A recent Court of Appeal decision has highlighted the fact that planning decisions can be finely balanced, and has considered what the decision-taker needs to do in order to comply with Reg 122.
The case in question concerned an application for an out of town retail development, where it was accepted that there would be a negative impact on the town centre, but s106 obligations were advanced which sought to mitigate these. The question was whether the obligations had done enough and met the tests in Reg 122.
Reg 122(c) requires that to be taken into account as a reason for granting planning permission, an obligation must be "fairly and reasonably related in scale and kind to the development". A problem arose here because whilst the obligations were clearly linked to mitigating the adverse effect on the town centre, it was equally clear that there was not sufficient information available to members to carry out a specific quantification of their effects.
The Court of Appeal judges were unanimous in finding that such quantification will not be necessary in every case. In some cases, "the decision-maker will have concluded that an adverse impact has to be reduced by a certain amount, or to a particular level, or in a certain way if it is to be acceptable in planning terms" but that will not always be the case. Here, the employment benefits of the development were so significant that provided the adverse effects of the proposals were mitigated to some extent, the committee members were entitled to find that that was sufficient, without knowing more about the certainty of the mitigation package being implemented.
R (on the application of TESCO STORES LTD) (Claimant) v FOREST OF DEAN DISTRICT COUNCIL (Defendant) & (1) JD NORMAN LYDNEY LTD (2) ASDA STORES LTD (3) WINDMILL LTD (4) MMC LAND & REGENERATION LTD (Interested Parties) (2015)  EWCA Civ 800