Lidl Great Britain Limited, R (on the application of) v East Lindsey District Council

15 December 2023

[2023] EWHC 3210 (Admin)

High Court

Two supermarkets wanted to build stores in the same town. The council approved one without properly considering the other. A judge said the council should have compared the two applications before making a decision, and that it might have been unfair not to consider them together. The other issues raised by the losing supermarket were rejected.

Key Facts

•Lidl sought judicial review of East Lindsey District Council's decision to grant planning permission to Aldi for a discount supermarket.
•Both Lidl and Aldi submitted competing applications for discount supermarkets in Horncastle.
•Lidl's application was delayed due to amendments, resulting in Aldi's application being considered first.
•Lidl argued that the Council failed to consider the cumulative impact of both supermarkets and the relative merits of the two proposals.
•Lidl also claimed breach of legitimate expectation and failure to comply with the Local Government Act 1972 regarding access to background documents.

Legal Principles

Where two rival proposals exist and only one can be permitted, the relative merits of each are a material consideration.

R. (oao Chelmsford Car and 3 Commercial Limited) v Chelmsford BC [2006] 2 P&CR 12; Secretary of State for the Environment v. Edwards (1995) 69 P & CR 607; Greater London Council v. Secretary of State for the Environment and others [1986] 52 P & CR 158

A claim for legitimate expectation requires a clear, unambiguous promise or representation by a public authority.

R (Gosea Ltd) v. Eastleigh BC [2022] EWHC 1221 (Admin)

Section 100D of the Local Government Act 1972 requires councils to provide access to background papers referred to in agenda reports; substantial compliance and material prejudice are key considerations.

R (Kinsey) v. Lewisham LBC [2021] EWHC 1286 (Admin); R (Worcestershire Acute Hospitals NHS Trust) v Malvern Hills DC and others [2023] EWHC 1995 (Admin)

In planning decisions, the cumulative impact of multiple developments is a material consideration.

Officer Report (OR) and its addendum

Outcomes

Permission granted for judicial review on Ground 1 (failure to have regard to a material consideration) and partially on Ground 2 (procedural unfairness).

The court found that the Council arguably erred by not fully considering the Lidl proposal as a material consideration given the likelihood that only one permission would be granted. The court also found that it was arguable that the council's failure to consider both applications at the same meeting, given an expressed prior intention to do so, was procedurally unfair.

Permission refused for judicial review on Ground 3 (failure to consider impacts on protected species) and Ground 4 (breach of Local Government Act 1972).

The court found the Council's handling of the protected species issue to be a matter of planning judgment and proportionate. Regarding Ground 4, while acknowledging non-compliance with section 100D, the court found that Lidl did not suffer substantial prejudice from the lack of access to the documents.

Lidl Great Britain Limited, R (on the application of) v East Lindsey District Council

Key Facts

Legal Principles

Outcomes

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