ASDA Stores Ltd & Anor, R (on the application of) v Council of the Borough of South Tyneside & Ors

At the permission stage of judicial review, a claimant need only show an arguable case on the construction of a planning obligation. That low threshold may be met even where the opposing construction appears substantially stronger.

The requirements that a judicial review claim be filed promptly and within three months are distinct. Compliance with the three-month period does not create a presumption of promptness. The strength or importance of the claim does not reduce the need for prompt action, particularly where planning decisions affect third parties who have incurred substantial expenditure.

Asda had relocated its supermarket under arrangements involving a Town and Country Planning Act 1990 section 106 agreement restricting food sales at its former Ocean Road premises. After the premises were sold, the Council concluded that the agreement had ceased to have effect or would not prevent Morrisons from opening a supermarket there.

Asda sought judicial review of the Council’s failure to enforce the agreement. The court considered whether Asda had an arguable construction case and whether the claim had been brought promptly under CPR 54.5(1), having regard to the delay and prejudice to the interested parties.

1. Construction. The court accepted that the agreement’s wording, particularly clause 2.7, strongly favoured the Council and the interested parties. Nevertheless, at the permission stage Asda was required only to demonstrate an arguable case. Applying the approach to contractual interpretation in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, the commercial and planning background arguably supported reading the agreement as continuing to restrict food retailing at Ocean Road. Permission could therefore not be refused on the construction issue alone.
2. Promptness. CPR 54.5(1) imposes two separate requirements: filing promptly and filing within three months. Filing within three months does not establish promptness. The court followed the principle identified in R v Independent Television Commission, ex p TVNi Ltd [1996] JR 60.
3. The strength of the underlying claim does not dilute the promptness requirement. Particular urgency is required in planning cases and where third-party interests are affected, as illustrated by R v Swale Borough Council, ex p Royal Society for the Protection of Birds [1991] 1 PLR 6, Hardy v Pembrokeshire CC [2006] Env LR 28, Finn-Kelcey v Milton Keynes BC [2009] Env LR 17 and R v Secretary of State for Trade and Industry, ex p Greenpeace Ltd [1998] Env LR 415.
4. Asda’s delay was inordinate and inexcusable. It knew of the proposed food retail use, failed to notify Morrisons, and took no effective step to prevent further expenditure or seek urgent relief. The prejudice to Wilson Bowden and Morrisons was substantial. Permission to proceed was therefore refused.