Town and country planning – Planning applications – Alternative sites – Material considerations – Claimant and interested party submitting competing planning applications for out of town supermarkets – Defendant local authority allowing application of interested party without comparing claimant’s application – Whether comparison “obviously material” – Whether defendant erred in failing to carry out comparative exercise – Application granted
The claimant and the interested party were supermarket operators trading in a discounter style. Each had applied for planning permission, within a few weeks of each other, for a supermarket on different parcels of land outside the town centre but within the settlement of Horncastle, Lincolnshire. In order to assess each application, the defendant local authority appointed specialist retail consultants to evaluate the retail analysis submitted by the interested party and the claimant respectively.
The report advised that, on a cumulative basis, the retail impact of the two supermarkets outside the town centre would lead to the risk of a significant adverse impact on the vitality and viability of the town centre, which local and national policy sought to avoid. On a “one-store” basis, each store on its own would not have such an impact.
The claimant subsequently applied to quash the grant of planning permission to the interested party for development of its new retail food store and associated development. The claimant’s application for planning permission had yet to be determined. By agreement, it was being held in abeyance pending the outcome of the judicial review claim.
The claimant’s essential complaint was that, in circumstances where there was only sufficient capacity for one new food store in an out of centre location (without causing a significant adverse impact on the vitality and viability of the town centre), the defendant acted unlawfully in granting planning permission for the interested party’s proposal without comparing it to the claimant’s proposal.
Held: The application was granted.
(1) The determination of an application for planning permission had to be made having regard to the provisions of the development plan (so far as material) and to any other material considerations (section 70(2) Town and Country Planning Act 1990). The determination had to be in accordance with the development plan unless material considerations indicated otherwise (section 38(6) Planning and Compulsory Purchase Act 2004).
In considering an officer’s report to members of a planning committee, the test was in substance whether the report was materially misleading. The report should not be made subject by the court to hypercritical scrutiny and should be read fairly and as a whole. There were many cases on the materiality of alternatives in planning decision making. It would ordinarily be a matter of planning judgment for the decision-maker to assess the relevance of the alternatives. It was necessary to approach the authorities with a degree of caution since they were all fact sensitive: R (Chelmsford Car and Commercial Ltd) v Chelmsford [2005] EWHC 1705 (Admin); [2005] PLSCS 132; [2006] 2 P&CR 12 considered.
(2) In general, comparability was appropriate to cases having the following characteristics: (i) the presence of a clear public convenience, or advantage, in the proposal under consideration; (ii) the existence of inevitable adverse effects or disadvantages to the public or to some section of the public in the proposal; (iii) the existence of an alternative site for the same project which would not have those effects, or would not have them to the same extent; and (iv) a situation in which there could only be one permission granted for such development, or at least only a very limited number of permissions: GLC v Secretary of State for the Environment (1986) 52 P&CR 158 and Secretary of State v Edwards [1994] 1 PLR 62 considered.
The critical question therefore was whether this was a case where a comparison between the two schemes needed to be made. That question could not be resolved by determining the somewhat abstract legal debate about how alternative cases should be classified and whether there was a special category of rival cases. As these kinds of cases were fact-sensitive, the need to undertake a comparison would only be a mandatory material consideration if it was “so obviously material”. It would be so where it would be irrational not to assess it: R (Friends of the Earth Ltd) v Secretary of State for Transport [2020] UKSC 52 considered.
(3) Adopting a “first-past-the-post” approach did not satisfy the need for a coherent way of determining which of the rivals should be preferred. This was a case like Chelmsford where a fair comparison and coherent comparison of the rival sites was needed (and was not undertaken). Therefore, this case was in the territory of a mandatory material consideration because, on the facts of the case, the need for a comparison was “so obviously material” as to “require direct consideration”: R (Samuel Smith Old Brewery (Tadcaster)) v North Yorkshire County Council [2020] UKSC 3; [2020] EGLR 13 applied.
The critical facts were that the evidence identified the reality that there were two proposals before the authority to address the finite available capacity for a single out of centre supermarket without having an adverse impact on the town centre. That essential position was established and uncontentious (as analysed by the defendant based on the cumulative retail impact). Both proposals were before the defendant. There was also no suggestion that either applicant had behaved in a tactical or contrived way. In this specific context, it was not lawful to omit a comparative assessment: Edwards and Derbyshire Dales District Council v Secretary of State for Communities and Local Government [2010] 1 P&CR 19 considered.
(4) The cumulative impact evidence was clear. Two out-of-centre supermarkets would risk a significant adverse impact on the town centre. There were two applications before the defendant, each seeking to address the available capacity without causing a significant adverse impact on the town centre. On any realistic view of the retail evidence, this was a situation where two stores were competing for one planning permission because the retail evidence was that more than one store would cause significant harm to the town centre. Those uncontested facts made the comparison between the rival candidates obviously material. The essential complaint which succeeded in this claim was that the defendant failed to undertake such an exercise. Accordingly, the grant of planning permission would be quashed.
Douglas Edwards KC (instructed by Blake Morgan LLP) appeared for the claimant; Killian Garvey (instructed by Legal Services Lincolnshire) appeared for the defendant; Neil Cameron KC (instructed by Freeths LLP) appeared for the interested party.
Eileen O’Grady, barrister
Click here to read a transcript of Lidl Great Britain Ltd v East Lindsey District Council
