Planning Court judge rules claim brought by store developer “totally without merit”

A High Court judge in the new Planning Court has rejected an application for a judicial review made by a development partner of Tesco, certifying that the claim was “totally without merit”.

Harrier Developments was seeking to challenge Fenland District Council’s decision in January 2013 to grant planning permission for its rival Sainsbury’s proposed store in Whittlesey.

Harrier had tried but failed to secure planning permission for its own site. Amongst its grounds for challenge were the council’s consideration of retail impact, highways and related third party ownership issues.

In addition to rejecting the application, Mr Justice Mitting ordered Harrier Developments to pay Fenland District Council’s legal costs.

The judge said:

• This was a matter of planning judgement. “The Committee had abundant evidence up on which it could decide that, if permission was given for the Sainsbury’s development, it was unlikely that a store would be built on the Station Road site, in particular the advice given by Roger Tym & Partners.”
• It was not the case that there was and is no prospect at all that access to the proposed country park and the construction of a roundabout at the entry to the Sainsbury’s site would be delivered. “The Committee was entitled to conclude that there was a real prospect that both would be.”
• “Despite the length and erudition of the grounds”, there was nothing in them. “This was a classic case for the exercise of judgement by the Committee and the Head of Planning; and both reached decisions which they were entitled to reach for good reason.”

As a result of the ruling that the application was “totally without merit”, Harrier cannot request that the decision to refuse permission be reconsidered at a hearing.

In a statement, Fenland said: "We are naturally delighted with the High Court judgment, which completely vindicates our planning process. Officers have worked tremendously hard to achieve this outcome. It has required painstaking and thorough work over a sustained period.

"Throughout the whole legal process we have robustly defended the Planning Committee's decision to grant permission for the Sainsbury's superstore and we have been proved to be right.”

The local authority added: “In dismissing Harrier's application as totally without merit, the judge couldn't have been clearer.”

Cllr John Clark, Leader of Fenland, said: "This is great news for the council and for Whittlesey. I am particularly grateful to all our officers for guiding us through this very long and difficult process.

"Everyone will now hope that work can proceed quickly to create the development that the people of Whittlesey have made clear they desperately want."

James Findlay QC and Asitha Ranatunga of Cornerstone Barristers appeared for Fenland.