ASDA Stores Ltd, R (on the application of) v Leeds City Council & Anor

Paragraph 90 of the National Planning Policy Framework does not create a presumption of refusal or a tilted balance where a retail proposal is likely to have a significant adverse impact on a town centre. It establishes an important planning policy consideration, but the decision-maker must still conduct the ordinary planning balance required by Planning and Compulsory Purchase Act 2004, section 38(6). The weight given to competing material considerations remains a matter for the decision-maker, subject to rationality. Planning policies must be read as a coherent whole, and planning committee reasons should be read fairly and in context rather than with excessive legalism.

ASDA Stores Ltd sought judicial review of Leeds City Council’s decision to grant planning permission for a mixed-use, retail-led development close to an existing ASDA store and Middleton District Centre. The claimant argued that the Council had misinterpreted paragraph 90 of the National Planning Policy Framework, failed to give adequate reasons, and reached a manifestly unreasonable conclusion. The central issue was whether paragraph 90 required a presumption of refusal, or a tilted balance, where the proposal was likely to have a significant adverse impact on town-centre vitality and viability.

1. Grounds one and two dismissed. Paragraph 90 of the National Planning Policy Framework did not create a presumption of refusal, a tilted balance, or a requirement to give particular weight to adverse retail impact. The NPPF had to be read as a whole. Paragraphs 11 to 14 expressly created a presumption in favour of sustainable development and explained the operation of the tilted balance. Paragraph 90 contained no equivalent language.
2. The wording that an application “should be refused” was confusing but did not mandate refusal. The policy identified circumstances in which refusal would accord with national policy. It remained open to the decision-maker, under section 38(6) of the Planning and Compulsory Purchase Act 2004, to consider whether other material considerations outweighed that policy position.
3. The weight given to material considerations was for the planning decision-maker, subject to the ordinary public-law limits. The reasoning in Zurich Assurance Ltd v North Lincolnshire Council [2012] EWHC 3708 (Admin) was consistent with that approach. Although it used the language of a national policy presumption, it still contemplated an ordinary balancing exercise in which weight remained for the committee.
4. The Council’s reasons were adequate. The members had been fully advised about paragraph 90 and accepted the significant adverse effect on Middleton District Centre. Their reference to the development’s potential to boost trade was reasonably understood, in context, as referring to mitigation or linked trips after taking account of the adverse impact.
5. Ground three also failed. The conclusion that the development might generate linked trips and economic and regeneration benefits was not irrational. The claim was dismissed.

not stated in the judgment.