Council cleared on decision to approve rival store

Judicial review proceedings launched by Sainsbury's against a west London council's decision to grant permission for an Asda store on the edge of a local centre have failed after the High Court decided that a planning officer's report fairly identified all material issues.

The council had refused permission in April 2014 for a mixed development comprising a 4,500m2 net food store to be operated by Asda, a cinema, five restaurants and four shop units on former dairy. On officers’ advice, the council concluded that the scheme would have an adverse impact on the local centre’s vitality and viability, including potentially prejudicing redevelopment of a Sainsbury’s store which had been granted permission, and would be out of scale with the centre’s role and function.

A revised scheme was submitted which maintained the size of the Asda store. Officers concluded that the Sainsbury’s scheme, which involved a significantly larger replacement store, was likely to go ahead even if the Asda store was permitted, in which case the government’s "town centres first" policy would not be breached.

In relation to retail impact, officers advised that the proposed Asda store would significantly reduce trading levels in the proposed Sainsbury store. However, on the advice of the council’s retail consultants, they concluded that this would not adversely affect its longer-term viability and success.

The advice suggested that the Sainsbury’s store would trade at around average company levels, even on the basis of a high trade draw from Asda. Officers concluded that although there was a risk that Sainsbury’s might not proceed with its scheme, this had to be balanced against the benefits of the proposed Asda store and related development. The planning committee accepted their recommendation that permission should be granted.

The claimants argued that the council’s decision was wrong in law. Paragraph 27 of the NPPF is clear in stating that where a significant adverse impact arises, planning permission should be refused and this cannot be simply outweighed by a balancing factor, they argued. They stated that this triggered a strong presumption against the Asda scheme.

Sainsbury’s said they had made clear to the council that their planned redevelopment would not occur should consent for the rival scheme be granted. Moreover, they claimed that officers had accepted that the Sainsbury’s site was sequentially preferable, and in accordance with paragraph 27, this added a further reason why permission should be withheld.

Mr Justice Dove stated that the starting point was the council’s consideration of and conclusions on retail policy issues. Officers recognised that this required a judgement to be made and they had accepted that the effect on the Sainsbury’s store and future investment could not be predicted with certainty, he reasoned.

He noted that the committee was advised that if Sainsbury’s redevelopment did not go ahead, the benefits of implementing the Asda scheme outweighed any conflict with retail policy. In his opinion, paragraph 27 did not introduce some "special presumption" against retail development which trumped all other considerations, because its language was not unique in the framework. He had no doubt that the government’s "town centre first" approach was the bedrock of national retail planning policy, but this did not mean that the weight to be attached to a breach of this policy could not be outweighed by other factors.

In the judge’s opinion, the officers had made no error in law on how they presented the report and undertook the balancing exercise. The NPPF does not suggest that their approach was illegitimate, he ruled; the weight to be attached was a matter for the decision-maker and the report adequately dealt with the question as to whether Sainsbury’s would proceed with its new store.

Neither was he convinced that there had been any misapplication as to what the NPPF defined as an "available" site, since this was a simple English word whose meaning did not require elaborate interpretation. Officers had adequately explained why the Sainsbury’s site was not available to another retailer, he found. He concluded that the revised scheme had been properly assessed and the council had reasonably concluded that the revised scheme had a reduced level of impact and the sequential test had been met.

Sainsbury’s Supermarkets Ltd v Hillingdon London Borough Council

Date: 22 July 2015

Ref: CO/521/2015

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