Tesco Stores Limited, R (on the application of) v Reigate and Banstead Borough Council
[2024] EWHC 2327 (Admin)
R (on the application of Tesco Stores Limited) v Allerdale Borough Council
8 November 2022
[2022] EWHC 2827 (Admin)
High Court
Tesco sued because Allerdale let Lidl build a store. Tesco said the council misunderstood the rules about where stores can go. The judge said the council didn't make a big mistake, and even if they had, the result would have been the same. Tesco lost and has to pay the council's legal fees.
Key Facts
- •Tesco challenged Allerdale Borough Council's decision to grant Lidl planning permission for a discount food store in Workington.
- •The challenge centered on alleged material misdirections in the Planning Officer's Report (OR) concerning the interpretation of Policies SA49 and S30 in the Allerdale Local Plan.
- •Policy SA49 relates to the Lower Derwent Valley, specifying supported uses (sport, leisure, ancillary town centre uses) and requiring sequential and impact tests for main town centre uses.
- •Policy S30 concerns reuse of previously developed land, encouraging brownfield site development and requiring sequential tests for greenfield windfall developments.
- •Lidl's proposed site was undeveloped land near Tesco's superstore.
- •The court considered whether the OR materially misled the committee regarding the interpretation and application of policies SA49 and S30.
Legal Principles
Section 38(6) duty: Decision-makers must have regard to the development plan and decide in accordance with it unless material considerations indicate otherwise.
Planning and Compulsory Purchase Act 2004 s.38(6); BDW Trading Ltd v Secretary of State for Communities and Local Government [2016] EWCA Civ 493
Interpretation and application of planning policy: The court interprets policy objectively, considering language, context, and explanatory text; application to facts is a matter of planning judgment.
Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; Mansell v Tonbridge & Malling BC [2017] EWCA Civ 1314
Material misdirection by planning officer: The court assesses whether the OR, read as a whole and reasonably, materially misled members on a matter bearing on their decision.
Mansell v Tonbridge & Malling BC [2017] EWCA Civ 1314; R v Selby District Council, ex p Oxton Farms [2017] PTSR 1103
Highly likely different outcome test (HL:NSD): If a report is materially misleading, the court considers whether the outcome would likely have been the same, precluding remedy.
Senior Courts Act 1981 s.31(2A); R (Advearse) v Dorset Council [2020] EWHC 807 (Admin)
Outcomes
Tesco's claim for judicial review was dismissed.
The court rejected Tesco's interpretation of Policy SA49 as binary, finding it allowed for nuanced planning judgment. The court found the OR did not materially mislead the committee regarding SA49 or S30, and even if it had, the HL:NSD test was not met.
Tesco was ordered to pay Allerdale's costs.
Agreed sum of £25,008.67 (exclusive of VAT).
Permission to appeal was refused.
The court found that Tesco's proposed grounds of appeal lacked a realistic prospect of success.
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