Fenland Council rejects ‘in full’ 11th hour bid by rival developer to halt Sainsbury’s Whittlesey store
14:37 18 February 2014
Fenland Council has rejected “in full” a bid by rival developers to halt final approval being given for Sainsbury’s to go ahead with a supermarket in Whittlesey.
In a robust response to an 11th hour “pre-action protocol for judicial review” by Harrier Developments of Manea, the council’s lawyers say there are no grounds for which any challenge could be based.
Rory McKenna, principal solicitor to Fenland Council, has set out the authority’s response in a reply Marrons Shakespeares, the law firm acting on behalf of Harrier.
Mr McKenna says the council had previously “assessed the risk of legal challenge” as the rival applications for Tesco and Sainsbury were considered as well as a third application for a business park.
“The planning committee’s decision to grant permission to Sainsbury’s was well within the range of reasonable responses to the application before it,” says Mr McKenna.
“The issues were debated at the committee. Cogent reasoning is contained within the summary reasons provided on the decision notice justifying the rational decision made.”
His robust response includes reference to Tesco and their permission for a smaller store in Station Road, Whittlesey, but officers were unable to state categorically the contractual arrangements Harrier to deliver this site.
However he was adamant that all issues surrounding that application were considered including the viability of two stores in Whittlesey and also whether the level crossing at Station Road “would be a significant restraint”.
Mr McKenna said the council sought and listened to professional advice which involved matters of planning judgement but the weight to attach to them as material considerations “was for the committee alone. Its decision was entirely rational.”
Whilst Harrier’s view might differ in their planning judgement so far as the outcome was concerned they had not “identified any arguable error of law”.
He also said the committee had attached “significant weight” to a country park proposed by March based Whitacre Management Ltd – the developer of the business park and for delivering the Sainsbury’s site.
In respect of possible objections by Whittlesey Charity over access issues and a right of way, Mr McKenna said whatever the outcome of those talks “it would be surprising if the Whittlesey Charity actively sought to frustrate” technicalities which might be needed to be overcome.
Part of the letter details access to Gildenburgh Water that might need to be closed “and there is nothing to suggest that an agreement will not be reached with Sainsbury’s in due course”. The council “considers it a reasonable assumption that a private agreement will be reached” but even if that were not to happen the county council had “apparent powers to bring about the closure of the access”.
The legal arguments also centred around remarks made by independent councillor Mark Archer of Manea on Twitter.
Mr McKenna said of Cllr Archer “it cannot be said that he had predetermined the applications” but even if it could be shown, which was strongly denied, that he was in some way biased it amounted to little.
The solicitor said Harrier had failed to demonstrate “that the bias of one member of committee was enough to vitiate the decision made by full committee. When properly construed the tweets relied upon do not constitute clear pointers of predetermination on the part of councillors”.
The council’s decision means the signing of a section 106 agreement (which ties up the fine detail of the permission) is imminent and should allow for work to progress on the Eastrea Road site.
Gildenburgh’s owner Ian Forster has written to Fenland Council objecting to his exclusion from the 106 agreement.
He also wants to know why the council “has allowed this agreement which affects part of my land and potentially access to all of it, to be progressed without my involvement as a landowner affected by the proposed development”.