Estates and Agency Properties Ltd, R (on the application of) v London Borough of Barking and Dagenham & Anor

A planning authority must properly identify and address a material planning consideration before inviting members to exercise their planning judgment. Where adopted policies envisage linked redevelopment of an existing out-of-centre store and a sequentially preferable site, the authority must consider whether permission for an extension could discourage that redevelopment. A report which dismisses the issue merely because the application concerns an extension rather than a new store is legally deficient. The court will not substitute its planning judgment for that of the authority, and an alleged error concerning the weight of a consideration is reviewable only where it amounts to legal error or irrationality. A sequential assessment may properly reject a site where using it would require unreasonable disaggregation of the operator’s business.

The claimant, owner of Abbey Retail Park, challenged the defendant local planning authority’s decision to grant Tesco permission to extend its existing out-of-centre store by 1,910 square metres. The claimant argued that the officers’ report misunderstood local and national planning policies, failed to address the effect of the extension on the policy objective of relocating Tesco to Abbey Retail Park, relied improperly on the existing unused retail capacity, and conducted a flawed sequential assessment.

The central issue was whether the report fairly and lawfully identified the material planning considerations which the committee had to evaluate before granting permission.

1. Ground 1 succeeded. The authority’s officers failed properly to identify and present the material issue whether granting the extension would act as a disincentive to Tesco participating in the linked redevelopment of Abbey Retail Park contemplated by the adopted policies. The report treated the Area Action Plan as concerned only with a new store, whereas the claimant’s objection concerned the practical effect of the extension on the policy objectives. The claimant’s written and oral representations could not cure the report’s clear and dismissive treatment of the issue. The committee should have been invited to form a planning judgment on that matter and then decide whether permission should be granted.
2. The court reaffirmed the distinction between legal interpretation and planning judgment. The meaning of a planning policy is a matter of law, applying Tesco Stores Ltd v Dundee City Council 2012 UKSC13. The weight to be given to material considerations remains for the planning authority, subject to irrationality or perversity, applying Tesco Stores Ltd v SSE 1995 1WLR 759.
3. Ground 2 failed. References to the greater retail floor space permitted by the 1992 permission were included as contextual information. Although the report did not assess whether Tesco intended to revert to the maximum permitted retail use, the material was not treated as a substantive fallback consideration and did not render the decision unlawful.
4. Ground 3 was insufficient alone. The report contained a further defect in its treatment of the Area Action Plan’s effect on the competing Asda development. That defect supported the conclusion on Ground 1 but, standing alone, would not justify judicial review.
5. Ground 4 failed. On the limited issue of sequential assessment and disaggregation, the report accurately identified the sites immediately available. Requiring Tesco to use a smaller vacant unit at Abbey Retail Park would have involved unreasonable disaggregation. The authority was entitled to conclude that there was no sequentially preferable site capable of accommodating the proposal within a reasonable period without such disaggregation, consistent with the approach described in R (Salford Estates No 2) Ltd v Durham County Council 2012 EWHC 2512 Admin.