including a further round following amendments to parking and servicing arrangements. The planning application was referred to the Defendant’s Development Management Committee, which resolved to grant permission subject to conditions on 29 November 2018. The Claimant continued to raise objections after this date. The planning permission was issued on 5 December 2018.

Legal Issues Presented

1. Whether the Defendant misinterpreted saved policy 45 of the Dacorum Borough Local Plan by assessing net floor space instead of gross floor space in determining the small-scale nature of the retail unit.
2. Whether the Defendant failed to consider the diversion of trade from the existing High Street to the proposed convenience store and its impact on the vitality and viability of the Village Centre.
3. Whether the Defendant failed to take into account the impact of the proposed development on the continuing availability of the Post Office facility within the existing store.
4. Whether the Defendant failed to consider the impact of the proposed development on employment levels in Markyate.
5. Whether the Defendant misinterpreted parking standards by calculating parking requirements based on the uplift in floor space rather than the gross floor space of the proposed unit.
6. Whether the Defendant breached procedural legitimate expectation by resolving to grant planning permission before the expiry of the advertised consultation period.
7. Whether the Defendant acted unfairly by conducting consultation at a stage when a decision had effectively been made and not conscientiously considering consultation responses before finalising the decision.

Arguments of the Parties

Claimant's Arguments

• The Defendant misapplied policy 45 by considering only net sales floor space, not gross floor space, to classify the retail unit as small-scale.
• The Defendant failed to consider that the proposed convenience store would divert trade from the High Street, harming the Village Centre’s vitality and viability.
• The Defendant ignored the potential adverse impact on the Post Office’s continued operation within the existing store.
• The Defendant did not assess the likely impact on employment levels in Markyate despite this being a key concern raised by objectors.
• The Defendant misinterpreted parking standards by focusing on the increase in floor space rather than the total gross floor space.
• The Defendant breached a legitimate expectation by deciding on the planning application before the further consultation period had ended.
• The consultation process was unfair because it occurred after the decision was effectively made, and responses were not conscientiously considered.

Defendant and Interested Party's Arguments

• The planning officer correctly interpreted policy 45 by considering gross floor space and the practical use of the unit, including the limitation of sales area to 170 square metres.
• The planning officer properly assessed the potential trade diversion, concluding that competition benefits customers and that the overall impact on the Village Centre would be positive.
• The Defendant was aware of concerns about the Post Office and had considered them through representations and policy CS23, which protects community facilities; the planning officer’s report and committee members’ knowledge sufficed to address the issue.
• The planning officer was not obliged to address every objection in detail; concerns about employment were included in representations before the committee and considered implicitly in the officer’s assessment.
• The parking standards were correctly applied starting from the gross floor area, with legitimate reductions considered due to existing permissions and other factors.
• The Defendant did not breach legitimate expectation as the consultation documents did not reasonably guarantee that the decision would await the consultation’s closure; the committee’s decision was consistent with the consultation process.
• The consultation was fair; further representations after the committee meeting did not raise new material considerations, and the planning officer conscientiously considered them before issuing the permission.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined each ground of challenge with reference to the planning officer's report, the development plan policies, and the procedural history.

On the interpretation of policy 45, the court found that the planning officer correctly considered the gross floor area and the practical sales area, concluding that the proposed convenience store qualified as a small-scale retail use. Thus, no misinterpretation occurred.

Regarding trade diversion, the court accepted that the planning officer acknowledged potential competition but reasonably concluded that the overall impact on the Village Centre would be positive, consistent with relevant policies.

On the impact on the Post Office, the court found the planning officer’s report materially misleading. The report failed to address the risk posed to the Post Office’s continued operation by trade diversion from the existing store, despite the Claimant’s clear concerns and the significance of protecting community facilities under policy CS23 and the National Planning Policy Framework. This omission was material and could have influenced the committee’s decision.

The court rejected the claim that the Defendant failed to consider employment impacts, noting that these concerns were before the committee and implicitly addressed through the retail impact assessment.

The court held that the planning officer correctly applied parking standards, starting with gross floor area and then considering reductions based on existing permissions and local circumstances.

On procedural legitimate expectation, the court found that while a legitimate expectation arose that consultation responses would be considered, there was no expectation that the committee would delay its decision until consultation closure. The committee’s resolution on 29 November 2018 did not breach legitimate expectation, and the planning officer conscientiously considered further representations before issuing permission.

Similarly, the consultation process was found to be fair, with the Defendant remaining at a formative stage after the committee meeting and properly addressing further representations.

The court excluded witness evidence contradicting the confirmed committee minutes, adhering to the principle that official records should not be undermined except in exceptional circumstances.

Holding and Implications

The court held that the Claimant's challenge succeeded solely on the ground that the planning officer's report was materially misleading by failing to address the risk to the Post Office facility (Ground 11). All other grounds of challenge failed.

The claim is allowed on Ground 11.

As to implications, the court noted that the omission was material and that the committee might reach a different conclusion if properly advised on the risk to the Post Office. The judgment does not set new precedent beyond clarifying the necessity for explicit consideration of impacts on community facilities in planning decisions. The decision requires reconsideration of the planning permission with proper regard to the Post Office issue.