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    The ALDI planning decision

    Posted by HH on 18/11/2020, 19:34:59

    The comments and reasoning from the Judge at the Court of Appeal for those interested who haven't seen it already.

    Although the Appellant now only relies on 3 of the 4 grounds it originally put forward, its submissions continue to be over-legalistic and unrealistically forensic rather than looking at the substance of the decisions and the basis upon which they were made. Ground 1: Sequential Test. Both limbs of this Ground are unarguable for the reasons originally set out in the Defendant’s Summary Grounds of Resistance and given by Lang J. The M&S site was unsuitable and therefore unavailable for a number of reasons, not limited to the suggestion that only one of three floors should be used, as set out in the Defendant’s SGR at [29]-[30]. It is not reasonably arguable on the facts of this case that the rejection of the M&S Site was merely “a self-fulfilling activity, divorced from the public interest.” The public interest is not served by offering a notional alternative that is so unsuitable as to be irrelevant to the proposal that is being considered, even if it would suit the private interests of the Appellant for such a view to be taken. The approach taken to the availability of the Power Court site was unimpeachable. The decision maker in a case such as the present is entitled, if not bound, to consider whether an alternative site is available for development to take place. Power Court, despite its planning status, was not available in that sense and would not be within a reasonable period, for the reasons given by the OR. That was a reasonable and legitimate planning judgment with which the Court will not interfere. Ground 2: Compliance with the Development Plan It is clear beyond argument from the OR that the planning officer considered that the proposal was not in accordance with Policy LLP27 on Open Spaces: see paras [94]ff That was the basis for the open recommendation with alternative proposals for the DCC to consider. The DCC adopted one of those proposals which implies acceptance of the reasoning and the planning judgment that the balance favoured grantingpermission. There is no absence of reasoning and this ground is unarguable. Ground 3: Immaterial Consideration This ground is not reasonably arguable for the reasons set out in the Defendant’s SGR and as given by Lang J. The “first issue” fails for the reasons set out at [50] of the Defendant’s SGR. The “second issue” fails for the reasons set out in [14] of the First Respondent’s Statement of Reasons why permission to appeal should be refused. [11] of Lang J’s judgment is clearly right

      Re: The ALDI planning decision

      Posted by Fact Check on 18/11/2020, 19:44:49, in reply to "The ALDI planning decision"

      Ground 1 - LBC officers report agreed with Aldi's claim that Power Court would not be available to build on for SIX years. Hence they could reject it out of hand as not being available when they need it.

      Passing the Sequential Test means not causing harm to a higher order site (Power Court). Councillors believed Aldi when they said they'd take both Power Court and Gipsy Lane (so wouldn't cause harm).

      Both instances are now shown to be untrue

        Re: The ALDI planning decision

        Posted by Erroll on 18/11/2020, 21:24:06, in reply to "Re: The ALDI planning decision"

        Ground 4: Councillors at Luton Borough Council universally agree that the installation of conveyor belts under the tables enhances the trading of well padded out brown envelopes,for the greater good of the town.

          Re: The ALDI planning decision

          Posted by Strider on 18/11/2020, 23:10:53, in reply to "Re: The ALDI planning decision"

          What I don't understand is Ground 2, whereby the planning officer originally recommended the application be refused because it didn't comply with Policy LLP 27. The application was then withdrawn from the original meeting because Aldi argued there was no loss of open space, as a previous permission had been granted, which meant that it already had been. However, in the subsequent OR it was acknowledged that as conditions of that permission had not been discharged that Policy LLP27 was still applicable. So why was the recommendation changed from one of refusal, to an open recommendation, when nothing had changed since his original recommendation ? This change of recommendation meant, however,that if the Development Control Committee decided to grant the application (which it did) that the application did not then have to go to Full Council, which would have been the case if they wanted to grant it contrary to a policy in the Council's Local Plan. So I repeat the question why was the change of recommendation not challenged prior to the decision being made because by the time the judge at the Court of Appeal made his decision I believe he would only have considered the sequence of events that did occur, rather than considering the above issue (in reaching his decision).

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