Lidl gets green light for judicial review challenge over grant by council of planning consent to supermarket rival

Supermarket chain Lidl Great Britain has gained permission from the High Court for judicial review of a decision by East Lindsey District Council to award planning consent for a store site near Horncastle to its rival Aldi Stores.

In Lidl Great Britain Ltd, R (On the Application Of) v East Lindsey District Council [2023] EWHC 3210 (Admin) (15 December 2023) Deputy High Court judge Karen Ridge found two grounds advanced by Lidl were arguable but rejected a further two.

Lidl and Aldi both applied for planning permission for supermarkets on the outskirts of Horncastle and Lidl said it was told the council intended to take both applications to the same planning committee meeting.

But Lidl then amended its application to reduce the proposed floorspace, which meant further consultation was required, and so the Lidl proposal was not ready for the relevant planning committee meeting.

Retail impact assessments had been produced by Lidl, Aldi and the council's consultants, Nexus.

Lidl said a Nexus addendum report for the committee was not made public in advance and the retail impact proposal showed the Aldi scheme having a greater impact than Lidl’s in diversion of trade from the town centre.

It argued that, as a matter of principle, where there are two rival proposals in circumstances where only one can reasonably be permitted, the relative merits of each proposal are a material consideration in the determination of both applications.

East Lindsey argued that Lidl had withdrawn its application and there was no clear planning objection to the Aldi scheme considered on its own merits.

DJ Ridge concluded: “It is arguable that if both schemes were considered together, there is a real possibility that the outcome may have been different”, and granted permission for judicial review on this ground.

She also gave permission over breach of a legitimate expectation, as Lidl said it was not told the determination process would be anything other than both applications being considered together.

Judge Ridge said while Lidl was not specifically informed of the Aldi application committee date, the council publicised the committee agenda and there was no obligation on it to notify Lidl of the progress of the competing proposal.

But she said it was arguable East Lindsey erred in not fully taking into account the Lidl proposal in circumstances where the likelihood was that only one permission would be granted.

She said there was “an argument that it was procedurally unfair to determine the Aldi application until the outcome of the comments on the Lidl retail assessment were known and the schemes could be considered together. To that limited extent I conclude that ground 2 is arguable in terms of procedural unfairness.”

She rejected a ground concerning a failure to consider impacts on protected species and another that the Local Government Act 1972 had been breached by East Lindsey’s failure to publicise relevant documents.

Mark Smulian