Asda Stores Ltd, R (On the Application Of) v Leeds City Council (Rev1)

A national planning policy stating that permission “should be refused” indicates refusal but does not compel it. Where proposed retail development is likely to have a significant adverse impact on a town centre, that harm and the resulting conflict with policy are negative material considerations carrying the force of government policy.

The decision-maker must understand the policy and consciously recognise any departure from it. Countervailing material considerations may nevertheless justify permission. Their required strength depends on the nature and degree of the likely harm. The weight assigned to the competing considerations is a matter of planning judgment, subject to review on public law grounds.

Leeds City Council granted planning permission for an edge-of-centre, mixed-use retail-led development despite officers concluding that it would have a significant adverse impact on Middleton District Centre. The planning panel considered that benefits including employment, regeneration, economic development and linked shopping trips outweighed the harm and the conflict with national and development plan policy.

Asda Stores Ltd, which operated an adjoining store, challenged the permission by judicial review. Lieven J dismissed the claim in [2019] EWHC 3578 (Admin). The central issue on appeal was whether the council had misinterpreted or misapplied paragraph 90 of the National Planning Policy Framework by treating its direction that permission “should be refused” as capable of being outweighed by other material considerations.

1. Appeal dismissed. Paragraph 90 of the National Planning Policy Framework was correctly interpreted and lawfully applied. Its words “should be refused” do not mean “must be refused”. The policy is not imperative and does not compel refusal whenever retail development is likely to have a significant adverse impact on the vitality or viability of a town centre.

2. The policy indicates refusal unless countervailing considerations outweigh the harm and the conflict with national policy. A significant adverse impact is a negative material consideration with the force of government policy behind it. Paragraph 90 has no special status by which it automatically prevails over other national policies or material considerations.

3. The decision-maker must know of the policy and, when granting permission for development likely to cause the specified harm, must consciously recognise that the decision is contrary to the proposition that permission should be refused. Calling that proposition a “presumption” or “expectation” adds nothing to its meaning or effect.

4. The policy may be overcome by considerations which it neither specifies nor limits. These can include job creation, regeneration and economic benefits. The necessary strength of such considerations depends on the nature and degree of the likely harm. They must be powerful enough to outweigh the harm and the resulting policy conflict. The weight given to each consideration is a matter of planning judgment, subject to supervision on public law grounds.

5. The panel had repeatedly been advised of paragraph 90, the officers’ finding of significant adverse impact and their policy-based recommendation of refusal. Its minutes and reasons showed that it consciously departed from that recommendation after giving greater weight to employment, regeneration, economic development, increased retail choice and linked trips. The panel therefore gave full effect to the policy and exercised its planning judgment lawfully. Its reasons were clear.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously in [2021] EWCA Civ 32. The council had interpreted and applied paragraph 90 of the National Planning Policy Framework lawfully.
2. High Court of Justice (Planning Court): Lieven J dismissed the judicial review claim in [2019] EWHC 3578 (Admin), rejecting the contention that paragraph 90 required a tilted balance or prescribed weight in favour of refusal.