Supermarket giant loses High Court challenge over rejection of major scheme in east London

Retailer Sainsbury's has failed to persuade the High Court to overturn the rejection of a planned redevelopment in east London involving a replacement store, retail, office and community space and 471 homes in eight blocks.

It applied under section 288 of the Town and Country Planning Act 1990 to quash the decision of the Secretary of State for Housing, Communities and Local Government in June 2019 to dismiss its appeal against the failure of the London Borough of Tower Hamlets to determine the application.

Sainsbury’s appealed over this failure to determine its application in December 2017.

This was reported to the council’s planning committee in February 2018, which resolved that it would have refused the application due to affordable housing concerns, harm to the setting of the listed Albion Yard Brewery and the Whitechapel Market Conservation Area and unacceptable impact on daylight and sunlight to surrounding properties.

An inquiry was held by inspector David Nicholson in October 2018 and he recommended Sainsbury’s appeal should be allowed because the public benefits of the scheme would outweigh the harm to heritage assets.

But the Secretary of State disagreed, citing the location of all the scheme’s social rented housing at its northern end “at the greatest walking distance from public transport, shops and services, and that the podium barrier would not only divide the types of tenure, but also separate the amenity and play space areas”.

He said “no persuasive explanation was given as to why the units were separated in this way”, and said the National Planning Policy Framework sought not just to deliver raw housing numbers, “but to achieve healthy, inclusive and safe places”.

The separation of the affordable housing, amenity and play space areas was not in keeping with the aims of paragraph 91 (a) “to achieve inclusive places that promote social interaction, including opportunities for meetings between people who would not otherwise come into contact with each other”.

Sainsbury's put to the High Court that the Secretary of State’s decision not to provide it with the opportunity to offer an alternative location for the proposed affordable housing was irrational and/or unintelligible and/or he gave insufficient reasons.

It also argued that the Secretary of State failed to have regard to relevant considerations in concluding that there were no material considerations which indicated that the proposal should be determined otherwise than in accordance with the development plan.

In Sainsbury's Supermarkets Ltd v Secretary of State for Housing, Communities And Local Government and Anor [2020] EWHC 270 Mrs Justice Lang said that the Secretary of State “was entitled to dismiss the appeal, and refuse planning permission, on the basis that the proposal was not in accordance with the development plan overall, and that the material considerations did not indicate that the development plan should not be followed.

“There was no identifiable public law error in [his] decision-making, and therefore no grounds for a legal challenge.”

She said Sainsbury’s had had “ample opportunity to address the location of the affordable housing units during the course of the inquiry,…it chose not to do so”.

The judge said the reasons given by the Secretary of State “were both intelligible and adequate…in any event, [Sainsbury’s] has failed to establish any prejudice from the alleged weakness in the reasons”.