R (on the application of Tesco Stores Limited) v Allerdale Borough Council

A planning policy must be interpreted objectively by its language and context. The fact that a proposal is not positively supported by one part of a policy does not necessarily mean that it conflicts with, or breaches, the policy. Policies may create several evaluative categories requiring planning judgment.

In reviewing a planning officer’s report, the court asks whether, read fairly as a whole and with reasonable benevolence, it materially misled the decision-makers on a matter bearing on their decision. The advice must be significantly or seriously misleading. The court must distinguish interpretation, which is a legal question, from application of policy to facts, which commonly involves planning judgment.

Tesco challenged Allerdale Borough Council’s decision to grant Lidl planning permission for a discount food store in the Lower Derwent Valley at Workington. The Council’s Development Panel had adopted the planning officer’s report.

Permission to apply for judicial review was granted on whether the report materially misdirected the Panel about Policies SA49 and S30 in the Allerdale Local Plan, and whether any error could be disregarded under Senior Courts Act 1981 s 31(2A). The central issues were the proper interpretation of Policy SA49 and whether the officer’s report or oral advice materially misled the Panel.

1. The claim was dismissed. The Court rejected Tesco’s interpretation of Policy SA49 as creating a binary distinction between proposals positively supported by the policy and proposals necessarily in breach of it.
2. Policy SA49 had to be read straightforwardly. Paragraph [1] positively supported new or replacement sport or leisure facilities and ancillary main town centre uses. Paragraph [2] created general expectations applicable to proposals in the Lower Derwent Valley. Paragraph [3] applied to all main town centre uses, including non-ancillary retail uses, and required compliance with the sequential and impact tests in Policies S16 and DM8.
3. Whether the criteria in paragraph [2], the tests in paragraph [3], or supported elements under paragraph [4] were satisfied involved planning judgment. A proposal not falling within a positively supported category was not, for that reason alone, contrary to or incompatible with SA49.
4. The officer’s report and oral advice did contain a misunderstanding of SA49 in presenting the policy as having two alternative routes. However, the error was not material. Members were not told that the Lidl proposal was itself positively supported under paragraph [1]. The relevant paragraph [2] criteria and paragraph [3] tests had been treated as satisfied, and no challenge was made to that assessment.
5. Policy S30 applied to the site in relation to contamination and ground instability. Read as a whole, the report did not materially mislead Members into believing that S30 positively encouraged or prioritised the development as previously developed or vacant land.
6. The alternative argument under Senior Courts Act 1981 s 31(2A) was not determined as necessary. Had a material misdirection been found, the Court would not have had the high degree of confidence required to conclude that the outcome would inevitably have been no different in a case involving planning judgment.

Tesco was ordered to pay Allerdale’s agreed costs of £25,008.67 exclusive of VAT. Permission to appeal was refused.

The claim was a first-instance judicial review. The judgment records that an earlier grant of planning permission had been quashed by consent in March 2020 in earlier judicial review proceedings. The present claim challenging the subsequent decision was dismissed.