Council defeats legal challenge from Tesco over decision to grant planning permission to Lidl for nearby site

Tesco Stores has lost a High Court challenge to Allerdale Borough Council’s decision to grant planning permission for a supermarket run by rival retailer Lidl.

Lidl had gained consent in December 2019 for a store near to one operated by Tesco in Workington.

Tesco argued the council had misinterpreted planning policies and so the officer’s report concerned had misled the planning committee when it gave consent.

But in Tesco Stores Ltd, R (On the Application Of) v Allerdale Borough Council [2022] EWHC 2827 (Admin) Mr Justice Fordham said he could not accept the interpretations made by Tesco and refused it leave to appeal.

He said permission for judicial review was granted on a single ground of whether the report contained any material misdirection to the committee in respect of the interpretation and effect of (a) Policy SA49 in the Allerdale Local Plan Part 1 2014 and/or (b) Policy S30 in the Allerdale Local Plan Part 2 2020.

Lidl’s site falls within the specified Lower Derwent Valley area, north of Workington, which the judge noted was described as “undeveloped scrubland” and classed as “out of town”.

Policy SA49 concerns proposals for new or replacement sport or leisure facilities and ancillary main town centre uses, which it stated “will be supported in the Lower Derwent Valley area” under various conditions.

Tesco argued the legally correct interpretation was that the policy contained overarching criteria leading to ‘yes' or ‘no’ answers as to whether a proposal was in conformity or conflict with the policy.

It said this meant only new or replacement sport or leisure facilities were ‘supported’ and anything else - while not automatically refused planning consent - must be evaluated as in conflict with the policy as a matter of planning judgment.

Allerdale and Lidl said Tesco's interpretation argument was incorrect as a matter of law as each paragraph of the policy was freestanding and concerned “questions of classic planning judgment arising under policy SA49, viewed on its own terms, but also viewed in the context of an evaluation against the development plan overall”.

Fordham J said: “I cannot accept that policy SA49 involves the ‘binary’ and ‘breach’ components which are necessarily at the heart of Tesco's argument.

“In my judgment, SA49 is much more nuanced. It raises a whole series of evaluative questions for classic planning judgment, as a matter of application.”

Turning to the way in which SA49 was addressed in the officer’s report, Fordham J said this did not say the Lidl proposal was a ‘supported’ type of proposal for the purposes of SA49.

Tesco argued this made the report materially misleading "by omission", in failing to identify a breach of SA49 and that the planning them wrongly told the committee Lidl’s application was  in conformity with SA49.

Fordham J said: “I cannot accept the legal interpretation which is the premise for those arguments.

Policy S30 deals with the redevelopment of land. Fordham J said: “S30 did not feature in the planning officer's oral presentation at the meeting.

“No claim was made by the planning officer, or by Lidl, that this was an encouraged or prioritised development for undeveloped land pursuant to S30.”

The judge dismissed Tesco’s case and ordered it to pay Allerdale costs of £25,008.67 exclusive of VAT.

Mark Smulian