R (on the application of Tesco Stores Limited) v Allerdale Borough Council
[2022] EWHC 2827 (Admin)
Tesco Stores Limited, R (on the application of) v Reigate and Banstead Borough Council
11 September 2024
[2024] EWHC 2327 (Admin)
High Court
Tesco sued because a new Lidl was approved near a historic monument. The judge said the council gave good advice about the rules, and the council's decision to allow the Lidl was okay because they explained why the benefits outweighed the downsides.
Key Facts
- •Tesco Stores Ltd challenged Reigate and Banstead Borough Council's decision to grant planning permission for a Lidl supermarket.
- •The development involved demolishing a locally listed building and was near a Grade II listed war memorial.
- •Tesco challenged the decision on two grounds: failure to give great weight to the preservation of the war memorial's setting (Ground 1), and inadequate reasons for finding that benefits outweighed harms (Ground 2).
- •Permission for Ground 2 was granted previously, Ground 1 was renewed.
Legal Principles
Planning applications must be determined in accordance with the development plan unless material considerations indicate otherwise.
Planning and Compulsory Purchase Act 2004, s. 38(6) and Town and Country Planning Act 1990, s. 70(2)
When considering planning permission affecting a listed building or its setting, special regard must be given to preserving it.
Planning (Listed Buildings and Conservation Areas) Act 1990, s. 66
Great weight should be given to a designated heritage asset's conservation, irrespective of the level of harm.
National Planning Policy Framework (NPPF), para. 199
Where less than substantial harm to a designated heritage asset would occur, the harm should be weighed against public benefits.
NPPF, para. 202
Harm to a listed building's setting requires clear and convincing justification.
NPPF, para. 200
Decision-makers must give 'considerable importance and weight' to preserving a listed building's setting when balancing.
East Northamptonshire DC v Secretary of State for Communities and Local Government [2015] 1 WLR 45
There is no general common law duty to give reasons for granting planning permission, but fairness may require it.
Dover District Council v CPRE Kent [2018] 1 WLR 108
Reasons must be intelligible and adequate, enabling understanding of conclusions on principal controversial issues.
South Buckinghamshire DC v Porter [2004] 1 WLR 1953
Outcomes
Permission for Ground 1 (failure to give great weight to heritage interest) refused.
The council consistently advised members of the statutory duty and correct approach. Members' own assessment of harm's extent is a legitimate evaluative judgment, not a disregard of the advice. The reasons given were adequate as they did not need to rehearse already given advice.
Claim under Ground 2 (inadequate reasons for departing from officers' view) dismissed.
The committee's reasons, read with the officer's report and addendum, clearly show the considered harms and benefits. Members were entitled to disagree with the officer's balancing of those factors without further explanation. The resolution provided an adequate explanation of the decision.
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