Lidl Great Britain Limited, R (on the application of) v East Lindsey District Council

Where competing planning applications concern rival sites for the same local need and only one permission is realistically available, the relative merits of the proposals may be a material consideration. The decision-maker must assess that comparison rather than treating the rival proposal as irrelevant.

Alternative-site comparability criteria are guidance rather than a strict test. A legitimate expectation requires a clear, unambiguous and unqualified representation. Challenges concerning background papers require consideration of both substantial compliance with the statutory duty and substantial prejudice. Planning officers’ reports are assessed fairly and in context, without hypercritical scrutiny.

Lidl sought permission to challenge East Lindsey District Council’s grant of planning permission to Aldi for a discount supermarket at Horncastle. Lidl’s own application for a competing supermarket was not ready when Aldi’s application was determined. Lidl raised four grounds: failure to consider the rival proposal as a material consideration; legitimate expectation and procedural unfairness; failure to address protected bat species; and breach of the statutory background-paper requirements.

The court considered whether each ground was reasonably arguable at the renewed permission stage.

1. Ground 1. Permission was granted on the challenge concerning material considerations. The Council accepted that the cumulative effect of both supermarkets would have a significant impact on Horncastle town centre, although the Aldi proposal alone was not considered to have a significant adverse impact. The two applications were sufficiently advanced, concerned rival sites for the same local need, and were likely to result in only one permission. The relative merits of Lidl’s proposal, including its lower predicted trade diversion, were therefore arguably material. The Council’s treatment of cumulative impact as deserving little weight was arguably inadequate.
2. The criteria identified in Greater London Council v Secretary of State for the Environment were not a strict test. They nevertheless supported the conclusion that the rival Lidl site was a material consideration. Secretary of State for the Environment v Edwards was also instructive because the alternative sites were subject to current planning applications and could have affected the outcome.
3. Ground 2. The legitimate-expectation argument was not itself established on the evidence. Statements that it was intended, likely or ideal for both applications to be considered together did not amount to a clear and unambiguous promise. However, if the Council was required to undertake a comparison, there was an arguable case that it was procedurally unfair to determine Aldi’s application before the outcome of consultation on Lidl’s revised proposal was known.
4. Ground 3. The protected-species ground was not arguable. The officer had considered the ecological material, gave a rational explanation for the limited likelihood of a bat roost, and imposed a condition requiring assessment before demolition. That was a planning judgment consistent with policy SP24. The report did not seriously mislead members and was not to be subjected to hypercritical scrutiny.
5. Ground 4. The Council arguably failed to comply fully with the background-paper duty concerning the Nexus reports. Nevertheless, the documents available for inspection were substantially identifiable, and Lidl suffered no substantial prejudice because the updated appraisal would not materially have altered its representations. Ground 4 was therefore not arguable.

The renewed application succeeded only to the limited extent that permission was granted on ground 1 and, consequentially, on the procedural-unfairness aspect of ground 2.

This was a renewed application for permission to apply for judicial review. Permission had previously been refused on the papers on 23 March 2023 by HHJ Klein sitting as a High Court Judge. The present court granted permission on ground 1 and on the limited procedural-unfairness aspect of ground 2, but refused permission on grounds 3 and 4.