Key Issue: Judicial Review, Material Considerations, and Legitimate Expectations in Planning Permission Granting

Citation: [2023] EWHC 3210 (Admin)
Judgment on

Introduction

This article presents an analysis of the case of Lidl Great Britain Limited v East Lindsey District Council, a judicial review case before the High Court of Justice in the King’s Bench Division – Administrative Court. The case revolves around the grant of planning permission by a local council, and touches on several pertinent legal principles, most notably the processes of judicial review, material considerations in planning decisions, legitimate expectations, considerations of protected species, and statutory compliance with local government legislation.

Key Facts

The litigation arose from a decision of East Lindsey District Council to grant planning permission to Aldi Stores Limited for a development at Horncastle, despite there being a competing application from Lidl Great Britain Limited. The latter’s application was delayed not due to its own fault but because further consultation was needed after a reduction in proposed floorspace. The decision to grant planning permission to Aldi was initially refused judicial review on the papers, but Deputy High Court Judge Karen Ridge has subsequently allowed certain grounds to proceed.

Judicial Review and Material Consideration

One key legal principle involved in this case is the requirement for decision-makers to give regard to material considerations. The court found arguable the issue of whether in the presence of two viable but competing retail developments, the comparative merits of the proposals should have been considered to determine which was best suited to the local community’s needs.

Citing R. (oao Chelmsford Car and Commercial Limited) v Chelmsford BC [2006], the judgment reflects upon circumstances where such comparisons become a necessary material consideration, particularly when only one of the proposals can realistically go forward. The judgment opines that the cumulative impact is significant if both supermarkets were developed, suggesting that a preference should be expected in favor of only one application.

Legitimate Expectation

The case examines the principle of legitimate expectation in planning law. It was found that while Lidl had an expectation that both applications would be heard simultaneously, it was not promised unequivocally. The expectation needs to be clear and unambiguous, grounded upon Holgate J’s summary in R (Gosea Ltd) v. Eastleigh BC [2022]. The judge found that while procedural fairness grounds were arguable, they pertained to the need for simultaneous application considerations if the claimant succeeded on the material consideration grounds.

Protected Species Consideration

Regarding the preservation of protected species under section 9 of the Wildlife and Countryside Act 1981, the court analysed if a proper assessment was conducted or scheduled before demolition as part of Aldi’s development plans. The principle in question here was whether planning permission could be granted with the condition that a necessary ecological assessment be performed later. It was found that imposing such a condition was justifiable and a proper exercise of planning judgment, rendering this claim unarguable.

Local Government Act Compliance

The compliance with section 100D of the Local Government Act 1972 concerning the requirement to list background documents was also scrutinized. It was found that the failure to list and provide access to certain documents, particularly the Nexus Addendum report, was a breach of legislative duty, but the court concluded that Lidl did not suffer substantial prejudice as there was substantial compliance with the legislation for some documents.

Outcomes

Judge Karen Ridge granted permission on grounds 1 (Failure to have regard to a Material Consideration) and partially on ground 2 (Breach of a Legitimate Expectation), given the premise that simultaneous consideration could be necessary. Grounds 3 (Failure to Consider Impacts on Protected Species) and 4 (Breach of the Local Government Act 1972) were not found to be arguable and thus were refused.

Conclusion

The case of Lidl Great Britain Limited v East Lindsey District Council highlights crucial considerations in the grant of planning permissions, emphasizing the importance of cumulative impact assessments and fair processes in decision-making amid competing interests. It also reaffirms the significance of protected species assessments in planning decisions and the need for local authorities to adhere to statutory duties pertaining to access to information. This analysis should assist legal professionals in advising clients in similar judicial review proceedings against local authorities, particularly in relation to planning decisions and compliance with legal obligations.

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